[Cite as Quellos v. Johnson, 2024-Ohio-2586.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
SEAN QUELLOS, ET AL., :
Plaintiffs-Appellants, : No. 113428 v. :
RONALD JOHNSON, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 3, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-980283
Appearances:
Richard J. Koloda, for appellants.
Ritzler, Coughlin, & Paglia, Ltd., Michael A. Paglia, and Jonathon Angarola, for appellees.
EILEEN T. GALLAGHER, J.:
Plaintiffs-appellants, Sean (“Sean”) and Jennifer Quellos (“Jennifer”)
(collectively “plaintiffs”), appeal an order denying their motion for summary
judgment, granting summary judgment in favor of defendants-appellees, Ronald Johnson (“Ronald”) and Ashley Fitzpatrick (“Ashley”) (collectively “defendants”),
and dismissing the plaintiffs’ complaint. Plaintiffs claim the following errors:
1. The trial court’s grant of Ohio Civ.R. 56 summary judgment motion to the appellees is (a) contrary to the recent refinement of the savings statute (Ohio Rev. C. 2305.19) as defined by McCullough v. Bennett (2022-Ohio-1880) that is currently before the Ohio Supreme Court (case 2022-0879)., i.e., are the two refilings after an involuntary dismissal ─ but all within the statute of limitations ─ permitted, or does the savings statute restrict it to one.
2. The trial court failed to note that the second refiling (again within the statute of limitations) was substantially different to the previous filings, and because of the added plaintiff as well as the added tort the next day should be considered a new filing (within the statute of limitations), as opposed to a refiling. The new refiling therefore did not meet the substantial similarity test to a previous filing, and thus permitted a subsequent refiling that did not run afoul of the misinterpretation of the “savings statute” Ohio Rev. C. 2305.19. This was because the Appellee-Defendant’s deliberate act of an obstruction of official business (Ohio Rev. C. 2921.31) the next day placed the Appellant (as well as the community in general) in further jeopardy through the Appellee’s depraved indifference towards a clear and present danger. But utilizing the Defendant’s flawed logic, the ex post facto rabies vaccination was unrelated to Quellos’s injury and it was necessary that the Defendant save his unvaccinated dog from the “draconian” Ohio code of being tested, and that this court should ratify his actions ─ of course, it is irrelevant that the citizens of South Euclid were exposed for twenty-four hours to a dog that should have been seized and tested for rabies. As the obstruction of official business occurred the next day that diffuses the substantial similarity of claims.
(Emphasis in original.)
We find that the one-use restriction applicable to Ohio’s savings statute
prohibits a second refiling of a complaint even when the statute of limitations has
not yet expired. We also find that because the allegations in plaintiffs’ third
complaint are substantially the same as those alleged in the prior two complaints, the third complaint is barred by the one-use restriction. We, therefore, affirm the
trial court’s judgment.
I. Facts and Procedural History
In October 2023, Jennifer filed a complaint in the Cuyahoga County
Court of Common Pleas, alleging she was injured on June 20, 2021, when she was
mauled by a dog owned by the defendants. Jennifer originally filed a complaint
against the defendants in the South Euclid Municipal Court and asserted claims for
strict liability, negligence, and negligent infliction of emotional distress. In January
2023, the court involuntarily dismissed the case without prejudice for lack of
prosecution, pursuant to Civ.R. 41(B).
Two months later, on March 3, 2023, Jennifer refiled the complaint
against defendants in the South Euclid Municipal Court, alleging the same claims.
While the case was pending, plaintiffs filed a third complaint in the Cuyahoga
County Court of Common Pleas. This complaint added Jennifer’s husband, Sean, as
a new party-plaintiff and alleged the same claims as those alleged in the South Euclid
actions. However, the complaint added a loss-of-consortium claim for Sean, a claim
for negligent entrustment, and multiple negligence per se claims based on multiple
alleged violations of dog-control laws, including, among other things, failure to
register the dog and failure to keep the dog current with his rabies vaccine. After
filing the complaint in the common pleas court, Jennifer voluntarily dismissed the
complaint that was still pending in the South Euclid Municipal Court. Defendants filed a motion for summary judgment, arguing that the
plaintiffs’ claims were barred under R.C. 2305.19, Ohio’s savings statute, because
the complaint had previously been filed and dismissed twice before, and the savings
statute could only be used once to refile a case. Plaintiff opposed the motion, arguing
that because the third complaint alleged new claims not previously alleged in the
earlier complaints and because the statute of limitations had not yet expired, they
were not barred from filing the third complaint in the common pleas court.
Plaintiffs also filed a motion for summary judgment on their claims.
The trial court denied plaintiffs’ motion for summary judgment and
granted summary judgment in favor of defendants on grounds that Ohio’s savings
statute, R.C. 2305.19, “can only be used once to refile a case.” Plaintiffs now appeal
the trial court’s judgment.
II. Law and Analysis
A. Summary Judgment
Appellate review of summary judgments is de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). The party moving for summary judgment
bears the burden of demonstrating the absence of a genuine issue of material fact as
to the essential elements of the case with evidence of the type listed in Civ.R. 56(C).
Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Once the moving party
demonstrates entitlement to summary judgment, the burden shifts to the
nonmoving party to produce evidence related to any issue on which the party bears
the burden of production at trial. Civ.R. 56(E). Summary judgment is appropriate when, after construing the evidence in a light most favorable to the party against
whom the motion is made, reasonable minds can only reach a conclusion that is
adverse to the nonmoving party. Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367,
369-370 (1998).
B. One-Use Restriction
In the first assignment of error, plaintiffs argue the trial court erred in
concluding that their complaint was barred by the one-use restriction applicable to
Ohio’s savings statute. They contend that because the applicable statutes of
limitations had not expired, the one-use restriction in the savings statute did not
apply to their refiled complaint.
R.C. 2305.19, Ohio’s savings statute, states, in relevant part:
(A) 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 otherwise than upon the merits, the plaintiff or, if the plaintiff dies and the cause of action survives, the plaintiff’s representative 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) allows a timely filed claim that has failed “otherwise than upon the
merits” to be refiled in a new action if the new action is filed within one year after
such failure or within the period of the original applicable statute of limitations,
whichever is later.
Citing the Second District’s decision in McCullough v. Bennett, 2022-
Ohio-1880 (2d Dist.), plaintiffs argue the third filing of their complaint was not barred by the “one-use restriction” applicable to the savings statute because the
statute of limitations had not expired when the complaints were filed. In
McCullough, the Second District explained that prior to the 2004 amendment to the
savings statute, R.C. 2305.19 granted a plaintiff an additional year to refile an action
“‘only if dismissal occurred after the original statute of limitations had run.’”
McCullough at ¶ 14, quoting Eppley v. Tri-Valley Local School Dist. Bd. of Edn.,
2009-Ohio-1970, ¶ 8.
“Sometimes referred to as the ‘malpractice trap,’ this meant that a plaintiff whose case had been dismissed without prejudice before the original statute of limitations had run was required to refile the action within the original statutory time, regardless of how much time was left.” Id. But “[t]he General Assembly amended the general saving statute in 2004, closing the malpractice trap and permitting a plaintiff to refile within one year after dismissal or within the time remaining under the statute of limitations, whichever is longer.” . . . Id. at ¶ 9. By its terms, the savings statute’s applicability no longer depends on expiration of the statute of limitations given that it allows a plaintiff to refile up to one year after dismissal of the action or within the time remaining under the limitations period.
Id. at ¶ 14, quoting Eppley at ¶ 8-9.
However, the Ohio Supreme Court has held that “the savings statute
can be used only once to refile a case.” Thomas v. Freeman, 79 Ohio St.3d 221, 227,
(1997), citing Hancock v. Kroger Co., 103 Ohio App.3d 266 (10th Dist. 1995); Iglodi
v. Montz, 1995 Ohio App. LEXIS 3797 (8th Dist. Aug. 31, 1995). See also Rector v.
Dorsey, 2021-Ohio-2675, ¶ 9 (8th Dist.).
McCullough referred to this limitation as the “one-use restriction” and
concluded that in light of the 2004 amendment to R.C. 2305.19, the one-use restriction only applies if the action is dismissed after the statute of limitations has
expired. McCullough at ¶ 27-29, 35. The court reasoned that because McCullough
filed his second complaint within one year of the first dismissal, it did not “save” him
from anything because “he remained within the statute of limitations.” Id. at ¶ 29.
The trial court later dismissed McCullough’s second complaint for failure to
prosecute, but the second dismissal was still within the statute of limitations. Id. at
¶ 29, and 44. McCullough then filed his third complaint four months after the
expiration of the statute of limitations. Id. at ¶ 29.
The McCullough Court concluded that McCullough’s third complaint
was not barred by the one-use restriction applicable to the savings statute because
the savings statute was not used to file the second complaint since it was filed within
the statute of limitations and was, therefore, not “saved” from anything. Id. at ¶ 30-
31. The court further held that even if McCullough had “used” the savings statute
when he refiled his second complaint, it found “no reasonable justification for
applying a one-use rule to that filing.” Id. at ¶ 35. The court noted that “the one-use
limit on invoking the savings statute originated prior to the 2004 amendment of
R.C. 2305.19,” and that “the purpose of allowing the savings statute to be used only
once was to prevent continuous re-filings after the original statute of limitations had
expired.” Id. The court observed that “[a] one-use restriction, which is not set forth
in the statute itself, made sense because prior to the 2004 amendment the savings
statute only applied in situations where the statute of limitations had expired.” Id.
Thus, the court asserted that “[t]o the extent that the terms of the savings statute now address situations where the statute of limitations has not expired, restricting
a plaintiff to one refiling prior to expiration of the limitations period does not make
sense.” (Emphasis in original.) Id. at ¶ 36.
McCullough is an outlier. Indeed, the McCullough Court
acknowledged that its holding conflicts with cases from other districts including this
one. Id. at ¶ 39-45, discussing Dargart v. Ohio Dept. of Transp., 2006-Ohio-6179
(6th Dist.); Bailey v. Ohio State Dept. of Transp., 2008-Ohio-1513 (10th Dist.);
Owens College Nursing Students v. Owens State Community College, 2014-Ohio-
5210 (6th Dist.), and Rector v. Dorsey, 2021-Ohio-2675 (8th Dist.).
This conflict is currently pending in the Ohio Supreme Court. See
McCullough v. Bennett, 168 Ohio St.3d 1414 (2022). However, until the Ohio
Supreme Court resolves this issue, we are constrained to follow our precedent in
Rector. See Fannie Mae v. Hicks, 2015-Ohio-1955, ¶ 20 (8th Dist.) (holding that
this court is bound by its own precedent until the Ohio Supreme Court resolves
conflict).
In Rector, 2021-Ohio-2675, the plaintiff, Rector, voluntarily
dismissed his personal-injury complaint before expiration of the statute of
limitations. He refiled the complaint, but the refiled complaint was dismissed
without prejudice as a discovery sanction, and Rector once again refiled the
complaint. The trial court granted summary judgment in favor of the defendant on
grounds that Rector was barred from using the savings statute to refile his complaint
a second time. In affirming the trial court’s judgment, we held that Rector has previously “availed himself of R.C. 2305.19 through the filing of the second action”
and “could not twice invoke R.C. 2305.19(A).” We acknowledged the 2004
amendments to R.C. 2305.19(A) and the fact that “the amended language of R.C.
2305.19 no longer distinguished cases dismissed before the expiration of the statute
of limitations from those dismissed after.” Id. at ¶ 8, citing CapitalSource Bank FBO
Aeon Fin., L.L.C. v. Donshirs Dev. Corp., 2013-Ohio-1563 (8th Dist.).
Despite this acknowledgment, we nevertheless held that “‘[t]he
savings statute can be used only once to refile a case.’” Id. at ¶ 9, quoting Thomas,
79 Ohio St.3d 227 (1997). We emphasized that “[t]he amendment to R.C. 2305.19
that occurred in 2004 did not alter that conclusion.” Id., citing Linthicum v.
Physicians Anesthesia Serv., 2019-Ohio-3940, ¶ 8-9 (1st Dist.). We further stated
that even if the plaintiff refiles the action before the expiration of the statute of
limitations, the refiled complaint is considered to be filed through the invocation of
R.C. 2305.19. Id., citing Brown v. Solon Pointe at Emerald Ridge, 2013-Ohio-4903,
¶ 24 (8th Dist.) (the refiled complaint was filed within the statute of limitations but
was considered to be filed under R.C. 2305.19 such that the third filing of the
complaint was time barred).
Jennifer twice filed a complaint for damages as a result of the June 20,
2021 dog-bite incident in South Euclid Municipal Court. She then filed a third
complaint based on the same incident in the Cuyahoga County Court of Common
Pleas. Pursuant to Rector, we are constrained to find that Jennifer’s second
complaint was filed through the invocation of R.C. 2305.19. Rector at ¶ 9. And because R.C. 2305.19 may only be invoked once, Jennifer’s third refiled complaint
was barred by the one-use rule articulated in Thomas and Rector.
The first assignment of error is overruled.
C. Substantially Similar
In the second assignment of error, plaintiffs argue the claims alleged
in their third refiled complaint in the common pleas court are substantially different
from the claims alleged in Jennifer’s previously filed complaints and that because
the new claims are different, they comprise an entirely new action and are, therefore,
not barred by the one-use restriction applicable to the savings statute. They contend
the savings statute itself is inapplicable because their complaint constitutes a new
action.
“The savings statute applies when the original suit and the new action
are substantially the same.” Children’s Hosp. v. Ohio Dept. of Pub. Welfare, 69 Ohio
St. 523, 525 (1982). “‘[A] new complaint is substantially the same as the original
complaint for purposes of the saving statute when the new complaint differs only to
the extent that it adds new recovery theories based upon the same factual
occurrences stated in the original complaint.’” Am. Premier Underwriters, Inc. v.
GE, 900 F.Supp.2d 753, 758 (S.D.Ohio 2012), quoting Stone v. N. Star Steel Co.,
2003-Ohio-1223 (7th Dist.).
In Lanthorn v. Cincinnati Ins. Co., 2002-Ohio-6798, ¶ 27 (4th Dist.),
the court held that “[w]hether a new action is substantially the same as an original
action for purposes of the savings statute does not always depend on whether the original action set forth the same legal theories as those asserted in the new
complaint.” Instead, the court explained, “the question largely turns on whether the
original complaint and the new complaint contain similar factual allegations so that
it can reasonably be said that the party or parties were put on fair notice of the type
of claims that could be asserted.” Id.
In Rios v. Grand Slam Grille, 1999 Ohio App. LEXIS 5448 (8th Dist.
Nov. 18, 1999), we held that a new complaint asserting malicious prosecution and
abuse of process was substantially the same as the original complaint that asserted
only malicious prosecution because the claims in both complaints arose out of the
same conduct and both the new and original complaints alleged the same facts
establishing the right to relief.
Similarly, in Jones v. St. Anthony Med. Ctr., 1996 Ohio App. LEXIS
542 (10th Dist. Feb. 20, 1996), the court held that a refiled complaint and the
original complaint were substantially the same even though the refiled complaint
asserted new theories of recovery because both complaints were based on the same
factual occurrence. See also Andrews v. Scott Pontiac Cadillac GMC, Inc., 1989
Ohio App. LEXIS 1950 (6th Dist. June 2, 1989) (holding that a refiled complaint is
substantially the same as the original complaint even though the refiled complaint
alleges new theories of recovery because the new theories of recovery were based on
the same factual occurrence alleged in the original complaint).
Plaintiffs argue their third complaint is substantially different from
Jennifer’s prior two complaints, in part, because the third complaint adds Sean as a new party-plaintiff, and it asserts a new claim for Sean’s loss of consortium.
However, a loss-of-consortium claim is a derivative cause of action dependent upon
the viability of the primary cause of action. Rivers v. Otis Elevator, 2013-Ohio-3917,
¶ 29 (8th Dist.), citing Tourlakis v. Beverage Distribs., 2002-Ohio-7252 (8th Dist.),
citing Lynn v. Allied Corp., 41 Ohio App.3d 392, 402 (8th Dist. 1987). As a derivative
cause of action, Sean’s loss-of-consortium claim is also predicated on the same dog-
bite incident alleged in Jennifer’s prior complaints.
The other newly alleged claims in the plaintiffs’ third complaint are
also derived from the same factual occurrence alleged in the first two complaints.
These claims include negligent entrustment of the dog, multiple counts of
negligence per se, and “negligence per reckless endangerment.” However, these new
claims are predicated on the defendants’ alleged failure to keep the dog current with
his rabies vaccinations and misrepresenting the dog’s vaccination status, failure to
keep the dog’s registration up to date, and failure to muzzle or leash the dog. These
allegations do not state separate causes of action independent from the underlying
negligence and strict liability claims that are based on alleged violations of animal-
control laws. And because the claims alleged in Jennifer’s original complaint and
first refiled complaint were also based on alleged violations of animal-control laws,
the newly alleged claims in the third complaint are substantially the same as those
alleged in the earlier complaints. They are, therefore, barred by the one-use
restriction applicable to the savings statute.
Accordingly, the second assignment of error is overruled. 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.
EILEEN T. GALLAGHER, JUDGE
LISA B. FORBES, P.J., and ANITA LASTER MAYS, J., CONCUR