2020 Ohio 4995
Ohio Ct. App.2020Background
- Leotta sued Great Lakes and Dr. Emad Mikhail for medical malpractice in 2015, voluntarily dismissed that suit in January 2018, and refiled on April 12, 2018 under Ohio’s saving statute.
- Service was effected on Great Lakes on April 18, 2018; attempted service on Dr. Mikhail failed and was never re-attempted.
- Defendants filed a pre-answer Civ.R. 12(B)(6) motion (May 7, 2018) that argued failure to state a claim and included a one-paragraph footnote listing multiple affirmative defenses including Civ.R. 12(B)(5) insufficiency of service.
- Defendants then filed an answer asserting numerous affirmative defenses; the trial court denied the initial motion, later granted partial summary judgment on some derivative claims, but left the negligence and vicarious-liability claims for trial.
- On September 25, 2019 defendants filed a second motion to dismiss under Civ.R. 12(B)(5) for insufficient service (arguing the claim against Mikhail was not properly commenced and thus time-barred), and the trial court granted dismissal with prejudice on October 1, 2019.
- Leotta appealed, arguing defendants waived the Civ.R. 12(B)(5) defense by not properly joining it in the initial pre-answer 12(B) motion; the majority affirmed, the dissent would have reversed for waiver and to decide the case on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants waived Civ.R. 12(B)(5) insufficiency-of-service defense by not joining it in their pre-answer 12(B)(6) motion | Leotta: listing the defense only in a footnote to a 12(B)(6) motion that addressed other grounds did not satisfy Civ.R. 12(G); waiver resulted | Defendants: they preserved the defense by mentioning it in the footnote of the initial 12(B)(6) motion and by asserting it in their answer | Court: no waiver — footnote plus assertion in the answer sufficed to preserve the 12(B)(5) defense |
| Whether subsequent participation in litigation constitutes waiver of a preserved Civ.R. 12(B)(5) defense | Leotta: defendants’ litigation conduct indicates waiver or forfeiture of the service defense | Defendants: participation does not effect waiver if the defense was properly preserved under Rule 12 | Court: participation does not waive a properly preserved 12(B)(5) defense; preservation controls |
| Whether dismissal for insufficient service was appropriate as to vicarious liability claim against Great Lakes (dependent on claim against Mikhail) | Leotta: because defendants waived the 12(B)(5) defense, the case should proceed on the merits | Defendants: without a timely-commenced action against Mikhail, vicarious-liability claim fails | Court: because the 12(B)(5) defense was preserved and service on Mikhail was not perfected, dismissal of claims tied to Mikhail was proper |
Key Cases Cited
- Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141 (2007) (insufficiency of service is a waivable Rule 12 defense and may be preserved by proper pleading)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (defines abuse-of-discretion standard)
- Bell v. Midwestern Educational Servs., 89 Ohio App.3d 193 (1993) (participation does not necessarily waive defenses and on waiver principles)
- Michigan Millers Mut. Ins. Co. v. Christian, 153 Ohio App.3d 299 (2003) (standard of review for dismissal motions)
- Barksdale v. Van’s Auto Sales, 38 Ohio St.3d 127 (1988) (cases should be decided on merits when possible)
- Perotti v. Ferguson, 7 Ohio St.3d 1 (1983) (judicial preference for resolving cases on merits)
- DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189 (1982) (merits-preference principle)
- Panhandle Eastern Pipeline Co. v. Brecheisen, 323 F.2d 79 (10th Cir. 1963) (federal discussion on reservation/pleading of defenses)
- Jackson v. United States, 138 F.R.D. 83 (S.D. Tex. 1991) (federal decision discussing preservation of service defenses in preliminary filings)