Rossiter v. Smith
2012 Ohio 4434
Ohio Ct. App.2012Background
- Denise Rossiter, administrator of Justin Rossiter’s estate, sued Kyle Smith for wrongful death after Justin’s death in a car crash caused by Smith.
- The initial wrongful death action was filed within the two-year limitations period and then voluntarily dismissed after the certified-mail service attempt failed.
- Within one year of dismissal, Rossiter re-filed the wrongful death complaint and effected service.
- Smith moved for summary judgment arguing the savings statute (R.C. 2125.04) could not apply because there was no commenced or attempted commenced action in the first filing.
- The trial court granted summary judgment, equating “attempted to be commenced” with “commenced,” and held Rossiter could not rely on the savings statute.
- On appeal, the court held that Rossiter did commence or attempt to commence by attempting service via certified mail, triggering the savings statute and reversing the grant of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the wrongful death savings statute applies when the plaintiff attempted service in the initial suit. | Rossiter attempted to commence action by seeking certified-mail service. | An action is commenced only when service is perfected; attempted service is not enough. | Yes; an attempt to commence via proper service satisfies the statute. |
| Whether the Civ.R. 60(B) motion issues were properly considered given appellate timing. | Civ.R. 60(B) denial should be reviewed despite notice of appeal timing. | Trial court lacked jurisdiction to rule due to the premature notice of appeal. | The Civ.R. 60(B) ruling is void; the issue is not reached on the merits. |
Key Cases Cited
- Motorists Mut. Ins. Co. v. Huron Rd. Hosp., 73 Ohio St.3d 391 (1995) (holding that mere filing does not constitute attempted commencement; service is essential)
- LaNeve v. Atlas Recycling, Inc., 119 Ohio St.3d 324 (2008) (definition of attempted commencement requires proper service under Civil Rules)
- Sorrell v. Estate of Datko, 147 Ohio App.3d 319 (2001-Ohio-3460) (distance between commence and attempted commence varies by district but involves action to effect service within limitations period)
- Barker v. Strunk, 2007-Ohio-884 (9th Dist.) (savings statutes should be liberally construed to decide cases on the merits)
- Seger v. For Women, Inc., 2006-Ohio-4855 (110 Ohio St.3d 451) (defines commencement under Civ.R. 3(A) and related savings context)