Norma J. Brownfield, Administrator of the Estate of Robert W. Brownfield, Deceased, for Robert W. Brownfield, Plaintiff-Appellant, v. Victor S. Krupman, Defendant-Appellee.
No. 14AP-294 (C.P.C. No. 12CV-03-3246)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
May 21, 2015
[Cite as Brownfield v. Krupman, 2015-Ohio-1966.]
DORRIAN, J.
(REGULAR CALENDAR)
Rendered on May 21, 2015
James H. Banks, for appellant.
Victor S. Krupman, pro se.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Robert W. Brownfield, appeals the March 11, 2014 judgment of the Franklin County Court of Common Pleas dismissing appellant‘s complaint against defendant-appellee, Victor S. Krupman. Appellant has also filed a motion to strike an affidavit contained within appellee‘s brief and exhibits attached to appellee‘s brief. Appellee has filed a motion to supplement the record. For the reasons that follow, we affirm the judgment of the trial court.
{¶ 2} On March 13, 2012, appellant filed a complaint against appellee alleging claims including fraud, breach of contract, and legal malpractice. The complaint stated that this was a refiled action and that the original action had been dismissed without prejudice on August 24, 2011.
{¶ 3} On March 4, 2014, appellant filed a motion for default judgment, as appellee had not filed an answer or responsive pleading, and trial was scheduled to commence on March 11, 2014. On the same date, appellant filed a second motion for default judgment and attached two pages, which he purported to be printed copies of delivery records from the United States Postal Service. Appellant asserted in his memorandum in support of the motion for default judgment that “[a]ccording to the Court docket, service of summons and complaint was issued by Certified Mail on March 14, 2012” and that, “[a]ccording to the United States Post Office, service was perfected on April 6, 2012, as set forth in the official documents attached hereto and incorporated herein.” (Motion for Default Judgment, R. 16.)
{¶ 4} On March 10, 2014, the trial court filed an entry denying both of appellant‘s March 4, 2014 motions for default judgment because appellant failed to demonstrate completed service of process. On March 11, 2014, the trial court entered a “decision and final judgment,” finding that it lacked jurisdiction and dismissing the action because “good service on defendant Krupman was never accomplished.”
II. Assignment of Error
{¶ 5} Appellant appeals, assigning the following error for our review:
THE TRIAL COURT ERRED IN DENYING PLAINTIFF APPELLANT DEFAULT JUDGMENT AND DETERMINING THAT IT LACKED JURISDICTION BELOW BASED UPON FAILURE OF SERVICE.
{¶ 6} Initially, we must address (1) appellant‘s motion to strike both the exhibits attached to appellee‘s brief and appellee‘s affidavit contained therein, and (2) appellee‘s motion to supplement the record. Appellant asserts that the documents attached to appellee‘s brief and the statements of fact that appellee attempts to validate through use of an included affidavit are not part of the record in this case and should not be
{¶ 7}
{¶ 8} Next, although not raised by either party, because the trial court‘s judgment entry does not reflect dismissal with prejudice, we must determine whether this case presents a final, appealable order. Israel v. G-Core Automotive Corp., 10th Dist. No. 13AP-201, 2013-Ohio-4461, ¶ 5, citing White v. Unknown, 10th Dist. No. 09AP-1120, 2010-Ohio-3031, ¶ 6. Although “[g]enerally, an involuntary dismissal without prejudice is not a final, appealable order” such a dismissal “may be a final appealable order if the plaintiff cannot refile his suit because the applicable statute of limitations has lapsed and he cannot take advantage of the savings statute.” Israel at ¶ 5. Thus, in determining whether the trial court‘s March 11, 2014 dismissal is a final, appealable order, we must examine whether the statute of limitations or the savings statute preclude appellant from
{¶ 9} An action for legal malpractice must be commenced within one year of the accrual of the cause of action.
{¶ 10}
{¶ 12} Based upon the above facts as stated in appellant‘s complaint, it is apparent that the statute of limitations for his legal malpractice claim began to run no later than July of 2009, when he should have discovered that his injury was related to his attorney‘s actions or non-actions. Smith at ¶ 4. Therefore, since appellant was required to commence his action within one year of its accrual, the statute of limitations would have barred appellant‘s refiling of his claim for legal malpractice by the time of the trial court‘s dismissal of his original case on August 24, 2011.
{¶ 13} As a result, appellant was required to invoke the savings statute in order to refile his complaint on March 13, 2012, nearly two years after expiration of the statute of limitations on his claim of legal malpractice. Since appellant has already invoked the savings statute, he cannot do so again to refile this matter. Thompson at ¶ 26; Boggs at ¶ 30; Israel at ¶ 6. Therefore, because the applicable statute of limitations has expired and appellant is barred from invoking the savings statute more than once, thereby precluding appellant from refiling this case, we find that the trial court‘s March 11, 2014 dismissal constitutes a final, appealable order. Thompson at ¶ 28. See also Israel at ¶ 6; Gao at ¶ 14. Having determined that we possess jurisdiction, we turn to the merits of appellant‘s appeal.
{¶ 14} In his sole assignment of error, appellant asserts that the trial court erred in finding that it lacked jurisdiction because appellant submitted evidence to the court demonstrating that service was completed. A trial court lacks personal jurisdiction to render a valid judgment if effective service of process has not been made on the defendant
{¶ 15}
{¶ 16}
{¶ 18} In its entry denying the motions for default judgment, the trial court found that appellant failed to obtain service of process under
{¶ 19} Although
{¶ 20} Accordingly, we overrule appellant‘s assignment of error.
III. Disposition
{¶ 21} For the foregoing reasons, having denied appellant‘s motion to strike and appellee‘s motion to supplement, and having overruled appellant‘s sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Motions denied; judgment affirmed.
KLATT and SADLER, JJ., concur.
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