Lewis v. Moore
91 N.E.3d 334
Ohio Ct. App.2017Background
- Plaintiff Richard Lewis sued defendant Jasmine Moore and Alfa Insurance for injuries and vehicle damage from a December 16, 2013 collision; complaint filed July 24, 2015.
- Summons and complaint were mailed to Alfa's P.O. Box in Brentwood, TN; USPS receipts show Alfa's agent signed for the mailing; Moore later denied ever receiving service and said she lived in Columbus, Ohio.
- Both defendants answered; Moore asserted insufficiency of process/service and lack of personal jurisdiction in her answer.
- Moore moved to dismiss under Civ.R. 3(A) for failure to commence (no service within one year). Lewis conceded he served the Alfa address and asked leave to re-serve.
- Trial court granted dismissal for lack of personal jurisdiction (Civ.R. 12(B)(2)) but dismissed without prejudice so Lewis could refile; Moore appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for failure to serve within Civ.R. 3(A) is a Civ.R. 12(B) defense | Lewis argued dismissal was improper and asked leave to re-serve; contended clerk erred | Moore argued failure to commence under Civ.R. 3(A) warranted dismissal with prejudice because service was not made within one year | Court: Failure to perfect service implicates lack of personal jurisdiction/insufficiency defenses under Civ.R. 12(B); dismissal under 12(B)(2) is appropriate |
| Whether dismissal should be with prejudice | Lewis sought leave to refile and argued dismissal without prejudice was proper | Moore relied on precedents dismissing refiled complaints with prejudice (Saunders, Schafer) to support dismissal with prejudice | Court: Dismissal for lack of personal jurisdiction operates "otherwise than on the merits" under Civ.R. 41(B)(4); dismissal without prejudice is proper where complaint has not been previously dismissed |
| Whether Civ.R. 3(A) is essentially a statute-of-limitations rule requiring different treatment | Lewis did not press a statute-of-limitations defense below | Moore argued Civ.R. 3(A) is a statute-of-limitations issue and should stand alone | Court: Moore did not assert a statute-of-limitations defense or identify an applicable statute; Civ.R. 3(A) here concerns service and personal jurisdiction rather than a limitations bar |
| Whether plaintiff may refile using the savings statute R.C. 2305.19 | Lewis asserted the savings statute may allow refiling | Moore argued savings statute might not apply (citing other authority) | Court: Declined to decide; noted Thomas permits refiling under the savings statute when dismissal is for lack of service, but procedural requirements were not addressed by parties |
Key Cases Cited
- Thomas v. Freeman, 79 Ohio St.3d 221 (Ohio 1997) (dismissal for lack of service is "otherwise than on the merits" under Civ.R. 41(B)(4) and plaintiff may in some circumstances refile under the savings statute)
- Tower City Properties v. Cuyahoga Cty. Bd. of Revision, 49 Ohio St.3d 67 (Ohio 1990) (dismissal with prejudice is an adjudication on the merits)
- Saunders v. Choi, 12 Ohio St.3d 247 (Ohio 1984) (context for dismissals with prejudice where complaint had been previously dismissed and refiled)
- Deutsche Bank Natl. Trust Co. v. Boswell, 192 Ohio App.3d 374 (Ohio App.) (service defects render any judgment void for lack of personal jurisdiction)
- Goolsby v. Anderson Concrete Corp., 61 Ohio St.3d 549 (Ohio 1991) (discusses Civ.R. 4(E) and the need to dismiss without prejudice where service is not attempted)