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Gamble v. Patterson11/17/2003
JUDGMENT: Affirmed.
. Plaintiffs-appellants Janet and Kenneth Gamble filed three complaints against defendant-appellee Deborah A. Patterson over a four-year period, all arising out of an automobile accident that occurred on October 8, 1996. Appellants voluntarily dismissed the first complaint. The second complaint was dismissed by the court because appellee was never served. Appellants refiled the complaint a third time on June 21, 2002. The trial court granted summary judgment to appellee and dismissed the third complaint because appellants had attempted to use the "saving statute," R.C. 2305.19, twice. The saving statute allows a party to refile a complaint within one year after a case is dismissed if the applicable statute of limitations expires while the case was pending. The trial court correctly held that the saving statute can be used only once and that the statute of limitations for a personal injury action had expired. Based on the record before us, we affirm the judgment of the trial court.
. The parties were involved in an automobile accident that occurred on October 8, 1996. Appellants filed a lawsuit arising out of this incident on October 1, 1998, in the Columbiana County Court of Common Pleas. The complaint was served on appellee at her Ohio address on October 8, 1998. Appellants concede this point in their appellate brief. The first complaint was voluntarily dismissed on April 10, 2000.
. The statute of limitations for this case, found in R.C. 2305.10, expired on October 8, 1998. This is the same day that appellee received the first complaint at her Ohio address.
. The second complaint was filed on April 6, 2001. The second complaint was dismissed on January 8, 2002, because appellants had failed to serve the complaint on appellee. There is no indication that appellants filed any postjudgment motions to challenge the dismissal, and they did not file a direct appeal.
. The third complaint was filed with the Columbiana County Court of Common Pleas on June 21, 2002, and forms the basis of this appeal. The trial court dismissed the complaint on February 25, 2003. The trial court concluded that the saving statute could not be used a second time to refile a complaint that had been previously dismissed. The saving statute, R.C. 2305.19, states: "In an action 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, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff, or, if he dies and the cause of action survives, his representatives may commence a new action within one year after such date."
. The court found that the statute of limitations for a personal injury claim had expired. The court noted that there was no case law supporting appellants' belief that the one-year deadline found in the saving statute is tolled if the defendant is absent from the state of Ohio. The trial court dismissed the complaint on February 25, 2003. This was a little over eight months after the third complaint was filed.
. On March 21, 2003, appellants filed this timely appeal.
. Appellants present two assignments of error on appeal:
. "The trial court erred in granting summary judgment when the plaintiffs were unable to serve the re-filed complaint due to the absence of the defendant from the state of Ohio during and subsequent to plaintiffs right to re-file under the savings clause of Rule 41 of the Ohio Rules of Civil Procedure."
. "The trial court erred in dismissing the action prior to allowing a full one
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