*1
[Cite as
McAbee v. Merryman
,
STATE OF OHIO, JEFFERSON COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
DENA McABEE, et al., ) CASE NO. 13 JE 3
)
PLAINTIFFS-APPELLANTS, )
) VS. ) O P I N I O N
)
PAUL MERRYMAN, )
)
DEFENDANT-APPELLEE. ) CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 11CV107.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiffs-Appellants: Attorney Jeffrey Orr Brown 2017 Sunset Boulevard Steubenville, Ohio 43952 For Defendant-Appellee: Attorney Donald Wiley
400 South Main Street North Canton, Ohio 44720 JUDGES: Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: November 27, 2013
*2
[Cite as
McAbee v. Merryman
,
VUKOVICH, J.
{¶1} Plaintiffs-appellants Dena and Donald McAbee appeal the decision of the Jefferson County Common Pleas Court granting summary judgment for defendant-appellee Paul Merryman and dismissing their complaint for failure to comply with Civ.R. 3(A). Two assignments of error are raised in this appeal. The first contends
that the trial court erred when it granted summary judgment for Merryman. The second contends that the trial court lacked jurisdiction to rule on its Civ.R. 60(B)(1) motion to vacate the grant of summary judgment because the instant appeal had already been filed and thus, divested the trial court of jurisdiction. For the reasons expressed below, the trial court properly dismissed the
complaint because the McAbees failed to obtain service within one year of filing the complaint. Therefore, that judgment is affirmed. As to the trial court’s ruling on the Civ.R. 60(B)(1) motion, that assignment is dismissed because our jurisdiction was not properly invoked. The McAbees failed to file a notice of appeal or amend the notice of appeal to include the trial court’s ruling on the Civ.R. 60(B) motion in this appeal. Statement of the Case On February 19, 2009, Dena McAbee and Paul Merryman, driving separate automobiles, were involved in an automobile accident. Dena McAbee allegedly sustained injuries from the accident. On February 17, 2011, the McAbees filed a personal injury complaint naming Merryman as the sole defendant and alleging that he was negligent and was the cause of the accident. On February 22, 2011, the Jefferson County Clerk of Courts sent a
notice to the McAbees’ attorney that service was not completed. No more action was taken by any party until March 14, 2012 when
Attorney Wiley filed a notice of appearance on behalf of Merryman. One week following the notice of appearance, an answer was filed on Merryman’s behalf. One of the defenses asserted in the answer was that the action was not properly commenced under Civ.R. 3. 03/21/12 Answer. *3 Discovery then occurred. On October 25, 2012, Attorney Wiley filed a
Suggestion of Death indicating that Merryman was dead. Less than a week later, a motion for summary judgment was filed by Attorney Wiley seeking dismissal of the complaint because the McAbees failed to comply with Civ.R. 3(A), in that service was not perfected on a named defendant within one year of filing the complaint. The McAbees then filed a motion for substitution, seeking to substitute
the administrator of Merryman’s estate for Merryman. The trial court permitted substitution. 11/19/12 J.E. Service was obtained on the administrator on November 27, 2012.
{¶9} In early December 2012, the McAbees filed a response to Merryman’s motion for summary judgment and dismissal of the complaint. In this motion, the McAbees indicate that unbeknownst to them Merryman died on April 15, 2009. The essence of their argument as to why the complaint should not be dismissed was that equity requires that the matter should be decided on the merits. The trial court reviewed the matter on the briefs and found in
Merryman’s favor. It explained that the complaint was filed on February 17, 2011, but service was not obtained until November 26, 2012. Therefore, dismissal of the complaint was appropriate because service was not obtained within one year of the filed complaint as required by Civ.R. 3. 12/27/12 J.E. On January 25, 2013, the McAbees timely appealed the trial court’s
December 27, 2012 Judgment Entry. However, prior to that filing, the McAbees filed a Civ.R. 60(B) motion for relief from judgment. 01/11/13 Motion. On January 28, 2013, Merryman filed an opposition motion to the McAbees’ motion for relief from judgment. The next day the trial court denied the motion for relief from judgment. 01/29/13 J.E. The McAbees did not file an amended notice of appeal or a second notice of appeal with this court indicating that it was also appealing the January 29, 2013 judgment. First Assignment of Error “The trial court erred in granting the defendant appellee’s motion for
summary judgment.” *4 The trial court’s grant of summary judgment and dismissal of the
complaint based on noncompliance with Civ.R. 3 presents a question of law that we
review de novo. Furney v. Wynn , 10th Dist. No. 11AP-110,
A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant, or upon an incorrectly named defendant whose name is later corrected pursuant to Civ.R. 15(C), or upon a defendant identified by a fictitious name whose name is later corrected pursuant to Civ.R. 15(D).
Civ.R. 3(A). “Failure of proper service is not a minor, hypertechnical violation of the
rules.” Cleveland v. Ohio Civil Rights Comm.,
obtained until November 27, 2012, which is clearly outside the one year time limit prescribed by Civ.R. 3. Admittedly, Merryman was dead and, therefore, service could not be
completed upon him. However, the Ohio Supreme Court has explained:
Where the requirements of Civ.R. 15(C) for relation back are met, an otherwise timely complaint in negligence which designates as a sole defendant one who dies after the cause of action accrued but before the complaint was filed has met the requirements of the applicable statute of limitations and commenced an action pursuant to Civ.R. 3(A), and such complaint may be amended to substitute an administrator of the deceased defendant's estate for the original defendant after the limitations period has expired, when service on the administrator is obtained within the one-year, post-filing period provided for in Civ.R. 3(A). ( Barnhart v. Schultz,53 Ohio St.2d 59 , 372 N.E.2d 589, overruled.)
Baker v. McKnight ,
decedent must be served on the personal representative within one year after the
original complaint was filed. Baker . See also Difiore v. Pfiester , 5th Dist. No. 11-CA-
44,
the resolution of this matter. Prior to Attorney Wiley’s notice of appearance, the trial
court could have correctly dismissed the complaint sua sponte for lack of perfecting
service. It was not the obligation of any nonparty to notify the McAbees about
Merryman’s death. Tucker v. Becknel-Baker , 2d Dist. No. 16823,
from judgment under Rule 60(B)(1) after the notice of appeal was filed.”
As aforementioned, the appeal in this case was filed January 25, 2013.
The trial court denied the Civ.R. 60(B) motion to vacate on January 29, 2013. The
McAbees assert that once the notice of appeal was filed the trial court was divested
of jurisdiction to render a decision on the Civ.R. 60(B)(1) motion to vacate until the
appeal was resolved. Therefore, based on that law they argue that we should vacate
the January 29, 2013 order because the trial court lacked jurisdiction to enter it.
The proposition of law set forth by the McAbees is accurate. In re S.J. ,
assignment of error. Accordingly, it is dismissed.
Conclusion The first assignment of error is overruled and the second assignment of
error is dismissed for lack of jurisdiction. The trial court’s order dismissing the complaint for lack of service is hereby affirmed.
Donofrio, J., concurs.
Waite, J., concurs.