ACKMAN, PERSONAL REPRESENTATIVE AND ADMR. OF THE ESTATE OF SOLLMANN, DECEASED, APPELLANT, v. MERCY HEALTH WEST HOSPITAL, L.L.C., D.B.A. MERCY HOSPITAL WEST, ET AL.; AHMAD ET AL., APPELLEES.
No. 2023-0975
Supreme Court of Ohio
August 22, 2024
Slip Opinion No. 2024-Ohio-3159
DETERS, J.
APPEAL from the Court of Appeals for Hamilton County, No. C-220507, 2023-Ohio-2075. Submitted April 9, 2024.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Ackman v. Mercy Health W. Hosp., L.L.C., Slip Opinion No. 2024-Ohio-3159.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2024-OHIO-3159
ACKMAN, PERSONAL REPRESENTATIVE AND ADMR. OF THE ESTATE OF SOLLMANN, DECEASED, APPELLANT, v. MERCY HEALTH WEST HOSPITAL, L.L.C., D.B.A. MERCY HOSPITAL WEST, ET AL.; AHMAD ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Ackman v. Mercy Health W. Hosp., L.L.C., Slip Opinion No. 2024-Ohio-3159.]
Civil procedure—Service of process—Gliozzo v. Univ. Urologists of Cleveland, Inc. reaffirmed—Appellee properly raised and preserved his affirmative defense of insufficiency of service of process, and appellee’s active participation in the litigation of the case did not constitute waiver of that defense—Court of appeals’ judgment affirming trial court’s award of summary judgment to appellee and appellee’s employer for lack of proper service affirmed.
(No. 2023-0975—Submitted April 9, 2024—Decided August 22, 2024.)
APPEAL from the Court of Appeals for Hamilton County, No. C-220507,
DETERS, J., authored the opinion of the court, which KENNEDY, C.J., and FISCHER and DEWINE, JJ., joined. DONNELLY, J., concurred, with an opinion joined by STEWART, J. BRUNNER, J., dissented, with an opinion.
DETERS, J.
{¶ 1} The administrator of a deceased woman’s estate filed a complaint alleging medical malpractice and wrongful death against a doctor, the doctor’s employer, a hospital, and Medicare. The doctor and his employer filed an answer that included the affirmative defenses of insufficiency of process and insufficiency of service of process. More than two years after the complaint was filed, the doctor and his employer filed a motion for summary judgment, arguing that the case had not timely commenced, because the doctor had not been served with a copy of the complaint. The administrator opposed summary judgment, contending that the doctor had waived his failure-of-process defense by actively participating in the litigation for over two years. The trial court granted the motion for summary judgment, and the First District Court of Appeals affirmed.
{¶ 2} The administrator urges this court to overrule our decision in Gliozzo v. Univ. Urologists of Cleveland, Inc., 2007-Ohio-3762, syllabus, in which we held that “[w]hen the affirmative defense of insufficiency of service of process is properly raised and properly preserved, a party’s active participation in the litigation of a case does not constitute waiver of that defense.” We decline to do so and therefore affirm the judgment of the First District.
BACKGROUND
{¶ 3} In September 2019, Janet M. Sollmann died after having been treated months earlier by Muhammad Riaz Ahmad, M.D., at Mercy Hospital West in Cincinnati. On February 21, 2020, Jennifer Ackman, the administrator of Sollmann’s estate, filed a complaint against multiple defendants, including Dr. Ahmad and his employer, Hospitalist Medicine Physicians of Ohio, P.C. (“Hospitalist“).1 Ackman alleged that Dr. Ahmad and Mercy Hospital West failed to promptly diagnose and treat Sollmann for a stroke.
{¶ 4} Ackman attempted to serve a copy of the complaint on Dr. Ahmad and Hospitalist by certified mail. Service on Hospitalist was successful on or about February 26, 2020, but Dr. Ahmad was not served, because Ackman had used the wrong address. On March 13, Dr. Ahmad and Hospitalist filed an answer, which included the affirmative defenses of insufficiency of process and insufficiency of service of process. About a month later, the Hamilton County clerk of courts filed a service return for
{¶ 5} Over the next two years, the parties participated in the case by doing such things as attending a case-management conference, filing a joint motion to amend a scheduling order, and appearing for the depositions of certain witnesses. Throughout this time, Ackman did not perfect service of the complaint on Dr. Ahmad.
{¶ 6} In June 2022, Dr. Ahmad and Hospitalist filed a motion for summary judgment. They argued that because Dr. Ahmad had not been served with a copy of the complaint, the case had not commenced against him within the statute of limitations. So, according to them, the claims against Dr. Ahmad and the claims based on Hospitalist‘s vicarious liability should be dismissed. Ackman opposed the motion. In her view, Dr. Ahmad had waived his service defenses2 by actively participating in the case. The trial court concluded that Dr. Ahmad had not waived his service defenses and found that because Ackman had not served Dr. Ahmad, the case against him had not commenced within the statute of limitations. Dr. Ahmad and Hospitalist were therefore dismissed from the case.
{¶ 7} Ackman appealed to the First District, which affirmed the trial court‘s judgment. 2023-Ohio-2075, ¶ 25 (1st Dist.). The First District noted that it was “compelled to apply binding precedent” and that it was unable to distinguish the procedural facts of Ackman‘s case from the procedural facts of Gliozzo, 2007-Ohio-3762. 2023-Ohio-2075 at ¶ 9, 11 (1st Dist.). Ackman appealed to this court, and we accepted her sole proposition of law: “A party waives its Civil Rule 12(b)(4) and (5) service defenses through sufficient participation in the litigation.” See 2023-Ohio-4015.
ANALYSIS
{¶ 8} Ackman concedes that the trial court and the First District were bound by our precedent in Gliozzo. She urges us to overrule that decision and hold that a party‘s participation in a case may result in a waiver of an insufficiency-of-service-of-process defense. We conclude that Gliozzo remains good law.
Our decision in Gliozzo is on all fours with this case
{¶ 9} In Gliozzo, a patient sued his doctor and his doctor‘s medical practice, alleging medical malpractice. Gliozzo at ¶ 1. The patient attempted to serve a copy of the complaint on the doctor and the medical practice by certified mail but was unsuccessful. Id. at ¶ 2. No further attempt to serve the complaint was ever made. Id. The doctor and the medical practice answered the complaint and raised affirmative defenses, including insufficiency of service of process. Id. at ¶ 3. Over a year after filing their answer—and after
{¶ 10} In our decision reversing the Eighth District‘s judgment, we noted that
{¶ 11} We also looked to an earlier case, First Bank of Marietta v. Cline, 12 Ohio St.3d 317 (1984), in which this court held that an insufficiency-of-service-of-process defense that had been preserved in a pleading was not waived, even when a motion to dismiss on that basis was not made until after the close of evidence at trial. Gliozzo at ¶ 10. And we decided that “[n]othing in the facts [in Gliozzo‘s case] cause[d] us to reconsider that conclusion” from Cline. Gliozzo at ¶ 11; see also Maryhew v. Yova, 11 Ohio St.3d 154, 155, 159 (1984) (declining to find waiver of an insufficiency-of-service-of-process defense when a defendant twice sought an order for leave to move or plead). Thus, this court held that “when the affirmative defense of insufficiency of service of process is properly raised and properly preserved, a party‘s active participation in litigation of a case does not constitute waiver of that defense.” Gliozzo at ¶ 11.
{¶ 12} The case before us lines up closely with Gliozzo. Contrary to the assertion in the dissenting opinion that Dr. Ahmad did not “put[] forward even a single meaningful effort to challenge the lack of service of process,” dissenting opinion, ¶ 31. Dr. Ahmad asserted insufficiency of process and insufficiency of service of process in his answer as required by
We reaffirm our holding in Gliozzo
{¶ 13} Ackman argues that Gliozzo, 2007-Ohio-3762, should be overturned and that this court should adopt the approach taken by the United States Court of Appeals for the Sixth Circuit. She maintains that our holding in Gliozzo ignores the purpose behind service requirements and fosters gamesmanship by parties. For the reasons that follow, we decline to overrule Gliozzo.
{¶ 14} Ackman argues that this court‘s reading of
{¶ 15} Certainty is something our rules provide by placing the burden of perfecting service on the plaintiff.
{¶ 16} Moreover, our view of the history of waiving the service defense supports reaffirming our holding in Gliozzo. Before the adoption of the Ohio Rules of Civil Procedure, which became effective on July 1, 1970, the 1853 enactment of Ohio‘s first Code of Civil Procedure governed waiver of the service defense. See 51 Ohio Laws 57, 67 (effective July 1, 1853). Under the former Code of Civil Procedure, a defendant entering an appearance for purposes other than objecting to service waived the service defense. See id. (“the voluntary appearance of a defendant . . . is equivalent to service“). A defendant had to enter a “special appearance” in order to object to service without waiving the service defense. See Maryhew, 11 Ohio St.3d at 156 (“A special appearance was one made solely for the purpose of objecting to the mode, manner, or absence of the acquisition of jurisdiction over the person of the defendant. In such an appearance, the defendant did not submit to the jurisdiction of the court.“); see also Elliott v. Lawhead, 43 Ohio St. 171, 176-177 (1885) (discussing generally that if a defendant filed a motion to dismiss for want of proper service, such motion was not considered a voluntary appearance of the defendant or the equivalent to service).
{¶ 17} However, the adoption of the Civil Rules, which were promulgated under the Modern Courts Amendment of 1968,
{¶ 18} Ackman protests that the purpose of service—notice—was achieved here: Dr. Ahmad could not have participated in the proceedings absent notification
{¶ 19} Ackman attempts to paint the rule from Gliozzo as promoting gamesmanship between the parties of a case. And she echoes the concern of the concurring appellate judge below that the holding in Gliozzo “turn[s]
{¶ 20} The same could be said of the cases Ackman cites in her merit brief as showing the “dispiriting” application of Gliozzo. See Wright v. Mirza, 2017-Ohio-7183 (1st Dist.); Leotta v. Great Lakes Pain Mgt. Ctr., 2020-Ohio-4995 (8th Dist.); Beck v. Lally, 2020-Ohio-4305 (8th Dist.); Suiter v. Karimian, 2015-Ohio-3330 (9th Dist.); Moore; Clawson v. Hts. Chiropractic Physicians, L.L.C., 2022-Ohio-4154. In each of those cases, dismissal for insufficiency of service of process could have been avoided had the plaintiff or plaintiffs perfected service in accordance with the Civil Rules. As this court noted in Gliozzo, “[w]hether appellants’ conduct constituted gamesmanship or good litigation strategy, they followed the rules. If such behavior should not be permitted in the future, the proper avenue for redress would be to seek to change those rules.” Gliozzo, 2007-Ohio-3762, at ¶ 17.4
CONCLUSION
{¶
Judgment affirmed.
DONNELLY, J., joined by STEWART, J., concurring.
{¶ 22} I join the majority‘s decision to affirm the judgment of the First District Court of Appeals, which upheld the trial court‘s granting summary judgment to Hospitalist Medicine Physicians of Ohio, P.C. (“Hospitalist“) and Muhammad Riaz Ahmad, M.D. Majority opinion, ¶ 21. As the majority opinion sets out, the Civil Rules and our precedent permit what happened here. Yet I am sympathetic to the concerns raised in the dissenting opinion about the unjust results that might flow from this court‘s interpretation of the Civil Rules. Dissenting opinion, ¶ 31. I write separately, therefore, to express my concerns.
{¶ 23} The Civil Rules provide a comprehensive system for the assertion and resolution of the affirmative defenses at issue. To commence a civil action, a plaintiff must file a complaint in the appropriate court and serve the complaint on the defendant within one year of the complaint‘s filing date.
{¶ 24} I believe that the straightforward application of the Civil Rules to the undisputed facts here dictates the result of this appeal. Jennifer Ackman filed a complaint in the common pleas court, but she failed to perfect service on Dr. Ahmad. And that failure to perfect service was noted on the trial court‘s docket. In short, Ackman failed in her obligations to commence the civil action against Dr. Ahmad under the Civil Rules. See
{¶ 25} At bottom, Dr. Ahmad complied with the Civil Rules and Ackman did not. I do not believe that we should punish Dr. Ahmad (or any litigant) for doing what the rules allow him to do, especially when such an outcome would favor a party that did not follow the Civil Rules and that failed to properly commence a civil action. Punishing Dr. Ahmad here would undermine the standards of fairness that should underpin the resolution of disputes through civil litigation.
{¶ 26} That said, the result here is far from perfect. Courts are to construe and apply the Civil Rules in a way that “effect[s] just results.”
{¶ 27} But this court issuing an opinion in which we ignore the language and structure of the Civil Rules is not the appropriate means for closing that loophole. Rather, this case shows that it is time for us to ask the Commission on the Rules of Practice and Procedure to determine whether the rules governing the service defenses should be revised to prevent gamesmanship. Until that revision occurs, our decisions here and in Gliozzo v. Univ. Urologists of Cleveland, Inc., 2007-Ohio-3762, will permit the use of the Civil Rules for ignoble ends.
BRUNNER, J., dissenting.
{¶ 28} I would overrule our decision in Gliozzo v. Univ. Urologists of Cleveland, Inc., 2007-Ohio-3762, and reverse the judgment of the First District Court of Appeals. Gliozzo establishes a bright-line rule that “[w]hen the affirmative defense of insufficiency of service of process is properly raised and properly preserved, a party‘s active participation in the litigation of a case does not constitute waiver of that defense.” Id. at syllabus. The majority observes that this rule provides litigants with a degree of certainty concerning the defense of insufficiency of service of process. See majority opinion, ¶ 14-15. I agree as a general matter that certainty in the application of a rule is good, but the benefits of that certainty are diminished when the application of the rule facilitates waste and unjust results.
{¶ 29} This case is a good example of how applying the rule from Gliozzo leads to both waste and unjust results. Appellee Dr. Muhammad Riaz Ahmad clearly had notice of the suit through his employer, appellee Hospitalist Medicine Physicians of Ohio, P.C. And over the next two years, Dr. Ahmad substantially participated in
{¶ 30} We have a simple and well-established tool at our disposal to prevent both waste and unjust results: the principle of forfeiture. Courts have long recognized that a litigant‘s conduct during litigation may cause the forfeiture of certain rights. See, e.g., Yakus v. United States, 321 U.S. 414, 444 (1944) (“No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.“). The federal courts have also applied this principle in cases like the present one: “Even where a defendant properly preserves [an insufficiency-of-service-of-process] defense [under
{¶ 31} The majority ignores the waste of government and private resources engendered by the rule of Gliozzo. It also disagrees that Gliozzo facilitates unjust results, stating instead that “it would hardly be just to excuse Ackman‘s noncompliance with the rules relating to service while penalizing Dr. Ahmad‘s compliance with the rules relating to waiver.” Majority opinion at ¶ 19. This unsupported proclamation makes no coherent sense. As King explains, a defendant‘s active participation in a case matters because it gives the plaintiff a “‘reasonable expectation that [the defendant will] defend the suit on the merits.’ ” King at 660, quoting Gerber v. Riordan, 649 F.3d 514, 519 (6th Cir. 2011). Here, Dr. Ahmad actively participated in the case for nearly two years, including by participating in discovery and even taking the plaintiff Ackman‘s deposition—all without putting forward even a single meaningful effort to challenge the lack of service of process. His conduct, or lack thereof, caused Ackman to reasonably believe that he intended to defend the suit on the merits. This supplies a just reason for Ackman‘s failure to perfect service of the complaint on Dr. Ahmad.
{¶ 32} For these reasons, I would overrule our decision in Gliozzo, hold that a defendant‘s active participation in litigation causes the defendant to forfeit an insufficiency-of-service-of-process defense, and reverse the decision of the First District Court of Appeals. I therefore respectfully dissent.
Joseph A. Cesta; Colleen M. Hegge; and F. Joseph Schiavone Co., L.P.A., and Frank J. Schiavone III, for appellant.
Bricker Gaydon, L.L.P., Anne Marie Sferra, and Karin M. Long; and Calderhead, Lockemeyer & Peschke Law and Joshua F. DeBra, for appellees.
Beausay & Nichols Law Firm and Jacob J. Beausay, urging reversal for amicus curiae Ohio Association for Justice.
Reminger Co., L.P.A., and Thomas N. Spyker, urging affirmance for amicus curiae Ohio Association of Civil Trial Attorneys.