STEWART et al., Appellants, v. FORUM HEALTH et al.; FOUGHT, Appellee.
No. 09-MA-129
Court of Appeals of Ohio, Seventh District, Mahoning County.
Decided Sept. 28, 2010.
[Cite as Stewart v. Forum Health, 190 Ohio App.3d 484, 2010-Ohio-4855.]
Stephen A. Skiver & Associates, L.L.C., and Kristen A. Connelly, for appellee.
DONOFRIO, Judge.
{¶ 1} Plaintiffs-appellants, Carl Stewart and Janet Stewart, appeal the Mahoning County Common Pleas Court decision dismissing their claims for medical malpractice and loss of consortium against defendant-appellee, Dr. Daniel Fought. Appellants claim that the trial court erred by dismissing their claims for failure of service of process and expiration of the statute of limitations.
{¶ 3} On August 16, 2002, Carl continued to experience pain and swelling in his hand, so he sought additional emergency medical treatment from St. Charles Mercy Hospital. A physician there examined and x-rayed Carl and fitted him with another splint.
{¶ 4} According to the complaint, Carl never underwent blood tests and did not receive any antibiotics after his injury occurred. He alleges that his condition worsened over the next few days, so he went to his family physician, Michael Devine, M.D., who referred him to the hospital for admission on August 20, 2002. At the hospital, Carl was given antibiotics and underwent surgery.
{¶ 5} In August 2003, appellants filed a medical-malpractice claim against Forum Health, d.b.a. Beeghly Medical Park, St. Charles Mercy Hospital, and Emergency Professional Services, Inc., including defendant-appellee, Dr. Daniel Fought. Carl alleged permanent injury as a direct and proximate result of the compartment syndrome to his right hand. Carl alleged that every appellee was negligent in the care they provided to him and failed to properly diagnose and treat his condition. The complaint included a claim for loss of consortium on behalf of Carl‘s wife, plaintiff-appellant Janet Stewart. That complaint was later voluntarily dismissed pursuant to
{¶ 6} Appellants refiled their complaint on December 22, 2005. Successful service was obtained on Forum Health and Emergency Professional Services. The summons and complaint were sent to the same address where St. Charles Hospital and Dr. Fought had been successfully served in the first case. Dr. Fought subsequently filed an answer and amended answer, each asserting the affirmative defenses of insufficiency of service of process and statute of limitations.
{¶ 7} The refiled complaint lacked an affidavit of merit as required by
{¶ 9} In separate motions, St. Charles Mercy Hospital, Forum Health, and Dr. Fought filed motions to dismiss on June 2, June 6, and June 15, 2006, respectively. The motions were premised on the assertion that appellants’ complaint failed to comply with
{¶ 10} The trial court granted Forum Health‘s motion to compel and ordered appellants to comply with discovery requests.
{¶ 11} On June 30, 2006, appellants filed a brief in opposition to the motions to dismiss. Appellants highlighted the fact that the trial court had never ruled on their motion for an extension of time within which to file the affidavit of merit. They indicated that they had contacted their expert and were awaiting the medical report. They believed it would be available within 60 days and asked for that much time within which to file it.
{¶ 12} On July 12, 2006, the trial court granted the motions to dismiss. The trial court acknowledged that appellants had moved for an extension of time within which to file the affidavit of merit. However, the court noted that no affidavit had yet been filed and that a reasonable time for an extension had passed as contemplated by
{¶ 13} On remand, Dr. Fought filed a motion pursuant to
{¶ 14} On April 9, 2009, Dr. Fought filed a motion for summary judgment, arguing insufficiency of process and that appellants’ claims were barred by the statute of limitations. Dr. Fought argued that the statute of limitations had run because appellants had not timely served him with the complaint as required by
{¶ 15} On July 8, 2009, the trial court sustained Dr. Fought‘s summary judgment motion, stating:
{¶ 16} “Defendant Daniel Fought, D.O. was never served with the Complaint, and, as such this action was never commenced pursuant to
Civ.R. 3(A) . Defendant did not waive his defenses and Plaintiffs’ claims are now barred by the applicable statute of limitations.”
{¶ 17} This appeal followed. Appellants’ sole assignment of error states:
{¶ 18} “The trial court erred in concluding that appellants’ action was not commenced and that appellee did not waive his defenses of insufficiency of process and statute of limitations.”
{¶ 19} The statute of limitations for medical claims is one year.
{¶ 20} Appellants sustained their injuries on August 14, 2002. They filed their first complaint on August 11, 2003. They dismissed their claims on December 22, 2004, pursuant to
{¶ 21} Appellants readily concede that Dr. Fought was not served with a copy of the complaint. Instead, they argue that Dr. Fought waived those defenses. In response, Dr. Fought contends that he properly preserved those defenses by including them in his answer and amended answer.
{¶ 22}
{¶ 23} “An action is commenced * * * by filing a petition in the office of the clerk of the proper court together with a praecipe demanding that summons issue or an affidavit for service by publication, if service is obtained within one year.”
{¶ 24}
{¶ 25} “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 * * *.”
{¶ 26} As already indicated, appellants concede that Dr. Fought was not served with a copy of the complaint. Therefore, the only way the action could have commenced was if Dr. Fought waived service of process. In other words, the central question of this case is whether Dr. Fought waived the defense of insufficiency of process.
{¶ 27}
{¶ 28} “Every defense * * * shall be asserted in the responsive pleading thereto 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 motion 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.”
{¶ 29} Dr. Fought did not file a preanswer motion and instead chose to preserve the defense of insufficiency of service of process by including it in his answer, along with the statute-of-limitations defense (which is not subject to the waiver provisions of
{¶ 30} Indeed, the Ohio Supreme Court has held that when the affirmative defense of insufficiency of service of process is properly raised and preserved, a party‘s active participation in the litigation does not constitute a waiver of that defense. Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, syllabus. The court has even gone so far as to hold that the defense is still preserved even after trial has begun and all the evidence has been presented and the defendant then files a motion to dismiss for insufficiency of service of process. First Bank of Marietta v. Cline (1984), 12 Ohio St.3d 317, 12 OBR 388, 466 N.E.2d 567.
{¶ 32} “(G) Consolidation of defenses and objections
{¶ 33} “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 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.
{¶ 34} “(H) Waiver of defenses and objections
{¶ 35} “(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.”
{¶ 36} Thus, the defense of insufficiency of service of process can be waived in one of two ways: (1) if a motion is made raising other
{¶ 37} Clearly, in this case, Dr. Fought waived the defense of insufficiency of service of process in the first way—he filed a motion raising another
{¶ 38} Dr. Fought implies that
{¶ 40} Accordingly, appellants’ sole assignment of error has merit.
{¶ 41} The judgment of the trial court is hereby reversed, and the cause is remanded for further proceedings according to law and consistent with this court‘s opinion.
Judgment reversed and cause remanded.
WAITE, J., concurs.
DEGENARO, J., dissents.
DEGENARO, Judge, dissenting.
{¶ 42} Because I interpret Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, and
{¶ 43} It is within the realm of trial strategy for a defendant to determine whether to assert his
{¶ 44} Closer rule analysis is required when the defendant chooses to raise these defenses in a preanswer
{¶ 45} The pertinent sections of
{¶ 46} The Staff Notes accompanying
{¶ 47} “Rule 12(G) follows up the abolition of the special appearance in Rule 12(B) by actually compelling the defendant who makes a motion to include therein all defenses and objections then available to him which this rule permits to be raised by motion. This compulsion is accomplished by the provision that no waivable defense or objection which is omitted from a motion may thereafter be * * * asserted in an answer. * * * Subdivision (G) of Rule 12 adds the further clause, ‘or assert by any responsive pleading’ as an additional warning that a defendant who omits a waivable defense from a motion may not thereafter assert the omitted defense in an answer.” Staff Notes to
Civ.R. 12(G) (1970).
{¶ 48} This discussion indicates that the repercussion of a failure to consolidate is only effected by preventing the use of the unconsolidated defense in the answer. It logically follows that once the defense is properly preserved in the answer,