Graf v. Cirino
2011 Ohio 3473
Ohio Ct. App.2011Background
- Plaintiffs filed a medical malpractice and loss of consortium claim on May 23, 2005, later dismissed voluntarily around March 24, 2006.
- Plaintiffs refiled March 19, 2007 after the statute of limitations had expired, invoking the savings statute, and the action was dismissed without prejudice for failure to file an affidavit of merit.
- Plaintiffs refiled again on August 5, 2010 and sought to use the savings statute a second time.
- Trial court dismissed as time-barred, ruling the savings statute cannot be invoked twice.
- Court of Appeals affirmed, holding that the savings statute can be used only once to refile a time-barred claim.
- Key issue on appeal was whether the plaintiff could invoke the savings statute a second time to salvage a claim well past the limitations period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the savings statute may be invoked a second time. | Graf argues the text allows multiple uses of the savings statute. | Cirino argues the savings statute can be used only once. | Savings statute can be used only once. |
| Disposition of the second savings-statute filing given prior use. | Graf contends second filing should relate back to original filing for tolling. | Cirino maintains no second tolling by savings statute is permitted. | Trial court did not err; second filing time-barred. |
Key Cases Cited
- Cero Realty Corp. v. Am. Mfrs. Ins. Co., 171 Ohio St. 82 (1960) (savings statute creates right to file a new action within one year)
- Thomas v. Freeman, 79 Ohio St.3d 221 (1997) (savings statute can be used only once)
- Internatl. Periodical Distrib. v. Bizmart, 95 Ohio St.3d 452 (2002) (savings statutes provide limited time to refile dismissed claims)
- Fletcher v. Univ. Hospitals of Cleveland, 120 Ohio St.3d 167 (2008) (dismissal for failure to file affidavit of merit is adjudication otherwise than on the merits)