Kowalski v. Pong
2017 Ohio 9310
| Ohio Ct. App. | 2017Background
- On December 14, 2013, the Kowalskis were injured in an auto accident. They sued the vehicle owner, Thong V. Phong, filing the complaint on December 9, 2015 (days before the two-year statute of limitations expired).
- Phong answered denying involvement. Plaintiffs later learned Kristina Hernandez was the driver and moved (Feb 1, 2016) to amend or substitute to name Hernandez under Civ.R. 15(C), Civ.R. 21, or Civ.R. 17.
- The trial court granted amendment under Civ.R. 15(C) on October 20, 2016, allowing an amended complaint naming Hernandez; the court observed service had to be obtained by about December 9, 2016 under Civ.R. 3(A).
- Plaintiffs filed the amended complaint and requested service; the clerk initially failed to issue a summons. A later attempt in January 2017 returned unsuccessful; Hernandez was not served until April 5, 2017.
- The defense moved to dismiss for failure to obtain service within Civ.R. 3(A)’s one-year requirement; the trial court granted dismissal and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filing the amended complaint reset Civ.R. 3(A)’s one-year service deadline | Kowalski: amended complaint (filed after relation-back) started a new one-year service period | Hernandez: relation back does not restart Civ.R. 3(A); original filing governs service deadline | Held: Filing the amended complaint did not reset the one-year service period; service deadline tied to original filing under Civ.R. 3(A) and relation-back under Civ.R. 15(C) only affects limitations, not service timing |
| Whether the one-year service requirement may be enlarged due to court/clerk delays | Kowalski: trial-court delay on amendment and clerk’s failure to issue a summons excused or tolled the one-year deadline | Hernandez: exceptions to one-year rule are narrow; plaintiffs bore responsibility to ensure service | Held: No enlargement; exceptions apply only when failure to serve resulted from circumstances outside plaintiff’s control; here plaintiffs delayed and did not show they took sufficient steps to secure timely service |
| Whether Phong (named owner) had standing to move to dismiss after amended complaint omitted him | Kowalski: Phong lacked standing because amended complaint abandoned claims against him | Hernandez: dismissal motion was properly considered; substance controls over caption | Held: Whether Phong formally remained a party was immaterial; dismissal was proper on the merits because service was untimely |
| Whether Hernandez evaded service (unclean hands) | Kowalski: returned mail in Jan 2017 and successful April service implies evasion | Hernandez: facts inconclusive; moot because deadline already passed before service attempts | Held: Moot; any avoidance issue irrelevant because service occurred after Civ.R. 3(A) deadline |
Key Cases Cited
- Goolsby v. Anderson Concrete Corp., 61 Ohio St.3d 549 (Ohio 1991) (filing and clerk actions can constitute commencement for Civ.R. 3(A) where plaintiff acted to obtain service before limitations expired)
- Robinson v. Commercial Motor Freight, Inc., 174 Ohio St. 498 (Ohio 1962) (clerk’s failure or neglect to serve may justify enlarging service deadline in exceptional circumstances)
- Scott v. Orlando, 2 Ohio App.3d 333 (Ohio Ct. App. 1981) (failure to obtain service caused by clerk or court may prevent barring by Civ.R. 3(A))
- Thomas v. Corrigan, 135 Ohio App.3d 340 (Ohio Ct. App. 1999) (trial-court error that defeats plaintiff’s ability to serve can justify relief from Civ.R. 3(A) dismissal)
- Maryhew v. Yova, 11 Ohio St.3d 154 (Ohio 1984) (trial court may dismiss when plaintiff fails to obtain service within one year after filing)
- Fetterolf v. Hoffmann-LaRoche, Inc., 104 Ohio App.3d 272 (Ohio Ct. App. 1995) (amending to refile claims after limitations has run does not save untimely claims)