Ross v. Berdyck, 2026-Ohio-2693

Background

Ross filed a 75-page complaint in Franklin County alleging defamation, tortious interference, and intentional infliction of emotional distress against Berdyck. 1
Ross attempted certified-mail service at a Santa Barbara address, but the envelope was returned undeliverable after a signed receipt appeared on the docket. 2
Ross later tried service at another California address and also sought appointment of a process server and service by publication, but those requests were denied. 3
Berdyck appeared and argued he had not been served and that the Santa Barbara address was a commercial mailbox store with no connection to him. 4
The trial court denied Ross's default-motion, found Berdyck had not waived insufficiency of service, and later dismissed the complaint without prejudice for lack of personal jurisdiction after service was not obtained within one year. 5
Ross appealed, challenging the service ruling, waiver analysis, denial of a hearing, and dismissal under Civ.R. 3(A) and 4(E). 6

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was service perfected within one year? 7	Ross said certified mail was signed for and created valid service.	Berdyck said the mail was returned undeliverable and he was never served.	No; service was not perfected within one year. 8
Did a presumption of service arise? 9	Ross argued the signed return receipt presumed valid service.	Berdyck argued no signed return was properly entered on the docket.	No; the presumption never arose. 10
Did Berdyck waive insufficiency of service? 11	Ross argued Berdyck waived service by litigating the merits.	Berdyck maintained he preserved the defense by immediately asserting nonservice.	No waiver occurred. 12
Did Civ.R. 11 defects in Berdyck's filings invalidate his defense? 13	Ross claimed unsigned or defective filings were nullities and could not preserve defenses.	Berdyck argued those defects did not defeat a preserved service defense.	No; the defects did not preclude his defense. 14
Was dismissal for lack of personal jurisdiction proper? 15	Ross argued the court should have granted default or allowed curing service.	Berdyck argued the action never commenced because service was untimely.	Yes; dismissal without prejudice was proper. 16

Key Cases Cited

Shah v. Simpson, 2014-Ohio-675 (10th Dist. 2014) (de novo review applies to dismissal for lack of personal jurisdiction 17)
Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81 (Ohio 2010) (cited with Shah for de novo review of personal-jurisdiction dismissal 18)
Boggs v. Denmead, 2018-Ohio-2408 (10th Dist. 2018) (service must be obtained within one year for an action to commence 19)
Saunders v. Choi, 12 Ohio St.3d 247 (Ohio 1984) (action is not commenced unless service is obtained within one year 20)
McAbee v. Merryman, 2013-Ohio-5291 (7th Dist. 2013) (failure to perfect service within a year makes dismissal appropriate 21)
TCC Mgt. v. Clapp, 164 Ohio App.3d 195 (10th Dist. 2005) (signed certified-mail receipt can evidence service 22)
Chuang Dev. LLC v. Raina, 2017-Ohio-3000 (10th Dist. 2017) (signed receipt on docket creates rebuttable presumption of proper service 23)
Maryhew v. Yova, 11 Ohio St.3d 154 (Ohio 1984) (without proper service, the court lacks jurisdiction over the defendant 24)
Ostendorf v. Darling, 2021-Ohio-2781 (10th Dist. 2021) (judgment entered without personal jurisdiction is void ab initio 25)
Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141 (Ohio 2007) (active participation does not waive a properly preserved insufficiency-of-service defense 26)
Laneve v. Atlas Recycling, Inc., 2012-Ohio-554 (10th Dist. 2012) (actual knowledge and lack of prejudice do not excuse defective service 27)
Kerby v. Zerick, 2024-Ohio-5665 (10th Dist. 2024) (service must be obtained within one year or the court lacks jurisdiction 28)