Clellan v. Lancione
2017 Ohio 1460
| Ohio Ct. App. | 2017Background
- Plaintiffs Joan K. Clellan (individually and as executor) and John R. Clellan sued attorney Bernard G. Lancione for legal malpractice in preparing a will; initial complaint filed Oct. 25, 2012 and dismissed without prejudice for lack of standing.
- Plaintiffs refiled on June 13, 2014 and attempted service at multiple addresses; two attempts at 2600 Tiller Lane failed.
- Plaintiffs then requested service at 1050 Landings Loop; a deputy returned a return-of-service indicating "residence service" completed on "B. Lancione" on June 1, 2015.
- No further activity until June 2016 when counsel for Lancione appeared and filed an answer and motions asserting insufficient service and lack of personal jurisdiction because service was not perfected within one year of filing.
- Lancione submitted affidavits from his wife and daughter‑in‑law stating he did not reside at 1050 Landings Loop; the trial court found these affidavits rebutted the presumption of valid service and dismissed for lack of personal jurisdiction.
- Plaintiffs appealed; the appellate court reviewed for abuse of discretion and affirmed, overruling plaintiffs’ additional claims about the court notifying an insurer and denial of default judgment for lack of record support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service sufficient to commence the action under Civ.R. 3(A) and 4.1? | Service at 1050 Landings Loop was proper and created a presumption of valid service; plaintiffs reasonably relied on the deputy's return. | Return of service was insufficient because residence service at 1050 Landings Loop was ineffective—Lancione did not reside there and was not personally served. | Held: Service was insufficient; affidavits rebutted presumption of proper service and court lacked personal jurisdiction. |
| Did the trial court abuse discretion by dismissing for lack of jurisdiction? | Dismissal was an abuse of discretion because plaintiffs complied with service rules and no contrary evidence was presented. | Trial court reasonably exercised discretion in finding service insufficient and dismissing. | Held: No abuse of discretion; dismissal affirmed. |
| Did the trial court improperly notify Lancione’s insurer or act sua sponte to induce counsel’s appearance? | Court allegedly notified the insurer and thereby caused counsel to appear; this action was improper. | No record evidence supports plaintiffs’ assertion that the court notified an insurer or acted improperly. | Held: No record support; presumption of regularity applies; argument rejected. |
| Did the court abuse discretion by denying default judgment and orally granting leave to answer without excusable neglect? | Denial of default and grant of leave to file defenses was improper and lacked recordation. | There is no record of plaintiffs’ motion for default or any improper oral grant; proceedings presumed regular absent record. | Held: No abuse; plaintiffs failed to produce record evidence to support these claims. |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (standard for abuse of discretion)
- State v. Phillips, 74 Ohio St.3d 72 (Ohio 1995) (presumption of regularity in trial court proceedings)
- State v. Grant, 67 Ohio St.3d 465 (Ohio 1993) (reviewing court will indulge reasonable presumptions in favor of regularity of lower court proceedings)