McCullough v. Bennett , 2024 Ohio 2783 ( 2024 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
McCullough v. Bennett, Slip Opinion No. 2024-Ohio-2783.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-2783MCCULLOUGH, APPELLEE, v. BENNETT, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as McCullough v. Bennett, Slip Opinion No. 2024-Ohio-2783.]
Saving statute—R.C. 2305.19(A)—Plaintiff may use saving statute to file claim a
third time when plaintiff’s first two complaints failed otherwise than on the
merits and third complaint was filed within one year of dismissal of second
complaint—“One-use” restriction on use of saving statute is not supported
by statutory text of R.C. 2305.19(A)—Judgment affirmed.
(No. 2022-0879—Submitted April 18, 2023—Decided July 24, 2024.)
APPEAL from the Court of Appeals for Montgomery County,
No. 29390, 2022-Ohio-1880.
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DEWINE, J., authored the opinion of the court, which KENNEDY, C.J., and
FISCHER, DONNELLY, and DETERS, JJ., joined. STEWART, J., concurred in judgment
only. BRUNNER, J., concurred in judgment only, with an opinion.
SUPREME COURT OF OHIO
DEWINE, J.
{¶ 1} Ohio’s saving statute, R.C. 2305.19(A), 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.” In this case, the plaintiff attempted to institute a lawsuit two times before
the expiration of the statute of limitations, but both complaints were dismissed by
the trial court without prejudice. He then filed a third complaint and successfully
obtained service. The third complaint came after the expiration of the statute of
limitations but within one year of the dismissal of the second lawsuit. The question
is: Does the saving statute apply such that the lawsuit has been timely commenced?
{¶ 2} Under the plain terms of the saving statute, the answer is yes. The
third action was “commence[d] . . . within one year after . . . the plaintiff’s failure
otherwise than upon the merits” on his second complaint. R.C. 2305.19(A). The
defendant in the underlying action asks us to go beyond the language of the saving
statute and impose a “one-use” limitation, such that the saving statute cannot be
used in this case because the plaintiff’s two previous complaints had been
dismissed. We decline to do so. We adhere to what the statute says. Because the
Second District Court of Appeals reached the same result, we affirm its judgment.
I. BACKGROUND
A. McCullough sues Bennett and twice refiles his lawsuit
{¶ 3} In April 2017, Ryan McCullough and Joseph Bennett were in a car
accident. Alleging that Bennett was at fault for running a red light, McCullough
sued Bennett on January 15, 2018. The case was dismissed without prejudice by
the trial court on February 28, 2018, after service was returned unclaimed.
{¶ 4} McCullough refiled his lawsuit on June 27, 2018. This time, he was
ultimately successful in obtaining service by publication. After Bennett failed to
answer, the court instructed McCullough to file a motion for default judgment or
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otherwise respond within 14 days. When McCullough failed to do so, the court
dismissed his second complaint without prejudice for failure to prosecute on
November 27, 2018. See Civ.R. 41(B)(1).
{¶ 5} The two-year statute of limitations for McCullough’s claim expired
on April 27, 2019. But relying on the saving statute, McCullough refiled his lawsuit
on September 12, 2019. See McCullough v. Bennett, Montgomery C.P. No. 2019
CV 04163. After some procedural wrangling, he was ultimately successful in
obtaining service.
{¶ 6} The graphic below shows the relevant dates and events:
B. The trial court dismisses the action, but the court of appeals reverses
{¶ 7} Bennett moved to dismiss the third complaint, arguing that it was
time-barred because the statute of limitations had expired. According to Bennett,
Ohio’s saving statute, R.C. 2305.19(A), could not rescue the third complaint
because the first two complaints had been dismissed before the statute of limitations
had expired. The trial court agreed and dismissed the case.
{¶ 8} The Second District reversed, concluding that the saving statute
applied by its plain terms. See 2022-Ohio-1880, ¶ 47. The court noted that a prior
version of the saving statute applied only when a case had been dismissed after the
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expiration of the statute of limitations. Id. at ¶ 27, fn. 4. But it explained that the
current version of the saving statute contained no such requirement. Id. at ¶ 16.
{¶ 9} The Second District also addressed whether the saving statute may be
“used” more than once. See 2022-Ohio-1880 at ¶ 27, citing Thomas v. Freeman, 79
Ohio St.3d 221, 227 (1997) (noting in dicta that “the savings statute can be used
only once to refile a case”). Specifically, it reasoned that McCullough did not “use”
the saving statute when he filed the second complaint because “‘using’ the savings
statute implies taking advantage of some right, benefit, or opportunity that the
statute provides.” Id. at ¶ 30. McCullough, in the court’s view, did not use the
saving statute when he filed his second complaint, because he brought it within the
statute of limitations and therefore did not need to rely on the saving statute to
render his second complaint timely. Id. at ¶ 31-34. Accordingly, it reversed the
trial court’s judgment.
{¶ 10} We accepted Bennett’s appeal on three propositions of law. 2022-
Ohio-3636. His primary argument is that a “one-use restriction” bars McCullough
from invoking the saving statute a second time. He also contends that McCullough
cannot rely on the saving statute to protect his third complaint because
McCullough’s second complaint was dismissed prior to the expiration of the statute
of limitations. Finally, he contends that McCullough’s claim is barred because it
was not commenced within one year after service as required by Civ.R. 3(A). We
will address of each of Bennett’s arguments, but we begin our analysis with the
plain language of the saving statute.
II. ANALYSIS
{¶ 11} The saving statute allows plaintiffs to refile lawsuits in certain
situations after the applicable statute of limitations expires, R.C. 2305.19(A). “It
acts as an exception to the general bar of the statute of limitations” and is “intended
to provide a litigant an adjudication on the merits.” Wilson v. Durrani, 2020-Ohio-
6827, ¶ 11.
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{¶ 12} The General Assembly last amended the statute in 2004. See
Am.Sub.H.B. 161, 150 Ohio Laws, Part III, 3423, 3423-3424. Prior to the 2004
amendment, the statute provided:
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 . . . may commence a new action within one
year after such date.
Former R.C. 2305.19, 1953 Am.H.B. No. 1, 125 Ohio Laws 7. Under this version
of the saving statute, a plaintiff who voluntarily dismissed an action prior to the
expiration of the statute of limitations did not garner any additional time to file a
new complaint. Yet a plaintiff who dismissed an action after the expiration of the
statute received an additional year to bring a new action. So, a plaintiff who
dismissed an action a week prior to the expiration of the statute had to file a new
complaint within a week, yet a plaintiff who waited to dismiss an action until a
week after the expiration of the statute had an additional year to bring a new action.
And the same held true for plaintiffs whose judgments were reversed or whose
cases failed otherwise than on the merits. To address this so-called “malpractice
trap,” the General Assembly amended the saving statute. See Eppley v. Tri-Valley
Local School Dist. Bd. of Edn., 2009-Ohio-1970, ¶ 9. Today it reads:
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 .
. . may commence a new action within one year after the date of the
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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).
A. Under the plain language of the saving statute, McCullough’s
third complaint was not time-barred
{¶ 13} Bennett’s chief argument is that McCullough’s third complaint is
time-barred because it was filed after the expiration of the statute of limitations. He
contends that the saving statute cannot be used to extend McCullough’s time for
filing his complaint because McCullough’s first two complaints had already been
dismissed.
{¶ 14} Under the plain terms of the saving statute, McCullough’s claim is
not time-barred. Following the dismissal of his first complaint, McCullough
attempted to commence the action again on June 27, 2018, within the statute-of-
limitations period. That action failed “otherwise than on the merits” when the trial
court dismissed the matter without prejudice for failure to prosecute on November
27, 2018. See Frysinger v. Leech, 32 Ohio St.3d 38, 42 (1987), quoting Chadwick
v. Barba Lou, Inc., 69 Ohio St.2d 222, 226 (1982) (a “dismissal without prejudice
constitutes a termination ‘otherwise than upon the merits,’ for savings statute
purposes”). McCullough filed his third complaint on September 12, 2019, which
was “within one year after the date of . . . [his] failure otherwise than upon the
merits,” R.C. 2305.19(A), on his second complaint.
{¶ 15} So, if we follow the language of the saving statute, McCullough
prevails.
B. We decline to apply the judicially created one-use restriction
{¶ 16} In arguing for a contrary result, Bennett contends that this court has
created a one-use limitation on the use of the saving statute. In support, he points
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to dicta from this court’s opinion in Thomas, 79 Ohio St.3d at 227. That case dealt
with the pre-2004-amendment version of the saving statute. Id. The trial court had
dismissed the action for failure to obtain service, and Thomas—relying on the
saving statute—had refiled her complaint within one year of the dismissal. Id. at
222. The issues in Thomas were (1) was the court’s dismissal for failure to obtain
service a dismissal otherwise than on the merits and, if so, (2) could Thomas rely
on the saving statute to refile her complaint? Id. at 224. This court held that the
answer to both questions was yes: the trial court’s dismissal for failure to obtain
service was otherwise than on the merits, and therefore, Thomas could rely on the
saving statute to refile her complaint within one year of that dismissal. Id. at 228.
{¶ 17} The facts of Thomas did not present a question about how many
times the saving statute could be used. Nonetheless, this court included a brief
aside in its opinion to respond to the defendant-appellee’s suggestion that “a
dismissal without prejudice subjects the defendant to continued exposure.” Id. at
227. The court explained that “the risk of abuse of continuous refilings by a less
than diligent plaintiff is minimized” because of the financial disincentives of paying
a second filing fee and acquiring service and because “the savings statute can be
used only once to refile a case.” Id. The court did not include any analysis—textual
or otherwise—to explain this one-line remark, but simply cited a pair of lower-court
opinions.1 Id., citing Hancock v. Kroger Co., 103 Ohio App.3d 266 (10th Dist.
1995); Iglodi v. Montz, 1995 WL 516609 (8th Dist. Aug. 31, 1995).
1. The opinion concurring in judgment only accuses this majority of undermining “public
confidence in this court” and engaging in “judicial activism,” opinion concurring in judgment only,
¶ 35-36, because we have pointed out that the Thomas court did not provide any analysis to support
its dicta about the one-use restriction and because we have referred to the one-use restriction as
“judicially created.” This criticism is perplexing. It is incontrovertible that Thomas did not provide
any analysis beyond citing two appellate-court decisions to support the restriction. And it is equally
incontrovertible that the one-use restriction could not be found in the statutory text of the version of
the saving statute before the court in Thomas. Certainly, a rule that does not appear in the text of a
statute, but instead originates in judicial opinions, is judicially created. Despite all its misplaced
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{¶ 18} We have never cited the Thomas dicta suggesting that there is an
unwritten one-use restriction to the saving statute. The Thomas dicta has, however,
been invoked frequently by lower courts. See, e.g., Linthicum v. Physicians
Anesthesia Serv., Inc., 2019-Ohio-3940, ¶ 9 (1st Dist.); Paul v. I-Force, L.L.C.,
2017-Ohio-5496, ¶ 36 (2d Dist.); Wolfe v. Priano, 2009-Ohio-2208, ¶ 27 (5th
Dist.).
{¶ 19} The question for today is whether we adopt the Thomas dicta and
apply it to the present case. We decline to do so. The statute before us is different
from the version of the statute that applied in Thomas. It is also unambiguous.
{¶ 20} Further, the concern that motivated the Thomas dicta—the danger
that a plaintiff could indefinitely extend the expiration of the statute of limitations
by convincing a trial court to order serial dismissals without prejudice under Civ.R.
41(A)(2)—does not exist in this case. McCullough filed his second complaint
before the expiration of the statute of limitations, and his third complaint was filed
within a year of the dismissal of the second complaint. 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.
{¶ 21} Moreover, we note that the Civil Rules already provide protections
against abusive conduct by plaintiffs to indefinitely extend a statute-of-limitations
period. Under the double-dismissal rule of Civ.R. 41(A)(1), a plaintiff’s voluntary
outrage, the opinion concurring in judgment only as much as concedes both points, relying on a
convoluted—and wholly beside-the-point—argument about prior versions of the saving statute to
suggest that the one-use restriction was a “necessary implication” of early versions of the statute,
opinion concurring in judgment only at ¶ 31-33.
Moreover, the opinion concurring in judgment only is wrong to suggest that we violate a
duty to protect public confidence in this court simply by noting (correctly) that prior dicta from this
court was unreasoned. We are not bound to follow dicta in a prior decision. State ex rel. Gordon
v. Barthalow, 150 Ohio St. 499, 505-506 (1948) (dicta is not binding). Because dicta is not binding,
we must examine whether a court’s reasoning is valid to ensure that we get the law right. See Garner
et al., The Law of Judicial Precedent 226 (2016) (“The precedential sway of a case is directly related
to the care and reasoning reflected in the court’s opinion.”).
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dismissal acts as a “an adjudication on the merits of any claim that has once been
dismissed in any court.”
{¶ 22} It is true that a claim may also be dismissed at the plaintiff’s
insistence by order of the court under Civ.R. 41(A)(2), and such a dismissal is
without prejudice “unless otherwise specified in the court order.” But this rule
should not be used to circumvent the limitations of Civ.R. 41(A)(1). As the Second
District observed here, a trial court may appropriately preclude abusive refilings by
specifying that any dismissal under Civ.R. 41(A)(2) is with prejudice. See 2022-
Ohio-1880 at ¶ 36.
C. A prior action’s dismissal after expiration of a statute of limitations is not
a condition for application of the saving statute
{¶ 23} Bennett’s second argument is also refuted by the plain language of
the saving statute. He contends that a plaintiff may not invoke the protections of
the saving statute when the plaintiff’s previous action “was administratively
dismissed prior to the expiration of the underlying statute of limitations.” In
support, he cites Reese v. Ohio State Univ. Hosp., in which we noted that the saving
statute “can have no application unless . . . the applicable statute of limitations had
expired by the time of such dismissal.” 6 Ohio St.3d 162, 163 (1993).
{¶ 24} Reese, however, dealt with a prior version of the saving statute. See
former R.C. 2305.19, 1953 Am.H.B. No. 1, 125 Ohio Laws 7. At that time, the
statute only applied when “‘the plaintiff fails otherwise than upon the merits, and
the time limited for the commencement of such action at the date of . . . failure has
expired.’ ” (Emphasis added; ellipsis in original.) Reese at 163, quoting former
R.C. 2305.19. As we have explained, the legislature amended the saving statute to
eliminate the requirement that the statute of limitations had expired at the time of
the complaint’s failure. The plain language of the current statute defeats Bennett’s
argument.
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D. We reject Bennett’s commencement argument
{¶ 25} In his final proposition of law, Bennett contends that the saving
statute does not apply because service was not perfected on the second complaint
within the one-year commencement period set forth in Civ.R. 3(A). See Civ.R.
3(A) (“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.”). In support
of his argument, Bennett relies on this court’s decision in Moore v. Mt. Carmel
Health Sys., 2020-Ohio-4113.
{¶ 26} In Moore, the plaintiff filed his malpractice action one day before
the expiration of the statute-of-limitations period. Id. at ¶ 4. But he neither
obtained service on a doctor nor dismissed the action within Civ.R. 3(A)’s one-year
commencement period. Id. at ¶ 5-6. The case remained on the trial court’s docket,
and the plaintiff finally managed to perfect service more than a year and a half after
filing the action. Id. at ¶ 7. The court granted summary judgment in favor of the
doctor because the action was not commenced within the statute-of-limitations
period. Id. at ¶ 8.
{¶ 27} We held that the trial court had appropriately granted summary
judgment because the action was not commenced within the statute-of-limitations
period. Id. at ¶ 18. In doing so, we noted that the saving statute was inapplicable
under its plain terms. Id. at ¶ 19. The claim had not failed “other than on the
merits.” Moore did not voluntarily dismiss the action. Id. Rather, judgment had
been granted on the merits based on the statute of limitations. Id. at ¶ 8. Nor had
Moore filed a new action. Id. at ¶ 19.
{¶ 28} Thus, Moore expressly dealt with a situation where the saving statute
was inapplicable by its plain terms. This case is different because—as explained
above—the saving statute applies by its plain language. In this case, the second
complaint was filed on June 27, 2018, and dismissed on November 27, 2018.
Unlike the complaint in Moore, the second complaint here was dismissed without
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prejudice within a year of being filed. Also unlike in Moore, the dismissal of
McCullough’s second complaint was within the statute-of-limitations period. And
within a year of the second complaint being dismissed, McCullough filed his third
complaint—as permitted by the saving statute. Because the saving statute applies
in this case, we reject Bennett’s final proposition of law.
III. CONCLUSION
{¶ 29} Under the plain language of the saving statute, McCullough timely
filed his third complaint. We affirm the judgment of the Second District Court of
Appeals.
Judgment affirmed.
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BRUNNER, J., concurring in judgment only.
{¶ 30} I concur only in the court’s judgment affirming the judgment of the
Second District Court of Appeals. I write separately because the majority opinion
characterizes the “one-use” rule as a “judicially created” restriction that was
unsupported by the text of prior versions of the saving statute. Majority opinion at
¶ 16. The prior versions of the saving statute did, however, provide support for that
restriction until the amendment of R.C. 2305.19(A) in 2004, and the majority’s
criticism of our former decision in Thomas v. Freeman, 79 Ohio St.3d 221 (1997),
is without basis.
{¶ 31} The saving statute was codified in Ohio’s Code of Civil Procedure
in 1853. At that time, the saving statute provided:
If an action be commenced within due time, and a judgment
therein for the plaintiff be reversed, or if the plaintiff fail in such
action otherwise than upon the merits, and the time limited for the
same shall have expired, the plaintiff . . . may commence a new
action, within one year after such reversal or failure.
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51 Ohio Laws 57, 61, § 23 (effective July 1, 1853). By its plain terms, the 1853
version of the saving statute required that the previous action be timely—i.e.,
“commenced within due time.” Id. It also expressly contemplated that the statute
of limitations would “have expired” during the pendency of the suit, which would
mean that the “new action” would be filed after the limitations period had expired.
Id. Those conditions could be met only once. If a plaintiff who had already used
the statute once attempted to file a third complaint, after the failure of the second,
that plaintiff would not be able to show that the prior action—the second
complaint—had been timely filed. By definition, the second complaint would have
been filed after the limitations period had expired. Consequently, what we now
call the “one-use” rule appears to have been a necessary implication of the plain
text of the 1853 version of the saving statute.
{¶ 32} Over the next hundred years, the saving statute was amended twice,
but the one-use rule remained a necessary implication of the statute. In 1894, the
saving statute provided:
If, in an action commenced, or attempted to be commenced,
in due time a judgment for the plaintiff be reversed, or if the plaintiff
fail otherwise than upon the merits, and the time limited for the
commencement of such action has, at the date of such reversal or
failure, expired, the plaintiff . . . may commence a new action within
one year after such date . . . .
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R.S. 4991, H.B. No. 128, 91 Ohio Laws 72, 73. And in 1910, when the General
Assembly revised and consolidated the statutes of Ohio, replacing the Revised
Statutes with the General Code, the saving statute provided:
In an action commenced, or attempted to be commenced, if
in due time a judgment for the plaintiff be 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 . . . may commence a new action within one
year after such date . . . .
G.C. 11233.
{¶ 33} These versions use the term “due time” a bit differently than the 1853
version. While “due time” clearly referred to the timely filing of the previous
complaint in the 1853 version of the saving statute, the term seems to refer to
passage of time after commencement of the prior action in the 1894 and 1910
versions. Nonetheless, both of the later versions continued to expressly
contemplate that the statute of limitations had expired during the pendency of the
prior suit. R.S. 4991; G.C. 11233. As a result, they continued to require that the
previous action was timely when initially commenced or attempted to be
commenced—a condition that could be met only once. And the same held true
after the saving statute was initially recodified as R.C. 2305.19 in the Revised Code
in 1953. See Am.H.B. No. 1, 125 Ohio Laws 7. The one-use rule therefore
remained a necessary implication of the saving statute until the next amendment of
R.C. 2305.19 in 2004. See Am.Sub.H.B. No. 161, 150 Ohio Laws, Part III, 3423,
3423-3424.
{¶ 34} The majority disagrees, but it offers no explanation why—and
therein lies a sad irony: the majority criticizes this court’s opinion in Thomas, 79
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Ohio St.3d at 227, for failing to “include any analysis—textual or otherwise—to
explain” its acknowledgment of the one-use rule, majority opinion at ¶ 17. Yet the
majority fails to adhere to its own admonishment when it declares the one-use rule
to have been “judicially created” and “unwritten” without engaging in any analysis
of the prior versions of the saving statute to determine whether those labels are, in
fact, correct. Id. at ¶ 16, 18.
{¶ 35} I cannot sign on to an opinion that essentially subverts judicial
restraint into a veiled form of judicial activism. And it is inappropriate for the
majority in this case to say that a prior composition of this court, such as in Thomas,
failed in its duty to provide analysis to support its position, simply because it may
not have explained its conclusion in the way members of this court would today.
{¶ 36} Whether or not it is intended to, today’s majority opinion denigrates
this court’s integrity. The judgment in this case can be reached without the undue
criticism that appears to say that somehow “we” in 2024 are better, smarter, and
truer to the text of the Constitution than “they” were in 1997, especially when the
majority’s criticism is patently untrue. Regardless of the point in time of the history
of this court, “we” are the court, no matter who sits on the bench. It is integral to
our duty that “we,” whoever we happen to be, do everything possible to protect
public confidence in this court. The statements of the majority opinion asserting
that the one-use rule was “judicially created” and “unwritten,” without engaging in
any analysis of the prior versions of the saving statute, are both unnecessary and
incomplete. Accordingly, I concur in the court’s judgment only.
_________________
Wright & Schulte, L.L.C., Robert L. Gresham, Michael L. Wright, and
Kesha Q. Brooks, for appellee.
Young & Alexander Co., L.P.A., and Jonathon L. Beck, for appellant.
Flowers & Grube, Paul W. Flowers, Melissa A. Ghrist, and Louis E. Grube,
urging affirmance for amicus curiae, Ohio Association for Justice.
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