Richard Lewis, Jr. v. Jasmine Moore, et al.
No. 16AP-775
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
May 30, 2017
[Cite as Lewis v. Moore, 2017-Ohio-4049.]
DORRIAN, J.
C.P.C. No. 15CV-6313; ACCELERATED CALENDAR
DECISION
Rendered on May 30, 2017
On brief: Plymale & Dingus, LLC, and Ronald E. Plymale, for appellee Richard Lewis, Jr. Argued: Ronald E. Plymale.
On brief: Earl, Warburton & Adams, Inc., and Christopher R. Walsh, for appellant. Argued: Christopher R. Walsh.
APPEAL from the Franklin County
DORRIAN, J.
{1} Defendant-appellant, Jasmine Moore, appeals from a judgment of the Franklin County Court of Common Pleas that dismissed the claims against her without prejudice. For the following reasons, we affirm.
I. Facts and Procedural History
{2} On July 24, 2015, plaintiff-appellee, Richard Lewis, Jr., acting pro se, filed suit against appellant and Alfa Insurance Corporation (“Alfa“). In his complaint, appellee alleged he sustained injuries to his body, as well as damages to his 2007 Lincoln MKZ, as a direct result of a collision caused by appellant. The complaint was served by certified mail on appellant and Alfa at “P.O. Box 2128[,] Brentwood, TN 37024-2128.” (Summons.) The record contains two United States Postal Service notices indicating that “Jeff Alexander” received and signed for the complaint at that address on August 3, 2015. Appellee indicated at the top of his complaint that the “[d]ate of loss” was “12/16/13.” (Complaint at 2.)
{3} On August 18, 2015, Alfa and appellant each filed separate answers. Both answers denied appellee‘s claims and asserted several defenses. Appellant specifically asserted the defense of “insufficiency of service of process and insufficiency of process” as well as “lack of personal jurisdiction over this answering [d]efendant.” (Answer at 2.) Appellant ultimately stated that “having fully answered the Complaint of Plaintiff[], prays that same may be dismissed and that she may go hence and
{4} On December 11, 2015, appellant and Alfa jointly filed an initial identification of witnesses. On April 11, 2016, appellant and Alfa jointly filed a notice of deposition of appellee, and, on April 13, 2016, appellant and Alfa jointly filed an amended notice of deposition of appellee. On July 21, 2016, the case was referred to a magistrate to preside over a jury trial scheduled for December 6, 2016.
{5} On August 5, 2016, appellant filed a motion to dismiss the complaint, pursuant to
{6} On August 18, 2016, appellee, pro se, filed a memorandum contra and conceded that he had served appellant at the address of Alfa. Appellee stated that he was now aware of appellant‘s address and would serve the complaint on her at that address if permitted to do so. Appellee argued that the clerk was at fault for not informing him that service on appellant had “failed” and that, as a consequence, the rules should be liberally construed to permit appellee to serve appellant. Appellee argued the case should not be dismissed with prejudice. On August 22, 2016, appellant filed a reply memorandum noting that her answer had specifically notified appellee that she had never been served and rejecting appellee‘s argument that the rules should be liberally construed to permit service.
{7} On October 19, 2016, the trial court granted appellant‘s motion to dismiss. The court noted that
II. Assignments of Error
{8} Appellant assigns the following two assignments of error for our review:
I. The Trial Court erred to the prejudice of Defendant Jasmine Moore when it failed to dismiss the Plaintiff‘s Complaint with prejudice.
II. The Trial Court erred to the prejudice of Defendant when it construed the motion to dismiss as a motion pursuant to
Ohio Rule of Civil Procedure 12(B)(2) rather thanOhio Rule of Civil Procedure 3 .
III. Discussion
{9} ”
{10} In support of her second assignment of error, which we will address first, appellant argues (1) that failure to commence an action within the time provided by law is not specifically enumerated as a
{11} “In order for a court to acquire personal jurisdiction through service of process, a plaintiff must complete adequate service of process upon a defendant within one year from the date the plaintiff files a complaint.
{12} On numerous occasions, this court has affirmed a trial court‘s dismissal, pursuant to
{13} In addition, although appellant argues that
{14} In her first assignment of error, appellant argues the trial court erred by not dismissing appellee‘s complaint “with prejudice.” In support, appellant points to Saunders v. Choi, 12 Ohio St.3d 247 (1984), and Schafer v. Sunsports Surf Co., Inc., 10th Dist. No. 06AP-370, 2006-Ohio-6002. Saunders and Schafer, however, differ from the case before us. In both those cases, the plaintiff‘s complaint had previously been dismissed once before,3 and the court determined it was proper to dismiss with prejudice the refiled complaint. Here, the complaint had not been previously dismissed. The complaint had not been refiled. Consequently, we do not find Saunders or Schafer to be dispositive.
{15}
Failure other than on the merits. A dismissal for either of the following reasons shall operate as a failure otherwise than on the merits:
(a) lack of jurisdiction over the person or the subject matter.
{16} Pursuant to
{17} This conclusion is supported by the Supreme Court of Ohio‘s holding in Thomas. In Thomas, the Supreme Court affirmed a trial court‘s dismissal, without prejudice, pursuant to
Having determined that where a defendant has not been served, a court does not have jurisdiction over the defendant, we find, in applying the maxim expressio unius est exclusio alterius, that such a dismissal would be otherwise than on the merits pursuant to
Civ.R. 41(B)(4) to the exclusion ofCiv.R. 41(B)(3) (adjudication on the merits) despite the fact that a trial court‘s entry may be silent on the issue. This is becauseCiv.R. 41(B)(4) provides an exception to the general rule that an entry dismissing a case pursuant toCiv.R. 41(B) that does not indicate otherwise is an adjudicationon the merits. Civ.R. 41(B)(3) . In other words, where a case is dismissed because the court did not have jurisdiction, such as in this case where service has not been perfected, the dismissal is always otherwise than on the merits. Therefore,Civ.R. 41(B)(4) is the controlling subsection.
(Emphasis sic.) Id. at 225. Although Thomas addressed dismissal on grounds of
{18} On the facts of this case, where this is an original complaint and where appellant did not argue a specific statute of limitations applicable to appellee‘s claims, the trial court did not err in dismissing the complaint without prejudice. Accordingly, we overrule appellant‘s first assignment of error.
{19} Finally, we note that appellee has asserted that the savings statute at
IV. Conclusion
{20} Having overruled appellant‘s two assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and HORTON, JJ., concur.
Notes
“It is unfortunate that this case demands resolution of a situation that would have been avoided had the Civil Rules been applied by the trial court below.
Civ.R. 4(E) states: ‘Summons: time limit for service. If a service of the summons and complaint is not made upon a defendant within six months after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court‘s own initiative with notice to such party or upon motion. * * *’This rule is designed to clear the dockets of cases in which a plaintiff has not pursued service upon a defendant. In most instances, the rule would be applied when a plaintiff has neglected to again attempt service after original service of process fails. It is beyond question that the rule should have been applied in the instant action where the clerk was instructed to refrain from attempting service. The trial court should have dismissed Goolsby‘s complaint without prejudice because service was not attempted. Goolsby would then have been required to refile, and presumably would not have done so until the desire to serve Anderson also arose.”
The same sentiment applies to the case at bar.