Liles v. Sporing

2025 Ohio 626

• Court: Ohio Court of Appeals
• Decided: February 26, 2025
• Docket: C-240439
• Status: Published

Opinion

[Cite as Liles v. Sporing, 2025-Ohio-626.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

JEFFREY LILES, : APPEAL NO. C-240439 TRIAL NO. A-2202758 Plaintiff-Appellant, :

vs. : OPINION RICHARD SPORING, :

Defendant-Appellee. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 26, 2025

Jones Kahan Law, LLC, Joel A. Buckley, David M. Jones and Michael S. Kahan, for Plaintiff-Appellant,

Curry Roby, LLC, and Lisa C. Haase, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} Plaintiff-appellant Jeffrey Liles sued defendant-appellee Richard

Sporing in July 2020. Liles, however, failed to perfect service on Sporing. Nearly two

years later, after the statute of limitations time limit had expired, Liles voluntarily

dismissed his complaint. Within one year of that dismissal, Liles refiled his lawsuit.

{¶2} Ohio’s savings statute, R.C. 2305.19, permits a plaintiff who complies

with its requirements to refile a complaint after the statute of limitations has expired.

Relevant here, the savings statute applies if the first action failed “otherwise than upon

the merits.” R.C. 2305.19(A). And a plaintiff’s first voluntary dismissal under Civ.R.

41(A)(1)(a) is a failure otherwise than upon the merits for the purpose of applying the

savings statute. See Frysinger v. Leech, 32 Ohio St.3d 38, 43 (1987).

{¶3} In this appeal, we examine whether Liles’s Civ.R. 41(A)(1)(a) voluntary

dismissal was a failure “otherwise than upon the merits.” See R.C. 2305.19(A). In so

doing, we analyze whether Moore v. Mt. Carmel Health Sys., 2020-Ohio-4113, adds

any requirements to the savings statute where, as here, a plaintiff fails to obtain

service, then voluntarily dismisses the complaint after Civ.R. 3(A)’s commencement

period has expired and after the statute of limitations time has run.

{¶4} We hold that Moore does not add unwritten requirements to the plain,

unambiguous language of the savings statute. Following Moore, the Supreme Court of

Ohio emphasized that the starting place in analyzing savings-statute cases is the plain

language of the statute itself. See McCullough v. Bennett, 2024-Ohio-2783, ¶ 10.

Under its plain language, the savings statute applies if the first action failed “otherwise

than upon the merits.” And Civ.R. 41(A)(1) unambiguously states that a plaintiff’s first

voluntary dismissal is “without prejudice.” Accordingly, the savings statute applied to

save Liles’s action. We reverse the trial court’s judgment. OHIO FIRST DISTRICT COURT OF APPEALS

I. Factual and Procedural History

{¶5} In July 2020, Liles sued Sporing to recover for injuries he sustained in

a July 2019 bicycle-vehicle collision with Sporing (“2020 action”). Liles requested

certified mail service on Sporing, which the clerk issued in July 2020. That service was

returned unclaimed. Liles took no further action to perfect service on Sporing.

Sporing, however, appeared in the 2020 action, which proceeded through discovery.

In February 2022, Sporing moved to dismiss the lawsuit, asserting that Liles had failed

to perfect service. Nine days later, with Sporing’s motion still pending, Liles

voluntarily dismissed the 2020 action under Civ.R. 41(A)(1)(a).

{¶6} In August 2022, Liles refiled his complaint (“2022 action”). Sporing

moved for summary judgment, arguing that the 2022 action was barred by the statute

of limitations. Sporing asserted that because Liles had failed to perfect service on him

in the 2020 action within Civ.R. 3(A)’s one-year commencement period and within the

statutory time limit, Ohio’s saving statute did not apply to save Liles’s action. Liles

opposed the motion, arguing that he met the savings statute’s requirements because

he had voluntarily dismissed his 2020 complaint without prejudice.

{¶7} The trial court granted Sporing’s summary-judgment motion, holding

that the Supreme Court of Ohio’s decision in Moore required judgment in Sporing’s

favor.

II. Analysis

{¶8} In one assignment of error, Liles asserts that the trial court erroneously

dismissed his 2022 action because the savings statute applied to save his lawsuit.

A. Standard of review

{¶9} We review a trial court’s summary-judgment ruling de novo.

Environmental Solutions & Innovations, Inc. v. Edge Eng. & Science, LLC, 2023-

3 OHIO FIRST DISTRICT COURT OF APPEALS

Ohio-2605, ¶ 6 (1st Dist.). Summary judgment must be granted where (1) there are no

genuine issues of material fact, (2) the movant is entitled to judgment as a matter of

law, and (3) when viewing the evidence most strongly in the nonmovant’s favor,

reasonable minds can only come to a conclusion that is adverse to the nonmovant.

Civ.R. 56(C); see M.H. v. City of Cuyahoga Falls, 2012-Ohio-5336, ¶ 12.

{¶10} A court interpreting a statute must give effect to the legislature’s intent.

Ayers v. City of Cleveland, 2020-Ohio-1047, ¶ 17. Our starting point is the language

of the statute itself. Id. “If the statute’s language is plain and unambiguous, we apply

it as written.” State v. Bollar, 2022-Ohio-4370, ¶ 10.

B. Statute of limitations and Ohio’s savings statute

{¶11} “[A]n action for bodily injury . . . shall be brought within two years after

the cause of action accrues.” R.C. 2305.10(A). A claim is time-barred unless it is

commenced within the applicable statute-of-limitations period. Moore, 2020-Ohio-

4113, at ¶ 1. Under Civ.R. 3(A), a plaintiff commences an action by filing a complaint

and perfecting service within a year of the filing. Accordingly, “to comply with the

statute of limitations, an action must be ‘commenced’ within the limitations period.

Under Civ.R. 3(A), this occurs when the action is filed within the limitations period

and service is obtained within one year of that filing.” Moore at ¶ 16.

{¶12} Ohio’s savings statute creates “‘an exception to the general bar of the

statute of limitations’” and permits a plaintiff to refile a lawsuit after the statute of

limitations has elapsed if the plaintiff meets R.C. 2305.19(A)’s terms. McCullough,

2024-Ohio-2783, at ¶ 11, quoting Wilson v. Durrani, 2020-Ohio-6827, ¶ 11. Ohio’s

savings statute provides:

In any action that is commenced or attempted to be commenced, if in

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

4 OHIO FIRST DISTRICT COURT OF APPEALS

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.

R.C. 2305.19(A).

{¶13} The plain language of the savings statute contains three requirements

for the statute to apply to save a lawsuit: (1) the plaintiff must have commenced or

attempted to commence the first action, (2) the first action must have been reversed

or have failed otherwise than upon the merits, and (3) the plaintiff must have

commenced the second action within one year after the failure of the first action, or

within the original statutory-limitation period, “whichever occurs later.” Id.;

McCullough at ¶ 2.

{¶14} Liles alleged that he was injured on July 24, 2019. Therefore, the statute

of limitations was set to expire on July 24, 2021. But the COVID-19 pandemic tolled

time limitations, causing the statutory-limitations period to expire on December 14,

2021. Liles filed his second action in August 2022, outside of the statute of limitations.

Thus, the 2022 action was untimely unless the savings statute applied.

{¶15} There is no dispute that Liles met the first and third requirements under

the savings statute. The sole issue is whether Liles’s 2020 action failed “otherwise than

upon the merits.”

1. A first voluntary dismissal fails otherwise than upon the merits

{¶16} In March 2022, Liles voluntarily dismissed the 2020 action under

Civ.R. 41(A)(1)(a). When he dismissed the action, he had not perfected service on

Sporing, despite it being more than one year after Liles filed the first suit—beyond

5 OHIO FIRST DISTRICT COURT OF APPEALS

Civ.R. 3(A)’s one-year commencement time,1 and after the statutory-limitation period

had expired.

{¶17} Civ.R. 41(A)(1)(a) permits a plaintiff to voluntarily dismiss a complaint

“without order of court” by filing a notice of dismissal before the start of trial, provided

there are no pending counterclaims that cannot independently remain pending.

“Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is

without prejudice.” Id.

{¶18} For more than 130 years, the Supreme Court of Ohio has held that

voluntary dismissals constitute failures “otherwise than upon the merits” within the

meaning of the savings statute. See Chadwick v. Barba Lou, Inc., 69 Ohio St.2d 222,

226 (1982) (explaining that the Court’s decision in Siegfried v. Railroad Co., 50 Ohio

St. 294 (1893) represents “the seminal Ohio case holding that a truly voluntary

dismissal does not constitute a ‘fail[ure] otherwise than upon the merits’ for purpose

of the savings statute.”); see also Frysinger, 32 Ohio St.3d at paragraph 2 of the

syllabus; Vitantonio, Inc. v. Baxter, 2007-Ohio-6052, ¶ 4, quoting Frysinger at

paragraph 2 of the syllabus (reaffirming that Civ.R. 41(A)(1) dismissals “constitute[] a

failure otherwise than upon the merits within the meaning of the savings statute, R.C.

2305.19.”); Moore, 2020-Ohio-4113, at ¶ 30 (explaining that the savings statute

“applies only when its terms are met . . . when a judgment is reversed or an action fails

other than on the merits, that is, when there is either a voluntary dismissal without

prejudice under Civ.R. 41(A) or an involuntary dismissal without prejudice under

Civ.R. 41(B).”).

{¶19} Based on Supreme Court of Ohio precedent and the express language of

1 Like the statute of limitations, COVID-19 tolling laws extended the commencement period under

Civ.R. 3(A). At the latest, the extended commencement deadline was December 14, 2021.

6 OHIO FIRST DISTRICT COURT OF APPEALS

Civ.R. 41(A), Liles’s voluntary dismissal was a failure “otherwise than upon the

merits.”

{¶20} Despite the plain language of the savings statute and Civ.R. 41(A)

appearing to make this a relatively simple case, Sporing, relying on Moore, claims that

Liles’s voluntary dismissal constituted a failure on the merits because Liles failed to

commence the first action within a year or within the statutory-limitations period.

2. Moore v. Mount Carmel Health Sys.

{¶21} In 2020, the Supreme Court of Ohio considered whether a trial court

properly granted summary judgment in a defendant’s favor where the plaintiff had

failed to commence his action before the expiration of the statute of limitations.

Moore, 2020-Ohio-4113. Because the Moore plaintiff had not fulfilled the savings

statute’s requirements, the Court ruled that the savings statute did not apply.

a. The Moore plaintiff did not dismiss or refile the action

{¶22} In Moore, the plaintiff, alleging his child was injured during a medical

procedure, filed a medical-malpractice action against a physician, his employer, and a

hospital one day before the statute of limitations expired. Id. at ¶ 12. The plaintiff failed

to perfect service on the defendant-doctor within one year of his filing the complaint.

Id. at ¶ 5. The defendants sought summary judgment, arguing that the plaintiff’s claim

was time barred because the statute of limitations had expired and the plaintiff did not

serve the defendant-doctor within Civ.R. 3(A)’s one-year commencement period. Id.

at ¶ 7. Before the trial court ruled on the summary-judgment motion, the plaintiff

again instructed the clerk to issue service to the doctor-defendant; that service was

perfected. Id.

{¶23} The trial court granted the defendants’ summary-judgment motion. The

court of appeals reversed, reasoning that the plaintiff’s second instruction for service

7 OHIO FIRST DISTRICT COURT OF APPEALS

constituted a voluntary dismissal and refiling of a new action by operation of law under

Goolsby v. Anderson Concrete Corp., 61 Ohio St.3d 549 (1991). Moore at ¶ 9. The

defendants appealed, arguing that “once the applicable statute-of-limitations period

expires, the savings statute cannot be used to revive a cause of action that was not

timely commenced under Civ.R. 3(A).” Id. at ¶ 11.

{¶24} The Supreme Court reinstated the trial court’s judgment. Id. at ¶ 37. It

began by noting that the statute of limitations required the action to be “commenced”

within one year after the cause of action accrued. Moore, 2024-Ohio-4113, at ¶ 14. The

Court explained that Civ.R. 3(A) “determines when an action is commenced” and

provides, “A civil action is commenced by filing a complaint with the court, if service

is obtained within one year from such filing upon a named defendant.” (Emphasis in

original.) Id. at ¶ 15; see Civ.R. 3(A). The Court observed, “to comply with the statute

of limitations, an action must be ‘commenced’ within the limitations period. Under

Civ.R. 3(A), this occurs when the action is filed within the limitations period and

service is obtained within one year of that filing.” Id. at ¶ 16.

{¶25} The Court concluded,

Under the plain language of these three provisions, Moore’s claim is

barred by the statute of limitations. Moore filed his action within the

limitations period but did not obtain service on Dr. Humphreys during

the one-year commencement period pursuant to Civ.R. 3(A). Thus, he

did not commence his action within the statute-of-limitations period.

As a result, as of July 7, 2016, his claim was time-barred.

Id. at ¶ 18.

{¶26} The Moore Court held that the savings statute did not apply to save

Moore’s claims:

8 OHIO FIRST DISTRICT COURT OF APPEALS

[F]or the statute to apply, the claim must have failed ‘otherwise than

upon the merits’ and then Moore must have filed a new claim within one

year thereafter. Here, when Moore issued instructions to the clerk to

serve the complaint in March 2017, Moore’s claim hadn’t failed other

than on the merits. The case remained on the court’s docket—it was

subject to dismissal, to be sure, both because Moore had failed to

accomplish service and because the statute of limitations had run. But

no such dismissal had been entered, and if such dismissal had been

entered, the expiration of the statute of limitations would have made the

failure on the merits.

Id. at ¶ 19.

{¶27} The Moore court further noted that the plaintiff had not filed a “new

action.” Moore, 2020-Ohio-4113, at ¶ 19. Instead, the plaintiff simply requested the

clerk serve the original complaint. Id. “Thus, if the savings statute means what it says,

it does not apply.” Id.

{¶28} The Court limited Goolsby to its facts, stating that “a new instruction to

the clerk to serve a complaint that is made after Civ.R. 3(A)’s commencement period

has expired may be treated as a dismissal and refiling for purposes of the savings

statute . . . only when the statute of limitations has not yet expired.” Id. at ¶ 26.

{¶29} The Court concluded, “[W]hen, as here, (1) a plaintiff attempts to

commence an action but fails to obtain service within Civ.R. 3(A)’s one-year

commencement period and (2) the action has neither failed other than on the merits

during that one-year period (i.e., been dismissed without prejudice) nor been refiled,

(3) the plaintiff cannot use the savings statute to revive the action outside the

limitations period.” Id. at ¶ 36.

9 OHIO FIRST DISTRICT COURT OF APPEALS

b. The Moore Court did not create a rule that disposes of this action

{¶30} When discussing the savings statute’s terms, the Moore Court did not

definitively or consistently state that a voluntary dismissal outside the statute of

limitations must be within the commencement period. Compare Moore, 2020-Ohio-

4113, at ¶ 30 (“the savings statute . . . applies only when its terms are met: when an

action is commenced or attempted to be commenced; when a judgment is reversed or

an action fails other than on the merits, that is, when there is either a voluntary

dismissal without prejudice under Civ.R. 41(A) or an involuntary dismissal without

prejudice under Civ.R. 41(B); and when the complaint is refiled within one year.”) with

Moore at ¶ 36 (“Thus, when, as here, (1) a plaintiff attempts to commence an action

but fails to obtain service within Civ.R. 3(A)’s one-year commencement period and (2)

the action has neither failed other than on the merits during that one-year period (i.e.,

been dismissed without prejudice) nor been refiled, (3) the plaintiff cannot use the

savings statute to revive the action outside the limitations period.”).

{¶31} Moreover, the Moore Court was not presented with facts similar to

those in this case, where the plaintiff voluntarily dismissed his action and then refiled

it within a year. Because Moore did not involve a voluntary dismissal and refiling, the

Moore court had no occasion to consider what effect the expiration of the

commencement period and statute of limitations might have on a plaintiff’s first

voluntary dismissal. To the extent that Moore’s statements suggest that plaintiffs may

only take advantage of the savings statute if they voluntarily dismiss the action within

the commencement period, that language is dicta. See McCullough, 2024-Ohio-2783,

10 OHIO FIRST DISTRICT COURT OF APPEALS

at ¶ 17, fn. 1.2

c. Moore’s facts differed from this case’s facts

{¶32} The Moore plaintiff did not voluntarily dismiss his case—thus, there was

no failure otherwise than upon the merits. Instead, the trial court in Moore entered

judgment against the plaintiff based on the statute of limitations. The Moore plaintiff

also did not refile his action within a year of the trial court dismissing the first action.

Accordingly, the plaintiff failed to meet two of the savings statute’s three requirements.

Moore, 2020-Ohio-4113, at ¶ 19. In other words, “the saving statute was inapplicable

by its plain terms.” McCullough at ¶ 28.

{¶33} The McCullough Court considered the savings statute and explained

Moore. McCullough, 2024-Ohio-2783. The McCullough Court noted that in Moore,

the action “had not failed ‘other than on the merits.’ Moore did not voluntarily dismiss

the action. Rather, judgment had been granted on the merits based on the statute of

limitations.” (Cleaned up.) Id. at ¶ 27; see Barnett v. Johnson, 2024-Ohio-3254, ¶ 23

(10th Dist.) (“On appeal, the Supreme Court reversed this court’s decision, concluding

that the savings statute did not apply because the second request for service did not

constitute a voluntary dismissal and refiling.”). The McCullough Court emphasized

that in Moore, the trial court entered judgment against the plaintiff and the plaintiff

had not filed a new action. Id. As such, Moore “expressly dealt with a situation where

the saving statute was inapplicable by its plain terms.” Id. at ¶ 28.

{¶34} Moore is distinguishable from this case. Sporing moved for summary

judgment in the 2022 action based on arguments similar to the Moore defendants’

2 McCullough cautioned against placing undue weight on dicta from prior decisions where the

“court did not include any analysis—textual or otherwise—to explain” its remarks. McCullough at ¶ 17-19.

11 OHIO FIRST DISTRICT COURT OF APPEALS

arguments. We note that Liles’s 2020 action was subject to dismissal after December

14, 2021, because Liles had failed to perfect service on Sporing–and therefore, failed

to commence the action—within the statutory-limitations period or within Civ.R.

3(A)’s one-year commencement period.

{¶35} Unlike in Moore, however, before the trial court made any dispositive

rulings, Liles voluntarily dismissed the 2020 action under Civ.R. 41(A). As discussed

above, the Supreme Court of Ohio has held for more than a century that voluntary

dismissals constitute failures otherwise than on the merits for purposes of the savings

statute. See, e.g., Chadwick, 69 Ohio St.2d 222 (1982); Siegfried, 50 Ohio St. 294

(1893); Frysinger, 32 Ohio St.3d 38; Vitantonio, Inc., 2007-Ohio-6052. Likewise,

appellate courts from across the state, following these cases, hold that for purposes of

the savings statute, Civ.R. 41(A)(1)(a) dismissals are failures otherwise than upon the

merits. See Taylor v. Burkhart, 2020-Ohio-3632, ¶ 22 (7th Dist.); McCualsky v.

Appalachian Behavioral Healthcare, 2017-Ohio-8841, ¶ 14 (10th Dist.); Williams v.

Assocs. in Female Health, 2002-Ohio-4954, ¶ 7 (11th Dist.); Wenzel v. Al Castrucci,

Inc., 1999 Ohio App. LEXIS 2802, *17 (2d Dist. June 18, 1999).

{¶36} Once Liles dismissed the 2020 action, the trial court did not, and had

no authority to, enter judgment against Liles because a voluntary dismissal

“completely terminates the possibility of further action on the merits of the case upon

its mere filing.” State ex rel. Fifth Third Mtge. Co. v. Russo, 2011-Ohio-3177, ¶ 17.

{¶37} And unlike the Moore plaintiff, Liles refiled his action within one year

of his voluntarily dismissing the 2020 case.

{¶38} These differences are significant. The Moore plaintiff, by not voluntarily

dismissing his case and not refiling a new action, did not fulfil two of the three savings-

statute requirements. Liles, however, met all three of R.C. 2305.19(A)’s requirements.

12 OHIO FIRST DISTRICT COURT OF APPEALS

He attempted to commence the 2020 action. His voluntary dismissal was “otherwise

than upon the merits.” And he filed his new action within one year of the dismissal.

3. The plain language of the savings statute controls

{¶39} After Moore, the Supreme Court of Ohio emphasized that the

touchstone in any statutory-interpretation case is the plain language of the statute

itself. McCullough, 2024-Ohio-2783, at ¶ 10 (“We will address of [sic] each of

Bennett’s arguments, but we begin our analysis with the plain language of the saving

statute.”). The McCullough Court repeatedly declined to reach a result that would add

language to or delete language from the plain language of the savings statute. Id. at ¶

23 (“Bennett’s second argument is also refuted by the plain language of the saving

statute.”). Instead, McCullough instructs us to determine whether “the saving statute

applies by its plain language.” Id. at ¶ 28.

{¶40} We decline to accept Sporing’s invitation to read Moore so broadly as to

hold that the savings statute contains a requirement—not contained in the plain

language of the statute itself—that a voluntary dismissal is a failure otherwise than

upon the merits only if it occurs within Civ.R. 3(A)’s commencement period or before

the statutory-limitation period expires.

{¶41} Applying Civ.R. 41(A)(1)(a)’s plain language and following more than a

century of case law, we hold that Liles’s voluntary dismissal was a failure otherwise

than upon the merits. Civ.R. 41(A) expressly states that a first voluntary dismissal is

without prejudice and is not on the merits. See Thomas v. Freeman, 79 Ohio St.3d 221,

225, fn. 2 (1997) (“a dismissal without prejudice is an adjudication otherwise than on

the merits.”). Nothing in Civ.R. 41(A) suggests that a voluntary dismissal is on the

merits if the dismissal occurs after the commencement and statutory-limitation

periods expire.

13 OHIO FIRST DISTRICT COURT OF APPEALS

{¶42} Accepting Sporing’s argument would require this court to rewrite Civ.R.

41(A) and ignore the Supreme Court of Ohio’s express holdings in Siegfried,

Chadwick, Frysinger, and Vitantonio, Inc., that a voluntary dismissal is a failure

“‘otherwise than upon the merits’ within the meaning of the savings statute.”

Frysinger, 32 Ohio St.3d at 43. This court will not alter the rule’s language.

4. Liles’s 2020 case did not fail on the merits “by operation of law”

{¶43} Sporing cites no cases holding that a plaintiff’s voluntary dismissal

under Civ.R. 41(A)(1)(a) after the commencement and statutory-limitation periods

expire constitutes a failure on the merits. Instead, Sporing argues that Liles’s action

failed on the merits “by operation of law.”

{¶44} But other than Moore’s dicta, Sporing points to no authority by which

this operation of law might occur. True, a trial court’s judgment dismissing an action

based on the statute of limitations is a failure on the merits. See Moore, 2020-Ohio-

4113, at ¶ 19; see also Clawson v. Hts. Chiropractic Physicians, L.L.C., 2022-Ohio-

4154, ¶ 31; Anderson v. Borg-Warner Corp., 2003-Ohio-1500, ¶ 20-23 (8th Dist.)

(holding that a trial court’s dismissal for failure to commence an action within the

applicable statute of limitations and Civ.R. 3(A) is on the merits and with prejudice).

But the trial court did not dismiss the 2020 action. Liles did.

{¶45} We further note that by its terms, the savings statute contemplates that

a plaintiff’s failure otherwise than upon the merits may occur after the expiration of

the statute of limitations. See R.C. 2305.19(A) (“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.)). And the savings

statute, by its plain terms, applies even if the first action was “attempted to be

14 OHIO FIRST DISTRICT COURT OF APPEALS

commenced.” This demonstrates that the General Assembly contemplated the savings

statute applying even when a plaintiff fails to perfect service within Civ.R. 3(A)’s

commencement period.

{¶46} Sporing essentially asks us to look past Liles’s voluntary dismissal—a

dismissal the Ohio Civil Rules tells us was without prejudice—to determine that an

asserted, but unadjudicated, affirmative defense converts that dismissal to one on the

merits. We decline to do so.

{¶47} Because Civ.R. 41(A)(1) and long-standing Ohio precedent

unequivocally state that a first voluntary dismissal is not on the merits, Liles’s 2020

action failed otherwise than upon the merits within the meaning of the savings statute.

Thus, R.C. 2305.19 applied and allowed Liles to refile his 2020 complaint. The trial

court erred by dismissing Liles’s 2022 action and we therefore sustain Liles’s

assignment of error.

III. Conclusion

{¶48} For the foregoing reasons, we sustain Liles’s assignment of error,

reverse the trial court’s judgment, and remand the cause to the trial court.

Judgment reversed and cause remanded.

KINSLEY, P.J., and CROUSE, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.