Suiter v. Karimiam
2015 Ohio 3330
Ohio Ct. App.2015Background
- In May 2010 Nathan and Mary Suiter sued Dr. Hojatollah Karimian (and others) for medical malpractice relating to treatment of atrial fibrillation; they alleged a disabling stroke on December 15, 2008 rendered Mr. Suiter permanently incompetent.
- The Suiters served Karimian by Federal Express; Karimian answered and repeatedly asserted insufficiency of service/lack of personal jurisdiction as an affirmative defense.
- The Suiters amended complaints and added other defendants; some later waived service, but Karimian consistently contested the service method.
- Civ.R. 4.1 did not permit commercial-carrier service when the Suiters filed (May 27, 2010); the rule was amended effective July 1, 2012 to allow commercial-carrier service.
- The trial court initially denied Karimian relief based on a Summit County standing order allowing FedEx service, then later (after Hubiak) granted Karimian’s motion to dismiss for lack of personal jurisdiction because service was never perfected within Civ.R. 3(A)’s one-year period, and dismissed with prejudice as time-barred.
- On appeal the Ninth District: (1) held Karimian did not waive his insufficiency-of-service defense; (2) held the Civ.R. 4.1 amendment did not apply retroactively because the action never commenced under Civ.R. 3(A); and (3) reversed the dismissal with prejudice, concluding dismissal should have been without prejudice because the complaint did not conclusively show the statute of limitations had run.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Karimian waived lack-of-service defense under Civ.R. 12(G)-(H) | Suiter: Karimian waived the defense by filing motions after answering and by participating | Karimian: preserved the defense by asserting it in his responsive pleadings | Held: No waiver — defense preserved because it was raised in answers |
| Whether Civ.R. 4.1 amendment (allowing commercial-carrier service) applies retroactively | Suiter: Rule change in 2012 governs further proceedings in pending cases, so prior FedEx service is valid | Karimian: Service failed under former Civ.R. 4.1; case never commenced under Civ.R. 3(A) so amendment doesn't apply | Held: Amendment does not apply; action never commenced because service not perfected within one year |
| Whether dismissal for lack of personal jurisdiction should be with prejudice due to statute of limitations tolling | Suiter: Tolling applies because stroke rendered Mr. Suiter of unsound mind, so SOL may be tolled — dismissal should be without prejudice | Karimian: SOL expired; dismissal with prejudice appropriate because suit never properly commenced timely | Held: Dismissal appropriate for lack of jurisdiction but not with prejudice — record does not conclusively show SOL expired; should be dismissed without prejudice |
| Whether trial court could resolve tolling/statute-of-limitations on motion to dismiss | Suiter: factual issues (accrual and unsound mind) preclude dismissal on pleadings | Karimian: SOL defense supports dismissal | Held: Court erred to rely on extraneous evidence; on the face of the complaint SOL did not conclusively bar the claim, so dismissal with prejudice improper |
Key Cases Cited
- Fraley v. Estate of Oeding, 138 Ohio St.3d 250 (Ohio 2014) (personal jurisdiction reviewed de novo)
- Maryhew v. Yova, 11 Ohio St.3d 154 (Ohio 1984) (Civ.R. 12(B) options; service defense timing)
- Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141 (Ohio 2007) (preservation of insufficiency-of-service defense despite participation)
- Ohio Bur. of Workers' Comp. v. McKinley, 130 Ohio St.3d 156 (Ohio 2011) (complaint may be dismissed on its face only if it conclusively shows time-barred)
- LaNeve v. Atlas Recycling, Inc., 119 Ohio St.3d 324 (Ohio 2008) (Civil Rules must be enforced; courts may not ignore plain rule language)
- Allenius v. Thomas, 42 Ohio St.3d 131 (Ohio 1989) (cognizable event standard for accrual of malpractice claims)
- Hershberger v. Akron City Hosp., 34 Ohio St.3d 1 (Ohio 1987) (factors for accrual: awareness of extent/seriousness, relation to prior care, notice for further inquiry)