Moore v. Mt. Carmel Health Sys. , 2018 Ohio 4130 ( 2018 )

[Cite as Moore v. Mt. Carmel Health Sys., 2018-Ohio-4130.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
FRANKLIN COUNTY
MICHAEL MOORE, CONSERVATOR :
OF THE PERSON AND ESTATE OF :
JUSTIN T. MOORE : Appellate Case No. 2017APE-10-754
:
Plaintiff-Appellant : Trial Court Case No. 15-CVA-005683
:
v. :
:
MOUNT CARMEL HEALTH SYSTEM :
dba MOUNT CARMEL ST. ANN’S :
HOSPITAL, et al.
Defendants-Appellees
________________________________________________________________________
DECISION AND ENTRY
Rendered on the 11th day of October, 2018.
________________________________________________________________________
PER CURIAM:
{¶ 1} This case is before the court on motions to certify a conflict filed by
Defendants-Appellees, Eric Humphries, M.D., Central Ohio Anesthesia, Inc. (“COA”), and
Mount Carmel Health System dba Mount Carmel St. Ann’s Hospital (“Mount Carmel”) (all
collectively, “Appellees”). Previously, on July 17, 2018, we issued an opinion sustaining
two assignments of error of Plaintiff-Appellant, Michael Moore, Conservator of the Person
and Estate of Justin T. Moore (“Moore). See Moore v. Mt. Carmel Health Sys., 10th Dist.
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Franklin No. 2017APE-10-754, 2018-Ohio-2831.
{¶ 2} Specifically, we held that Moore's request for service of the complaint on Dr.
Humphreys in March 2017 was, by operation of law, a dismissal and refiling of the
complaint and was a failure otherwise than on the merits. As a result, the trial court erred
in failing to apply the savings statute in R.C. 2305.19(A). Id. at ¶ 2. Based on this
finding, we held that the trial court also erred in dismissing Moore’s vicarious liability
claims against COA and Mount Carmel. Id.
I. Motion to Certify a Conflict
{¶ 3} According to Appellees, our decision conflicts with the following opinions from
the Second, Sixth, Eighth, Ninth, and Eleventh Appellate Districts:
(A) Kowalski v. Pong, 2d Dist. Montgomery No. 27577, 2017-Ohio-
9310.
(B) Hill v. Yeager, 6th Dist. Wood No. WD-04-010, 2004-Ohio-
5663; Peng v. Fink, 6th Dist. Lucas No. L-12-1279, 2013-Ohio-3063.
(C) Anderson v. Borg-Warner, 8th Dist. Cuyahoga Nos. 80551,
80926, 2003-Ohio-1500; Pewitt v. Roberts, 8th Dist. Cuyahoga No. 85334,
2005-Ohio-4298; Sheldon v. Burke, 8th Dist. Cuyahoga No. 103576, 2016-
Ohio-941; Khatib v. Peters, 2017-Ohio-95, 77 N.E.3d 461 (8th Dist.);
Tadross v. Tadross, 2017-Ohio-930, 86 N.E.3d 827 (8th Dist.).
(D) Bentley v. Miller, 9th Dist. Summit No. 25039, 2010-Ohio-2735;
Hubiak v. Ohio Family Practice Ctr., 2014-Ohio-3116, 15 N.E.3d 1238 (9th
Dist.); Suiter v. Karimiam, 9th Dist. Summit No. 27496, 2015-Ohio-3330.
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(E) Gibson v. Summers, 11th Dist. Portage No. 2008-P-0032, 2008-
Ohio-6995.
{¶ 4} Section 3(B)(4), Article IV, of the Ohio Constitution, which governs motions
seeking an order to certify a conflict, provides that:
Whenever the judges of a court of appeals find that a judgment upon
which they have agreed is in conflict with a judgment pronounced upon the
same question by any other court of appeals of the state, the judges shall
certify the record of the case to the supreme court for review and final
determination.
{¶ 5} Under App.R. 25(A), motions to certify a conflict may be filed within ten days
after a judgment has been mailed to the parties that creates a conflict with another court
of appeals. The Supreme Court of Ohio has said that at least three conditions must be
met for certification of a conflict:
First, the certifying court must find that its judgment is in conflict with the
judgment of a court of appeals of another district and the asserted conflict
must be “upon the same question.” Second, the alleged conflict must be
on a rule of law – not facts. Third, the journal entry or opinion of the
certifying court must clearly set forth that rule of law which the certifying
court contends is in conflict with the judgment on the same question by other
district courts of appeals.
Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993).
{¶ 6} Factual distinctions are not sufficient to certify conflicts, nor are conflicts in
reasoning. Instead, the judgments of the courts must conflict. R.T. v. Knobeloch, 10th
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Dist. Franklin No. 16AP-809, 2018-Ohio-2734, ¶ 3.
{¶ 7} The question that Appellees propose for certification is:
Whether an action against a defendant is barred by the statute of
limitations and cannot be re-filed when the plaintiff has failed to serve the
defendant both before the statute of limitations has run and within one year
after filing the complaint?
COA and Humphrey's Motion to Certify a Conflict, p. 2; Mount Carmel Motion to Certify a
Conflict, p. 4.
III. The Moore Decision
{¶ 8} The background of this case can be found in Moore, 10th Dist. Franklin No.
2017APE-10-754, 2018-Ohio-2831. As was noted there, after Justin Moore (“Justin”)
received medical treatment from certain medical providers in December 2013 and
January 2014, he was transferred on an emergency basis to Mount Carmel on January
20, 2014. Allegedly, at that point, Dr. Humphreys and others failed to properly treat
Justin, causing alleged permanent injuries. Id. at ¶ 3.
{¶ 9} Initially, Justin’s father, Michael Moore, filed the action pro se, as conservator
for Justin and on Justin’s behalf, on July 6, 2015; on the same day, Moore requested
service of process by certified mail on the defendants, including Dr. Humphreys. On July
16, 2015, the trial court filed a notice indicating that service on Dr. Humphreys was
complete. Id. at ¶ 5. There was no dispute that both COA and Mount Carmel had been
appropriately served.
{¶ 10} The same attorneys represented Dr. Humphreys and COA, and filed an
answer on July 30, 2015. Id. at ¶ 7. Subsequently, on September 1, 2015, an attorney
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entered an appearance on Moore’s behalf. Id. at ¶ 10.
{¶ 11} Dr. Humphreys participated in the case for more than a year and a half after
it was filed, but on February 27, 2017, COA and Dr. Humphreys filed a motion for
summary judgment, in which they claimed the action was barred because Moore failed to
serve Dr. Humphreys within one year of the filing of the complaint. Id. at ¶ 12. Mount
Carmel also filed a motion, denying liability because Dr. Moore was not a hospital
employee and had not been properly served. Id.
{¶ 12} Moore then filed a request on March 2, 2017, seeking personal service on
Dr. Humphreys, and on March 9, 2017, also filed other requests for certified mail service
on Dr. Humphreys. Very shortly thereafter, Dr. Humphreys was served by a process
server and by certified mail. Moore, 10th Dist. Franklin No. 2017APE-10-754, 2018-
Ohio-2831 at ¶ 13. The trial court then dismissed the case with prejudice on September
26, 2017, concluding that proper service was not made on Dr. Humphreys and that the
savings statute in R.C. 2305.19 did not apply. Id. at ¶ 16.
{¶ 13} On appeal, we reversed the trial court’s decision. We concluded that under
Goolsby v. Anderson Concrete Corp., 61 Ohio St.3d 549, 575 N.E.2d 801 (1991), Thomas
v. Freeman, 79 Ohio St.3d 221, 680 N.E.2d 997 (1997), LaNeve v. Atlas Recycling, Inc.,
119 Ohio St.3d 324, 2008-Ohio-3921, 894 N.E.2d 25, Sisk & Assoc., Inc. v. Commt. to
Elect Timothy Grendell, 123 Ohio St.3d 447, 2009-Ohio-5591, 917 N.E.2d 271, and lower
appellate court cases, that if a party has attempted to commence an action within the
one-year time limit of Civ.R. 3(A), “ ‘an instruction for a clerk to attempt service of a
complaint that was filed more than a year prior, the instruction, by operation of law, is a
notice dismissal of the claims.’ ” Moore at ¶ 72, quoting Sisk at ¶ 9. We, therefore,
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concluded that the trial court erred in dismissing the complaint and that the request for
service on March 2, 2017, should have been treated as a dismissal and refiling, with
service being perfected thereafter on Dr. Humphreys. Id. at ¶ 84.
{¶ 14} The points that Appellees make in their motions to certify involve matters
that were previously considered and rejected in our opinion. Appellees’ main contention
(and the question they want certified) relates to their position that an action is barred and
cannot be refiled if the plaintiff fails to serve the defendant both before the statute of
limitations has expired and within one year after the complaint is filed. However, as
Moore points out, this is not actually a correct statement of law.
{¶ 15} The Supreme Court of Ohio case law we discussed in our opinion clearly
indicates that actions can be refiled after dismissal even if the statute of limitations has
expired, and the plaintiff has not obtained service within one year after the complaint was
filed. As we noted in Moore, an automobile accident occurred in Thomas on December
22, 1989, and the negligence action against the defendant was filed on December 23,
1991. Moore, 10th Dist. Franklin No. 2017APE-10-754, 2018-Ohio-2831, at ¶ 37, citing
Thomas v. Freeman, 9th Dist. Summit No. 17247, 1995 WL 679268, *1 (Nov. 15, 1995),
and Thomas, 79 Ohio St.3d at 221, 680 N.E.2d 997.
{¶ 16} Service was not made on the defendant, although it was attempted, and the
trial court dismissed the case on July 14, 1992. Nearly one year later, the plaintiff again
filed suit, and failed to serve the defendant. On February 11, 1994, the trial court then
dismissed the case a second time for lack of prosecution. Moore at ¶ 37.
{¶ 17} At this point, the statute of limitations had expired more than two years
earlier, and service had never been perfected on the defendant. In July 1994, the
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plaintiffs asked the trial court to vacate its February 11, 1994, judgment entry and to
reinstate the action. After the plaintiffs obtained service, the trial court granted summary
judgment for the defendant, stating that the 1992 dismissal was an adjudication on the
merits and that the plaintiffs could not take advantage of the savings statute. Moore at
¶ 38, citing Thomas, 1995 WL 679268, at *1. The court of appeals agreed. Id.{¶ 18} On further appeal, the Supreme Court of Ohio held that even though the
plaintiff had not obtained service on the defendant, the initial dismissal was otherwise
than on the merits and the plaintiff could use the savings statute to refile. Thomas, 79
Ohio St.3d at 226-227, 680 N.E.2d 997. The court stressed that since the plaintiff “filed
her initial complaint and demanded service before the two-year statute of limitations
expired, and since the statute of limitations had subsequently expired, [she] had one year
from July 14, 1992 to refile her complaint, which she did on July 8, 1993, approximately
six days prior to the expiration of the savings statute allowance. (Emphasis added) Id.
at 227, citing Goolsby, 61 Ohio St.3d 549, 575 N.E.2d 801. The court did not require
both that the complaint be filed within the limitations period and that service be perfected
within one year after the complaint was filed in order for the savings statute to apply.
Thus, the question that Appellees want to certify is simply legally incorrect.
{¶ 19} With this in mind, we will consider the cases that Appellees have cited.
III. Discussion
A. Second District Court of Appeals
{¶ 20} Kowalski, 2d Dist. Montgomery No. 27577, 2017-Ohio-9310, is a case that
we discussed in our opinion. See Moore, 10th Dist. Franklin No. 2017APE-10-754,
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2018-Ohio-2831, at ¶ 85-92. The facts in Kowalski were quite different, as the plaintiffs
filed a few days before the statute of limitations expired, but named the wrong party.
Specifically, they named the car’s owner, who was not involved in the accident. Instead,
the car had been driven by another individual named Hernandez. Kowalski at ¶ 2. After
the statute of limitations expired, the trial court allowed the plaintiff to amend the complaint
under Civ.R. 15(C) and add the driver as the sole defendant. Id. at ¶ 3. The trial court
noted that the time for commencing the action against the driver ran for several more
weeks, until December 9, 2016 (one year after the complaint had been filed). Id. As we
noted in our opinion in Moore, however, “ ‘[u]nder Civ.R. 15(C), an amendment relates
back to the date of the original pleading if the parties are not changed.’ ” Moore at ¶ 91,
quoting Amerine v. Haughton Elevator Co., Div. of Reliance Elec. Co., 42 Ohio St.3d 57,
59, 537 N.E.2d 208 (1989).
{¶ 21} Ultimately, the trial court dismissed the case because the driver had not
been served within the one-year service period under Civ.R. 3(A). Kowalski at ¶ 5. As
relevant here, the Second District considered whether filing the amended complaint reset
the time for service, and concluded that it did not. As was noted in Moore, the court of
appeals “rejected the application of Goolsby, stating that the difference was that in
Goolsby, the plaintiff could have dismissed the claims in the original complaint ‘and refiled
the same claims in an amended complaint because the statute of limitations for the claims
had not yet expired.’ ” Moore at ¶ 88, quoting Kowalski at ¶ 12.
{¶ 22} This statement is a correct recitation of the holding in Goolsby, 61 Ohio
St.3d 549, 575 N.E.2d 801. However, as was noted in our opinion:
It is true that Goolsby involved a request for service within the
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limitations period. However, the fact is that service was made after the
one-year service limitation in Civ.R. 3(A) had expired. In addition, Goolsby
was issued in 1991, well before the court's 1997 decision in Thomas, 79
Ohio St.3d 221, 680 N.E.2d 997. It was also decided prior to the lower
court decisions concluding that an attempt to commence, rather than actual
commencement of an action is sufficient to invoke the savings statute.
Thus, under current authority, including Thomas, the plaintiff in Goolsby
could have refiled even if she failed to “commence” her action under Civ.R.
3(A), and even if the statute of limitations had expired before the action
failed otherwise than on the merits. As a result, the Supreme Court of Ohio
did not need to fashion the remedy of construing a request for service as a
refiling. The court also did not consider the issue of “attempted
commencement” in Goolsby.
Moore, 10th Dist. Franklin No. 2017APE-10-754, 2018-Ohio-2831, at ¶ 55.
{¶ 23} Kowalski did not consider these points, not did it consider the application of
the savings statute. As a result, we would not be comfortable relying on Kowalski to
certify a conflict, since it involved different facts and different issues.
B. Sixth District Court of Appeals
{¶ 24} As was noted, Appellees also rely on two opinions from the Sixth District
Court of Appeals: Hill, 6th Dist. Wood No. WD-04-010, 2004-Ohio-5663, and Peng, 6th
Dist. Lucas No. L-12-1279, 2013-Ohio-3063.
{¶ 25} In Hill, the plaintiff filed her complaint one day before the statute of
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limitations expired. She attempted immediately to serve the defendant, but service was
refused. Id. at ¶ 4. After the one-year service period expired, the plaintiff filed an
amended complaint, obtained service a few months later, and then obtained a default
judgment. Id. at ¶ 6. On appeal, the court reversed, concluding that the action had
“commenced” after the statute of limitations expired because the plaintiff served the
defendant 14 months after filing the complaint. Id. at ¶ 10.
{¶ 26} The court rejected the plaintiff’s argument that her amended complaint
served to extend the one-year time for service under Goolsby. The court concluded that
Goolsby did not provide relief because the plaintiff “failed to perfect service or effectively
extend the time for service by voluntarily dismissing and refiling the action or filing an
amended complaint, within one year of the filing of her complaint.” Id. at ¶ 12.
Subsequently, the Sixth District Court of Appeals distinguished Hill because it “dealt only
with commencement of an action and never touched on an attempted commencement.”
Marshall v. J & J's E. of the River Properties, L.L.C., 6th Dist. Lucas No. L-08-1101, 2008-
Ohio-5635, ¶ 17. Since Hill did not discuss attempted commencement (which is the
situation in the case before us), it does not provide a basis for certifying a conflict.
{¶ 27} In Peng, the plaintiffs filed a legal malpractice action on December 17, 2007,
and then voluntarily dismissed it on December 11, 2009, without prejudice. Peng, 6th
Dist. Lucas No. L-12-1279, 2013-Ohio-3063, at ¶ 2. The action was refiled on December
10, 2010, but service was not completed until December 14, 2011, more than one year
later. After the action was dismissed, the court of appeals rejected the plaintiffs’ reliance
on Goolsby, 61 Ohio St.3d 549, 575 N.E.2d 801, because the refiling was not within the
original statute of limitations. The court further found Sisk, 123 Ohio St.3d 447, 2009–
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Ohio-5591, 917 N.E.2d 271, distinguishable because the refiling in that case was not
made pursuant to R.C. 2305.19. Id. at ¶ 16. Finally, the court observed that under Hill,
“perfecting service outside of the applicable statute of limitations is fatal to an action.” Id.
at ¶ 17.
{¶ 28} Peng involves different circumstances than the case before us. In that
case, the plaintiffs dismissed their case without prejudice and then used the savings
statute in R.C. 2305.19 to allow the refiling of their complaint within one year. They then
failed to serve the defendant within one year as required by Civ.R. 3(A), and their case
was dismissed. Under Goolsby and Sisk, the plaintiffs could not have preserved their
action by filing a request for service after the one-year period of time in the second action
had elapsed. Under Sisk, the second dismissal would have been with prejudice,
precluding refiling, See Sisk at ¶ 9 (“when a plaintiff files an instruction for a clerk to
attempt service of a complaint that was filed more than a year prior, the instruction, by
operation of law, is a notice dismissal of the claims, and if the plaintiff had previously filed
a notice dismissing a complaint making the same claim, the instruction, by operation of
law, is a second notice dismissal, resulting in dismissal with prejudice of the claims”).
We noted this point in Moore. See Moore, 10th Dist. Franklin No. 2017APE-10-754,
2018-Ohio-2831, at ¶ 70.
{¶ 29} Based on the preceding discussion, there is no basis under Peng to justify
certifying a conflict, as it involved different facts and a dissimilar judgment. Accordingly,
the cited Sixth District cases do not require us to certify a conflict.
C. Eight District Court of Appeals
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{¶ 30} As noted, the opinions from the Eighth District Court of Appeals are:
Anderson, 8th Dist. Cuyahoga Nos. 80551, 80926, 2003-Ohio-1500, Pewitt, 8th Dist.
Cuyahoga No. 85334, 2005-Ohio-4298, Sheldon, 8th Dist. Cuyahoga No. 103576, 2016-
Ohio-941, Khatib, 2017-Ohio-95, 77 N.E.3d 461 (8th Dist.), and Tadross, 2017-Ohio-930,
86 N.E.3d 827 (8th Dist.).
1. Anderson
{¶ 31} Anderson involved cases brought between 1994 and 1996, and one in
1998. In these cases, the plaintiffs made an attempt at service that failed, and made no
further attempts. Anderson at ¶ 3. In 2001, the defendant moved to dismiss the cases
based on the failure to obtain service within one year. One set of cases was dismissed
with prejudice and the other set of cases was dismissed without prejudice. Id. at ¶ 4-5.
{¶ 32} The court of appeals concluded that the cases should have been dismissed
with prejudice, based on its interpretation of Civ.R. 3(A) and R.C. 2305.19 as requiring
that service must be perfected within one year before refiling will be permitted under the
savings statute. Id. at ¶ 11-23. The court also distinguished the decision of the
Supreme Court of Ohio in Thomas, 79 Ohio St.3d 221, 680 N.E.2d 997, because that
case involved dismissal for failure to obtain service within six months under Civ.R. 4(E)
(which the Supreme Court held was a failure otherwise than on the merits), and failure to
“commence” under Civ.R. 3(A) (which Anderson concluded required dismissal with
prejudice). Id. at ¶ 24-27.
{¶ 33} We noted in Moore that Anderson had “been rejected by other districts and
even by the Eighth District Court of Appeals. Moore, 10th Dist. Franklin No. 2017APE-
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10-754, 2018-Ohio-2831, at ¶ 93, citing Amos v. McDonald's Restaurant, 4th Dist.
Hocking No. 04CA3, 2004-Ohio-5762, ¶ 11. The cases cited in Amos include these
decisions of the Eighth District Court of Appeals: Stone v. Adamini, 8th Dist. Cuyahoga
No. 83159, 2004-Ohio-4466, and Abel v. Safety First Indus., Inc., 8th Dist. Cuyahoga No.
80550, 2002-Ohio-6482.
{¶ 34} Stone was issued after Anderson. In that case, the court of appeals held
that a plaintiff could avail himself of the savings statute in R.C. 2305.19 where he had
attempted service in the first action, but had failed, and then refiled after the statute of
limitations expired. The court noted that “although courts had previously held that a case
was considered ‘attempted to be commenced’ only if service was actually obtained, the
law now clearly state[s] that ‘[t]he applicability of R.C. 2905.19 is not limited only to
circumstances where effective service of process has been obtained. By its express
language, the savings statute also applies where there has been an attempt to commence
an action.’ ” Stone at ¶ 19, quoting Abel at ¶ 40-42.
{¶ 35} In view of the fact that Abel was decided in 2002, before Anderson, the
Eighth District Court of Appeals should have considered and resolved any conflict when
it issued its decision in Anderson. The court also had an opportunity to resolve any
conflicts when the decision in Stone was issued. However, the court failed to do so.
2. Sheldon v. Burke
{¶ 36} In Sheldon, an accident occurred on July 8, 2011, and the complaint was
filed on May 29, 2013. Sheldon, 8th Dist. Cuyahoga No. 103576, 2016-Ohio-941, at ¶ 4.
The trial court dismissed the case after the plaintiffs failed to obtain service within a year,
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and also denied the plaintiffs’ motion for relief from judgment. Id. at ¶ 5. After they
refiled the complaint on September 8, 2014, and obtained service, the trial court again
dismissed the complaint. Id. at ¶ 5 and 11.
{¶ 37} On appeal, the plaintiffs argued that their re-filed complaint was timely filed
due to the savings statute. Following Anderson, the court of appeals held that in order
for R.C. 2305.19(A) to apply, the original action must have been “commenced” within the
applicable statute of limitations. Id. at ¶ 12. Again, this decision conflicts with other prior
decisions of the Eighth District Court of Appeals, but the court did not address conflicts.
3. Pewitt
{¶ 38} Pewitt was issued in 2005, after the decisions in Anderson and Stone. In
Pewitt, the plaintiff was injured on December 14, 2001, and would have had two years to
file a negligence action. She filed an action on January 8, 2002, and did attempt service
in January 2002, but it was not successful. Pewitt, 8th Dist. Cuyahoga No. 85334, 2005-
Ohio-4298, at ¶ 1, 4 and 7. In June 2002, the action was stayed at plaintiff’s request,
due to her bankruptcy, and the stay lasted until June 2004. Id. at ¶ 3-4.
{¶ 39} After the case was reactivated, a process server was appointed to serve the
defendants. After filing a joint answer, the defendants moved to dismiss the case,
alleging that the statute of limitations had expired before the action was “commenced.”
Id. at ¶ 4. The trial court agreed, and dismissed the action. Id. at ¶ 4-5.
{¶ 40} The court of appeals distinguished both Goolsby and Anderson, and after
attempting to harmonize these cases, concluded that it was required to view the plaintiff’s
instructions to serve the defendants in 2004 as a “refiling of the complaint as in Goolsby.”
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Id. at ¶ 15. However, the court also held that “the refiled complaint was untimely (under
Anderson).” The court reasoned that “[e]ven if we accept that the action was
‘commenced’ with the filing of an answer by the defendants on July 1, 2004, as appellant
argues in her second assignment of error, it was not timely commenced within two years
from the date her cause of action arose on December 14, 2001 and was therefore properly
dismissed.” Id. at ¶ 16.
{¶ 41} The court of appeals did not mention the savings statute, and its reasoning,
frankly, is hard to understand. If the plaintiff’s actions constituted a dismissal and refiling
in 2004 (as the court suggested), she would have been able to use the savings statute
because she had attempted to commence her original action within the period outlined in
Civ.R. 3(A). In that situation, she would have had an additional year to perfect service
on the defendants. Again, the Eighth District Court of Appeals made no attempt to
resolve inconsistencies in its decisions.
4. Khatib
{¶ 42} In Khatib, 2017-Ohio-95, 77 N.E.3d 461, the plaintiffs were involved in an
accident in 2011, and filed suit in February 2013. Id. at ¶ 2. After they unsuccessfully
attempted to serve the defendant, the trial court dismissed the case in August 2013 for
lack of prosecution. They then refiled the complaint in March 2014 and eventually filed
an affidavit for service by publication in June 2014. Id. at ¶ 2-3 and 5. The newspaper
filed proof of publication in August 2014, and in September 2014, the plaintiffs filed a
notice of publication with the trial court. Id. at ¶ 7.
{¶ 43} After granting a default judgment for plaintiffs, the trial court subsequently
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concluded that service by publication was not proper because the defendant had not
concealed her whereabouts. The court, therefore, vacated the default judgment and
dismissed the case. Id. at ¶ 10-21. On appeal, the court of appeals rejected the
plaintiff’s argument that the trial court had erred in finding that the defendant was credible.
The court of appeals, therefore, concluded that the default judgment had been properly
vacated. Id. at ¶ 28-30.
{¶ 44} The second finding of the court of appeals was that the trial court had
correctly dismissed the action with prejudice because the plaintiffs failed to serve the
defendant within one year after they refiled the action in 2014. First, the court cited
Anderson for its ruling that failure to obtain service within Civ.R. 3(A) means that “the
action is not effectively commenced.” Id. at ¶ 33, citing Anderson. 8th Dist. Cuyahoga
Nos. 80551 and 80926, 2003-Ohio-1500, at ¶ 23.
{¶ 45} Then, citing Goolsby and Pewitt, the court commented that even if the
plaintiffs had requested service after the trial court’s ruling (setting aside the default
judgment and finding service by publication improper), any instructions for service would
be the equivalent of refiling the complaint. Id. at ¶ 34, citing Goolsby, 61 Ohio St.3d 549,
575 N.E.2d 801, and Pewitt, 8th Dist. Cuyahoga No. 85334, 2005-Ohio-4298, at ¶ 15.
This latter discussion by the court of appeals was unnecessary, because any refiling of
the complaint at that point would have been in vain since the action had already been
dismissed once without prejudice. See Sisk, 123 Ohio St.3d 447, 2009–Ohio-5591, 917
N.E.2d 271, at ¶ 9. Again, the Eighth District Court of Appeals did not attempt to
reconcile any of its prior decisions.
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5. Tadross
{¶ 46} As a final matter, Tadross, 2017-Ohio-930, 86 N.E.3d 827, has no bearing
on this action, as it involved a failure of service in a divorce action on a party who lived in
Egypt. The court made no findings with respect to R.C. 2305.19 or anything else
pertinent. As a result, that case would not justify certification of a conflict.
D. Ninth District Court of Appeals
{¶ 47} The cited opinions of the Ninth District Court of Appeals are as follows:
Bentley, 9th Dist. Summit No. 25039, 2010-Ohio-2735, Hubiak, 2014-Ohio-3116, 15
N.E.3d 1238 (9th Dist.), and Suiter, 9th Dist. Summit No. 27496, 2015-Ohio-3330.
1. Bentley
{¶ 48} In Bentley, a motor vehicle collision occurred on April 10, 2005, and the
plaintiff brought an action against the defendant on April 9, 2007. Bentley, 9th Dist.
Summit No. 25039, 2010-Ohio-2735, at ¶ 2. The plaintiff attempted to serve the
defendant but failed, and rather than attempt service by publication, filed an amended
complaint on April 23, 2008, after the one-year service time had expired. The amended
complaint contained the same content as the initial complaint, but added the defendant’s
name in care of an insurer. Id. at ¶ 2-3. Service failed on the defendant at her residence
address, but the insurer accepted service. The plaintiff then obtained a default judgment
against the defendant. Id. at ¶ 4.
{¶ 49} In January 2009, the defendant moved to vacate the default judgment,
contending that she had never received service and had not authorized the insurer to act
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as her agent. Id. at ¶ 5. The plaintiff then served the defendant with a copy of the
amended complaint in April 2009.1 Id. Ultimately, however, the trial court vacated the
default judgment and dismissed the case in September 2009, based on the plaintiff’s
failure to obtain service within one year after filing the complaint. Id. at ¶ 6.
{¶ 50} On appeal, the Ninth District concluded that the action had not been
“commenced” because service was not obtained within the time specified by Civ.R. 3(A).
Id. at ¶ 10. The court also rejected the plaintiff's contention that her filing of a new
praecipe for residential service on June 14, 2007, had the effect of a dismissal and refiling
under Goolsby and gave her another year to obtain service. The court further stated that
contrary to the plaintiff’s “assertion, Goolsby does not stand for the proposition that every
new filing of a praecipe has ‘the legal effect of a dismissal and [the] refiling of [a]
complaint.’ Goolsby merely recognizes the Supreme Court's unwillingness to engage
litigants in the exercise of superfluous and impractical refiling.” Id. at ¶ 13, citing
Goolsby, 61 Ohio St.3d at 551, 575 N.E.2d 801.
{¶ 51} The court also said that “[t]he refiling of an identical complaint on June 14,
2007 would not have provided [plaintiff] with an additional year to obtain service because
the statute of limitation [sic] had expired by then. * * * [Plaintiff’s] argument that she
perfected service within one year because she filed a new praecipe on July 14, 2007
lacks merit “ Id. at ¶ 14, citing Goolsby at 550-551.
{¶ 52} Finally, the court held that even if the plaintiff had attempted to commence
the suit by filing and trying to serve it on the defendant, the savings statute would not
1The court of appeals did not indicate the date of service in April 2009, i.e., whether it
occurred within one year of April 23, 2008, when the amended complaint was filed.
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apply because the plaintiff did not fail “otherwise than on the merits” under R.C.
2305.19(A) until the court vacated the default judgment and granted the motion to dismiss
in September 2009. Bentley, 9th Dist. Summit No. 25039, 2010-Ohio-2735, at ¶ 15.
The court, therefore, concluded that the plaintiff could not have commenced a new action
on July 14, 2008 (when she filed a new praecipe for residential service), because the
action had not yet failed on the merits. Id.
2. Hubiak
{¶ 53} In Hubiak, the plaintiffs filed a medical malpractice suit on October 27, 2011,
and requested service, which was completed by Federal Express within one month.
Hubiak, 2014-Ohio-3116, 15 N.E.3d 1238, at ¶ 2-3. At the time, the court had standing
orders making employees of Federal Express authorized process servers. In January
2013, the defendants moved to dismiss the case because the Civil Rules did not provide
for service of complaints by that method when the complaint was filed. After the case
was dismissed, the plaintiffs appealed. On appeal, the court concluded that at least one
group of defendants had waived insufficiency of service by failing to include it in their
answers, and the case was, therefore, pending, even though service had not been made
on some defendants within one year. Id. at ¶ 29.2 Based on this fact, the court applied
the amended rules of Civil Procedure (which authorized service by Federal Express) to
the remaining defendants, finding that to do so would not be prejudicial because they had
actual notice and had participated in the proceedings. Id. at ¶ 31-32.
2As noted, the case before us was “pending,” because both COA and Mount Carmel
were properly served. The only dispute concerned service on Dr. Humphreys.
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{¶ 54} As to the defendants who had waived service, the court found that Civ.R.
3(A) had not been violated because these defendants had filed their answers waiving
service within the one-year period in Civ.R. 3(A). Id. at ¶ 33-40. The court did not
discuss R.C. 2305.19, nor was there any need to do so. Accordingly, this case is
different both factually and with respect to the judgment that was entered, and would not
warrant certification of a conflict.
3. Suiter
{¶ 55} In Suiter, the plaintiffs filed a medical malpractice and loss of consortium
suit on May 27, 2010, and served the defendants by Federal Express. Suiter, 9th Dist.
Summit No. 27496, 2015-Ohio-3330, at ¶ 2. In January 2012, the plaintiffs filed an
amended complaint, adding additional defendants, and again served the defendants by
Federal Express. Id. at ¶ 4. Ultimately, the trial court dismissed the case against one
of the defendants who was originally named, based on lack of personal jurisdiction due
to the defective service. Id. at ¶ 9. (The plaintiff had previously dismissed the other
original defendant.)
{¶ 56} On appeal, the court rejected the plaintiffs’ claim that the amendment to
Civ.R. 4.1, allowing service by Federal Express, should be applied retroactively. In this
situation, unlike Hubiak, neither defendant had been served before the one-year time
limitation in Civ.R. 3(A) expired. The court, therefore concluded that the action had never
“commenced” for purposes of Civ.R. 3(A). Id. at ¶ 22. Again, the court did not discuss
the savings statute or the fact that a plaintiff must only “attempt to commence” an action.
Furthermore, to the extent that Suiter has any relevance, it indicates that where service
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has been made on at least one party, an action has been “commenced.” This is not
inconsistent with our decision in Moore.
{¶ 57} Ultimately, the court of appeals also concluded that the trial court erred in
dismissing the case with prejudice, because the plaintiffs claimed the statute of limitations
had been tolled and whether the claims were barred was not clear from the face of the
complaint. Id. at ¶ 34. Again, the decision in this case involved different facts and does
not conflict with our judgment.
E. Eleventh District Court of Appeals
{¶ 58} The cited case from the Eleventh District Court of Appeals is Gibson, 11th
Dist. Portage No. 2008-P-0032, 2008-Ohio-6995. In that case, an auto accident
occurred on January 12, 2004, and suit was filed on January 10, 2006, two days before
the statute of limitations expired. Id. at ¶ 3. The next day, the clerk sent certified mail
service of the complaint to the defendant, but the service failed and no further attempts
were made. Id. at ¶ 3-4.
{¶ 59} In October 2007, the plaintiff filed an amended complaint against the
defendant and two insurance companies, and then obtained service on the defendant in
late November 2007. Id. at ¶ 5. After the trial court dismissed the claim against the
defendant without prejudice, the plaintiff appealed. Id. at ¶ 8-9.
{¶ 60} On appeal, the court first concluded that the plaintiff failed to commence her
action under Civ.R. 3(A) because she failed to obtain service within one year. Id. at ¶ 26-
29. Although the plaintiff had filed an amended complaint and had perfected service
within one year of that date, the court held that she could not use the savings statute in
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R.C. 2305.19. The court decided that Goolsby applied only in limited circumstances –
specifically where a party had the ability to dismiss and refile within the statute of
limitations. Id. at ¶ 41-44. However, the court did not specifically discuss the fact that
R.C. 2305.19 only requires that a party “attempt to commence” an action. The court did
distinguish a prior case that had been reversed by the Supreme Court of Ohio. Id. at
¶ 53, fn.5, citing LaNeve v. Atlas Recycling, Inc., 172 Ohio App.3d 44, 2007-Ohio-2856,
872 N.E.2d 1277 (11th Dist.), rev’d 119 Ohio St.3d 324, 2008-Ohio-3921, 894 N.E.2d 25.
{¶ 61} In this regard, the court rejected the plaintiff’s argument that under LaNeve,
she had attempted to commence her action by filing the complaint in the trial court and
should be able to refile beyond the statutory period. Gibson, 11th Dist. Portage No.
2008-P-0032, 2008-Ohio-6995, at ¶ 53, fn. 5. The court distinguished LaNeve because
it involved an action that was not commenced properly under Civ.R. 15(D), and was also
reversed by the Supreme Court of Ohio. Id.{¶ 62} In LaNeve, the plaintiff was injured at his place of employment on May 28,
2002. He and his wife then filed an action against the employer and various “John Doe”
defendants on May 28, 2004. LaNeve, 172 Ohio App.3d 44, 2007-Ohio-2856, 872
N.E.2d 1277, at ¶ 2. The plaintiffs filed an amended complaint on May 6, 2005, replacing
two John Doe defendants with Container Port and China Shipping, but served these
defendants by certified mail rather than serving them personally as required by Civ.R.
15(D). Id. at ¶ 2-3.
{¶ 63} Container Port and China Shipping then filed motions to dismiss,
contending that the amended complaint was time-barred, because they had not been
correctly served and the complaint did not relate back. Id. at ¶ 3-4. The trial court
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agreed and dismissed the claims against these defendants with prejudice. Id.
{¶ 64} On appeal in LaNeve, the defendants argued that the amended complaint
did not relate back because they were not personally served as required by Civ.R. 15(D).
Id. at ¶ 10-12. They further argued that because proper service was not made on them
within the one-year period required under Civ.R. 3(A), the action was not commenced
within the limitations period. Id. In discussing this, the Eleventh District stated that “[t]he
flaw in this argument results from failure to account for the interaction of Civ.R. 3(A) and
the savings statute, R.C. 2305.19.” Id. at ¶ 13. After making this comment, the court
discussed Goolsby, 61 Ohio St.3d 549, 575 N.E.2d 801, and its own prior decision in
Fetterolf v. Hoffmann–LaRoche, Inc., 104 Ohio App.3d 272, 661 N.E.2d 811 (11th
Dist.1995). Id. at ¶ 13-17.
{¶ 65} Applying these cases, the court concluded that the plaintiffs had attempted
to commence their action within the limitations period for purposes of R.C. 2305.19(A).
The court further stated that the filing of the amended complaint with instructions for
service was the equivalent of a voluntary dismissal and refiling, i.e., a failure otherwise
than on the merits, and brought the savings statute into operation. As a result, the
plaintiffs had one year from May 6, 2005 to perfect service. LaNeve, 172 Ohio App.3d
44, 2007-Ohio-2856, 872 N.E.2d 1277, at ¶ 18.
{¶ 66} The court reasoned that the phrase “attempted to be commenced as used
in the savings statute, R.C. 2305.19(A) * * * means what it says: the savings statute
preserves, for a year, any action that a would-be plaintiff has tried to commence, without
success, due to the circumstances listed in the statute. A failure to comply with technical
service rules – such as that in Civ.R. 15(D) – is exactly the sort of attempt to commence
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an action to which the savings statute is directed.” Id. at ¶ 20. The court, therefore,
reversed the dismissal of the action. Id. at ¶ 22.
{¶ 67} On further appeal, the Supreme Court of Ohio accepted a certified conflict
and reversed the judgment. See LaNeve v. Atlas Recycling, Inc., 119 Ohio St.3d 324,
2008-Ohio-3921, 894 N.E.2d 25. The certified conflict was: “ ‘Does the Ohio savings
statute, R.C. 2305.19(A), apply to an action where plaintiff fails to comply strictly with the
requirements of Civ.R. 15(D) in serving the original complaint.’ ” Id. at ¶ 7.
{¶ 68} Contrary to the implication in Gibson, the Supreme Court of Ohio did not
entirely disagree with the lower court decision of the Eleventh District Court of Appeals.
The court noted that Civ.R. 15(D) addresses a “unique situation” and “specific
requirements” accompany the rule. Because the rule requires personal service,
“[s]ervice on the formerly fictitious, now identified, defendant by certified mail is ‘clearly
not in accordance with the requirement of Civ.R. 15(D).’ ” Id. at ¶ 10, quoting Amerine
v. Haughton Elevator Co., 42 Ohio St.3d 57, 58, 537 N.E.2d 208 (1989). The court noted
that if the specific requirements in Civ. R. 15(D) are met, “the relations-back provisions of
Civ.R. 15(C) are then considered. * * * ‘Because of relation back, the intervening statute
of limitation does not interfere with the opportunity to amend.’ * * * An amendment relates
back to the date of an original complaint if the parties are not changed. * * * The
substitution of a fictitious name for a real name is not changing a party.” Id. at ¶ 11,
quoting Civ.R. 15 Staff Notes (1970).
{¶ 69} Citing Civ.R. 3(A), the court further commented that “[t]he rule pertaining to
the commencement of a civil action specifically permits an amendment made pursuant to
Civ.R. 15(D) to relate back to the filing of an original complaint, provided service is
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obtained within one year of the filing of the original complaint.” Id. at ¶ 12. Nonetheless,
the court also observed that “[i]n appropriate circumstances, the saving statute of R.C.
2305.19(A) allows an original action that has either been properly commenced or
‘attempted to be commenced’ to be voluntarily dismissed and then refiled or replaced with
an amended complaint against the same defendant based on the same injury, even if the
applicable statute of limitations has expired at the time of the refiling. The application of
the R.C. 2305.19(A) saving statute extends the Civ.R. 3(A) time period in which to serve
a defendant by one additional year.” Id. at ¶ 13.
{¶ 70} This is consistent with our discussion in Moore. In fact, we discussed
LaNeve. See Moore, 10th Dist. Franklin No. 2017APE-10-754, 2018-Ohio-2831, at ¶ 65
and 94. The Supreme Court of Ohio concluded in LaNeve, however, that R.C.
2305.19(A) could not be appropriately applied to that case. The court stressed that “[a]n
attempt to commence an action as contemplated by R.C. 2305.19, however, must be
pursuant to a method of service that is proper under the Civil Rules. Certified mail is an
improper method of service under Civ.R. 15(D), which specifies that personal service is
the only method by which a fictitious, now identified, defendant may be served.” LaNeve,
119 Ohio St.3d 324, 2008-Ohio-3921, 894 N.E.2d 25, at ¶ 17.
{¶ 71} In sum, Gibson’s reason for failing to discuss LaNeve was incorrect. See
Gibson, 11th Dist. Portage No. 2008-P-0032, 2008-Ohio-6995, at ¶ 53, fn.5. A
dissenting judge in Gibson also argued that Civ. R. 3(A) only requires service on “a named
defendant,” and that since service was obtained within one year on two other defendants,
the action should have been deemed commenced under Civ.R. 3(A). Id. at ¶ 68
(Cannon, J., dissenting).
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IV. Conclusion
{¶ 72} Having considered the alleged conflict cases, we conclude, as noted in
Moore, that “there is no doubt that inconsistency exists among appellate decisions and
even among decisions within some districts, nor is there any question that this is a
complex subject.” Moore, 10th Dist. Franklin No. 2017APE-10-754, 2018-Ohio-2831, at
¶ 94. Accordingly, we find that our decision in Moore conflicts in certain respects with
the following cases from the Eighth, Ninth, and Eleventh Appellate Districts: Anderson
v. Borg-Warner, 8th Dist. Cuyahoga Nos. 80551, 80926, 2003-Ohio-1500; Pewitt v.
Roberts, 8th Dist. Cuyahoga No. 85334, 2005-Ohio-4298; Sheldon v. Burke, 8th Dist.
Cuyahoga No. 103576, 2016-Ohio-941; Khatib v. Peters, 2017-Ohio-95, 77 N.E.3d 461(8th Dist.); Bentley v. Miller, 9th Dist. Summit No. 25039, 2010-Ohio-2735; and Gibson v.
Summers, 11th Dist. Portage No. 2008-P-0032, 2008-Ohio-6995.
{¶ 73} While Appellees failed to present a correct question for certification, we
certify the following question:
Does the Ohio savings statute, R.C. 2305.19(A), apply to an action
in which a plaintiff attempts, but fails to perfect service on the original
complaint within one year pursuant to Civ.R. 3(A)? If so, when a plaintiff
files instructions for service after the Civ.R. 3(A) one-year period, does the
request act as a dismissal by operation of law and also act as the refiling of
an identical cause of action so as to allow the action to continue?
V. Disposition
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{¶ 74} Based on the preceding discussion, Appellees’ motion to certify a conflict is
granted.
SO ORDERED.
MARY E. DONOVAN, Visiting Judge
(Sitting by Assignment)
JEFFREY M. WELBAUM, Visiting Judge
(Sitting by Assignment)
MICHAEL L. TUCKER, Visiting Judge
(Sitting by Assignment)
(Hon. Mary E. Donovan, Hon. Jeffrey M. Welbaum, and Hon. Michael L. Tucker, Second
District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court
of Ohio.)
Copies mailed to:
David I. Shroyer
536 South High Street
Columbus, OH 43215
Grier D. Schaffer
2075 Marble Cliff Office Park
Columbus, OH 43215
Theodore M. Munsell
Joel E. Sechler
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Emily M. Vincent
280 Plaza, Suite 1300
280 North High Street
Columbus, OH 43215
Hon. Richard A. Frye
Franklin County Common Pleas Court
345 South High Street
Columbus, OH 43215
AF//COA2