[Cite as Graf v. Cirino, 2011-Ohio-3473.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96011

EUGENE GRAF, ET AL.

PLAINTIFFS-APPELLANTS 

vs.

ROBERT CIRINO, M.D., ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-733551 
BEFORE: S. Gallagher, J., Sweeney, P.J., and Cooney, J. 

RELEASED AND JOURNALIZED: July 14, 2011 

ATTORNEY FOR APPELLANTS 

Brent L. English 

Law Offices of Brent L. English 

M.K. Ferguson Plaza, Suite 470 

1500 West Third Street 

Cleveland, OH 44113-1422 

ATTORNEYS FOR APPELLEES 

Christine S. Santoni 

Brian D. Sullivan 

Reminger Co., LPA 

1400 Midland Building 

101 Prospect Avenue, West 

Cleveland, OH 44115-1093 

SEAN C. GALLAGHER, J.: 

{¶ 1} Plaintiffs-appellants Eugene and Linda Graf appeal the judgment 

of the Cuyahoga County Court of Common Pleas that dismissed their 

complaint as time-barred. For the reasons stated herein, we affirm. 

{¶ 2} Plaintiffs filed their original complaint for medical malpractice 

and loss of consortium against Robert Cirino, M.D., and USHC Physicians, 

Inc., on May 23, 2005, but voluntarily dismissed the case on or about March 

24, 2006. They refiled their case on March 19, 2007, after the statute of 
limitations had run, pursuant to the savings statute, R.C. 2305.19. That 

action was ultimately dismissed without prejudice by the trial court because 

plaintiffs failed to file an affidavit of merit.1 Plaintiffs refiled their action 

again on August 5, 2010, and attempted to invoke the savings statute for a 

second time. The trial court dismissed the action as time-barred, finding 

that “plaintiffs may not invoke the savings statute a second time[.]” 

{¶ 3} Plaintiffs have appealed the decision of the trial court. They 

raise two assignments of error challenging the dismissal of their case. Under 

their first assignment of error, plaintiffs claim the trial court erred by 

dismissing the case on grounds of res judicata. However, a review of the 

trial court’s decision reflects that the trial court dismissed the action upon 

determining the savings statute could not be invoked a second time, and 

therefore the action was time-barred. Under their second assignment of 

error, plaintiffs claim the trial court erred in its determination regarding the 

savings statute. 

 1

 The second action initially was dismissed with prejudice. However, following appeal to 

this court, the Ohio Supreme Court, in Graf v. Cirino, 121 Ohio St.3d 2, 2009-Ohio-254, 901 N.E.2d 

219, reversed on the authority of Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 

2008-Ohio-5379, 897 N.E.2d 147. In Fletcher, the court held that a dismissal based on a failure to 

file an affidavit of merit required by Civ.R. 10(D)(2) is an adjudication otherwise than on the merits 

and is a dismissal without prejudice. Id. at ¶ 21. However, the court noted that “[i]n the event 

[the plaintiff] chooses to file the action a third time, then at that point, the parties may raise the 

saving-statute issue along with any other applicable Civil Rules or statutes, as they see fit.” Id. at ¶ 

19, fn. 4.
{¶ 4} The savings statute, R.C. 2305.19(A), provides in pertinent part 

as follows: “In an action commenced, or attempted to be commenced, if in 

due time a judgment for the plaintiff is reversed, or if the plaintiff fails 

otherwise than on the merits, and the time limited for the commencement of 

such action at the date of reversal or failure has expired, the plaintiff * * * 

may commence a new action within one year after such date.” R.C. 2305.19. 

{¶ 5} Plaintiffs acknowledge that a number of courts, including this 

court, have held that once the statute of limitations has run, the savings 

statute may be relied upon only one time. However, they ask this court to 

reexamine this rule. They assert that the plain text of the savings statute, 

R.C. 2305.19(A), contains no limitations on the number of times it may be 

used. They claim that the savings statute permits a plaintiff to refile a case 

within one year of a failure “otherwise than upon the merits” and that there 

is no reason why a third filing may not relate back to the original filing for 

limitation purposes. We find no merit to their arguments. 

{¶ 6} The savings statute contemplates the right of the plaintiff “to 

commence a new action” within one year of a failure otherwise than on the 

merits. Cero Realty Corp. v. Am. Mfrs. Ins. Co. (1960), 171 Ohio St. 82, 167 

N.E.2d 774. Indeed, “R.C. 2305.19, states that the plaintiff has the right to 

file a new action, not multiple actions.” Koslen v. Am. Red Cross (Sept. 4, 

1997), Cuyahoga App. No. 71733. 
{¶ 7} In Thomas v. Freeman, 79 Ohio St.3d 221, 227, 1997-Ohio-395, 

680 N.E.2d 997, the Ohio Supreme Court indicated that “the savings statute 

can be used only once to refile a case.” This court has consistently held the 

same. E.g., Conway v. RPM, Inc., Cuyahoga App. No. 88024, 

2007-Ohio-1007; Duncan v. Stephens, Cuyahoga App. No. 83238, 

2004-Ohio-2402. 

{¶ 8} “Savings statutes may apply when a claim filed within the time 

required by a statute of limitations is dismissed without prejudice but the 

statute of limitations on the claim has already expired. Savings statutes 

operate to give a plaintiff a limited period of time in which to refile a 

dismissed claim that would otherwise be time-barred.” Internatl. Periodical 

Distrib. v. Bizmart, 95 Ohio St.3d 452, 2002-Ohio-2488, 768 N.E.2d 1167, ¶ 7. 

 As this court stated in Duncan, “The savings statute can be used only once, 

because otherwise, a plaintiff could infinitely refile his action, and effectively 

eliminate statutes of limitations.” Id. at ¶ 21. 

{¶ 9} Because plaintiffs utilized the savings statute to refile their 

complaint in 2007, they may not again take advantage of the savings statute 

to institute an action that is well beyond the statute of limitations. 

Accordingly, the trial court did not err in dismissing the action as 

time-barred. 

Judgment 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 issue out of this court directing the 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. 

SEAN C. GALLAGHER, JUDGE 

JAMES J. SWEENEY, P.J., and 

COLLEEN CONWAY COONEY, J., CONCUR