The Court ruled that state law allows refiling of a dismissed lawsuit as long as it is refiled within the designated time limit.

The Court ruled that state law allows refiling of a dismissed lawsuit as long as it is refiled within the designated time limit.

The Supreme Court of Ohio ruled today that a state statute permits the refiling of a dismissed lawsuit as long as it is refiled within the designated time limit.

The Supreme Court rejected the claim that there is an unwritten “one-use” limit to the “savings statute,” which allows civil cases to be refiled after the statute of limitations has expired in certain instances. The decision affirmed a Second District Court of Appeals ruling, which permitted a Montgomery County lawsuit to proceed after it was filed and dismissed twice before the expiration of the statute of limitations, and then filed a third time after the expiration of the statute of limitations.

Writing for the Court majority, Justice R. Patrick DeWine explained that under the plain language of the savings statute, Ryan McCullough’s claim was properly filed. The law allows a party to refile a complaint that has been dismissed without prejudice within one year of the claim’s dismissal.

While there is no one-time refiling limit, Justice DeWine wrote that the Ohio Rules of Civil Procedure protect against abusive refiling of cases by those trying to extend the life of their lawsuits indefinitely.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, Michael P. Donnelly, and Joseph T. Deters joined Justice DeWine’s opinion. Justice Melody Stewart concurred in judgment only.

In a concurring opinion, Justice Jennifer Brunner wrote that the majority opinion unfairly characterized the one-use rule as “judicially created” by a 1997 Supreme Court of Ohio decision. She stated the Court did not create the rule. Rather, the Thomas v. Freeman decision simply explained how the law worked at the time, she stated.

Auto Accident Leads to Lawsuit
In April 2017, McCullough was involved in an auto accident with Joseph Bennett. McCullough alleged that Bennett was at fault for running a red light. McCullough sued Bennett in Montgomery County Common Pleas Court in January 2018. He attempted to serve the lawsuit on Bennett, but the trial court dismissed the lawsuit “without prejudice,” meaning that the same case could be brought again, after the service documents were returned as unclaimed.

About five months later, McCullough refiled his lawsuit. While a mailed copy of the lawsuit did not reach Bennett, McCullough published notice of the lawsuit in an area newspaper, and the trial court ruled that this publication was sufficient to put Bennett on notice that he had been sued. After Bennett failed to respond to the lawsuit, the trial court gave McCullough 14 days to seek a default judgment or take other action in the case. When McCullough did not respond, the trial court dismissed his second complaint in November 2018, noting that the dismissal was without prejudice, and the case could be refiled.

Third Complaint Filing Disputed
The two-year statute of limitations for McCullough to file his suit expired in April 2019. Relying on the savings statute, McCullough refiled his suit against Bennett a third time in September 2019. After some difficulty reaching Bennett, the trial court found that Bennett had been properly served with notice of the case.

Bennett asked the trial court to dismiss the case, arguing that McCullough had sued him after the statute of limitations period. He maintained that McCullough could not invoke the savings statute to file the case a third time because the court dismissed the case twice before the statute of limitations expired. The trial court agreed and dismissed the case.

McCullough appealed to the Second District Court of Appeals, which reversed the trial court’s decision. Bennett appealed the Second District’s decision to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Revised Savings Statute
A lawsuit generally cannot be filed after the statute of limitations has expired, Justice DeWine explained, but the savings statute provides an exception that allows plaintiffs to refile lawsuits that have been dismissed “other than on the merits” in certain situations.

The savings statute provides that when an action “fails otherwise than upon the merits, the plaintiff . . . may commence a new action within one year after . . . the plaintiff’s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.” 

The opinion explained that under the plain language of the savings statute McCullough was not barred from filing his current lawsuit.  McCullough’s first and second complaints were filed within the current statute of limitations and failed other than on the merits when they were dismissed without prejudice, so they were not barred from being refiled. Under the plain language of the law, McCullough had a year to refile after the November 2018 dismissal of the case, and he met that deadline when he refiled in September 2019, the Court concluded.

Court Declined to Apply Unwritten One-Use Exception to the Statute
Bennett had argued that the Ohio Supreme Court’s 1997 Thomas v. Freeman decision limited the savings statute to “one use” to prevent a plaintiff from continuously refiling cases in hopes of extending the statute of limitations.

Today, the Court made clear that “the savings statute applies by its plain language.” It explained that when the Thomas decision noted in an aside that “the savings statute can be used only once to refile a case,” it referred to the law as it existed before the 2004 amendment. Today’s opinion explained that the number of times a case can be refiled was not an issue in Thomas. The statement in that case about using the savings statute only once was “dicta,” meaning that it did not constitute the holding of the case and did not bind future courts.

The danger of serial dismissals and refilings that concerned the Court in Thomas is not present in McCullough’s case, the Court stated, and the rules for civil cases prevent calculated attempts to refile cases to extend the statute of limitations.

“This is not a case that involves an attempt to indefinitely extend the statute of limitations, but rather, one that presents a single refiling after the expiration of the limitations period,” the Court explained. Applying “the plain language of the savings statute,” it concluded that “McCullough timely filed his third complaint.”

Concurrence Objects to Criticism of Past Decision
In her concurrence, Justice Brunner noted that the savings statute has been in Ohio law since 1853 and has undergone only minor revisions before 2004. She wrote the previous version was intended to permit the refiling of a case that had not been decided on its merits, but only after the statute of limitations had expired. By its wording, the “necessary implication” of the law meant it could only be used once, she wrote. When the Thomas decision stated the statute could only be used once, the Court was explaining how the law worked at that time, and the Court was not creating its own rule, the concurrence stated. The majority decision wrongly criticized and characterized the Thomas opinion as having judicially created law that already existed, Justice Brunner concluded.

2022-0879. McCullough v. Bennett, Slip Opinion No. 2024-Ohio-2783.

View oral argument video of this case.

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