TERRY LEOTTA, Plаintiff-Appellant, v. GREAT LAKES PAIN MANAGEMENT CENTER, ET AL., Defendants-Appellees.
No. 109137
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
October 22, 2020
2020-Ohio-4995
[Cite as Leotta v. Great Lakes Pain Mgt. Ctr., 2020-Ohio-4995.]
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 22, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-896109
Appearances:
Cavitch, Familio & Durkin Co., L.P.A., and Gregory E. O‘Brien, for appellant.
Reminger Co., L.P.A., Brian D. Sullivan, Erin Siebenhar Hess, and Aaren R. Host, for appellees.
RAYMOND C. HEADEN, J.:
{¶ 1} Plaintiff-appellant Terry Leotta (“Leotta“) appeals from the trial court‘s dismissal of her complaint against defendants-appellees. For the reasons that follow, we affirm.
Procedural and Substantive History
{¶ 2} On February 4, 2015, Leotta filed a complaint against Great Lakes Pain Management Center (“Great Lakes“), J&K Pain Management Co., L.L.C. d.b.a. Great Lakes Pain Management Center, and Emad A. Mikhail (“Dr. Mikhail“) (collectively, “Defendants“) alleging medical malpractice. The complaint alleged that medical negligence had occurred in August 2013. On January 30, 2018, Leotta voluntarily dismissed this complaint pursuant to
{¶ 4} On May 7, 2018, Defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted pursuant to
Defendants expressly assert the following affirmative defenses as part of this responsive pleading: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; and (6) failure to join a party under Civil Rule 19 or 19.1.
On May 11, 2018, Defendants filed an answer. Defendants denied Leotta‘s allegations and raised numerous affirmative defenses.
{¶ 5} On May 14, 2018, Leotta filed a brief in opposition to Defendants’ motion to dismiss. On May 21, 2018, Defendants filed a reply brief in support of their motion. On June 1, 2018, Leotta filed a surreply. On August 6, 2018, Defendants filed a notice of supplemental authority to their motion. On November 6, 2018, the trial court denied Defendants’ motion to dismiss.
{¶ 6} On May 10, 2019, Defendants filed a motion for partial summary judgment. On September 10, 2019, the trial court granted the motion in part, finding that Defendants were entitled to summary judgment on three of Leotta‘s derivative medical malpractice claims. The court found that genuine issues of material fact remained with respect to Leotta‘s claim of medical negligence against Mikhail and her claim of vicarious liability against Great Lakes.
{¶ 7} On September 25, 2019, Defendants filed a motion for leave to file a second motion to dismiss. Defendants argued that (1) Leotta had failed to obtain service of process on Mikhail when she refiled her suit in April 2018; (2) because more than a year had passed, this failure of service resulted in a failure to commence the suit against Mikhail; (3) the failure to commence the suit resulted in Leotta‘s claim against Mikhail being barred by the statute of limitations; and (4) the vicarious liability claim agаinst Great Lakes could not survive without the claim against Mikhail.
{¶ 8} On September 26, 2019, Leotta filed a brief in opposition to the motion to dismiss. The same day, Defendants filed a reply brief in support of their motion. On September 27, 2019, Leotta filed a surreply.
{¶ 9} On October 1, 2019, the court held a hearing on Defendants’ motion to dismiss. Following the hearing, the court granted the motion and Leotta‘s claims were dismissed with prejudice as to all defendants. Leotta appeals, presenting one assignment of error for our review.
Law and Analysis
{¶ 10} In Leotta‘s sole assignment of error, she argues that the trial court erred in dismissing her complaint under
{¶ 11} Generally, a court‘s ruling under
{¶ 12} Here, Leotta does not dispute that service was not perfected on Dr. Mikhail. Therefore, we need not analyze insufficiency of service of process. Instead, Leotta argues that Defendants waived the
{¶ 13} In response, Defendants argue that they properly preserved their
{¶ 14}
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading theretо if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1. A mоtion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defеnse in law or fact to that claim for relief. When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided, however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.
{¶ 15} Further,
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (a) if omitted from a motion in the circumstances described in subdivision (G), or (b) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(A) to be made as a matter of course.
{¶ 16} Finally,
A party who makes a motion under this rule must join with it the other motions herein provided for and then available to
him. If a party makes a motion under this rule and does not include therein all defenses and objеctions then available to him which this rule permits to be raised by motion, he shall not thereafter assert by motion or responsive pleading, any of the defenses or objections so omitted, except as provided in subdivision (H) of this rule.
{¶ 17} In accordance with these rules, the Ohio Supreme Court has held that the defense of insufficiency of service of process can be waived in two ways: (1) if a motion is made rаising other
{¶ 18} Therefore, our analysis in this appeal centers on whether Defendants properly included or joined their
{¶ 19} Leotta argues including a footnote at the bottom of the first page of their initial motion to dismiss was insufficient to conclude that Defendants prеserved the
{¶ 20} Leotta points to no authority for her argument that the foregoing requirement applies in order for a party to preserve a
{¶ 21} To the extent that Leotta argues that Defendants’ participation in the litigation constitutes waiver of their
{¶ 22} Based on the foregoing, the trial court properly granted Defendants’ motion
{¶ 23} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
RAYMOND C. HEADEN, JUDGE
EILEEN A. GALLAGHER, P.J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS WITH SEPARATE OPINION
MARY EILEEN KILBANE, J., DISSENTING WITH SEPARATE OPINION:
{¶ 24} “[A] basic tenet of Ohio jurisprudence [is] that cases should be determined on their merits and not on mere procedural technicalities.” Barksdale v. Van‘s Auto Sales, 38 Ohio St.3d 127, 128, 527 N.E.2d 284 (1988), citing State v. Herzing, 18 Ohio St.3d 337, 379, 481 N.E.2d 593 (1985); Perotti v. Ferguson, 7 Ohio St.3d 1, 454 N.E.2d 951 (1983); DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 431 N.E.2d 644 (1982). See also Capital One Bank (USA) NA v. Smith, 8th Dist. Cuyahoga No. 108669, 2020-Ohio-1614, ¶ 20 (“Our decision comports with the basic tenant in Ohio law that ‘whenever possible, cases should be decided on their merits.‘“), quoting Rafalski v. Oates, 17 Ohio App.3d 65, 67, 477 N.E.2d 1212 (8th Dist.1984).
{¶ 25} With that principle in mind, I respectfully dissent. The majority opinion will potentially allow defendants to avoid the merits of a civil case and disregard the rules of civil procedure by throwing the kitchen sink of waivable defenses into a footnote of a pre-answеr dispositive motion without articulating any basis for the defenses listed. That practice would ignore the Rules of Civil Procedure and frustrate the application of substantive law. Accordingly, I would reverse the order of the trial court dismissing Appellant‘s complaint and remand the matter for further proceedings.
{¶ 26} The determination of the sufficiency of service of process is reviewed for abuse of discrеtion. Matteo, 8th Dist. Cuyahoga No. 92894, 2010-Ohio-1204, at ¶ 9. However, it is undisputed in this case that service of process was not sufficient. Rather, this case asks us to review whether the Civil Rules of Procedure were properly applied. “‘The application of a civil rule is a question of law, which we review de novo.‘” Ramsey v. Dash Tree Servs., 11th Dist. Lake No. 2019-L-081, 2020-Ohio-2668, ¶ 10, quoting Haskett v. Haskett, 11th Dist. Lake No. 2011-L-155, 2013-Ohio-145, ¶ 17, citing Gumins v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 10AP-941, 2011-Ohio-3314, ¶ 11. See also Larson v. Larson, 3d Dist. Seneca No. 13-11-25, 2011-Ohio-6013, ¶ 8 (“Since this case requires the interpretation of a civil rule, it presents a question of law we review de novo.“); Brummitt v. Ohio Mut. Ins. Group, 6th Dist. Erie No. E-17-014, 2017 Ohio App. LEXIS 4898, 6 (Nov. 9, 2017) (“Mоreover, the interpretation of a civil rule presents a question of law, which is reviewed de novo.“); Fry v. Speelman, 9th Dist. Wayne No. 18AP0012, 2019-Ohio-585, ¶ 8.
{¶ 27} The Rules of Civil Procedure must be fairly and uniformly enforced. “Regardless of how appellants’ behavior is characterized, the Ohio Rules of Civil Procedure govern the conduct of all parties equally, and ‘we cannot disregard [the] rules to assist a party who has failed to abide by them.‘” Gliozzo, 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, at ¶ 16, quoting Bell, 89 Ohio App.3d at 204, 624 N.E.2d 196. Thus, we must apply the civil rules to Appellant and Appellees equally. The application of the relevant rules of procedure is clear in this case.
{¶ 28} Read together,
(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1.
{¶ 29}
{¶ 30}
A party who makes a motion under this rule must join with it the other motions herein provided for and then available to him. If a party makes a mоtion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, he shall not thereafter assert by motion or responsive pleading, any of the defenses or objections so omitted, except as provided in subdivision (H) of this rule.
{¶ 31}
A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (a) if omitted from a motion in the circumstances described in subdivision (G)[.]
{¶ 32} The parties agree that process had not been served when Appellees filed their first motion to dismiss, which they filed before filing an answer. Yet, the brief in support of Appellees’ first motion to dismiss is six pages long and is exclusively dedicated to arguing that the Appellant‘s complaint should be dismissed under
{¶ 33} Appellees only referred to the
{¶ 34} Service was to be perfected pursuant to
{¶ 36} In Gliozzo, the defendants properly preserved the defense of insufficiеnt process in their answer. They did not file a pre-answer motion under
{¶ 37} Appellees also direct us to Jackson v. United States, 138 F.R.D. 83, 86 (S.D. Tex. 1991). They overreach in claiming that Jackson demonstrates that the mere mention of reserving the defense of insufficient service of process in a footnote was sufficient to join their
{¶ 38} In Jackson, the defendants’ first filing was a non-Rule 12 motion for an extension of time. They attempted to reserve the defense of insufficient service of process in that motion. They later filed an answer that did not raise the insufficiency of service of process defense. Post-answer
{¶ 39} Neither Jackson nor Panhandle dealt with the situation the instant case presents. Neither case considered whether a
{¶ 40} Appellees latch onto language Jackson quoted from Panhandle, stating, “There is no mandate in the wording of [Federal] Rule 12(b) that requires pleading other than by conclusion[.]” Jackson at 86, quoting Panhandle at 83. Appellees omit that in Panhandle, the Tenth Circuit went on to state, “Of course the blanket and routine pleading of the reservation of special defenses without contention of merit may become an abuse of the spirit of the rule.” Panhandle at 83, fn. 4. Even disregarding that warning, the former statement does not save Appellees from the waiver provisions of
{¶ 41} Even if Jackson or Panhandle were applicable, it is conceivable that Appellees’ footnote defense does not quаlify
{¶ 42} Appellees also direct us to Malott, 2d Dist. Montgomery No. 14986, 1996 Ohio App. LEXIS 3635, at *35; Ewert v. Stewart, 6th Dist. Lucas No. L-00-1120, 2001 Ohiо App. LEXIS 1817, 11-13 (Apr. 20, 2001), for the proposition that their footnote preserved the defense because it gave adequate notice to Appellants that Appellees were asserting the insufficient service defense. Malott involved a potential waiver of the sovereign immunity defense under
{¶ 43} Last, Appellees argue that they were not required to join their
{¶ 44} Although Appellants still had 11 months to perfect service when Appellees filed their first motion to dismiss, the defense of insufficient service of process was availablе to Appellees and they could have preserved the defense in at least two ways. First, by filing an answer as their first responsive pleading and listing the insufficient service as a defense. Second, by raising the defense at some point in their ten-page pre-answer motion to dismiss with a brief explanation of the merits of the defense. Appellees did neither and therefore were not entitled to raise the wаived defense a mere five days before the trial date.
{¶ 45} If Appellees were concerned that a