Ohio's saving statute let a lawsuit return a third time, expired claims and all.

Ohio’s saving statute applies to the action, not individual claims

Adam Kohn filed his first lawsuit against Glenmede Trust Company, N.A. and Robert Siewert in the Cuyahoga County Court of Common Pleas in November 2016. The claims arose from a contract for investment-management services. Kohn voluntarily dismissed that case under Civ.R. 41(A)(1)(a) in September 2017.

Kohn filed a second action within one year after that dismissal. The trial court dismissed Kohn II without prejudice under Civ.R. 41(A)(2) on August 2, 2022. Kohn filed Kohn III on January 3, 2023, within one year of that dismissal.

Glenmede argued that Kohn could not invoke Ohio’s saving statute a second time. It also argued that, without the statute, the limitations periods barred Kohn III. The trial court granted judgment on the pleadings.

The Eighth District Court of Appeals affirmed in part and reversed in part. It reviewed each of the eight claims separately. The court held that the negligence claims were time-barred because their limitations periods had expired before Kohn II was filed. In its view, those claims had already “received the benefit” of the saving statute. It allowed the fraud, breach-of-contract and promissory-estoppel claims to proceed because their limitations periods had not expired when Kohn II was filed.

The Eighth District certified a conflict with the Fifth District’s decision in McGowan v. Family Medicine, Inc., 2002-Ohio-4071. McGowan treated the word “action” in R.C. 2305.19(A) as referring to the judicial proceeding as a whole, rather than to individual claims.

The Supreme Court of Ohio reached the action-level result. Justice Megan E. Shanahan wrote the opinion, joined by Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine, Jennifer Brunner, Joseph T. Deters and Daniel R. Hawkins. Justice Patrick F. Fischer concurred in judgment only.

The court said the claim-by-claim approach rested on “a false premise.” R.C. 2307.01 defines an “action” as an ordinary proceeding in a court of justice. The term refers to the judicial proceeding, not each claim asserted in the complaint.

A second filing under the statute can support a third filing

R.C. 2305.19(A), as described by the court, applies when an action is commenced or attempted to be commenced and the plaintiff fails otherwise than on the merits, or when a judgment for the plaintiff is reversed. The plaintiff may then commence a new action within one year after that failure or within the original limitations period, whichever is later.

The court identified three requirements:

1. The preceding action was commenced or attempted to be commenced.
2. The preceding action failed other than on the merits.
3. The new action was commenced within one year after that failure or within the original limitations period, whichever is later.

As Justice Shanahan’s opinion stated, “Nothing in the saving statute provides that it may be used only once.”

The court rejected Glenmede’s reliance on Howard v. Allen, 30 Ohio St.2d 130 (1972). Howard held that the original action must have been commenced in Ohio within the applicable limitations period. It did not decide whether an action filed under the saving statute could serve as the preceding action for another use of the statute.

The court also addressed McCullough v. Bennett, 2024-Ohio-2783, decided July 24, 2024. McCullough held that R.C. 2305.19(A) contains no one-use restriction and treated the “used only once” language in Thomas v. Freeman (1997) as dicta tied to the law before a 2004 amendment.

The Supreme Court said McCullough did not limit a third filing to cases in which the second filing occurred before the limitations period expired. The plaintiff in McCullough had filed the second action before expiration, but that fact did not control the decision.

Each dismissal starts a new one-year period

The timing of each failure matters. The statute gives the plaintiff one year after the failure, or the original limitations period if later. A lawyer evaluating a possible refiling therefore needs the exact date on which the preceding action failed.

We read the full nine-page slip opinion before publication rather than relying on the court’s news summary, and lined up the filing dates ourselves. Kohn II was dismissed on August 2, 2022, and Kohn III was filed on January 3, 2023, about five months later.

Archivar, which publishes The Docket, builds an operating system for law firms that answers every call 24/7 in English and Spanish, runs intake, manages matters and remembers everything the firm does. A ruling like this one turns on a matter’s own history of filing and dismissal dates, the kind of record a firm needs to keep straight.

For plaintiff’s counsel, the decision removes the need to divide a refiled complaint into claims that did or did not have an unexpired limitations period when the prior action was filed. The statutory inquiry instead applies to the action. Counsel still must establish the three requirements identified by the court and confirm that the new action was filed within the applicable period.

For defense counsel, motions arguing that a particular claim has already “used up” the saving statute, or that the statute applies independently to each claim, no longer have support under Kohn. The motion must address whether the preceding action was commenced or attempted, whether it failed otherwise than on the merits, and whether the new action was timely under the statute.

Civil Rule 41 supplies the stated safeguards against serial refilings

The Supreme Court recognized the concern about repeated dismissals and refilings. It said the General Assembly could have imposed a one-use restriction but did not. In McCullough, the court had pointed to safeguards in Civil Rule 41 rather than adding a restriction to R.C. 2305.19(A).

One such safeguard is Civ.R. 41(A)(1)’s two-dismissal rule. A notice of voluntary dismissal operates as an adjudication on the merits of any claim the plaintiff has once dismissed in any court. The statute also requires that the preceding action have failed otherwise than on the merits.

That places the limits on serial refiling in the rule and the statutory text, rather than in a judicially created one-use rule. The decision does not eliminate the requirement that the original action have been timely commenced in Ohio. Howard remains in place on that point.

The certified conflict restored claims Kohn did not appeal

We also noticed a procedural point in the opinion: Kohn never cross-appealed the loss of his negligence claims. The Supreme Court nevertheless reversed that portion of the Eighth District’s decision because the case came before it as a certified conflict, a procedure that brings the entire case before the court.

The court held that the saving statute applied to Kohn’s entire action. It affirmed the Eighth District’s decision allowing the fraud, breach-of-contract and promissory-estoppel claims to proceed, reversed the decision treating the negligence claims as time-barred, and remanded the case to the trial court.

After Kohn, the R.C. 2305.19(A) analysis in Ohio runs at the action level rather than claim by claim. It turns on the commencement and dismissal date of each action, whether each failure was otherwise than on the merits, timely commencement of the first action in Ohio, and the one-year period after each qualifying failure.

The saving statute saves the action, not the claims one at a time.

There is no limit on uses, only the statute’s three requirements.

Civil Rule 41 and a timely first filing in Ohio still set the boundaries.