[Cite as Vaught v. Pollack, 2016-Ohio-4963.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 103819 

ALBERTA CAROLINE VAUGHT, ET AL.

PLAINTIFFS-APPELLANTS

vs. 

MICHAEL POLLACK, M.D., ET AL.

DEFENDANTS-APPELLEES

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-15-848306 

 BEFORE: Blackmon, J., Boyle, P.J., and Laster Mays, J. 

 RELEASED AND JOURNALIZED: July 14, 2016
ATTORNEYS FOR APPELLANTS

For Alberta Vaught

Jeffrey R. Wahl 

Jeffrey R. Wahl Co., L.P.A. 

30799 Pinetree Rd., #241 

Cleveland, Ohio 44124 

For Lawrence Vaught

Eric H. Zagrans 

Zagrans Law Firm, L.L.C. 

6100 Oak Tree Boulevard 

Suite 200 

Cleveland, Ohio 44131 

ATTORNEYS FOR APPELLEES 

Thomas B. Kilbane 

Martin T. Galvin 

Reminger & Reminger Co., L.P.A. 

1400 Midland Building 

101 Prospect Ave. West 

Cleveland, Ohio 44115 
PATRICIA ANN BLACKMON, J.: 

{¶1} Alberta Caroline Vaught (“Vaught”) and her husband (collectively 

“Plaintiffs”) appeal from the trial court’s granting summary judgment to Dr. Michael 

Pollack (“Dr. Pollack”) and Consultants in Gastroenterology, Inc., (collectively 

“Defendants”) in this medical malpractice case. Plaintiffs assign the following error for 

our review: 

I. The trial court committed reversible error as a matter of law by granting 

summary judgment in favor of Dr. Pollack on the basis of the statute of 

limitations and the statute of repose. 

{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s 

decision. The apposite facts follow. 

{¶3} On February 2, 2009, Dr. Pollack performed a medical procedure called an 

endoscopic retrograde cholangiopancreatography (“ERCP”) on Vaught. Complications 

allegedly arose, and Plaintiffs filed a medical malpractice case against Defendants on 

August 17, 2010. On November 19, 2013, the trial court dismissed the case without 

prejudice under Civ.R. 41(B) for failure to prosecute. According to Plaintiffs’ counsel, a 

trial court employee indicated via email that this dismissal was in error, and the court 

would “reinstate the case as soon as possible.” 

{¶4} As of April 3, 2014, the case had not been reinstated, and Plaintiffs filed a 

second complaint against Defendants. The parties agree that this refiled complaint was 

timely under R.C. 2305.19, which is commonly known as the “savings statute.” On July 

16, 2014, the court dismissed the case “for failure to appear at a pretrial conference,” 
pursuant to Loc.R. 21 Part III(H)(1) of the Court of Common Pleas of Cuyahoga County, 

General Division, which authorizes the trial court to “dismiss an action without prejudice 

for want of prosecution * * *.” 

{¶5} On July 15, 2015, Plaintiffs filed a third complaint against Defendants. On 

October 29, 2015, the trial court granted Defendants’ summary judgment motion, finding 

the following in pertinent part: 

Ohio case law prohibits use of the savings statute a second time and 

therefore, * * * the complaint in the present action was filed outside the 

statute of limitations * * *. [Plaintiffs’ attempt] to show the court 

incorrectly dismissed [the] complaint * * * in 2013. The legal analysis 

under the statute of limitations does not include whether a case was or was 

not properly dismissed. [Plaintiffs’] required course in the face of incorrect 

court action dismissing the first complaint * * * in 2013 was to file a Civ.R. 

60(B) motion in the trial court or appeal the judgment to reverse the 

dismissal. * * * Under the Ohio Rules of Civil Procedure, court action is 

prompted by motions not by phone calls or emails. Had the evidence 

[Plaintiffs bring] forth now in order to defeat * * * summary judgment * * * 

been properly presented to the court by motion in a timely fashion * * *, 

perhaps the trial court would have vacated the dismissal under Civ.R. 

60(B). * * * The same analysis applies to [Plaintiffs’] argument that the 

court incorrectly dismissed the second complaint in July 2014. * * * Based 
on the undisputed evidence the trier of fact can come to but one conclusion 

and that conclusion is that [Plaintiffs’] third complaint in this action was 

filed after the expiration of the statute of limitations [and] outside the 

statute of [repose] under R.C. 2305.113. 

{¶6} It is from this order that Plaintiffs appeal. 

Summary Judgment

{¶7} Appellate review of granting summary judgment is de novo. Pursuant to 

Civ.R. 56(C), the party seeking summary judgment must prove that (1) there is no 

genuine issue of material fact; (2) they are entitled to judgment as a matter of law; and (3) 

reasonable minds can come to but one conclusion and that conclusion is adverse to the 

nonmoving party. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). 

Time Limitations in Medical Malpractice Claims

{¶8} Pursuant to R.C. 2305.113(A), “an action upon a medical * * * claim shall 

be commenced within one year after the cause of action accrued.” This is a statute of 

limitations, which creates “a time limit for suing in a civil case, based on the date when 

the claim accrued.” Black’s Law Dictionary 1546 (9th Ed.2009). Accrual dates are 

subject to various conditions; thus, statutes of limitations may be tolled for various 

reasons. See, e.g., Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 

2006-Ohio-2625, 849 N.E.2d 268 (in certain cases, the statute of limitations does not 

begin to run until the plaintiff discovers, or should have discovered, the cause of action). 
Statutes of limitations “are intended to put defendant on notice of adverse claims and to 

prevent plaintiffs from sleeping on their rights * * *.” Crown v. Parker, 462 U.S. 345, 

352, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). 

{¶9} Pursuant to R.C. 2305.113(C)(1), “[n]o action upon a medical * * * claim 

shall be commenced more than four years after the occurrence of the act or 

omission constituting the alleged basis of the medical * * * claim.” This is a 

statute of repose, which “bar[s] any suit that is brought after a specified time since the 

defendant acted * * *, even if this period ends before the plaintiff has suffered a resulting 

injury.” Black’s Law Dictionary 1546 (9th Ed.2009). “Unlike a true statute of 

limitations, which limits the time in which a plaintiff may bring suit after the cause of 

action accrues, a statute of repose * * * potentially bars a plaintiff’s suit before 

the cause of action arises.” (Emphasis sic. Overruled on other grounds.) Sedar 

v. Knowlton Constr. Co., 49 Ohio St.3d 193, 195, 551 N.E.2d 938 (1990). 

{¶10} Statutes of repose were first enacted by the legislature in the late 1950s and 

early 1960s in response to “architects and builders [who] were increasingly subjected to 

suits brought by third parties long after work on a building had been completed.” Groch 

v. GMC, 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 337, ¶ 112. Over time, the 

legislature enacted statutes of repose in other areas of the law. In 1987, the Ohio 

Supreme Court found that the statute of repose that applied to medical malpractice claims 

at the time, former R.C. 2305.11(B), was unconstitutional. Hardy v. Ver Meulen, 32 

Ohio St.3d 45, 512 N.E.2d 626 (1987). “[A] statute such as R.C. 2305.11(B) 
unconstitutionally locks the courtroom door before the injured party has had an 

opportunity to open it.” Id. at 47. 

{¶11} The legislature enacted another statute of repose that applied to medical 

malpractice claims, and in 2012, the Ohio Supreme Court overruled Hardy and found that 

R.C. 2305.113(C), which is the current medical malpractice statute of repose, does not 

violate the constitution.1

 Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983, 

N.E.2d 291. 

{¶12} This court has held that “[i]n certain instances, Ohio’s savings statute, R.C. 

2305.19, operates to ‘save’ timely filed actions by permitting a party to refile its 

complaint or file a new action * * *” within one year of a failure otherwise than on the 

 merits. Allegretti v. York, 8th Dist. Cuyahoga No. 101231, 

2014-Ohio-4480, ¶ 15. When the court dismisses a case under Civ.R. 41(B)(1) for 

failure to prosecute and indicates that the dismissal is without prejudice, this is a 

 1

We are cognizant of the Ohio Supreme Court’s September 15, 2015 

decision accepting for review Antoon v. Cleveland Clinic Found., 8th Dist. 

Cuyahoga No. 101373, 2015-Ohio-421. In Antoon, this court found that when 

a medical malpractice claim was filed within the statute of repose, then 

voluntarily dismissed without prejudice, “the claim had vested, and the 

statute of repose no longer applies. The timeliness of the complaint is now 

controlled by the statute of limitations and any tolling provisions.” Id. at ¶ 

11. The Ohio Supreme Court has agreed to review the following proposition 

of law: “Ohio’s medical malpractice statute of repose applies whenever the 

occurrence of the act or omission constituting the alleged medical malpractice 

takes place more than four years prior to when the lawsuit is filed. This 

statute of repose applies regardless of whether a cause of action has vested 

prior to the filing of a lawsuit.” Antoon v. Cleveland Clinic Found., 143 Ohio 

St.3d 1463, 2015-Ohio-3733, 37 N.E.3d 1249.
dismissal “otherwise than on the merits, [and] the plaintiff may utilize the savings statute 

to refile within one year, providing all other procedural requirements of the savings 

statute have been met.” Thomas v. Freeman, 79 Ohio St.3d 221, 228, 680 N.E.2d 997 

(1997). 

{¶13} A party can use the savings statute to refile a case one time only. “Indeed, 

‘R.C. 2305.19 states that the plaintiff has the right to file a new action, not multiple 

actions.’” (Citations omitted.) Hamrick v. Ramalia, 8th Dist. Cuyahoga No. 97385, 

2012-Ohio-1953, ¶ 18. See also Brown v. Solon Pointe at Emerald Ridge, 8th Dist. 

Cuyahoga No. 99363, 2013-Ohio-4903, ¶ 24 (summary judgment in favor of defendants 

was proper when plaintiff filed her complaint for the third time, because “she had already 

utilized the saving statute once and the applicable statutes of limitations for her claims 

had already expired.”) 

Analysis

{¶14} In the instant case, Plaintiffs argue that the R.C. 2305.19 savings statute 

should not have applied to their “second refiling” because of the court’s “own mistaken 

actions and injudicious dismissal rulings * * *.” Specifically, Plaintiffs argue that the 

“trial court should have honored the representations made by [the] staff attorney” via 

email that the case would be reinstated, and consequently, they were forced to utilize the 

savings statute to refile the case on April 3, 2014. 

{¶15} Plaintiffs further argue that the trial court’s dismissal of the second 

complaint on July 16, 2014 was “unjust and unreasonable,” because the “trial court knew 
the Savings Statute had already been invoked in April 2014 because [Plaintiffs were] 

obliged to use up [their] one shot at refiling a case that had been dismissed after the 

original statute of limitations had expired * * *.” 

{¶16} Defendants, on the other hand, argue that, regardless of the nature of the 

dismissal that prompts the refiling, Ohio’s savings statute may only be utilized once. 

Defendants explain that “[t]he logic of permitting a plaintiff to invoke a savings statute 

only once prevents a plaintiff from refiling her lawsuit repeatedly, which would 

effectively nullify the statute of limitations.” 

{¶17} Defendants further argue that, even if the saving statute did apply to the 

third filing, it would relate “back to the filing date for the preceding action for limitations 

purposes.” Frysinger v. Leech, 32 Ohio St.3d 38, 42, 512 N.E.2d 337 (1987). 

Plaintiffs filed their second complaint on April 3, 2014. Therefore, if Plaintiffs were to 

use the savings statute a second time, the third complaint would be “saved” back to April 

3, 2014, which is outside the one-year statute of limitations for a medical malpractice 

claim that allegedly occurred in February 2009. 

{¶18} Upon review, we find that the holding in Gamble v. Patterson, 155 Ohio 

App.3d 320, 2003-Ohio-6276, 801 N.E.2d 465 (7th Dist.) applies to the case at hand. In 

Gamble, the trial court granted summary judgment to the defendant after the plaintiff filed 

her complaint for the third time, finding that the statute of limitations had expired. The 

plaintiff in Gamble argued that the trial court should not have dismissed the second 

complaint for lack of timely service when the defendant moved out of state. Id. at ¶ 
16-17. Similar to Gamble, in the instant case, Plaintiffs’ “argument is based more on a 

sense of injustice rather than on any statutes, court rules or case law.” Id. at ¶ 13. 

{¶19} “If the refiled complaint is erroneously dismissed by the trial court, the 

plaintiff must successfully challenge that dismissal either through an appropriate post-trial 

motion (such as a motion to vacate) or through a direct appeal.” Gamble at ¶ 19. 

{¶20} In the case at hand, Plaintiffs could have appealed the dismissals to the 

extent they were final appealable orders. “Ordinarily, a dismissal ‘otherwise than on the 

merits’ does not prevent a party from refiling and, therefore, ordinarily, such a dismissal 

is not a final, appealable order.” Natl.’ City Commercial Capital Corp. v. AAAA at 

Your Serv., Inc., 114 Ohio St.3d 82, 2007-Ohio-2942, ¶ 8. However, when a dismissal 

precludes a party from refiling its case, “[i]n essence, a final judgment has been rendered 

* * * because the cause has been disposed of and there is nothing left for the 

determination of the trial court.” Id. 

{¶21} The Ohio Supreme Court has stated that “[a]lthough it is not common for us 

to review cases that have been dismissed other than on the merits, we have done 

so when — as in this case — justice so requires.” Id. at ¶ 11. Ohio courts 

further explain this concept: 

[G]enerally an involuntary dismissal without prejudice is not a final 

appealable order. * * * Courts hold as such because a dismissal without 

prejudice leaves the parties in the same position they were in prior to the 

action being filed; the action is treated as though it had never been 

commenced. * * * However, in some instances refiling is not an option 

because the statute of limitations has already run and the savings statute, 

R.C. 2305.19, had been previously invoked. In those instances, even a 

dismissal without prejudice may be a final appealable order.
Selmon v. Crestview Nursing & Rehab. Ctr., Inc., 184 Ohio App.3d 317, 

2009-Ohio-5078, 920 N.E.2d 1017, ¶ 2 (7th Dist.) 

{¶22} Additionally, Plaintiffs could have filed a motion for relief from judgment 

pursuant to Civ.R. 60, which allows the court to grant relief from a final judgment, order, 

or proceeding. Hensley v. Henry, 61 Ohio St.2d 277, 279, 400 N.E.2d 1352 (1980). 

See also Andy Estates Dev. Corp. v. Bridal, 68 Ohio App.3d 455, 457, 588 N.E.2d 978 

(10th Dist.1991) (holding that, when a case is dismissed, the court’s jurisdiction is 

terminated except for the limited purpose of a motion to vacate the dismissal within the 

bounds of Civ.R. 60(B)). 

{¶23} Accordingly, we hold that the savings statute does not apply to Plaintiffs’ 

third complaint, which was filed on July 15, 2015, well beyond the statute of limitations, 

as well as the statute of repose, in this case. Therefore, Defendants are entitled to 

judgment as a matter of law, and the court did not err in granting summary judgment. 

Plaintiffs’ sole assigned error is overruled, and the decision of the trial court is affirmed. 

It is ordered that appellees recover from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas 

Court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 
 

PATRICIA ANN BLACKMON, JUDGE 

MARY J. BOYLE, P.J., and 

ANITA LASTER MAYS, J., CONCUR