Dargart v. Ohio Department of Transportation

In Dargart v. Ohio Department of Transportation, 171 Ohio App. 3d 439, 2006 Ohio 6179, 871 N.E. 2d 608, the Sixth District Court of Appeals reviewed a case wherein a whistleblower claim was dismissed once by the plaintiff, and after it was re-filed, was dismissed by the Court of Claims. The plaintiff then filed for a third time in the Common Pleas of Wood County. The trial court dismissed the complaint for lack of subject matter jurisdiction, and the court of appeals held although the two dismissal rule did not bar re-filing the claim, the plaintiff could not utilize the savings statute to file the same claim a third time. The court of appeals reasoned the two-dismissal rule contained in Civ. R. 41 (A) applies to voluntary dismissals, but not to situations where the second dismissal may be made by court order, Dargart, paragraph 15. The appellant in Dargart also argued, as do the appellants here, that when the legislature amended R.C. 2305.19 in May, 2004, it broadened the language and eliminated the rule the savings statute could only be used once. The Wood County Court of Appeals rejected this, finding the legislature did not intend to permit a number of filings of the same case. Id. at paragraph 22.