Kuczirka v. Ellis
2018 Ohio 5318
Ohio Ct. App.2018Background
- Decedent T.K. died September 2, 2007; administrator Peter Kuczirka filed a wrongful-death/medical-malpractice complaint on August 31, 2009 naming multiple defendants including Dr. Cecilia Ellis and OBGYN Associates.
- Clerk served the 2009 complaint on all defendants via Federal Express under a local Miscellaneous Order appointing FedEx as a standing process server; at that time Civ.R. 4.1 did not permit commercial-carrier service.
- Dr. Ellis and OBGYN Associates answered on September 29, 2009, preserving defenses of lack of personal jurisdiction and insufficient service; the Summa defendants answered later without preserving those defenses.
- Plaintiff voluntarily dismissed the 2009 action on July 17, 2012, then refiled the same claims only against Dr. Ellis and OBGYN Associates on August 3, 2012 (a refiled action invoking R.C. 2305.19, the savings statute).
- On remand from a prior appeal, defendants moved for summary judgment arguing the refiled action was not "commenced" as to them (so the savings statute does not apply) and the claims are time-barred; the trial court granted summary judgment and dismissed with prejudice.
- The Ninth District reverses: it agrees the trial court correctly found the original action was not "commenced" as to Dr. Ellis/OBGYN (because improper FedEx service was timely objected to), but holds the court erred by failing to decide whether plaintiff "attempted to commence" within the savings-statute framework; remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the original 2009 action was "commenced" as to Dr. Ellis and OBGYN Associates under Civ.R. 3(A) | Kuczirka contended the 2009 filing and FedEx service sufficed to commence or at least attempted to commence the action so the savings statute applies | Defendants argued FedEx service in 2009 was invalid under the 2009 Civ.R. 4.1 and, because they preserved service/jurisdiction defenses, the action was never commenced as to them | Court: Not commenced as to Dr. Ellis/OBGYN because service by FedEx in 2009 was invalid and defendants preserved service defenses; trial court was correct on commencement issue |
| Whether the savings statute (R.C. 2305.19) protects the refiled 2012 action | Kuczirka argued he satisfied the savings statute either by having commenced or by attempting to commence the original action before limitations ran | Defendants argued plaintiff failed to commence the action as to them, so the savings statute does not apply and the refiled claims are time-barred | Court: Trial court erred by stopping at ‘‘no commencement’’; it must assess whether plaintiff attempted to commence within the limitations period and whether the other statutory requirements are met; remand required |
| Effect of other defendants’ waiver of service defenses on commencement as to all defendants | Plaintiff relied on the fact some co-defendants waived service defenses, which in similar cases led to commencement as to those defendants and sometimes to retroactive curing of service issues | Defendants stressed that because they preserved service/jurisdiction defenses, the waiver by co-defendants did not commence the action as to them | Court: Waiver by Summa defendants caused the case to be commenced as to those defendants and made the matter pending, but it did not commence the case as to Dr. Ellis/OBGYN because they preserved service defenses |
| Whether the trial court properly granted summary judgment without addressing attempt-to-commence evidence | Kuczirka pointed to evidence and briefing arguing an attempt to commence that should preclude summary judgment | Defendants relied on the court’s finding of lack of commencement to obtain judgment as a matter of law | Held: Court abused discretion by granting summary judgment without deciding the attempt-to-commence question; appellate court remands for trial-court consideration of that issue and the remaining savings-statute elements |
Key Cases Cited
- Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314 (Ohio 2002) (standard of review for summary judgment is de novo)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (movant’s and nonmovant’s burdens on summary judgment under Civ.R. 56)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Ohio 1977) (three-part test for summary judgment under Civ.R. 56)
- LaNeve v. Atlas Recycling, Inc., 119 Ohio St.3d 324 (Ohio 2008) (distinguishing an "attempt to commence" from "commence" under the savings statute)