[Cite as Owens College Nursing Students v. Owens State Community College, 2014-Ohio-5210.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 WOOD COUNTY 

Owens College Nursing Students Court of Appeals No. WD-14-012 

 

 Appellants Trial Court No. 12 CV 922 

v. 

Owens State Community College DECISION AND JUDGMENT

Appellee Decided: November 21, 2014 

* * * * * 

 Rex H. Elliott, Charles H. Cooper, Jr., Barton R. Keyes, John P. 

 Petro and Josh L. Schoenberger, for appellants. 

 Mike DeWine, Ohio Attorney General, and Amy Nash Golian, 

 Assistant Attorney General, for appellee. 

* * * * * 

OSOWIK, J. 

 

{¶ 1} This is an appeal from a judgment of the Wood County Court of Common 

Pleas, which granted appellee judgment on the pleadings in connection to appellants’ 

filing of a third complaint against appellee pursuant to the consumer sales practices act 
2.

(“CSPA”) arising from appellee’s 2009 loss of accreditation of its two-year nursing 

program. For the reasons set forth below, this court affirms the judgment of the trial 

court. 

{¶ 2} Appellants, a group of 47 students enrolled in appellee’s nursing program 

during the relevant timeframe, set forth the following three assignments of error: 

 First Assignment of Error. THE TRIAL COURT ERRED WHEN 

IT GRANTED OWENS’ MOTION FOR RECONSIDERATION, 

REVERSED ITS DECISION GRANTING PLAINTIFFS LEAVE TO 

AMEND THE COMPLAINT, AND STRUCK THE AMENDED 

COMPLAINT. 

 Second Assignment of Error. THE TRIAL COURT ERRED IN 

GRANTING JUDGMENT ON THE PLEADINGS WHEN THIS 

DECISION NECESSARILY INVOLVED CONSIDERATION OF 

MATTERS OUTSIDE THE PLEADINGS. 

 Third Assignment of Error. THE TRIAL COURT ERRED IN 

GRANTING APPELLEE OWENS STATE COMMUNITY COLLEGE 

JUDGMENT ON THE PLEADINGS BECAUSE APPELLANTS OWENS 

COLLEGE NURSING STUDENTS DID NOT USE THE OHIO 

SAVINGS STATUTE, R.C, 2305.19, MORE THAN ONCE. 

{¶ 3} The following undisputed facts are relevant to this appeal. This case arises 

from the 2012 filing of a complaint by appellants against appellee including claims made 
3.

pursuant to the CSPA in connection to the 2009 loss of accreditation from the National 

League for Nursing Accreditation Commission (“NLNAC”) of appellee’s two-year 

nursing program. The appellant group in the current case consists of 47 students enrolled 

in the affected program during the relevant period of time. 

{¶ 4} For clarity, we note that the legal issues underpinning the instant appeal are 

substantively derived from procedural matters. R.C. 2305.19(A), Ohio’s savings statute, 

which establishes the two sanctioned refiling options available to plaintiffs whose first 

case filing failed otherwise than upon the merits, controls the outcome of this case. Thus, 

our consideration and determination of this case does not encompass evaluation of the 

merits of appellants’ CSPA claims against appellee, but rather is limited to the propriety 

of the subject filing. 

{¶ 5} In 2007, appellee’s nursing program was put on probation by NLNAC. As 

such, the accreditation of the program was being reviewed. Under these circumstances, 

the continuation of accreditation of the program was not a certainty. Ultimately, in 2009, 

appellee’s nursing program lost NLNAC accreditation. The subject program offers a 

two-year associate’s degree in nursing. 

{¶ 6} On December 1, 2009, a group of nursing students enrolled in the affected 

nursing program filed suit against appellee in the Ohio Court of Claims setting forth 

claims made pursuant to the CSPA. However, the Ohio Court of Claims lacks 

jurisdiction for consideration of such claims. Accordingly, on February 24, 2010, the 

Ohio Court of Claims dismissed this first filing by appellants for lack of subject-matter 
4.

jurisdiction. The court held in relevant part, “CSPA claims must be brought in the court 

of common pleas, and municipal or county court. See. R.C. 1345.04.” Accordingly, 

appellants’ first CSPA filing failed for reasons otherwise than upon the merits. This 

occurrence triggered by operation of law the applicability of Ohio’s savings statute, R.C. 

2305.19(A), upon any future refiling of the matter by appellants. 

{¶ 7} R.C. 2305.19(A) establishes in relevant part, “[I]f the plaintiff fails 

otherwise than upon the merits, the plaintiff * * * may commence a new action within 

one year after the date of the reversal of the judgment or the plaintiff’s failure otherwise 

than upon the merits or within the period of the original applicable statute of limitations, 

whichever occurs later.” (Emphasis added.) 

{¶ 8} Significantly, R.C. 2305.19(A) enabled appellants to refile the first 2009 

CSPA filing, which failed otherwise than upon the merits, either within one year of the 

February 24, 2010 dismissal by the Ohio Court of Claims otherwise than upon the merits 

or prior to September 28, 2011, the expiration of the original statute of limitations 

deadline. 

{¶ 9} On August 19, 2010, appellants exercised the first refiling option and refiled 

the matter within one year after the first failure otherwise than upon the merits, which 

occurred on February 24, 2010. Although the refiling was initially done in Lucas 

County, not the proper venue, the case was timely transferred to Wood County, the 

proper venue, on January 24, 2011, still within one year of the first failure otherwise than 
5.

upon the merits pursuant to R.C. 2305.19(A). Accordingly, appellants successfully 

refiled the case pursuant to R.C. 2305.19(A). 

{¶ 10} On December 23, 2011, 42 of the 107 named plaintiffs in the refiling, 

voluntarily dismissed themselves from the refiled case. On January 4, 2012, the 

remaining 65 plaintiffs in the refiling likewise voluntarily dismissed themselves from the 

refiled case. 

{¶ 11} On December 21, 2012, 93 of the 107 plaintiffs named in the second 

refiling of the CSPA claims against appellee refiled the CSPA claims for the third time 

against appellee. The third filing was made in the proper venue of Wood County. 

Subsequent to this third refiling, appellants filed a motion for leave to amend the 

complaint to include two more plaintiffs in the third refiling. The motion for leave to 

amend and add the two additional plaintiffs in the third filing was initially granted. 

Appellee then filed a motion for reconsideration of the granting of leave to amend. On 

March 19, 2013, the trial court granted appellee’s motion for reconsideration, thereby 

denying the leave to amend to add two additional plaintiffs to the third complaint. 

{¶ 12} During 2013, the litigation proceeded and discovery was conducted. 

During this time frame, 46 of the 93 named plaintiffs in the third complaint voluntarily 

dismissed themselves from the third filing. 46 of the 47 remaining plaintiffs were 

deposed by appellee. Following discovery, appellee filed for summary judgment. 

{¶ 13} Notably, in their brief in opposition to summary judgment, appellants 

attached various supporting exhibits, including the first filing in the Ohio Court of Claims 
6.

and the subsequent dismissal of that case otherwise than upon the merits. Consistently, in 

the course of their arguments, appellants stated to the court, “Plaintiffs originally filed 

their claims against Owens on December 1, 2009. The Court of Claims dismissed the 

CSPA claims for lack of subject matter jurisdiction on February 24, 2010. Plaintiffs first 

filed their complaints in the Court of Common Pleas within one year on January 24, 

2011, so they complied with Ohio’s savings statute.” 

{¶ 14} We first note both that appellants January 24, 2011 filing was the second 

filing of the matter, in contrast to the suggestion by the use of the word “first” by 

appellant in framing that filing. We further note that appellants acknowledged the 

applicability of the savings statute to the second filing, which was perfected upon transfer 

to the proper venue on January 24, 2011, and also acknowledged that the December 1, 

2009 first filing of this case was later dismissed otherwise than upon the merits. 

{¶ 15} On December 12, 2013, based upon the procedural history and timing of 

the three filings underlying this matter, the third of which occurred after both the later of 

one year after the first filing failed otherwise than upon the merits and the expiration of 

the original September 28, 2011, applicable statute of limitations, appellee filed a motion 

for judgment on the pleadings. 

{¶ 16} In support, appellee asserted that the December 21, 2012 refiling was not 

permissible pursuant to R.C. 2305.19(A), as appellants had previously exercised their 

option to refile within one year of the February 24, 2010 failure of the first filing 

otherwise than upon the merits. On January 15, 2014, the trial court granted appellee’s 
7.

motion for judgment on the pleadings determining that appellants’ attempted use of the 

savings statute for the third filing in 2012 was improper. This appeal ensued. 

{¶ 17} We will first consider appellants’ second and third assignments of error 

which are similarly based upon the contention that the trial court erred in granting 

appellee’s motion for judgment on the pleadings. 

{¶ 18} In appellants’ second assignment of error, they contend that the trial court 

erred in granting appellee’s motion for judgment on the pleadings. In support, they assert 

that the trial court improperly relied upon matters outside of the record to reach their 

decision. We are not persuaded. 

{¶ 19} Contrary to appellants’ assertions, we note that the record clearly 

encompasses the underlying documentation setting forth the history of the prior filings 

and the timing of the prior filings so as to enable the trial court to reach the disputed 

determination. 

{¶ 20} For example, appellants’ November 27, 2013 memorandum in opposition 

filed with the court attached copies of the original 2009 CSPA claims filed in the Ohio 

Court of Claims and copies of the subsequent dismissal of the case otherwise than upon 

the merits. In conjunction with this, appellants submitted an affidavit attesting to the 

truth and accuracy of those exhibits and attachments. These record materials reflect the 

first filing of the matter, thereby demonstrating the unavoidable use of one of the R.C. 

2305.19(A) refiling methods in the subsequent 2010 refiling of the matter. 
8.

{¶ 21} The plain language of R.C. 2305.19(A) directs that the refiling of the 2009 

case dismissed otherwise than upon the merits could only be done prior to the later of 

either one year following the 2009 dismissal or prior to the September 28, 2011 

expiration of the original applicable statute of limitations. 

{¶ 22} As succinctly enumerated at ¶ 11 by the court in Wright v. Proctor-Donald, 

5th Dist. Stark No. 2012-CA-0154, 2013-Ohio-1973, “Under the current version of the 

statute, a claim may be re-filed using the savings statute on the latter of the following 

timeframes: (1) within one year from the date of the reversal or failure other than on the 

merits or (2) within the period of the original applicable statute of limitations.” 

{¶ 23} Notably, appellants themselves concede the challenges underlying their 

contention that the refiling after a dismissal otherwise than upon the merits should 

nevertheless not be construed as triggering application of the savings statute. Appellants’ 

brief on appeal to this court states, “Admittedly, the complaint states on its face this is a 

refiled action with reference to the prior trial court case.” 

{¶ 24} Appellants attempt to avoid the outcome of an R.C. 2305.19(A) application 

to the 2012 complaint. However, this approach does not comport with the record of 

evidence. Appellants’ own memorandum in opposition unambiguously states, “Plaintiffs 

originally filed their claims against Owens on December 1, 2009. The Court of Claims 

dismissed the CSPA claims for lack of subject matter jurisdiction on February 24, 2010. 

Plaintiffs first filed the complaint in the Court of Common Pleas within one year on 

January 24, 2011, so they complied with Ohio’s savings statute.” 
9.

{¶ 25} We concur that appellants did comply with the savings statute in the second 

filing, completed upon transfer to Lucas County January 24, 2011. Nevertheless, the 

record further reflects that by January 4, 2012, all plaintiffs had voluntarily dismissed the 

refiling. The record also reflects that the December 21, 2012 refiling by a portion of the 

plaintiffs was subsequent to two dismissals otherwise than upon the merits, not within 

one year of the dismissal of the 2009 filing, and not prior to the expiration of the 

September 28, 2011 original applicable statute of limitations. 

{¶ 26} We find that appellants have failed to establish that the trial court 

improperly granted appellee’s motion for judgment on the pleadings by consideration of 

matters outside of the pleadings. Wherefore, we find appellants’ second assignment of 

error not well-taken. 

{¶ 27} In appellants’ third assignment of error, they similarly contend that the trial 

court erred in granting appellee’s judgment on the pleadings by asserting that they did not 

improperly attempt to utilize Ohio’s savings statute, R.C. 2305.19(A), a second time in 

their third filing of this matter on December 21, 2012. Appellants suggest that because 

their second filing on August 19, 2010, occurred prior to the expiration of the original 

statute of limitations on September 28, 2011, that somehow the second filing did not 

constitute usage of the savings statute. We are not persuaded. 

{¶ 28} As discussed previously above, the language of R.C. 2305.19(A) 

unambiguously establishes that when an action fails otherwise than upon the merits the 

plaintiff may commence a new action either within one year of the date of the failure 
10. 

otherwise than upon the merits or within the original applicable statute of limitations. 

Appellants’ suggested position would enable multiple filings pursuant to the savings 

statute. That runs contrary to both the statutory parameters and controlling caselaw. 

{¶ 29} In reversing a trial court determination that the savings statute did not apply 

in a case where the original statute of limitations had not expired when the first refiling 

occurred, the Eighth District Court of Appeals unambiguously held that the applicable 

amended savings statute, “[P]ermits a party to refile an original action within one year 

after dismissal, or the time left under the statute of limitations, whichever is longer.” 

CapitalSource Bank Aeon Fin., L.L.C. v. Donshirs Dev. Corp., 8th Dist. Cuyahoga No. 

99032, 2013-Ohio-1563, ¶ 20. 

{¶ 30} Consistent with the savings statute analysis underpinning the reversal in 

CapitalSource, the plain language of the statute clearly refutes appellants’ position. 

Appellants refiled on August 19, 2010, a matter that had failed otherwise than upon the 

merits on February 24, 2010. As such, appellants utilized the savings statute option 

permitting refiling within one year of the first failure otherwise than upon the merits and 

simultaneously foreclosed further refilings following potential additional dismissals 

otherwise than upon the merits regardless of whether done before or after the expiration 

of the original applicable statute of limitations. We find there is no basis under which the 

disputed December 21, 2012 filing can be construed other than an untimely filing and 

contrary to R.C. 2305.19(A). Wherefore, we find appellants’ third assignment of error 

not well-taken. 
11. 

{¶ 31} In appellants’ first assignment of error, they maintain that the trial court 

erred in granting appellee’s motion for reconsideration thereby denying appellants leave 

to add two additional party plaintiffs to the 2012 filing underlying this case. Given our 

determination above that the 2012 filing fails as a matter of law pursuant to R.C. 

2305.19(A), we find that this thereby likewise renders appellants’ first assignment of 

error not well-taken. 

{¶ 32} Wherefore, the judgment of the Wood County Court of Common Pleas is 

hereby affirmed. Appellants are ordered to pay the costs of this appeal pursuant to 

App.R. 24. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, J. 

_______________________________ 

Thomas J. Osowik, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.sconet.state.oh.us/rod/newpdf/?source=6.