Lesher v. McDermottLesher v. McDermott
- Reporters:
- Before:
- Grady
OPINION
{¶ 1} This is an appeal from an order of the common pleas court that dismissed a personal injury action for failure of service and lack of jurisdiction.
{¶ 2} The claims for relief in the action arose from an automobile accident that occurred on May 13, 1996. Two years later, on May 13, 1998, the Plaintiffs, Joe and Esther Lesher, filed a complaint on their respective claims for personal injuries and loss of consortium. Service was obtained shortly thereafter on the Defendant, Matthew McDermott, on June 22, 1998.
{¶ 3} On March 11, 1999, Plaintiffs filed a notice of voluntary dismissal pursuant to
{¶ 4} On May 8, 2000, Plaintiffs refiled their action on both claims for relief. It is undisputed that, as to both claims, the respective statutes of limitation were then satisfied.
{¶ 5} On December 7, 2001, some nineteen months after Plaintiffs had refiled their action, Defendant moved to dismiss pursuant to
{¶ 6} Plaintiffs argued in response that
{¶ 7} The trial court took evidence on Plaintiffs’ claims. The court found that Defendant was a resident of Ohio during the one year concerned and had not absconded or concealed his whereabouts to avoid service. The court noted that Defendant was on court supervised community control during the entire year following the date Plaintiffs refiled their action. The court therefore granted Defendant‘s motion to dismiss.
{¶ 8} Plaintiffs filed a timely notice of appeal. They present four assignments of error.
First Assignment of Error
{¶ 9} “To the extent the lower court considered additional evidentiary matters, the court should have treated the motion as a motion for summary judgment, accordingly, the trial court erred in not considering additional evidence proffered by the plaintiff.”
{¶ 10}
{¶ 11} Defendant‘s motion to dismiss was not made pursuant to
{¶ 12} Plaintiffs also argue that Defendant is equitably estopped from asserting a lack of jurisdiction over him. Plaintiffs have not presented an argument in support of that contention, as
{¶ 13} The first assignment of error is overruled.
Second Assignment of Error
{¶ 14} “The trial court erred in failing to address plaintiffs’ claim of equitable estoppel.”
{¶ 15} Plaintiffs argue that
{¶ 16} Plaintiffs also rely on
{¶ 17} Plaintiffs further argue that Defendant was aware of the fact that they had refiled their action on May 8, 2000. They point to a letter to their attorney from Attorney Wilbur S. Lang (Plaintiffs’ Exhibit 2), in which Lang asks Plaintiffs’ attorney to present an offer of settlement and suggests mediation. However, the Lang letter is dated March 15, 2000, more than seven weeks before Plaintiffs’ action was refiled. It cannot demonstrate that Defendant or his attorneys were aware that the action was refiled.
{¶ 18} Finally, Plaintiffs point to the testimony of Defendant‘s father, who indicated that he had received correspondence from Defendant‘s attorney asking Defendant to contact him, and that he shared that correspondence with Defendant or made him aware of it. However, that evidence does not demonstrate that timely service of summons and complaint was effected pursuant to the Civil Rules on Defendant, who denied any knowledge of the refiled action. (T. 14). The court rejected Plaintiffs’ contentions, noting that Plaintiffs had not contacted a process server to locate and serve Defendant until March 1, 2000, only one week before their one-year window of opportunity to serve him would expire.
{¶ 19} The second assignment of error is overruled.
Third Assignment of Error
{¶ 20} “The totality of the circumstances reflect that the defendant was equitably estopped from raising a statute of limitations defense and that the within motion to dismiss was improvidently granted.”
{¶ 21} Plaintiffs argue that the trial court erred when it held that Plaintiff Esther Lesher‘s loss of consortium claim is governed by the two-year statute of limitations applicable to personal injury claims,
{¶ 22} We agree that the statute of limitations applicable to loss of consortium claims is
{¶ 23} The third assignment of error is overruled.
Fourth Assignment of Error
{¶ 24} “The trial court erred in concluding that a two year statute of limitations applied to appellant Esther Lesher‘s claim for loss of consortium”
{¶ 25} We addressed the particulars of this assignment of error in overruling the third assignment of error.
{¶ 26} Plaintiffs cite and rely on Schneider v. Steinbrunner (Nov. 8, 1995), Montgomery App. No. 15257. Our holding in that case concerned when
{¶ 27} Plaintiffs also cite and rely on
{¶ 28} Finally, Plaintiffs cite Thomas v. Freeman, 79 Ohio St.3d 221, 1997-Ohio-395, wherein the court held that
{¶ 29} The fourth assignment of error is overruled.
Conclusion
{¶ 30} Defendant moved to dismiss pursuant to
{¶ 31} It is undisputed that service of process was not obtained on Defendant within one year after Plaintiffs refiled their complaint on May 8, 2000. Therefore, per
{¶ 32} Plaintiffs invoked
{¶ 33} The trial court resolved Defendant‘s
{¶ 34} As a technical matter, Plaintiffs might have argued that the trial court erred when it relied on statute of limitations grounds to dismiss their action on a motion filed by Defendant pursuant to
{¶ 35} Having overruled the errors assigned, we will affirm the judgment from which this appeal was taken.