2020 Ohio 4113
Ohio2020Background
- Michael Moore filed a medical-malpractice complaint on July 6, 2015, one day before his extended statute-of-limitations deadline (extended to July 7, 2015 by timely notice).
- Civ.R. 3(A) provides a complaint is "commenced" when filed if service is obtained within one year of filing; Moore did not serve Dr. Eric Humphreys within that one-year period.
- Moore timely served Mount Carmel and Central Ohio Anesthesia but could not locate Humphreys; he issued renewed instructions to the clerk on March 2, 2017 and served Humphreys on March 10, 2017.
- The trial court granted summary judgment for defendants, holding Moore’s claim against Humphreys was not "commenced" under Civ.R. 3(A) and thus time-barred; because remaining defendants’ liability was vicarious, it entered final judgment for all defendants.
- The Tenth District reversed, applying Goolsby to treat the March 2017 clerk instruction as a dismissal/refiling and allowing R.C. 2305.19(A) (the savings statute) to revive Moore’s claim; the Ohio Supreme Court accepted conflict certification and consolidated appeals.
- The Ohio Supreme Court reversed the court of appeals: it held the savings statute cannot revive an action that was never commenced under Civ.R. 3(A) and limited Goolsby to situations where the statute of limitations had not yet expired when the plaintiff sought renewed service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 2305.19(A) (savings statute) applies when plaintiff failed to obtain service within Civ.R. 3(A)'s one-year commencement period | Moore: filed and "attempted to commence" the action; when service was not obtained within one year the action "failed otherwise than on the merits" and R.C. 2305.19(A) gives an additional year to refile | Defendants: action was never "commenced" under Civ.R. 3(A); because service was not obtained within one year the claim was time-barred and savings statute cannot revive it | Held: Savings statute does not apply; action was not commenced under Civ.R. 3(A) within the limitations period, so it is time-barred unless its specific terms are met. |
| Whether issuing instructions to the clerk after Civ.R. 3(A) elapsed operates as dismissal and refiling under Goolsby v. Anderson Concrete | Moore/Tenth Dist.: March 2017 clerk instruction should be treated as dismissal/refiling under Goolsby, allowing savings statute protection | Defendants: Goolsby is inapplicable because its rationale applies only where the limitations period had not yet expired when renewed service was sought | Held: Goolsby is limited to its facts; it does not apply where the statute of limitations already expired before the renewed service instruction. |
| Whether the savings statute’s phrase "commenced or attempted to be commenced" saves a case where service simply was not obtained within Civ.R. 3(A)'s year | Moore: the filing + failed service = an "attempt" and the automatic expiry of the one-year period constitutes a failure otherwise than on the merits, so the savings statute gives another year | Defendants: savings statute requires an actual failure (dismissal) otherwise than on the merits and a new action filed within one year; neither occurred here | Held: The savings statute is not self-executing; it applies only when its prerequisites are met (attempt to commence, failure otherwise than on the merits (e.g., dismissal), and refiling within one year). |
| Whether a court may enter merits judgment (statute-of-limitations) while a defendant simultaneously asserts lack of service (personal-jurisdiction) | Moore (and dissent): dismissal for insufficiency of service should be without prejudice; allowing a merits disposition despite lack of service improperly deprives plaintiff of savings-statute protection | Defendants: court may adjudicate statute-of-limitations defense; dismissal can be with prejudice where statute-of-limitations bars refiling | Held: Majority: courts may decide merits defenses even when insufficiency-of-service is asserted; outcome here is the claim is time-barred. (Dissent would have treated dismissal as without prejudice and preserved savings-statute relief.) |
Key Cases Cited
- Goolsby v. Anderson Concrete Corp., 61 Ohio St.3d 549 (Ohio 1991) (held renewed clerk instruction can be treated as dismissal/refiling for savings statute—but opinion limited to cases where limitations period had not yet expired)
- Sisk & Assocs., Inc. v. Comm. to Elect Timothy Grendell, 123 Ohio St.3d 447 (Ohio 2009) (applied Goolsby to treat a clerk instruction as dismissal/refiling; court declined plaintiff’s subsequent attempts after repeated failures)
- Thomas v. Freeman, 79 Ohio St.3d 221 (Ohio 1997) (savings statute applied where plaintiff filed and requested service within limitations period and action was later dismissed without prejudice)
- LaBarbera v. Batsch, 10 Ohio St.2d 106 (Ohio 1967) (judgment based on statute of limitations is generally regarded as on the merits)
- Gliozzo v. Univ. Urologists, 114 Ohio St.3d 141 (Ohio 2007) (defendant may assert insufficiency of service while participating in litigation; defense preserved if properly raised)
- Maryhew v. Yova, 11 Ohio St.3d 154 (Ohio 1984) (discussed waiver of insufficient-service defense; affirmed dismissal with prejudice on other grounds)
- Motorists Mut. Ins. Co. v. Huron Rd. Hosp., 73 Ohio St.3d 391 (Ohio 1995) (describes savings statutes as remedial and intended to preserve attempted timely filings)