Key Points

  • The Ohio Supreme Court held that when the terms of R.C. 2305.19(A) are met, a claim may proceed in a refiled action even if its limitations period expired before an earlier use of the saving statute.
  • The court held that the saving statute applies to an action, defined in R.C. 2307.01 as the judicial proceeding, rather than to each claim in the complaint.
  • The court reaffirmed McCullough v. Bennett (2024) and held that, once an action has been timely commenced, the statute does not limit the number of times a new action may be commenced under its terms.
  • Using its certified-conflict authority, the court reversed the dismissal of Kohn's negligence claims even though Kohn did not cross-appeal, and remanded the whole action to the trial court.

The Ohio Supreme Court ruled Thursday that a plaintiff whose lawsuit is dismissed without a decision on the merits may refile it under the state's saving statute even after using that statute before, rejecting an appeals court's claim-by-claim approach in a long-running investment-management dispute.

The decision revives negligence claims that Adam Kohn brought against Glenmede Trust Company, N.A. and Robert Siewert in his third lawsuit over the same contract. Justice Shanahan wrote for the court, joined by Chief Justice Kennedy and Justices DeWine, Brunner, Deters and Hawkins. Justice Fischer concurred in the judgment only.

The saving statute, R.C. 2305.19(A), gives a plaintiff whose action fails "otherwise than upon the merits" a second chance to sue. The plaintiff may commence a new action within one year of the failure or within the original limitations period, whichever is later. The court held that the statute applies to the lawsuit as a whole and does not limit how many times a plaintiff may use it, resolving a conflict between two of the state's appeals courts.

Kohn first sued Glenmede in the Cuyahoga County Court of Common Pleas in November 2016, asserting claims tied to a contract for investment-management services. He voluntarily dismissed that case in September 2017 and refiled within a year. The trial court dismissed the second case without prejudice in August 2022, and Kohn filed a third action in January 2023.

Glenmede moved for judgment on the pleadings. It argued that under then-controlling Eighth District precedent, Kohn could not use the saving statute a third time because he had already invoked it when he filed the second case, and that the statutes of limitations otherwise barred the suit. The trial court agreed and dismissed the third action.

The Eighth District Court of Appeals affirmed in part and reversed in part. It examined each of the eight claims in Kohn's third complaint separately. Because the limitations period on the negligence claims had expired before Kohn filed his second case, the appeals court reasoned, those claims had already used the saving statute and were time-barred. The fraud, breach-of-contract and promissory-estoppel claims survived because their limitations periods had not run when the second case was filed.

Recognizing that its ruling conflicted with the Fifth District's 2002 decision in McGowan v. Family Medicine, Inc., the Eighth District asked the Supreme Court to decide: "Does the saving statute, R.C. 2305.19(A), apply to save a refiled 'action' as a whole or does it apply to save refiled 'claims' independently?" The court accepted that certified question along with Glenmede's own appeal.

Justice Shanahan wrote that the framing of both questions "rests on a false premise." The opinion pointed to R.C. 2307.01, which defines an action as a proceeding in court "by which a party prosecutes another for the redress of a legal wrong." That definition, Justice Shanahan wrote, "confirms that an 'action' is the judicial proceeding, and not each individual claim asserted within the complaint initiating the proceeding."

The court said the Eighth District had misread McCullough v. Bennett, a 2024 decision in which the justices held that the saving statute contains no one-use restriction. The appeals court and Glenmede read McCullough to protect only claims whose limitations periods had not expired before the second filing, which in the court's words left in place "a judicially created one-use restriction" for the other claims. "But that is not what we held in McCullough," Justice Shanahan wrote. The plaintiff in that case had refiled before his limitations period expired, the opinion noted, "but that fact did not control our holding."

"Nothing in the saving statute provides that it may be used only once," Justice Shanahan wrote. The court added that "once an action has been timely commenced, R.C. 2305.19(A) does not limit the number of times a new action may be commenced in accordance with the statute's terms."

The court also rejected Glenmede's reliance on Howard v. Allen, a 1972 Supreme Court decision holding that a lawsuit first filed in another state could not satisfy Ohio's saving statute. Justice Shanahan wrote that Howard "did not address whether an action commenced in accordance with the saving statute may serve as the preceding action for a later application of the saving statute."

The opinion acknowledged the concern, recognized in McCullough, that plaintiffs might extend limitations periods through serial dismissals and refilings. "The General Assembly could have included such a restriction. But it did not," Justice Shanahan wrote. The court pointed instead to safeguards against abusive refilings in Civil Rule 41.

Kohn filed his third case on Jan. 3, 2023, within a year of the Aug. 2, 2022, dismissal of his timely second case. The court concluded that the saving statute therefore "applied to Kohn's entire action."

The ruling left Glenmede, which brought the appeal, worse off than it was in the appeals court. Kohn had not cross-appealed the dismissal of his negligence claims, and the court noted that an appellee who does not cross-appeal "generally cannot oppose the final judgment on appeal." But the court said a certified conflict "brings the entire case, not merely the certified question, before this court for review," quoting its 1977 decision in Brown v. Borchers Ford, Inc. It used that authority to reverse the dismissal of the negligence claims.

Ohio Attorney General D. Andrew Wilson appeared as amicus curiae, a friend of the court, urging reversal. Kohn was represented by Jaye M. Schlachet of The Law Office of Jaye M. Schlachet. Glenmede and Siewert were represented by Brian P. Nally of Reminger Co., L.P.A.

The Supreme Court affirmed the Eighth District's reinstatement of the fraud, contract and promissory-estoppel claims, reversed its dismissal of the negligence claims, and sent the case back to the Cuyahoga County trial court for further proceedings.