MOORE, CONSERVATOR, APPELLEE, v. MOUNT CARMEL HEALTH SYSTEM D.B.A. MOUNT CARMEL ST. ANN‘S HOSPITAL ET AL., APPELLANTS.
Nos. 2018-1233 and 2018-1479
SUPREME COURT OF OHIO
August 20, 2020
2020-Ohio-4113
DEWINE, J.
Submitted November 13, 2019. APPEAL from and CERTIFIED by the Court of Appeals for Franklin County, No. 2017APE-10-754, 2018-Ohio-2831.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Moore v. Mt. Carmel Health Sys., Slip Opinion No. 2020-Ohio-4113.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-4113
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Moore v. Mt. Carmel Health Sys., Slip Opinion No. 2020-Ohio-4113.]
Civil law—Savings statute—
{¶ 1} This case requires us to examine the interplay between Ohio‘s savings statute,
{¶ 2} Here, the plaintiff filed the action just before the expiration of the statute of limitations. The plaintiff did not obtain service within one year, however. Nor did he dismiss the action during that period. The question is whether the plaintiff can nevertheless rely upon the savings statute. We hold that he may not. Because the action was not commenced within the statute-of-limitations period, it fails. The savings statute cannot be used to revive the action.
Moore Files Suit One Day Prior to the Expiration of the Statute of Limitations
{¶ 3} Michael Moore filed a complaint alleging medical malpractice for injuries
{¶ 4} The statute of limitations for medical claims is one year.
{¶ 5} Timely service was obtained on Central Ohio Anesthesia and Mount Carmel, but Moore failed to obtain service on Dr. Humphreys during the year following the filing of the complaint as required by
{¶ 6} Mount Carmel filed an answer to the complaint and raised a statute-of-limitations defense and an insufficiency-of-service-of-process defense. Central Ohio Anesthesia and Dr. Humphreys jointly filed an answer and also raised those defenses.
Moore Serves Dr. Humphreys More Than One and a Half Years after Filing
{¶ 7} In February 2017, Central Ohio Anesthesia, Dr. Humphreys, and Mount Carmel all moved for summary judgment. They argued that Moore‘s claim against Dr. Humphreys was time-barred because Moore failed to serve him within
{¶ 8} The trial court granted summary judgment in favor of all three defendants. The court found that the lawsuit against Dr. Humphreys was barred by the statute of limitations. It noted that under our precedent, Dr. Humphreys‘s participation in the case did not prevent him from raising the defense of insufficient service of process, citing Gliozzo v. Univ. Urologists, 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, ¶ 18. Although Moore had initially filed the lawsuit within the limitations period, he neither obtained service on Dr. Humphreys within one year as required by
{¶ 10} The court of appeals acknowledged that several other courts of appeals have held Goolsby to be inapplicable in similar situations. See, e.g., Anderson v. Borg-Warner Corp., 8th Dist. Cuyahoga Nos. 80551 and 80926, 2003-Ohio-1500; Bentley v. Miller, 9th Dist. Summit No. 25039, 2010-Ohio-2735; Gibson v. Summers, 11th Dist. Portage No. 2008-P-0032, 2008-Ohio-6995. Finding its decision to be in conflict with these cases, the court of appeals certified the following question to this court:
“Does the Ohio savings statute,
R.C. 2305.19(A) , apply to an action in which a plaintiff attempts, but fails to perfect service on the original complaint within one year pursuant toCiv.R. 3(A) ? If so, when a plaintiff files instructions for service after theCiv.R. 3(A) one-year period, does the request act as a dismissal by operation of law and also act as the refiling of an identical cause of action so as to allow the action to continue?”
154 Ohio St.3d 1436, 2018-Ohio-4732, 112 N.E.3d 922.
{¶ 11} Mount Carmel filed a discretionary appeal to this court, as did Dr. Humphreys and Central Ohio Anesthesia. They raised similar propositions of law, essentially asserting that once the applicable statute-of-limitations period expires, the savings statute cannot be used to revive a cause of action that was not timely commenced under
{¶ 12} Before we begin our analysis, and to make all this easier to follow, we restate the pertinent dates below:
| | Date of alleged injury |
| 07/06/2015 | Complaint filed |
| 07/07/2015 | Expiration of the statute of limitations |
| 07/06/2016 | Date by which service must be obtained to commence action under |
| 02/2017 | Summary-judgment motions filed |
| 03/02/2017 | Instructions for service on Dr. Humphreys |
| 03/10/2017 | Service on Dr. Humphreys obtained |
By Its Plain Terms, the Savings Statute Does Not Save Moore
{¶ 13} To resolve the question in front of us, we need to examine the statute of limitations, the commencement requirement in
{¶ 14} The applicable statute of limitations is
{¶ 15}
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 toCiv.R. 15(D) .
(Emphasis added.) See also
{¶ 16} The upshot of the aforementioned provisions is that to comply with the statute of limitations, an action must be “commenced” within the limitations period. Under
{¶ 17} That brings us to Ohio‘s savings statute. It provides:
In any action that is commenced or attempted to be commenced * * * if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within one year after the * * * plaintiff‘s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.
{¶ 18} Under the plain language of these three provisions, Moore‘s claim is barred by the statute of limitations. Moore filed his action within the limitations period but did not obtain service on Dr. Humphreys during the one-year commencement period pursuant to
{¶ 19} By its terms, the savings statute cannot save Moore‘s claim. In order for the statute to apply, the claim must have failed “otherwise than upon the merits” and then Moore must have filed a new claim within one year thereafter. Here, when Moore issued instructions to the clerk to serve the complaint in March 2017, Moore‘s claim hadn‘t failed other than on the merits. The case remained on the court‘s docket—it was subject to dismissal, to be sure, both because Moore had failed to accomplish service and because the statute of limitations had run. But no such dismissal had been entered, and if such dismissal had been entered, the expiration of the statute of limitations would have made the failure on the merits. See LaBarbera v. Batsch, 10 Ohio St.2d 106, 114-115, 227 N.E.2d 55 (1967) (“a judgment based upon the statute of limitations is generally regarded as on the merits and bars another action for the same cause“). Further, Moore did not file a “new action.” The only thing he did was ask the clerk to serve the original complaint that remained on the court‘s docket. Thus, if the savings statute means what it says, it does not apply.
{¶ 20} This would be a relatively simple case if all we had to grapple with was the language of the applicable rule and statutes; under a plain reading, the trial court properly found that Moore‘s claim was barred by the statute of limitations. But the court of appeals concluded that our decision in Goolsby, 61 Ohio St.3d 549, 575 N.E.2d 801, dictated a different result—a contention that Moore echoes in his briefing. So we take up Goolsby.
Goolsby Does Not Save Moore, Either
{¶ 21} Goolsby involved the two-year statute of limitations for personal-injury claims. See
{¶ 23} This court applied Goolsby‘s holding in a somewhat different context in Sisk & Assocs., Inc. v. Commt. to Elect Timothy Grendell, 123 Ohio St.3d 447, 2009-Ohio-5591, 917 N.E.2d 271. There, Sisk filed a complaint for breach of contract in September 2004, failed to obtain service within one year, and voluntarily dismissed the action. Id. at ¶ 2. Sisk refiled the complaint in 2005 but did not obtain service within one year of the 2005 complaint; instead, Sisk instructed the clerk to serve the defendant in 2007. Id. Service failed again, so the trial court dismissed the refiled action without prejudice. Id. The court of appeals affirmed, but we reversed. “To allow Sisk to proceed with its case, after twice failing to perfect service within a year,” this court said, “would be a perversion of justice.” Id. at ¶ 7. To avoid this result, the court applied Goolsby, 61 Ohio St.3d 549, 575 N.E.2d 801, and held that Sisk‘s instruction to serve process in 2007 should be construed as a dismissal and a refiling. Sisk at ¶ 8. Since Sisk had already dismissed the original complaint once, the second dismissal was with prejudice under
{¶ 24} The opinion in Sisk does not detail whether the statute of limitations had expired at the time the clerk was instructed to serve process in 2007. It appears from the record, however, that it had not.1 Thus, Sisk, like Goolsby, is best understood as dealing with a situation where the original statute of limitations had not expired.
{¶ 25} The rationale underlying the rule announced in Goolsby (and applied in Sisk) is that in the circumstances of that case—where the statute of limitations had not run—it was an unnecessary and onerous procedural hurdle to force a plaintiff to dismiss and refile an identical complaint. The key distinction between Goolsby and our case is that here, the statute of limitations had run when Moore requested that the clerk make a renewed attempt at service. To apply the savings statute to revive the action in our case, despite the plain terms of
{¶ 26} We have little difficulty in concluding that the rule announced in Goolsby, 61 Ohio St.3d 549, 575 N.E.2d 801, does not apply in this case. But that leaves us with the question of the continued viability of our holding in Goolsby. Had we simply applied the plain language of the statutory scheme in Goolsby, we would have reached a different result. Our decision in that case, however, was driven by an interest in judicial economy and avoiding unnecessary procedural hurdles. As today‘s case demonstrates, however, some courts have extended Goolsby well beyond the facts of that case, and in so doing, have extended the statute of limitations beyond what was ordained by the legislature. To prevent any further confusion, we make
Nor Does the “Attempt to Commence” Language Save Moore
{¶ 27} Moore also argues that the failure to serve a complaint within
{¶ 28} It is true that we have applied the savings statute when an action has not been commenced. In Thomas v. Freeman, 79 Ohio St.3d 221, 680 N.E.2d 997 (1997), we dealt with an action in which the plaintiff had filed a lawsuit and requested service within the statute-of-limitations period. Id. at 227. After the limitations period had run, but within
{¶ 29} Thomas dealt with a situation in which the terms of the savings statute had been complied with. There was an attempt to commence the action (the filing of the complaint and a request for service), the action was dismissed other than on the merits prior to the running of
{¶ 30} Moore would have us ignore these statutory requirements and ordain that the requirements of the savings statute were met by operation of law when
{¶ 31} The dissent agrees that we should not engage in the legal fiction of treating Moore‘s second request for service as a dismissal and refiling, but it would have us do something similar. It urges that we adopt what it terms the “alternative rationale” of the court of appeals and “modify the [trial court‘s] judgment [granting summary judgment] so that the dismissal would be without prejudice.” Dissenting opinion at ¶ 38, quoting 2018-Ohio-2831, 117 N.E.3d 89, at ¶ 94. It says that upon remand from this court, Moore would have yet another year in which he could file his claim against Dr. Humphreys. Dissenting opinion at ¶ 39. (And then, of course, another year in which to serve the complaint under
{¶ 32} But the imaginative fiction engaged in by the dissent fares no better than the one employed by the Tenth District. Remember, Moore filed his action on July 6, 2015. To avoid the running of the statute of limitations, he had to commence under
{¶ 33} For this reason, the dissent‘s extensive argument that the trial court erred in granting judgment on the merits while Dr. Humphreys was contesting the lack of service is an unnecessary tangent. However the judgment is characterized, Moore can‘t refile; the statute of limitations has expired. Nonetheless, to avoid reader confusion, it is worth pointing out that the dissent is simply wrong in its premise.
{¶ 34} Nothing in the Rules of Civil Procedure prevents a defendant from simultaneously asserting a statute-of-limitations defense and a defense of lack of service of process. The service requirement protects the defendant‘s right to due process. See Wainscott v. St. Louis-San Francisco Ry. Co., 47 Ohio St.2d 133, 137, 351 N.E.2d 466 (1976). A court may enter judgment against a plaintiff even when it has not acquired jurisdiction over the defendant, because in such a case the plaintiff has submitted to the court‘s jurisdiction by filing the complaint. Thus, we have explained that a party may participate in a case and thereby assert affirmative defenses—and at the same time continue to maintain the defense of insufficiency of process as long as the defense was properly raised in the answer and properly preserved. Gliozzo, 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, at syllabus. In this vein, in Maryhew v. Yova, 11 Ohio St.3d 154, 464 N.E.2d 538 (1984), we affirmed a trial court‘s dismissal of an action with prejudice in which a defendant had simultaneously asserted both failure-of-service and statute-of-limitations defenses. See Maryhew v. Yova, 11th Dist. Trumbull No. 3138, 1982 WL 5690, *1 (Nov. 26, 1982), aff‘d, 11 Ohio St.3d 154, 464 N.E.2d 538 (1984); see
{¶ 35} The dissent cites broad statements from a number of federal courts dealing with personal jurisdiction generally, and claims these statements support its view that a court is powerless to enter a dismissal with prejudice when service has not been obtained. But none of these cases deal with a dismissal for failure of service following the expiration of the statute of limitations. Indeed, even though
{¶ 36} We resolve the certified-conflict question by stating that the savings statute may be applied only when its terms have been met. Thus, when, as here, (1) a plaintiff attempts to commence an action but fails to obtain service within
Conclusion
{¶ 37} Moore‘s instructions for service of process, filed after the statute of limitations had expired, cannot be treated as a voluntary dismissal and a refiling of his complaint. Because there was neither a dismissal otherwise than on the merits nor the filing of a new action, the savings statute does not apply. The court of appeals erred in concluding otherwise. We reinstate the trial court‘s grant of summary judgment in favor of Dr. Humphreys and Mount Carmel. In the proceeding below, the court of appeals did not reach Moore‘s final assignment of error, which asserted that Central Ohio Anesthesia could be liable even if the claim against Dr. Humphreys was barred by the statute of limitations. In light of our decision today, we remand to the court of appeals for consideration of Moore‘s final assignment of error and for other proceedings consistent with this opinion.
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and KENNEDY, FRENCH, and FISCHER, JJ., concur.
STEWART, J., dissents, with an opinion joined by DONNELLY, J.
{¶ 38} I agree with the majority opinion‘s decision to limit Goolsby v. Anderson Concrete Corp., 61 Ohio St.3d 549, 575 N.E.2d 801 (1991), to the facts of that case and with the majority opinion‘s holding that appellee Michael Moore‘s second request for service did not amount to dismissing and refiling the action against appellant Dr. Eric Humphreys. I would nevertheless affirm the Tenth District Court of Appeals’ judgment based on its alternative rationale, which states:
However, even if we concluded that the trial court should have dismissed the complaint because service was not obtained within one year, we would modify the judgment so that the dismissal would be without prejudice. This is abundantly clear, and if that occurred, Moore would be able to refile his complaint under the savings statute.
2018-Ohio-2831, 117 N.E.3d 89, ¶ 94.
{¶ 39} I agree with the appellate court that since Moore‘s action against Dr. Humphreys was dismissed for lack of service, it should be viewed as a dismissal without prejudice and thus a failure otherwise than on the merits. Moore should have an additional year to refile his complaint and serve it on Dr. Humphreys. Accordingly, I respectfully dissent from the majority‘s conclusion that the savings statute does not apply to save Moore‘s claims.
Commencement of a Civil Action, the Statute of Limitations, and the Savings Statute
{¶ 40} Pursuant to
{¶ 41} Suppose, for instance, that a plaintiff has a cause of action for an injury that occurred on January 1, 2018. Because the statute of limitations for such a claim is two years, see
{¶ 42}
{¶ 43}
{¶ 44} The majority seems to take the position that the statute of limitations operates as a jurisdictional bar to a lawsuit as a matter of course. This is not true. The statute of limitations is an affirmative defense in an action; the defense is waived when it is not properly asserted.
A Dismissal for Failure of Service is Not a Dismissal on the Merits
{¶ 45} Dr. Humphreys and appellants Mount Carmel Health, d.b.a. Mount Carmel St. Ann‘s Hospital, and Central Ohio Anesthesia, Inc. (collectively, “appellants“) argue that Moore‘s action against Dr. Humphreys fails on the merits because Dr. Humphreys was not served within one year of Moore‘s filing of the complaint and therefore the action was never commenced before the statute of limitations expired. Although this argument might appear to be sound on its face, it presents a couple of procedural problems that the majority fails to adequately address.
{¶ 46} In Dr. Humphreys‘s motion for summary judgment, he asserted an insufficiency-of-service defense together with a statute-of-limitations defense as part of an overall claim that the action filed against him should be dismissed with prejudice because Moore failed to commence the action against Dr. Humphreys within the statute of limitations. By pursuing an insufficiency-of-service defense, Dr. Humphreys in effect maintains that the trial court never acquired personal jurisdiction over him. See Laneve v. Atlas Recycling, Inc., 119 Ohio St.3d 324, 2008-Ohio-3921, 894 N.E.2d 25, ¶ 22 (failure to perfect service ultimately affects whether a court has personal jurisdiction over defendant); see also Thomas v. Freeman, 79 Ohio St.3d 221, 225, 680 N.E.2d 997 (1997) (“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“). Yet, while not submitting to the trial court‘s jurisdiction, Dr. Humphreys simultaneously asked the trial court to entertain his statute-of-limitations defense and enter judgment in his favor on the merits of the claim.
{¶ 47} Dr. Humphreys wants to have it both ways: he wants to maintain that the trial court does not have jurisdiction over him as a defendant while also relying on the jurisdictional authority of the court to grant judgment in his favor on a substantive and personal defense to an action. This court should not countenance these conflicting arguments. Sinochem Intl. Co. Ltd. v. Malaysia Intl. Shipping Corp., 549 U.S. 422, 430-431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (In the federal system, a court “generally may not rule on the merits of a case without first
{¶ 48} Of course, no rule prevents a defendant from presenting a statute-of-limitations defense in addition to an insufficiency-of-service defense, but these arguments are designed to be offered in the alternative. After all, the two defenses are at odds with each other. The defense of insufficient service challenges a trial court‘s personal jurisdiction over a defendant and a dismissal on this ground results in a dismissal without prejudice. On the other hand, a statute-of-limitations defense is a substantive defense that challenges the merits of a claim; a dismissal on such grounds is a dismissal with prejudice. LaBarbera v. Batsch, 10 Ohio St.2d 106, 115-116, 227 N.E.2d 55 (1967). In this case, however, maintaining an insufficiency-of-service defense and a statute-of-limitations defense in the alternative does nothing to help the defendants’ position. If Dr. Humphreys asserted and prevailed on his insufficiency-of-service defense, then the case against him should be dismissed without prejudice. On the other hand, if Dr. Humphreys asked the court to rule on his statute-of-limitations defense, then he would be conceding to the trial court‘s jurisdiction over him as a defendant and any insufficiency-of-service claim would no longer matter. The problem with doing
January Term, 2020this, however, is that if Dr. Humphreys were to concede that the trial court has personal jurisdiction over him, then the action would be deemed commenced.2
{49} The majority maintains that there is nothing wrong with a trial court
{50} In discussing Yova, the majority leaves out the fact that the issue in that case had nothing to do with whether the trial court could rule on a defendant‘s statute-of-limitations defense after determining that service had failed and that it lacked personal jurisdiction over the defendant. Rather, the main issue in Yova was whether the defendant‘s request for additional time to respond to the complaintcounted as a waiver of an insufficiency-of-service defense. We answered that question in the negative and affirmed the decision of the appellate court on that ground only. Yova was not concerned with whether a trial court may grant a defendant‘s statute-of-limitations defense while the defendant is simultaneously asserting that the trial court does not have jurisdiction over him. That issue is squarely before us now in this case. The majority‘s argument regarding this issue boils down to nothing more than the following: because we never said anything about it before in a case we decided over 35 years ago, it must be okay. I, however, am not persuaded by that faulty reasoning.
{51} Nor am I persuaded by the federal cases that the majority cites or its reference to statements in Moore‘s Federal Practice (3d Ed.1997) synthesizing those cases. Under the Federal Rules of Civil Procedure, a civil action is commenced at the moment a plaintiff files a complaint. See
{52} In Cardenas v. Chicago, 646 F.3d 1001 (7th Cir.2011), and Zapata v. New York City, 502 F.3d 192 (2d Cir.2007), the issue before each circuit court was whether a district court had abused its discretion when it dismissed the actionwith prejudice for failure to serve a defendant within
{53} In Zapata, the Second Circuit noted that the plaintiff had not challenged the district court‘s decision to dismiss the action with prejudice. Id. at 197, fn. 6. The Second Circuit further stated:
Where, as here, good cause is lacking [for an extension], but the dismissal without prejudice in combination with the statute of limitations would result in a dismissal with prejudice, we will not find an abuse of discretion in the procedure used by the district court, so long as there are sufficient indications on the record that the district court weighed the impact that a dismissal or extension would have on the parties.
(Footnote omitted.) Id. at 197.
{54} Similarly, in upholding the district court‘s decision in Cardenas, the Seventh Circuit stated:
A dismissal pursuant to a Rule 12(b)(5) motion ordinarily should be entered without prejudice. See
Fed.R.Civ.P. 4(m) ; [United States v.] Ligas, 549 F.3d [497,] 501 [7th Cir.2008]. The district court,however, dismissed the claims against [the defendant] with prejudice based on the fact that the applicable statute of limitations had expired while the case was pending. Cardenas, 2010 U.S. Dist. LEXIS 15253, 2010 WL 610621, at *5. The Plaintiffs argued for the first time at oral argument that its order was inconsistent with Rule 4(m)‘s clear “without prejudice” requirement.Both the district court and the Plaintiffs correctly recognize that any refiled suit would be time-barred. That bar effects a result similar to a dismissal with prejudice: “[I]f the statute of limitations has meanwhile expired it will be the limitations defense that greets [any] new action, which will make the case just as dead as a disposition on the merits * * *.” David Siegel, Practice Commentary on Fed.R.Civ.P. 4, C4-38, reprinted at 28 U.S.C.A.
Fed.R.Civ.P. 4 at 211 (West 2008).
(Fifth and sixth brackets and ellipsis sic.) Id. at 1007-1008.
{55} When citing to Cardenas, 646 F.3d 1001, and Zapata, 502 F.3d 192, the majority fails to discuss that before those circuit courts allowed the district courts’ decisions to stand, the circuit courts made sure that the procedural irregularity would have no actual effect on the plaintiffs’ right to proceed with refiling. Indeed, in Cardenas, the Seventh Circuit noted that when deciding whether to extend the time for service, federal courts should consider whether the plaintiff would be time-barred by the statute of limitations if the court were to dismiss the action and plaintiffs were to refile. Id. at 1007. But in each case, the circuit courts found that the district courts had considered the plaintiffs’ inability to refile the action because the
{56} The rationale that the courts used in Cardenas and Zapata does not apply here, however, because Ohio has a savings statute. By allowing the trial court to entertain Dr. Humphreys‘s merits defense after determining that it did not have jurisdiction over Dr. Humphreys, the majority forecloses Moore from refiling his claim and taking shelter from a statute-of-limitations defense under the savings statute—which applies to actions that are attempted to be commenced and dismissed without prejudice. Accordingly, a plaintiff‘s right to due process is at stake in situations like this one in which a trial court lacking jurisdiction over a defendant improperly entertains that defendant‘s merits defense.
{57} Another procedural problem in this matter is the fact that Dr. Humphreys is asking this court to uphold a merits judgment in his favor in an action that he maintains was never even commenced against him. How the majority squares this irregularity is unclear, because it chooses to say nothing about it. But what should be clear to the majority is that by asking for summary judgment in his favor, Dr. Humphreys takes a position that is wholly inconsistent with his claim that the action fails for lack of commencement; if no action was ever commenced, then there is no commenced action under which the court may enter a merits judgment. If Dr. Humphreys wanted to maintain a lack-of-commencement defense, he should have raised it in a responsive pleading and then asked the court to strike the complaint from the record once a year had passed and he had still not been served. By asking to strike the complaint, Dr. Humphreys would have been asking the court to take an action consistent with his theory that the complaint filed against him is a nullity. If the majority is going to uphold the dismissal with prejudice in this case, then it might want to take some time to explain why Dr. Humphreys‘s actions do not amount to a waiver of the lack-of-commencement defense.
Other Problems with the Majority Opinion
{58} Even if this court were to look beyond the procedural problems addressed above, the majority‘s explanation for why Moore‘s action must be deemed dismissed on the merits is still unsound. The majority takes the position that to “avoid the running of the statute of limitations, [Moore] had to commence under
{59} Although
{60} Although
Moore Still Has a Viable Cause of Action Against Dr. Humphreys
{61} For the reasons discussed above, I would treat the trial court‘s dismissal of the complaint against Dr. Humphreys as a dismissal without prejudice on insufficiency-of-service grounds and hold that Moore may still take advantage of the savings statute by commencing a new action against Dr. Humphreys within one year of this court‘s decision.
{62} Although Moore‘s legal action against Dr. Humphreys was never “commenced” within the meaning of
{63} The action remained pending on the trial court‘s docket as an action attempted to be commenced against Dr. Humphreys until Dr. Humphreys sought and was granted dismissal for insufficiency of service. Because a dismissal for insufficiency of service should not be treated as a dismissal with prejudice, even if the statute-of-limitations period for commencing an action has expired at the time of dismissal, I would find that Moore meets the first two prerequisites of the savings statute. Thus, if Moore were to refile his lawsuit against Dr. Humphreys and successfully commence the lawsuit by obtaining service within the year, then the savings statute should apply to preserve his claim.
Practical Effects
{65} The majority accuses this dissent and a unanimous panel of the Tenth District of engaging in an “imaginative fiction,” majority opinion at ¶ 32, by construing the trial court‘s dismissal of the complaint against Dr. Humphreys as a dismissal without prejudice. However, the majority might want to take a look at the practical effects of its own holding.
{66} Moore filed his complaint against Dr. Humphreys, Central Ohio Anesthesia, and Mount Carmel on July 6, 2015. Dr. Humphreys became aware ofMoore‘s pending lawsuit on July 14, 2015, when an electronic copy of the summons and complaint addressed to Central Ohio Anesthesia was e-mailed to Dr. Humphreys from his liability insurer. The common-pleas case docket indicates that service on Dr. Humphreys was complete on July 16, 2015, something Dr. Humphreys would first contest in his motion for summary judgment, which was filed on February 27, 2017. Through their attorneys, Dr. Humphreys and Central Ohio Anesthesia answered the complaint on July 30, 2015, and participated in the litigation for over a year and a half. Dr. Humphreys did not seek dismissal for insufficiency of service under
{67} What Dr. Humphreys and the other appellants want from this court, and what the majority opinion gives them, is a clear declaration that a defendant may maintain an insufficiency-of-service defense simultaneously with a statute-of-limitations defense in order to secure the dismissal of an action with prejudice on insufficiency-of-service grounds, when that dismissal would otherwise normally be without prejudice. This decision prevents a plaintiff from taking shelter under thesavings statute if the plaintiff were to refile and attempt service within one year
{68} Furthermore, the end result that the majority comes to—that dismissal for insufficiency of service is a dismissal with prejudice when
Conclusion
{69} For these reasons, I dissent from the majority opinion‘s conclusion that the savings statute does not apply to Moore‘s claim. I would affirm the Tenth District‘s judgment on the alternative grounds stated in its opinion. 2018-Ohio-2831, 117 N.E.3d 89, at ¶ 94.
DONNELLY, J., concurs in the foregoing opinion.
Colley Shroyer & Abraham Co., L.P.A., and David I. Shroyer, for appellee.
Arnold Todaro & Welch Co., L.P.A., and Grier D. Schaffer, for appellant Mount Carmel Health d.b.a. Mount Carmel St. Ann‘s Hospital.
Carpenter Lipps & Leland, L.L.P., Theodore M. Munsell, Joel E. Sechler, Emily M. Vincent, and Michael H. Carpenter, for appellants Eric Humphreys, M.D., and Central Ohio Anesthesia, Inc.
Notes
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.
(Emphasis added.)