Moore v. Mt. Carmel Health Sys.
2018 Ohio 4130
Ohio Ct. App.2018Background
- Justin T. Moore was treated at Mount Carmel in January 2014; Michael Moore (conservator) sued July 6, 2015 and requested service by certified mail the same day.
- The trial court's docket initially showed service on Dr. Humphreys; COA and Mount Carmel were clearly served and answered; Dr. Humphreys participated for >1 year.
- Defendants moved for summary judgment in February 2017, asserting plaintiff failed to serve Dr. Humphreys within Civ.R. 3(A)’s one-year period.
- Plaintiff then renewed requests for service in March 2017; Dr. Humphreys ultimately was served, but the trial court dismissed the claims with prejudice, finding the savings statute (R.C. 2305.19(A)) inapplicable.
- On appeal the Tenth District reversed, holding that the March 2017 request for service operated as a dismissal and refiling by operation of law and that the savings statute applied; defendants sought certification of a conflict among appellate courts.
- The Tenth District granted the certification motion as to a narrowed question about the interplay of attempted commencement, Civ.R. 3(A) service timing, and R.C. 2305.19(A), identifying conflicts with several district-court decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 2305.19(A) can apply when plaintiff filed within the limitations period but did not perfect service within Civ.R. 3(A)’s one-year window | Moore: an attempt to commence (filing and instruction to serve within limitations) triggers the savings statute even if service is perfected later | Defs: failure to obtain service within one year bars refiling; request after one year cannot operate as refiling | Held: The court held the savings statute can apply where the plaintiff attempted to commence within the limitations period; a post‑one‑year instruction for service can operate as a dismissal/refiling by operation of law so long as the initial attempt to commence was made properly under the rules cited in controlling precedent |
| Whether a clerk instruction/request for service filed after Civ.R. 3(A)’s one‑year period operates as a dismissal and refiling (i.e., preserves the claim) | Moore: such a request should be treated as a dismissal and refiling under Goolsby/Supreme Court precedent, allowing the savings statute to provide an extra year to perfect service | Defs: Goolsby and related authority are limited; later district cases hold such post‑one‑year steps do not revive claims and require dismissal with prejudice | Held: The court concluded the question is unsettled among appellate districts and certified the precise legal question to the Ohio Supreme Court for resolution, concluding Moore’s view is supported by Supreme Court authority cited in the opinion |
Key Cases Cited
- Goolsby v. Anderson Concrete Corp., 61 Ohio St.3d 549 (Ohio 1991) (recognizes circumstances in which a clerk instruction to attempt service may be treated as dismissal/refiling to avoid superfluous refiling)
- Thomas v. Freeman, 79 Ohio St.3d 221 (Ohio 1997) (holds an initial filing and demand for service before the statute of limitations expired may invoke the savings statute even if service was never perfected)
- LaNeve v. Atlas Recycling, Inc., 119 Ohio St.3d 324 (Ohio 2008) (clarifies limits of applying the savings statute where Civ.R. 15(D) personal-service requirements were not met)
- Sisk & Assoc., Inc. v. Comm. to Elect Timothy Grendell, 123 Ohio St.3d 447 (Ohio 2009) (explains operation of clerk instruction for service and when repeated instruction/dismissals convert to dismissal with prejudice)