Simindinger v. Meeker
2021 Ohio 3274
| Ohio Ct. App. | 2021Background:
- June 3, 2017: alleged assault at the Landing Strip Bar; complaint filed July 30, 2018 for assault (intentional tort).
- Certified mailing of summons was returned unclaimed (notation referencing a P.O. Box); plaintiff requested clerk mail complaint by ordinary mail to defendant’s physical address.
- Default judgment entered against Meeker (Jan. 24, 2019); damages awarded at hearing and journalized July 15, 2019.
- Meeker moved under Civ.R. 60(B) (Nov. 19, 2019) asserting lack of proper service and lack of personal jurisdiction; trial court vacated the default judgment (filed April 3, 2020); Simindinger did not appeal that order.
- Plaintiff re-served Meeker by sheriff on Sept. 25, 2020; Meeker moved to dismiss under Civ.R. 12(B)(6) (Dec. 7, 2020) and later moved for leave to file an answer instanter (Jan. 22, 2021).
- Trial court granted leave to file the late answer, denied plaintiff’s renewed default-motion, and granted defendant’s motion to dismiss as time-barred; appellate court affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in granting Meeker relief from the default judgment under Civ.R. 60(B) based on defective service | Simindinger: vacatur was error because service was proper in Sept. 2018 | Meeker: plaintiff failed to timely appeal the Civ.R. 60(B) order; that order is final and now law of the case | Court: no jurisdiction to revisit — Simindinger failed to appeal the April 3, 2020 order, so this issue is not before the appellate court |
| Whether the trial court abused its discretion by allowing Meeker to file an out-of-rule answer (Civ.R. 6(B)(2)) for “excusable neglect” | Simindinger: counsel knew of the case/service so failure to timely answer was inexcusable | Meeker: counsel had not been served, was unaware of personal service, acted promptly on learning, and filed a prepleading motion | Court: no abuse of discretion — facts supported excusable neglect and leave to file was proper |
| Whether Meeker waived the statute-of-limitations defense (and whether dismissal under Civ.R. 12(B)(6) was improper) | Simindinger: statute-of-limitations defense was waived by not being timely pled; dismissal therefore improper | Meeker: no waiver because complaint had not been effectively served after vacatur; defense was raised prepleading and in the out-of-rule answer | Court: no waiver; assault has a one-year limitations period and complaint was filed beyond that period — dismissal for failure to state a claim was proper |
Key Cases Cited
- State ex rel. Russo v. Deters, 80 Ohio St.3d 152 (Ohio 1997) (standard of review for Civ.R. 60(B) determinations)
- Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17 (Ohio 1988) (abuse-of-discretion review in relief-from-judgment context)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (definition of abuse of discretion)
- Marion Prod. Credit Assn. v. Cochran, 40 Ohio St.3d 265 (Ohio 1988) (Civ.R. 6(B)(2) — leave to file and excusable neglect principles)
- Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18 (Ohio 1996) (excusable neglect requires unusual or special circumstances)
- GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (Ohio 1976) (examples of inexcusable neglect and standards)
- Maryhew v. Yova, 11 Ohio St.3d 154 (Ohio 1984) (inaction by an unserved defendant does not waive need for service)
- Mills v. Whitehouse, 40 Ohio St.2d 55 (Ohio 1974) (statute-of-limitations is waived only if raised in prepleading motion, answer, or amended answer)
- Volbers–Klarich v. Middletown Mgt., 125 Ohio St.3d 494 (Ohio 2010) (Civ.R. 12(B)(6) dismissal standard)
- Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491 (Ohio 2006) (statute-of-limitations may be addressed on a 12(B)(6) motion when complaint shows claims are time-barred)