McAbee v. Merryman
2013 Ohio 5291
Ohio Ct. App.2013Background
- Feb 19, 2009: motor-vehicle collision between Dena McAbee and Merryman; McAbee injured.
- Feb 17, 2011: McAbees file a personal injury complaint naming Merryman as defendant.
- Feb 22, 2011: clerk notifies that service was not completed.
- Mar 14, 2012: Merryman’s attorney Wiley appears and Merryman answers; Civ.R. 3 issue raised.
- Oct 25, 2012: Wiley suggests Merryman is dead; Wiley moves for summary judgment for Civ.R. 3(A) noncompliance.
- Nov 27, 2012: administrator substituted for Merryman; service obtained on administrator.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly granted summary judgment for nonservice. | McAbee contends timely substitute could allow merits | Merryman/Merryman's estate not properly served within Civ.R. 3(A) year | Summary judgment affirmed; service not within one year |
| Whether the Civ.R. 60(B)(1) ruling was reviewable on appeal after a notice of appeal was filed. | Appeal divested trial court of jurisdiction to rule on Civ.R. 60(B)(1) | No amended notice or separate appeal to challenge that order | Assignment of error dismissed for lack of appellate jurisdiction |
Key Cases Cited
- Baker v. McKnight, 4 Ohio St.3d 125 (Ohio 1983) (amendment to substitute estate after timely filing requires service on administrator)
- Barnhart v. Schultz, 53 Ohio St.2d 59 (Ohio 1970s) (relation back and substitution principles under Civ.R. 15(C))
- Lash v. Miller, 50 Ohio St.2d 63 (Ohio 1977) (service on a defendant is a jurisdictional requirement)
- Cleveland v. Ohio Civil Rights Comm., 43 Ohio App.3d 153 (Ohio App. 8th Dist. 1989) (failure of proper service is not a minor violation; dismissal appropriate)