Moore v. Mt. Carmel Health Sys. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Moore v. Mt. Carmel Health Sys., Slip Opinion No. 2020-Ohio-4113.]
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. 2020-OHIO-4113
MOORE, CONSERVATOR, APPELLEE, v. MOUNT CARMEL HEALTH SYSTEM
D.B.A. MOUNT CARMEL ST. ANN’S HOSPITAL ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Moore v. Mt. Carmel Health Sys., Slip Opinion No.
2020-Ohio-4113.]
Civil law—Savings statute—R.C. 2305.19(A)—The savings statute may be applied
only when its terms have been met—Court of appeals’ judgment reversed
and cause remanded.
(Nos. 2018-1233 and 2018-1479―Submitted November 13, 2019―Decided
August 20, 2020.)
APPEAL from and CERTIFIED by the Court of Appeals for Franklin County,
No. 2017APE-10-754, 2018-Ohio-2831.
_________________
DEWINE, J.
{¶ 1} This case requires us to examine the interplay between Ohio’s savings
statute, R.C. 2305.19(A), and the provisions of Civ.R. 3(A) to determine whether
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an action is barred by the statute of limitations. The statute of limitations prohibits
an action unless it is “commenced” prior to the expiration of the statute. Civ.R.
3(A) says that an action is “commenced” at the time it is filed if service is obtained
within one year. The savings statute provides that when an action is dismissed other
than on the merits, the plaintiff may refile the action within one year.
{¶ 2} Here, the plaintiff filed the action just before the expiration of the
statute of limitations. The plaintiff did not obtain service within one year, however.
Nor did he dismiss the action during that period. The question is whether the
plaintiff can nevertheless rely upon the savings statute. We hold that he may not.
Because the action was not commenced within the statute-of-limitations period, it
fails. The savings statute cannot be used to revive the action.
Moore Files Suit One Day Prior to the Expiration of the Statute of
Limitations
{¶ 3} Michael Moore filed a complaint alleging medical malpractice for
injuries suffered by his son during a medical procedure that was performed on
January 20, 2014. Moore sued multiple defendants, including Dr. Eric Humphreys,
the anesthesiologist who treated his son; Mount Carmel St. Ann’s Hospital (“Mount
Carmel”), where the procedure was performed; and Central Ohio Anesthesia, Inc.,
the practice group with which Dr. Humphreys worked.
{¶ 4} The statute of limitations for medical claims is one year. R.C.
2305.113(A). That period may be extended if, before the expiration of the
limitations period, the plaintiff gives written notice to the defendant that he intends
to bring a claim. R.C. 2305.113(B)(1). In such event, the action may be
commenced at any time within 180 days after the notice was given. Moore took
advantage of this provision, extending his deadline to commence the action to July
7, 2015. He filed his complaint one day prior to this deadline, on July 6, 2015.
Simultaneously, Moore requested service of the complaint and summons on all
three defendants.
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{¶ 5} Timely service was obtained on Central Ohio Anesthesia and Mount
Carmel, but Moore failed to obtain service on Dr. Humphreys during the year
following the filing of the complaint as required by Civ.R. 3(A). An attempt to
serve Dr. Humphreys by certified mail at Mount Carmel was unsuccessful; Dr.
Humphreys had retired and was no longer seeing patients at Mount Carmel or
elsewhere.
{¶ 6} Mount Carmel filed an answer to the complaint and raised a statute-
of-limitations defense and an insufficiency-of-service-of-process defense. Central
Ohio Anesthesia and Dr. Humphreys jointly filed an answer and also raised those
defenses.
Moore Serves Dr. Humphreys More Than One and a Half Years after Filing
{¶ 7} In February 2017, Central Ohio Anesthesia, Dr. Humphreys, and
Mount Carmel all moved for summary judgment. They argued that Moore’s claim
against Dr. Humphreys was time-barred because Moore failed to serve him within
Civ.R. 3(A)’s one-year commencement period. Mount Carmel and Central Ohio
Anesthesia further asserted that because the claim against Dr. Humphreys was time-
barred, they could not be vicariously liable. On March 2, 2017, Moore again issued
instructions to the clerk to attempt personal service on Dr. Humphreys. Service
was finally perfected on Dr. Humphreys at his residence on March 10, 2017.
{¶ 8} The trial court granted summary judgment in favor of all three
defendants. The court found that the lawsuit against Dr. Humphreys was barred by
the statute of limitations. It noted that under our precedent, Dr. Humphreys’s
participation in the case did not prevent him from raising the defense of insufficient
service of process, citing Gliozzo v. Univ. Urologists, 114 Ohio St. 3d 141, 2007-
Ohio-3762, 870 N.E.2d 714, ¶ 18. Although Moore had initially filed the lawsuit
within the limitations period, he neither obtained service on Dr. Humphreys within
one year as required by Civ.R. 3(A), nor did he dismiss his lawsuit during that time.
Thus, the claim against Dr. Humphreys was not commenced prior to the expiration
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of the statute of limitations and was barred. As a consequence, the court ruled, “Dr.
Humphreys is dismissed with prejudice from this lawsuit because plaintiff’s claims
against him are barred by the statute of limitations.” And, concluding that Mount
Carmel and Central Ohio Anesthesia could only be vicariously liable, the court
found that any liability of both parties was “extinguished.” The court thus granted
summary judgment and entered final judgment in favor of Dr. Humphreys, Central
Ohio Anesthesia, and Mount Carmel and against Moore “on the merits.”
{¶ 9} Moore appealed. The Tenth District Court of Appeals reversed and
held that the savings statute applied to Moore’s claim against Dr. Humphreys. For
the savings statute to apply, an action must fail other than on the merits and then
the plaintiff must commence a new action within one year of that failure. R.C.
2305.19(A). Relying on Goolsby v. Anderson Concrete Corp., 61 Ohio St. 3d 549,
575 N.E.2d 801 (1991), the court of appeals construed Moore’s instructions for
service of process on March 2, 2017, as a voluntary dismissal of his action and a
refiling of a new action against Dr. Humphreys by operation of law. The court
further concluded that this dismissal by operation of law was a failure “otherwise
than on the merits,” even though the statute of limitations had expired. 2018-Ohio-
2831, 117 N.E.3d 89, ¶ 2. Thus, it concluded that the savings statute allowed Moore
an additional year to perfect service of his complaint, which was accomplished on
March 10, 2017. Having determined that the claim against Dr. Humphreys was not
time-barred, the court of appeals dismissed as moot Moore’s remaining assignment
of error, which argued that his claim against Central Ohio Anesthesia survived even
if the claim against Dr. Humphreys was barred by the statute of limitations.
{¶ 10} The court of appeals acknowledged that several other courts of
appeals have held Goolsby to be inapplicable in similar situations. See, e.g.,
Anderson v. Borg-Warner Corp., 8th Dist. Cuyahoga Nos. 80551 and 80926, 2003-
Ohio-1500; Bentley v. Miller, 9th Dist. Summit No. 25039, 2010-Ohio-2735;
Gibson v. Summers, 11th Dist. Portage No. 2008-P-0032, 2008-Ohio-6995.
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Finding its decision to be in conflict with these cases, the court of appeals certified
the following question to this court:
“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?”
154 Ohio St. 3d 1436, 2018-Ohio-4732, 112 N.E.3d 922.
{¶ 11} Mount Carmel filed a discretionary appeal to this court, as did Dr.
Humphreys and Central Ohio Anesthesia. They raised similar propositions of law,
essentially asserting that once the applicable statute-of-limitations period expires,
the savings statute cannot be used to revive a cause of action that was not timely
commenced under Civ.R. 3(A). This court accepted both discretionary appeals and
consolidated them with the certified-conflict case. 154 Ohio St. 3d 1437, 2018-
Ohio-4732, 112 N.E.3d 922.
{¶ 12} Before we begin our analysis, and to make all this easier to follow,
we restate the pertinent dates below:
01/20/2014 Date of alleged injury
07/06/2015 Complaint filed
07/07/2015 Expiration of the statute of limitations
07/06/2016 Date by which service must be obtained to commence action
under Civ.R. 3(A)
02/2017 Summary-judgment motions filed
03/02/2017 Instructions for service on Dr. Humphreys
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03/10/2017 Service on Dr. Humphreys obtained
By Its Plain Terms, the Savings Statute Does Not Save Moore
{¶ 13} To resolve the question in front of us, we need to examine the statute
of limitations, the commencement requirement in Civ.R. 3(A), and the savings
statute, R.C. 2305.19(A).
{¶ 14} The applicable statute of limitations is R.C. 2305.113, which states
that “an action upon a medical * * * claim shall be commenced within one year
after the cause of action accrued.” (Emphasis added.) R.C. 2305.113(A). Here,
because Moore took advantage of the 180-day extension provided for in R.C.
2305.113(B)(1), he was required to “commence” his action by July 7, 2015.
{¶ 15} Civ.R. 3(A) determines when an action is commenced:
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, or upon an incorrectly named defendant whose
name is later corrected pursuant to Civ.R. 15(C), or upon a
defendant identified by a fictitious name whose name is later
corrected pursuant to Civ.R. 15(D).
(Emphasis added.) See also R.C. 2305.17.
{¶ 16} The upshot of the aforementioned provisions is that to comply with
the statute of limitations, an action must be “commenced” within the limitations
period. Under Civ.R. 3(A), this occurs when the action is filed within the
limitations period and service is obtained within one year of that filing.
{¶ 17} That brings us to Ohio’s savings statute. It provides:
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January Term, 2020
In any action that is commenced or attempted to be
commenced * * *, if the plaintiff 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.
R.C. 2305.19(A).
{¶ 18} Under the plain language of these three provisions, Moore’s claim is
barred by the statute of limitations. Moore filed his action within the limitations
period but did not obtain service on Dr. Humphreys during the one-year
commencement period pursuant to Civ.R. 3(A). Thus, he did not commence his
action within the statute-of-limitations period. As a result, as of July 7, 2016, his
claim was time-barred.
{¶ 19} By its terms, the savings statute cannot save Moore’s claim. In order
for the statute to apply, the claim must have failed “otherwise than upon the merits”
and then Moore must have filed a new claim within one year thereafter. Here, when
Moore issued instructions to the clerk to serve the complaint in March 2017,
Moore’s claim hadn’t failed other than on the merits. The case remained on the
court’s docket—it was subject to dismissal, to be sure, both because Moore had
failed to accomplish service and because the statute of limitations had run. But no
such dismissal had been entered, and if such dismissal had been entered, the
expiration of the statute of limitations would have made the failure on the merits.
See LaBarbera v. Batsch, 10 Ohio St. 2d 106, 114-115, 227 N.E.2d 55 (1967) (“a
judgment based upon the statute of limitations is generally regarded as on the merits
and bars another action for the same cause”). Further, Moore did not file a “new
action.” The only thing he did was ask the clerk to serve the original complaint that
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remained on the court’s docket. Thus, if the savings statute means what it says, it
does not apply.
{¶ 20} This would be a relatively simple case if all we had to grapple with
was the language of the applicable rule and statutes; under a plain reading, the trial
court properly found that Moore’s claim was barred by the statute of limitations.
But the court of appeals concluded that our decision in Goolsby, 61 Ohio St. 3d 549,
575 N.E.2d 801, dictated a different result—a contention that Moore echoes in his
briefing. So we take up Goolsby.
Goolsby Does Not Save Moore, Either
{¶ 21} Goolsby involved the two-year statute of limitations for personal-
injury claims. See R.C. 2305.10. Goolsby filed her complaint less than seven
months after the date of her automobile accident (more than one year before the
statute of limitations was set to expire). Goolsby at 549. Goolsby did not seek to
serve her complaint within one year of filing. Instead, two days before the statute
of limitations was set to expire, Goolsby instructed the clerk to execute service,
which was obtained shortly thereafter. Id. The defendant argued that because
Goolsby’s complaint was not served for more than one year after it was filed, she
had never commenced an action. Id. at 550. This court recognized that a “technical
application” of Civ.R. (3)(A) would lead to the conclusion that Goolsby never
commenced her action. Id. at 550. On the other hand, “had Goolsby dismissed her
complaint and again filed it at the time instructions for service were given, the
action would have been commenced according to Civ.R. 3(A).” Id. at 550-551.
But the court worried that to require her to do so would lead to delay, unnecessary
expense, and other impediments to the “expeditious administration of justice.” Id.
at 551. “Under these circumstances,” the court explained, a strict application of
Civ.R. 3(A) “would not comport with the spirit of the Civil Rules.” Id. Thus, the
court held that “[w]hen service has not been obtained within one year of filing a
complaint, and the subsequent refiling of an identical complaint within rule would
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provide an additional year within which to obtain service and commence an action
under Civ.R. 3(A), an instruction to the clerk to attempt service on the complaint
will be equivalent to a refiling of the complaint.” (Emphasis added.) Id. at syllabus.
{¶ 22} The facts of the present case are quite different from the facts in
Goolsby. When Goolsby issued her instruction to the clerk to attempt service of
the complaint, she was still within the limitations period. Because the limitations
period had not yet run, she could have simply dismissed her complaint without
prejudice and refiled it. In contrast, when Moore issued his instructions to the clerk
in March 2017, the statute of limitations period had already expired.
{¶ 23} This court applied Goolsby’s holding in a somewhat different
context in Sisk & Assocs., Inc. v. Commt. to Elect Timothy Grendell, 123 Ohio St. 3d
447, 2009-Ohio-5591, 917 N.E.2d 271. There, Sisk filed a complaint for breach of
contract in September 2004, failed to obtain service within one year, and voluntarily
dismissed the action. Id. at ¶ 2. Sisk refiled the complaint in 2005 but did not
obtain service within one year of the 2005 complaint; instead, Sisk instructed the
clerk to serve the defendant in 2007. Id. Service failed again, so the trial court
dismissed the refiled action without prejudice. Id. The court of appeals affirmed,
but we reversed. “To allow Sisk to proceed with its case, after twice failing to
perfect service within a year,” this court said, “would be a perversion of justice.”
Id. at ¶ 7. To avoid this result, the court applied Goolsby, 61 Ohio St. 3d 549, 575
N.E.2d 801, and held that Sisk’s instruction to serve process in 2007 should be
construed as a dismissal and a refiling. Sisk at ¶ 8. Since Sisk had already
dismissed the original complaint once, the second dismissal was with prejudice
under Civ.R. 41(A)(1)(a). Id.
{¶ 24} The opinion in Sisk does not detail whether the statute of limitations
had expired at the time the clerk was instructed to serve process in 2007. It appears
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from the record, however, that it had not.1 Thus, Sisk, like Goolsby, is best
understood as dealing with a situation where the original statute of limitations had
not expired.
{¶ 25} The rationale underlying the rule announced in Goolsby (and applied
in Sisk) is that in the circumstances of that case—where the statute of limitations
had not run—it was an unnecessary and onerous procedural hurdle to force a
plaintiff to dismiss and refile an identical complaint. The key distinction between
Goolsby and our case is that here, the statute of limitations had run when Moore
requested that the clerk make a renewed attempt at service. To apply the savings
statute to revive the action in our case, despite the plain terms of Civ.R. 3(A), has
the effect not of avoiding unnecessary procedural hoop jumping, but of extending
the statute of limitations beyond the term set by the legislature.
{¶ 26} We have little difficulty in concluding that the rule announced in
Goolsby, 61 Ohio St. 3d 549, 575 N.E.2d 801, does not apply in this case. But that
leaves us with the question of the continued viability of our holding in Goolsby.
Had we simply applied the plain language of the statutory scheme in Goolsby, we
would have reached a different result. Our decision in that case, however, was
driven by an interest in judicial economy and avoiding unnecessary procedural
hurdles. As today’s case demonstrates, however, some courts have extended
Goolsby well beyond the facts of that case, and in so doing, have extended the
statute of limitations beyond what was ordained by the legislature. To prevent any
further confusion, we make clear today that Goolsby is limited to the factual
circumstance that motivated its holding. Thus, the rule announced in Goolsby—
that a new instruction to the clerk to serve a complaint that is made after Civ.R.
1. See, e.g., Supreme Court of Ohio Case Information, case No. 2008-1265,
https://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2008/1265 (accessed Apr. 2, 2020)
[https://perma.cc/FA9J-GZVY].
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3(A)’s commencement period has expired may be treated as a dismissal and refiling
for purposes of the savings statute—applies only when the statute of limitations has
not yet expired.
Nor Does the “Attempt to Commence” Language Save Moore
{¶ 27} Moore also argues that the failure to serve a complaint within Civ.R.
3(A)’s one-year commencement period is not determinative because the savings
statute applies to “any action that is commenced or attempted to be commenced.”
(Emphasis added.) R.C. 2305.19(A). His argument goes like this: (1) he attempted
to commence the action when he filed the complaint and made the initial request
for service on Dr. Humphreys, (2) his claim failed “otherwise than upon the merits”
on July 6, 2016, when he failed to obtain service during Civ.R. 3(A)’s one-year
commencement period, but (3) the savings statute provided him an additional year
(until July 5, 2017) to commence a new action, (4) which he accomplished when
he issued instructions to the clerk and obtained service in March 2017.
{¶ 28} It is true that we have applied the savings statute when an action has
not been commenced. In Thomas v. Freeman, 79 Ohio St. 3d 221, 680 N.E.2d 997
(1997), we dealt with an action in which the plaintiff had filed a lawsuit and
requested service within the statute-of-limitations period. Id. at 227. After the
limitations period had run, but within Civ.R. 3(A)’s commencement period, the
action was dismissed without prejudice without the plaintiff having obtained
service. Id. Under these facts, we held that the plaintiff could use the savings
statute to commence a new action within one year of the dismissal without
prejudice. Id. at 227-228.
{¶ 29} Thomas dealt with a situation in which the terms of the savings
statute had been complied with. There was an attempt to commence the action (the
filing of the complaint and a request for service), the action was dismissed other
than on the merits prior to the running of Civ. R. 3(A)’s commencement period,
and a new action was filed. In contrast, here, the requirements of the savings statute
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have not been met: there was no failure other than on the merits and there has been
no filing of a new action.
{¶ 30} Moore would have us ignore these statutory requirements and ordain
that the requirements of the savings statute were met by operation of law when
Civ.R. 3(A)’s one-year commencement period passed without service of the
complaint. In other words, Moore posits that when a plaintiff does not obtain
service during the one-year commencement timeframe, the savings statute
automatically gives him another year to perfect service. Moore’s argument would
essentially change Civ.R. 3(A)’s one-year commencement rule to a two-year
commencement rule. We decline to adopt such a construction in the face of the
explicit language of Civ.R. 3(A). The savings statute does not apply automatically
to extend the one-year commencement requirement. It applies only when its terms
are met: when an action is commenced or attempted to be commenced; when a
judgment is reversed or an action fails other than on the merits, that is, when there
is either a voluntary dismissal without prejudice under Civ.R. 41(A) or an
involuntary dismissal without prejudice under Civ.R. 41(B); and when the
complaint is refiled within one year.
We Cannot Save Moore by Modifying the Trial Court’s Judgment
{¶ 31} The dissent agrees that we should not engage in the legal fiction of
treating Moore’s second request for service as a dismissal and refiling, but it would
have us do something similar. It urges that we adopt what it terms the “alternative
rationale” of the court of appeals and “ ‘modify the [trial court’s] judgment
[granting summary judgment] so that the dismissal would be without prejudice.’ ”
Dissenting opinion at ¶ 38, quoting 2018-Ohio-2831, 117 N.E.3d 89, at ¶ 94. It
says that upon remand from this court, Moore would have yet another year in which
he could file his claim against Dr. Humphreys. Dissenting opinion at ¶ 39. (And
then, of course, another year in which to serve the complaint under Civ. R. 3(A).)
In other words, even though the statute of limitations indisputably expired on July
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7, 2015 (and the deadline to commence on July 6, 2016), the dissent would allow
Moore until at least late 2022 to “commence” his action against Dr. Humphreys.
As far as the claims against the other parties, the dissent postulates that these would
continue in the trial court, despite the fact that the trial court already entered
summary judgment in favor of the defendants.
{¶ 32} But the imaginative fiction engaged in by the dissent fares no better
than the one employed by the Tenth District. Remember, Moore filed his action on
July 6, 2015. To avoid the running of the statute of limitations, he had to commence
under Civ.R. 3(A) by obtaining service by July 6, 2016, or voluntarily dismiss his
action within this time period to obtain the benefit of the savings statute. He failed
to do so and thus, his action is time-barred. Thus, even if the dissent were to have
its way and the grant of summary judgment in favor of Dr. Humphreys were
somehow converted to a dismissal without prejudice, it wouldn’t matter. Moore
still couldn’t refile because the statute of limitations has expired.
{¶ 33} For this reason, the dissent’s extensive argument that the trial court
erred in granting judgment on the merits while Dr. Humphreys was contesting the
lack of service is an unnecessary tangent. However the judgment is characterized,
Moore can’t refile; the statute of limitations has expired. Nonetheless, to avoid
reader confusion, it is worth pointing out that the dissent is simply wrong in its
premise.
{¶ 34} Nothing in the Rules of Civil Procedure prevents a defendant from
simultaneously asserting a statute-of-limitations defense and a defense of lack of
service of process. The service requirement protects the defendant’s right to due
process. See Wainscott v. St. Louis-San Francisco Ry. Co., 47 Ohio St. 2d 133, 137,
351 N.E.2d 466 (1976). A court may enter judgment against a plaintiff even when
it has not acquired jurisdiction over the defendant, because in such a case the
plaintiff has submitted to the court’s jurisdiction by filing the complaint. Thus, we
have explained that a party may participate in a case—and thereby assert
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affirmative defenses—and at the same time continue to maintain the defense of
insufficiency of process as long as the defense was properly raised in the answer
and properly preserved. Gliozzo, 114 Ohio St. 3d 141, 2007-Ohio-3762, 870 N.E.2d
714, at syllabus. In this vein, in Maryhew v. Yova, 11 Ohio St. 3d 154, 464 N.E.2d
538 (1984), we affirmed a trial court’s dismissal of an action with prejudice in
which a defendant had simultaneously asserted both failure-of-service and statute-
of-limitations defenses. See Maryhew v. Yova, 11th Dist. Trumbull No. 3138, 1982
WL 5690, *1 (Nov. 26, 1982), aff’d, 11 Ohio St. 3d 154, 464 N.E.2d 538 (1984);
see also Sisk, 123 Ohio St. 3d 447, 2009-Ohio-5591, 917 N.E.2d 271 (instructing
that the plaintiff’s second dismissal was with prejudice, even though the plaintiff
had never obtained service over the defendant); Cundall v. U.S. Bank, 122 Ohio
St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 21, fn. 1 (deciding the case based
on the defendants’ statute-of-limitations defense without reaching the defense of
lack of personal jurisdiction).
{¶ 35} The dissent cites broad statements from a number of federal courts
dealing with personal jurisdiction generally, and claims these statements support its
view that a court is powerless to enter a dismissal with prejudice when service has
not been obtained. But none of these cases deal with a dismissal for failure of
service following the expiration of the statute of limitations. Indeed, even though
Fed.R.Civ.P. 4(m) provides for a dismissal without prejudice for a lack of timely
service, a federal court may enter a dismissal with prejudice for failure of service
when the expiration of the statute of limitations would prevent the filing of a new
complaint. See, e.g., Cardenas v. Chicago, 646 F.3d 1001 (7th Cir.2011) (dismissal
with prejudice was appropriate when service requirements were not met properly
and the statute of limitations had expired); Zapata v. New York City, 502 F.3d 192
(2d Cir.2007) (upholding dismissal of claim as “time barred” where plaintiff failed
to obtain service within limitations period); see also 1 Moore, Moore’s Federal
Practice, Section 4.82[2], 4-150 to 4-151 (3d Ed.1997) (“any dismissal ordered
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after expiration of the statute of limitations for failure to establish good cause [to
extend service date] will be, in effect, with prejudice because plaintiff will be
precluded from commencing a new action”). But again, this is all largely beside
the point. Moore can’t file a new action because the action became time-barred
when he failed to commence his action within the limitations period.
{¶ 36} We resolve the certified-conflict question by stating that the savings
statute may be applied only when its terms have been met. Thus, when, as here,
(1) a plaintiff attempts to commence an action but fails to obtain service within
Civ.R. 3(A)’s one-year commencement period and (2) the action has neither failed
other than on the merits during that one-year period (i.e., been dismissed without
prejudice) nor been refiled, (3) the plaintiff cannot use the savings statute to revive
the action outside the limitations period.
Conclusion
{¶ 37} Moore’s instructions for service of process, filed after the statute of
limitations had expired, cannot be treated as a voluntary dismissal and a refiling of
his complaint. Because there was neither a dismissal otherwise than on the merits
nor the filing of a new action, the savings statute does not apply. The court of
appeals erred in concluding otherwise. We reinstate the trial court’s grant of
summary judgment in favor of Dr. Humphreys and Mount Carmel. In the
proceeding below, the court of appeals did not reach Moore’s final assignment of
error, which asserted that Central Ohio Anesthesia could be liable even if the claim
against Dr. Humphreys was barred by the statute of limitations. In light of our
decision today, we remand to the court of appeals for consideration of Moore’s final
assignment of error and for other proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and KENNEDY, FRENCH, and FISCHER, JJ., concur.
STEWART, J., dissents, with an opinion joined by DONNELLY, J.
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_________________
STEWART, J., dissenting.
{¶ 38} I agree with the majority opinion’s decision to limit Goolsby v.
Anderson Concrete Corp., 61 Ohio St. 3d 549, 575 N.E.2d 801 (1991), to the facts
of that case and with the majority opinion’s holding that appellee Michael Moore’s
second request for service did not amount to dismissing and refiling the action
against appellant Dr. Eric Humphreys. I would nevertheless affirm the Tenth
District Court of Appeals’ judgment based on its alternative rationale, which states:
However, even if we concluded that the trial court should have
dismissed the complaint because service was not obtained within
one year, we would modify the judgment so that the dismissal would
be without prejudice. This is abundantly clear, and if that occurred,
Moore would be able to refile his complaint under the savings
statute.
2018-Ohio-2831, 117 N.E.3d 89, ¶ 94.
{¶ 39} I agree with the appellate court that since Moore’s action against Dr.
Humphreys was dismissed for lack of service, it should be viewed as a dismissal
without prejudice and thus a failure otherwise than on the merits. Moore should
have an additional year to refile his complaint and serve it on Dr. Humphreys.
Accordingly, I respectfully dissent from the majority’s conclusion that the savings
statute does not apply to save Moore’s claims.
Commencement of a Civil Action, the Statute of Limitations,
and the Savings Statute
{¶ 40} Pursuant to Civ.R. 3(A), a civil action is commenced when a plaintiff
files a complaint and obtains service on a named defendant within one year of that
filing. Although Civ.R. 3(A) dictates how an action is commenced, it does not bar
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an action from being commenced outside the time period prescribed by a statute of
limitations.
{¶ 41} Suppose, for instance, that a plaintiff has a cause of action for an
injury that occurred on January 1, 2018. Because the statute of limitations for such
a claim is two years, see R.C. 2305.10(A), the limitations period for commencing
the action would be January 1, 2020. Id. Suppose further that the plaintiff files suit
on February 1, 2020—one month after the statute of limitations expired. The action
would nevertheless be deemed “commenced,” for purposes of Civ.R. 3(A), so long
as the named defendant is served with the complaint within one year of filing. Of
course, the defendant may raise the statute of limitations as a defense to the action
by asserting it in the first responsive pleading. See Mills v. Whitehouse Trucking
Co., 40 Ohio St. 2d 55, 59-60, 320 N.E.2d 668 (1974). But if the defendant fails to
assert a statute-of-limitations defense, the defense is waived and the action will
proceed in the ordinary course. Id.; see also R.C. 2305.03(A) (providing that when
“interposed by proper plea by a party to an action * * *, lapse of time shall be a bar
to the action”); Civ.R. 8(C) (requiring a defendant to timely assert a statute-of-
limitations defense).
{¶ 42} Civ.R. 3(A) establishes when an action is commenced and therefore
is naturally an important part of a statute-of-limitations analysis. Nevertheless,
Civ.R. 3(A) and the statutory timing provisions for commencement of civil actions
involve different concepts.
{¶ 43} R.C. 2305.19, the savings statute, insulates a plaintiff’s claim from
a statute-of-limitations defense when a complaint is filed, dismissed, and then
refiled after the statute-of-limitations period has run. But R.C. 2305.19(A) will not
save a refiled action unless three prerequisites are met: (1) the plaintiff either
commences or at least attempts to commence the action, (2) a judgment for the
plaintiff is reversed or the action fails otherwise than on the merits, and (3) within
one year of the dismissal or failure, the plaintiff commences a new action against
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the defendant. If the plaintiff satisfies these prerequisites, the newly commenced
action relates back to the date on which the complaint had been filed in the original
action. See Frysinger v. Leech, 32 Ohio St. 3d 38, 42, 512 N.E.2d 337 (1987). If
the complaint in the original action was filed outside the statute-of-limitations
period, the defendant may assert a statute-of-limitations defense in the event that
the original action is dismissed and a new one is commenced within one year, just
as he could have done in the original action. But if, in the original action, the
plaintiff filed the complaint within the statutory time limit, the defendant will have
no viable statute-of-limitations defense if that action is dismissed without prejudice
and a new one is commenced within one year because of the concept of relation
back. See id.
{¶ 44} The majority seems to take the position that the statute of limitations
operates as a jurisdictional bar to a lawsuit as a matter of course. This is not true.
The statute of limitations is an affirmative defense in an action; the defense is
waived when it is not properly asserted.
A Dismissal for Failure of Service is Not a Dismissal on the Merits
{¶ 45} Dr. Humphreys and appellants Mount Carmel Health, d.b.a. Mount
Carmel St. Ann’s Hospital, and Central Ohio Anesthesia, Inc. (collectively,
“appellants”) argue that Moore’s action against Dr. Humphreys fails on the merits
because Dr. Humphreys was not served within one year of Moore’s filing of the
complaint and therefore the action was never commenced before the statute of
limitations expired. Although this argument might appear to be sound on its face,
it presents a couple of procedural problems that the majority fails to adequately
address.
{¶ 46} In Dr. Humphreys’s motion for summary judgment, he asserted an
insufficiency-of-service defense together with a statute-of-limitations defense as
part of an overall claim that the action filed against him should be dismissed with
prejudice because Moore failed to commence the action against Dr. Humphreys
18
January Term, 2020
within the statute of limitations. By pursuing an insufficiency-of-service defense,
Dr. Humphreys in effect maintains that the trial court never acquired personal
jurisdiction over him. See Laneve v. Atlas Recycling, Inc., 119 Ohio St. 3d 324,
2008-Ohio-3921, 894 N.E.2d 25, ¶ 22 (failure to perfect service ultimately affects
whether a court has personal jurisdiction over defendant); see also Thomas v.
Freeman, 79 Ohio St. 3d 221, 225, 680 N.E.2d 997 (1997) (“where a case is
dismissed because the court did not have jurisdiction, such as in this case where
service has not been perfected, the dismissal is always otherwise than on the
merits”). Yet, while not submitting to the trial court’s jurisdiction, Dr. Humphreys
simultaneously asked the trial court to entertain his statute-of-limitations defense
and enter judgment in his favor on the merits of the claim.
{¶ 47} Dr. Humphreys wants to have it both ways: he wants to maintain that
the trial court does not have jurisdiction over him as a defendant while also relying
on the jurisdictional authority of the court to grant judgment in his favor on a
substantive and personal defense to an action. This court should not countenance
these conflicting arguments. Sinochem Intl. Co. Ltd. v. Malaysia Intl. Shipping
Corp., 549 U.S. 422, 430-431, 127 S. Ct. 1184, 167 L. Ed. 2d 15 (2007) (In the
federal system, a court “generally may not rule on the merits of a case without first
determining that it has jurisdiction over the category of claim in suit (subject-matter
jurisdiction) and the parties (personal jurisdiction)”); Lampe v. Xouth, Inc., 952
F.2d 697, 700 (3d Cir.1991) (“It is an elementary requirement that personal
jurisdiction must be established in every case before a court has power to render
any judgment”); Sutton v. Stolt-Nielsen Transp. Group, Ltd., Tenn.App. No.
E2008-01033-COA-R3-CV, 2009 WL 499521, *5 (Feb. 27, 2009) (“Generally, a
court must have both personal and subject matter jurisdiction in order to adjudicate
a claim on the merits”); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
584, 119 S. Ct. 1563, 143 L. Ed. 2d 760 (1999) (a defendant must timely assert a
lack-of-personal-jurisdiction defense “or he may forgo that right, effectively
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consenting to the court’s exercise of adjudicatory authority”); Norris v. Six Flags
Theme Parks, Inc., 102 Haw. 203, 74 P.3d 26 (2003) (“trial courts must determine
the question of jurisdiction before deciding other dispositional matters such as a
statute of limitations defense”); Brooks v. Bacardi Rum Corp., 943 F. Supp. 559,
562-563 (E.D.Pa.1996) (after the district court granted the defendant’s motion to
dismiss the complaint for lack of personal jurisdiction, the district court declined to
review the defendant’s statute-of-limitations defense); Nationwide Bi-Weekly
Admin., Inc. v. Belo Corp., 512 F.3d 137, 141 (5th Cir.2007), fn. 1 (when a
defendant asserted a statute-of-limitations defense, it conceded that the court had
personal jurisdiction).
{¶ 48} Of course, no rule prevents a defendant from presenting a statute-of-
limitations defense in addition to an insufficiency-of-service defense, but these
arguments are designed to be offered in the alternative. After all, the two defenses
are at odds with each other. The defense of insufficient service challenges a trial
court’s personal jurisdiction over a defendant and a dismissal on this ground results
in a dismissal without prejudice. On the other hand, a statute-of-limitations defense
is a substantive defense that challenges the merits of a claim; a dismissal on such
grounds is a dismissal with prejudice. LaBarbera v. Batsch, 10 Ohio St. 2d 106,
115-116, 227 N.E.2d 55 (1967). In this case, however, maintaining an
insufficiency-of-service defense and a statute-of-limitations defense in the
alternative does nothing to help the defendants’ position. If Dr. Humphreys
asserted and prevailed on his insufficiency-of-service defense, then the case against
him should be dismissed without prejudice. On the other hand, if Dr. Humphreys
asked the court to rule on his statute-of-limitations defense, then he would be
conceding to the trial court’s jurisdiction over him as a defendant and any
insufficiency-of-service claim would no longer matter. The problem with doing
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this, however, is that if Dr. Humphreys were to concede that the trial court has
personal jurisdiction over him, then the action would be deemed commenced.2
{¶ 49} The majority maintains that there is nothing wrong with a trial court
proceeding to rule on a defendant’s merits defense after determining that personal
jurisdiction over the defendant does not exist. As support for this position, the
majority explains that the service requirement is meant to protect a defendant’s
right to due process and that a court may enter a judgment against a plaintiff even
when it has not acquired jurisdiction over the defendant because the plaintiff has
submitted to the trial court’s jurisdiction by filing the complaint. It further notes
that in one of our previous cases, Maryhew v. Yova, 11 Ohio St. 3d 154, 464 N.E.2d
538 (1984), this court affirmed a trial court’s dismissal of an action with prejudice
when the defendant asserted both a failure-of-service defense and statute-of-
limitations defense. Lastly, the majority cites certain federal circuit-court decisions
upholding dismissals with prejudice when service was not perfected within the time
frame set forth in Fed.R.Civ.P. 4(m) and the statute of limitations had run on the
claims. Although at first glance these arguments may seem persuasive, they
disintegrate under even the mildest scrutiny.
{¶ 50} In discussing Yova, the majority leaves out the fact that the issue in
that case had nothing to do with whether the trial court could rule on a defendant’s
statute-of-limitations defense after determining that service had failed and that it
lacked personal jurisdiction over the defendant. Rather, the main issue in Yova was
whether the defendant’s request for additional time to respond to the complaint
2. Although Civ.R. 3(A) states that an action “is commenced by filing a complaint with the court,
if service is obtained within one year from such filing upon a named defendant,” serving the
defendant should not be viewed as a strict requirement to commencement of an action. If that were
the case, a trial court should hold that an action was never commenced when a defendant waives
service under Civ.R. 4(D). The same should also be true for any action in which the defendant is
not served but still makes an appearance and does not raise a failure-of-service defense. Ultimately,
Civ.R. 3(A)’s service rule requires that the court obtain personal jurisdiction over any defendant
within one year of the complaint being filed, otherwise the action may be dismissed for insufficiency
of service or for failure to commence.
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counted as a waiver of an insufficiency-of-service defense. We answered that
question in the negative and affirmed the decision of the appellate court on that
ground only. Yova was not concerned with whether a trial court may grant a
defendant’s statute-of-limitations defense while the defendant is simultaneously
asserting that the trial court does not have jurisdiction over him. That issue is
squarely before us now in this case. The majority’s argument regarding this issue
boils down to nothing more than the following: because we never said anything
about it before in a case we decided over 35 years ago, it must be okay. I, however,
am not persuaded by that faulty reasoning.
{¶ 51} Nor am I persuaded by the federal cases that the majority cites or its
reference to statements in Moore’s Federal Practice (3d Ed.1997) synthesizing
those cases. Under the Federal Rules of Civil Procedure, a civil action is
commenced at the moment a plaintiff files a complaint. See Fed.R.Civ.P. 3.
Fed.R.Civ.P. 4(m) states that if the plaintiff fails to serve the defendant within 90
days after the complaint is filed, then the court must dismiss the action without
prejudice or order that service be made within a specified time. The rule also states
that for good cause shown, the court must extend the time for service for an
appropriate amount of time. Id. A federal court often considers the relative
hardships a party is facing when exercising its discretion to extend the time or to
dismiss the action. See Coleman v. Milwaukee Bd. of School Dirs., 290 F.3d 932,
933-934 (7th Cir.2002). Importantly, there is no savings statute similar to R.C.
2305.19 that applies to save a federal action that has been filed after the statute of
limitations has run. See Logan v. Music, C.D.Cal. No. CV 16-6364-SJO(E), 2017
WL 1369001 (Feb. 17, 2017), aff’d, C.D.Cal. No. CV 16-6364-SJO(E), 2017 WL
1393029 (Feb. 17, 2017).
{¶ 52} In Cardenas v. Chicago, 646 F.3d 1001 (7th Cir.2011), and Zapata
v. New York City, 502 F.3d 192 (2d Cir.2007), the issue before each circuit court
was whether a district court had abused its discretion when it dismissed the action
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January Term, 2020
with prejudice for failure to serve a defendant within Fed.R.Civ.P. 4(m)’s specified
timeframe. In each case, the respective circuit court held that the district court had
not abused its discretion in declining to extend the time for service and dismissing
the action, because there was no good cause for an extension. In each case, the
circuit court upheld the decision to dismiss the action with prejudice when the
statute of limitations had expired during the pendency of the suit. But in affirming
the district courts’ dismissals, the circuit courts made clear that pursuant to
Fed.R.Civ.P. 4(m), a dismissal for failure of service is supposed to be without
prejudice.
{¶ 53} In Zapata, the Second Circuit noted that the plaintiff had not
challenged the district court’s decision to dismiss the action with prejudice. Id. at
197, fn. 6. The Second Circuit further stated:
Where, as here, good cause is lacking [for an extension], but
the dismissal without prejudice in combination with the statute of
limitations would result in a dismissal with prejudice, we will not
find an abuse of discretion in the procedure used by the district court,
so long as there are sufficient indications on the record that the
district court weighed the impact that a dismissal or extension would
have on the parties.
(Footnote omitted.) Id. at 197.
{¶ 54} Similarly, in upholding the district court’s decision in
Cardenas, the Seventh Circuit stated:
A dismissal pursuant to a Rule 12(b)(5) motion ordinarily should be
entered without prejudice. See Fed.R.Civ.P. 4(m); [United States
v.] Ligas, 549 F.3d [497,] 501 [7th Cir.2008]. The district court,
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however, dismissed the claims against [the defendant] with
prejudice based on the fact that the applicable statute of limitations
had expired while the case was pending. Cardenas, 2010 U.S. Dist.
LEXIS 15253, 2010 WL 610621, at *5. The Plaintiffs argued for
the first time at oral argument that its order was inconsistent with
Rule 4(m)’s clear “without prejudice” requirement.
Both the district court and the Plaintiffs correctly recognize
that any refiled suit would be time-barred. That bar effects a result
similar to a dismissal with prejudice: “[I]f the statute of limitations
has meanwhile expired it will be the limitations defense that greets
[any] new action, which will make the case just as dead as a
disposition on the merits * * *.” David Siegel, Practice
Commentary on Fed.R.Civ.P. 4, C4-38, reprinted at 28 U.S.C.A.
Fed.R.Civ.P. 4 at 211 (West 2008).
(Fifth and sixth brackets and ellipsis sic.) Id. at 1007-1008.
{¶ 55} When citing to Cardenas, 646 F.3d 1001, and Zapata, 502 F.3d 192,
the majority fails to discuss that before those circuit courts allowed the district
courts’ decisions to stand, the circuit courts made sure that the procedural
irregularity would have no actual effect on the plaintiffs’ right to proceed with
refiling. Indeed, in Cardenas, the Seventh Circuit noted that when deciding
whether to extend the time for service, federal courts should consider whether the
plaintiff would be time-barred by the statute of limitations if the court were to
dismiss the action and plaintiffs were to refile. Id. at 1007. But in each case, the
circuit courts found that the district courts had considered the plaintiffs’ inability to
refile the action because the statute of limitations had expired and that the district
courts had not abused their discretion in finding a lack of good cause shown for an
extension of the service deadline. Accordingly, the circuit courts upheld the
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dismissals with prejudice. Since no federal rule or statute would have saved the
actions from a statute-of-limitations defense, dismissal with prejudice
accomplished the inescapable outcome.
{¶ 56} The rationale that the courts used in Cardenas and Zapata does not
apply here, however, because Ohio has a savings statute. By allowing the trial court
to entertain Dr. Humphreys’s merits defense after determining that it did not have
jurisdiction over Dr. Humphreys, the majority forecloses Moore from refiling his
claim and taking shelter from a statute-of-limitations defense under the savings
statute—which applies to actions that are attempted to be commenced and
dismissed without prejudice. Accordingly, a plaintiff’s right to due process is at
stake in situations like this one in which a trial court lacking jurisdiction over a
defendant improperly entertains that defendant’s merits defense.
{¶ 57} Another procedural problem in this matter is the fact that Dr.
Humphreys is asking this court to uphold a merits judgment in his favor in an action
that he maintains was never even commenced against him. How the majority
squares this irregularity is unclear, because it chooses to say nothing about it. But
what should be clear to the majority is that by asking for summary judgment in his
favor, Dr. Humphreys takes a position that is wholly inconsistent with his claim
that the action fails for lack of commencement; if no action was ever commenced,
then there is no commenced action under which the court may enter a merits
judgment. If Dr. Humphreys wanted to maintain a lack-of-commencement defense,
he should have raised it in a responsive pleading and then asked the court to strike
the complaint from the record once a year had passed and he had still not been
served. By asking to strike the complaint, Dr. Humphreys would have been asking
the court to take an action consistent with his theory that the complaint filed against
him is a nullity. If the majority is going to uphold the dismissal with prejudice in
this case, then it might want to take some time to explain why Dr. Humphreys’s
actions do not amount to a waiver of the lack-of-commencement defense.
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Other Problems with the Majority Opinion
{¶ 58} Even if this court were to look beyond the procedural problems
addressed above, the majority’s explanation for why Moore’s action must be
deemed dismissed on the merits is still unsound. The majority takes the position
that to “avoid the running of the statute of limitations, [Moore] had to commence
under Civ.R. 3(A) by obtaining service by July 6, 2016, or voluntarily dismiss his
action within this time period to obtain the benefit of the savings statute.” Majority
opinion at ¶ 32. Noticeably, the majority offers no support for the latter half of this
sentence, whether that be a citation to a civil rule, statute, or even some parsing of
potentially applicable cases.
{¶ 59} Although Civ.R. 3(A) provides the requirements for the
commencement of an action, it does not say what the consequences are when a
plaintiff fails to meet those requirements. The action may be dismissed, but
whether that dismissal should be with or without prejudice is unclear. Our ruling
in Goolsby, 61 Ohio St. 3d 549, 575 N.E.2d 801, indicates that as long as a case may
be refiled within the statute-of-limitations period, a dismissal before that period
expires is a dismissal without prejudice, even if the plaintiff fails to perfect service
on the defendant within one year of filing. And our ruling in Thomas, 79 Ohio
St.3d 221, 680 N.E.2d 997, provides that even when a statute-of-limitations period
has run and a case has been dismissed, the savings statute may still apply to save
the action when the dismissal was without prejudice and occurred within the one-
year Civ.R. 3(A) service timeframe. In this case, the majority opinion takes the
position that an action must be dismissed with prejudice if it is dismissed on
insufficiency-of-service grounds following the Civ.R. 3(A) one-year service
period, and the statute-of-limitations period has expired. But neither the Civil Rules
nor the Revised Code requires this outcome.
{¶ 60} Although Civ.R. 3(A) establishes when an action is commenced, it
is not a timing provision. Instead, it is a housekeeping measure. See 1970 Staff
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January Term, 2020
Note, Civ.R. 3 (“service within [the] one year requirement is retained from
§2305.17, R.C., as amended in 1965, and is based on the philosophy that dockets
should be cleared if, within the reasonable time of one year, service has not been
obtained” [emphasis added]). Furthermore, Ohio’s savings statute, R.C. 2305.19,
applies to actions “attempted to be commenced,” R.C. 2305.19(A). Presently,
nothing says that an action meets the definition of an “action that is * * * attempted
to be commenced,” id., only if that action is dismissed within the confines of Civ.R.
3(A)’s one-year service period. In situations like this, in which there is no authority
or reason that warrants a dismissal with prejudice, the court should err in favor of
preserving the claim for a resolution on its merits. See Thomas at 226 (“Dismissal
with prejudice is a very severe and permanent sanction, to be applied with great
caution”); see also Civ.R. 1(B) (Ohio’s Rules of Civil Procedure “shall be
construed and applied to effect just results by eliminating delay, unnecessary
expense and all other impediments to the expeditious administration of justice”).
Moore Still Has a Viable Cause of Action Against Dr. Humphreys
{¶ 61} For the reasons discussed above, I would treat the trial court’s
dismissal of the complaint against Dr. Humphreys as a dismissal without prejudice
on insufficiency-of-service grounds and hold that Moore may still take advantage
of the savings statute by commencing a new action against Dr. Humphreys within
one year of this court’s decision.
{¶ 62} Although Moore’s legal action against Dr. Humphreys was never
“commenced” within the meaning of Civ.R. 3(A)—because service was
unsuccessful within the one-year timeframe following the filing of the complaint—
I find that Moore nevertheless attempted to commence the action against Dr.
Humphreys by filing the complaint on July 6, 2015, and attempting service within
one year. See Thomas, 79 Ohio St. 3d at 225, 680 N.E.2d 997; see also Motorists
Mut. Ins. Co. v. Huron Rd. Hosp., 73 Ohio St. 3d 391, 396, 653 N.E.2d 235 (1995).
27
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{¶ 63} The action remained pending on the trial court’s docket as an action
attempted to be commenced against Dr. Humphreys until Dr. Humphreys sought
and was granted dismissal for insufficiency of service. Because a dismissal for
insufficiency of service should not be treated as a dismissal with prejudice, even if
the statute-of-limitations period for commencing an action has expired at the time
of dismissal, I would find that Moore meets the first two prerequisites of the savings
statute. Thus, if Moore were to refile his lawsuit against Dr. Humphreys and
successfully commence the lawsuit by obtaining service within the year, then the
savings statute should apply to preserve his claim.
{¶ 64} What this means for the case going forward is that the complaint
against Dr. Humphreys is dismissed without prejudice, and the trial court’s granting
of summary judgment in favor of Central Ohio Anesthesia and Mount Carmel is
reversed, because the basis on which those defendants sought relief—the statute-
of-limitations bar—is not yet ripe for review. The action remains pending against
Central Ohio Anesthesia and Mount Carmel because those parties were properly
served. If Moore wishes to take advantage of the savings statute by refiling his
claim against Dr. Humphreys and perfecting service, and if Moore wants to keep
all three parties as defendants in the same lawsuit, then he could voluntarily dismiss
his claims against Central Ohio Anesthesia and Mount Carmel on remand under
Civ.R. 41(A)(1)(a). He could then refile and assert his claims against all parties.
Practical Effects
{¶ 65} The majority accuses this dissent and a unanimous panel of the Tenth
District of engaging in an “imaginative fiction,” majority opinion at ¶ 32, by
construing the trial court’s dismissal of the complaint against Dr. Humphreys as a
dismissal without prejudice. However, the majority might want to take a look at
the practical effects of its own holding.
{¶ 66} Moore filed his complaint against Dr. Humphreys, Central Ohio
Anesthesia, and Mount Carmel on July 6, 2015. Dr. Humphreys became aware of
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January Term, 2020
Moore’s pending lawsuit on July 14, 2015, when an electronic copy of the summons
and complaint addressed to Central Ohio Anesthesia was e-mailed to Dr.
Humphreys from his liability insurer. The common-pleas case docket indicates that
service on Dr. Humphreys was complete on July 16, 2015, something Dr.
Humphreys would first contest in his motion for summary judgment, which was
filed on February 27, 2017. Through their attorneys, Dr. Humphreys and Central
Ohio Anesthesia answered the complaint on July 30, 2015, and participated in the
litigation for over a year and a half. Dr. Humphreys did not seek dismissal for
insufficiency of service under Civ.R. 4(E) after six months.3 And the trial court
also took no action to dismiss the complaint under Civ.R. 4(E) or 3(A)—perhaps
because it was relying on Dr. Humphreys to assert that argument if it applied or on
its own docket as evidence of commencement. When Dr. Humphreys finally did
ask the court to dismiss the action, he took the unorthodox step of asking the court
to rule on his insufficiency-of-service defense and his statute-of-limitations defense
together.
{¶ 67} What Dr. Humphreys and the other appellants want from this court,
and what the majority opinion gives them, is a clear declaration that a defendant
may maintain an insufficiency-of-service defense simultaneously with a statute-of-
limitations defense in order to secure the dismissal of an action with prejudice on
insufficiency-of-service grounds, when that dismissal would otherwise normally be
without prejudice. This decision prevents a plaintiff from taking shelter under the
3. Civ.R. 4(E) states:
If a service of the summons and complaint is not made upon a defendant
within six months after the filing of the complaint and the party on whose behalf
such service was required cannot show good cause why such service was not made
within that period, the action shall be dismissed as to that defendant without
prejudice upon the court’s own initiative with notice to such party or upon motion.
(Emphasis added.)
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SUPREME COURT OF OHIO
savings statute if the plaintiff were to refile and attempt service within one year of
the dismissal. In order to craft this outcome, the majority must necessarily overlook
the fact that a court lacking jurisdiction over the defendant is nevertheless
adjudicating a merits defense. Indeed, it must overlook the fact that the defendant
is asking for an adjudication on the merits of an action that was never commenced.
And it must also overlook the logical inconsistency that arises from this court’s
determination that a dismissal within the Civ.R. 3(A) service timeframe is a
dismissal without prejudice but that a dismissal outside the Civ.R. 3(A) timeframe
is a dismissal with prejudice, when under both scenarios the dismissal may have
occurred after the statute of limitations expired.
{¶ 68} Furthermore, the end result that the majority comes to—that
dismissal for insufficiency of service is a dismissal with prejudice when Civ.R.
3(A)’s timeline has passed—contravenes both the Rules of Civil Procedure and the
savings statute. The Rules of Civil Procedure are to be applied to “effect just results
by eliminating delay, unnecessary expense and all other impediments to the
expeditious administration of justice.” Civ.R. 1(B). And R.C. 2305.19, “being a
remedial statute, should be given a liberal construction to permit the decision of
cases upon their merits rather than upon mere technicalities of procedure.” Cero
Realty Corp. v. Am. Mfrs. Mut. Ins. Co., 171 Ohio St. 82, 85, 167 N.E.2d 774
(1960); accord Motorists Mut. Ins. Co., 73 Ohio St. 3d at 396, 653 N.E.2d 235
(“Savings statutes have been created to afford plaintiffs an opportunity to bring a
new action after the running of the limitations period when an effort to bring the
original action in a timely manner fails otherwise than on its merits”). Here, the
majority is allowing a defendant, who has had notice of and participated in an action
from the beginning, to wait a year and a half before seeking a dismissal of the action
in order to secure a dismissal with prejudice for failure of service under Civ.R.
3(A)’s one-year service timeframe—a docket-clearing provision—in order to
prevent the plaintiff from taking shelter under the savings statute, which is a
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January Term, 2020
remedial provision intended to preserve actions “attempted to be commenced.” If
it is true that this dissent and the Tenth District’s position amounts to an
“imaginative fiction,” majority opinion at ¶ 32, then the majority’s position in
comparison is a fever dream that turns Ohio’s procedural rules and the savings
statute on their heads.
Conclusion
{¶ 69} For these reasons, I dissent from the majority opinion’s conclusion
that the savings statute does not apply to Moore’s claim. I would affirm the Tenth
District’s judgment on the alternative grounds stated in its opinion. 2018-Ohio-
2831, 117 N.E.3d 89, at ¶ 94.
DONNELLY, J., concurs in the foregoing opinion.
_________________
Colley Shroyer & Abraham Co., L.P.A., and David I. Shroyer, for appellee.
Arnold Todaro & Welch Co., L.P.A., and Grier D. Schaffer, for appellant
Mount Carmel Health d.b.a. Mount Carmel St. Ann’s Hospital.
Carpenter Lipps & Leland, L.L.P., Theodore M. Munsell, Joel E. Sechler,
Emily M. Vincent, and Michael H. Carpenter, for appellants Eric Humphreys,
M.D., and Central Ohio Anesthesia, Inc.
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