THOMAS ET AL., APPELLANTS, v. FREEMAN, APPELLEE.
No. 96-2
Supreme Court of Ohio
July 16, 1997
79 Ohio St.3d 221 | 1997-Ohio-395
Submitted March 18, 1997 — APPEAL from the Court of Appeals for Summit County, No. 17247.
1. When a plaintiff has failed to obtain service on a defendant, whether the court dismisses the case under
2. When a court dismisses a case for lack of service under
{¶ 1} On December 23, 1991, appellants, Magnolia and Andrew Thomas (“Thomas“), filed a complaint in the Court of Common Plеas of Summit County alleging that appellee, Gregory J. Freeman (“Freeman“), negligently operated his motor vehicle, causing it to collide with a motor vehicle operated by Magnolia Thomas, who was injured. Service was attempted upon Freeman by certified mail but service failed.
{¶ 2} On June 29, 1992, the trial cоurt sent the following notice to Thomas:
“JE 1552-943 Case will be dismissed within 7 days of filing of this notice unless counsel can show cause as to why no activity has taken place in six months.”
“JE 1556-635 Case dismissed for lack of prosecution. Costs to plaintiff unless a final journal entry filed within 30 days provides otherwise.”
{¶ 4} On July 8, 1993, utilizing the savings statute, Thomas refiled her complaint against Freeman, and attempted service by certified mail on July 9, 1993. Again service failed.
{¶ 5} On January 14, 1994, the trial court sent notice to Thomas that, pursuant to Loc.R. 7.18 of the Court of Common Pleas of Summit County and C.P. Sup.R. 6 and 9, Thomаs‘s case would be dismissed within seven days of January 14, 1994, unless counsel for Thomas could show cause why no activity had occurred within the past six months. Thomas failed to respond. Accordingly, on February 11, 1994, the trial court dismissed Thomas‘s case “without prejudice for lack of prosecution.”
{¶ 6} On July 7, 1994, Thomas filed a motion to vacate the February 11, 1994 dismissal and reinstate her case. Thomas also filed a motion to designate an individual to make personal service or residential service on Freeman. The trial court granted Thomas‘s motions to reinstate the case and designated Thomas‘s counsel, David G. Schmidt, to make persоnal or residential service on Freeman.
{¶ 7} This time service was acquired on Freeman, and he filed an answer. On January 13, 1995, Freeman filed a motion for summary judgment. Freeman alleged that the trial court‘s first dismissal of Thomas‘s case, on July 14, 1992, was for “failure to prosecute,” and was with prejudice, i.e., it was an adjudication оn the merits. Therefore, Freeman argued, since the dismissal was “on the merits,”
{¶ 8} The trial court granted Freeman‘s motion for summary judgment, finding that the July 14, 1992 order dismissing Thomas‘s case, which stated that the dismissal was for want of prosecution, failed to indicate that it was without prejudice. The trial court, citing Pelunis v. G.M. & M. (1982), 8 Ohio App.3d 194, 195, 8 OBR 263, 265, 456 N.E.2d 1232, 1234, found that an order dismissing a case for failure to prosecute is with prejudice unless it states otherwise. Therefore, the trial court found that the July 14, 1992 order to dismiss was with prejudice, which precluded Thomas from refiling her complaint on July 8, 1993.
{¶ 9} Thomas appealed, alleging that the trial court erred in granting summary judgment to Freeman. Thomas argued that the July 14, 1992 dismissal was a failure otherwise than on the merits in accordance with
{¶ 10} The apрellate court found that the dismissal by the trial court was not for failure of service pursuant to
{¶ 11} The cause is now before this court pursuant to the allowance of a discretionary appеal.
Shapiro, Kendis & Assoc. Co., L.P.A., and David G. Schmidt; Stewart Jaffy & Assoc. Co., L.P.A., and Stewart R. Jaffy, for appellants.
LUNDBERG STRATTON, J.
{¶ 12} There are two issues before this court. The first is whether a dismissal is on the merits where a court dismisses a case because service of process has failed and the dismissal entry does not indicate that the dismissal is otherwise than on the merits. The second issue is whether a plaintiff may utilize the savings statute to refile her complaint where the complaint was dismissed due to a failure of service. The savings statute can only be utilized to refile a case that was dismissed other than on the merits when the statute of limitations has expired. Therefore, the answer to the second issue is dependent upon the answer to the first issuе.
Civ.R. 41(B)(4)
{¶ 13} Pursuant to
{¶ 14} In the case at bar, the trial court dismissed Thomas‘s case “for lack of prosecution.” However, the trial court did not have personal jurisdiction over Freeman on the date that it dismissed Thomas‘s case on July 14, 1992 because Thomas had not perfected service on Freeman. See Maryhew v. Yova (1984), 11 Ohio St.3d 155, 156, 11 OBR 471, 472-473, 464 N.E.2d 538, 540. The issue, therefore, is whether the trial court‘s dismissal of Thomas‘s case was on the merits pursuant to
{¶ 16}
{¶ 17} Expressio unius est exclusio alterius means that “the expression of one thing is the exclusion of the other.” Under this maxim, “if a statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded.” Black‘s Law Dictionary (6 Ed.1990) 581. See Cincinnati v. Roettinger (1922), 105 Ohio St. 145, 152, 137 N.E. 6, 8.
{¶ 18}
“A dismissal under this subdivision * * *, except as provided in subsection (4) of this subdivision, operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies.” (Emphasis added.)
{¶ 19} The exception,
{¶ 20} Having determined that where a defеndant 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
{¶ 21} We must now harmonize
{¶ 22}
“If a service of the summons and complaint is not made upon a defendant within six months after filing of the complaint and the party * * * cannot show good cause why such service was not made * * *, the action shall be dismissed as to that defendant without prejudice * * *.”2 (Emphasis added.)
{¶ 23} This rule clearly intends that where service is not perfected within six months of the date of the filing of the complaint, the action shall be dismissed without prejudice. Since
“Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court * * * may * * * dismiss an action or claim.”
{¶ 25} Both
{¶ 26} To allow a court to dismiss a case on the merits for a failure of service pursuant to
{¶ 27} Therefore, in reconciling the two rules, where the facts indicate that a plaintiff has not acquired service on the defendant, the court may characterize its dismissal as a failure to prosecute pursuant to
{¶ 28} This analysis strikes a balance between the competing public policies of construing and applying the Civil Rules to eliminate those cases merely languishing on the docket versus deciding cases upon their merits. Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 7 OBR 256, 454 N.E.2d 951. Dismissal with prejudice is a very severe and permanent sanction, to be applied with great caution. See Logsdon v. Nichols (1995), 72 Ohio St. 3d 124, 128, 647 N.E.2d 1361, 1364-1365.
{¶ 30} Appellee Freeman argues that a dismissal without prejudice subjects the defendant to continued exposure. However, the risk of abuse of continuous refilings by a less than diligent plaintiff is minimized for two reasons. First, a dismissal, even without prejudice, requires the plaintiff to pay a second filing fee, as well as reacquiring service on the defendant. Thus, there is financial disincentive. Second, and more important, the savings statute can be used only once to refile a case. Hancock v. Kroger Co. (1995), 103 Ohio App. 3d 266, 659 N.E.2d 336; Iglodi v. Montz (Aug. 4, 1995), Cuyahoga App. No. 68621, unreported, 1995 WL 516609.
SAVINGS STATUTE
{¶ 31} Pursuant to its dismissal with prejudice, the trial court determined that Thomas was unable to avail herself of the savings statute because it may only be utilized if the case was dismissed otherwise than on the merits. In that we have determined that the trial court should have dismissed Thomas‘s case pursuant to
{¶ 32} The savings statute,
“In an action commenced, or attempted to be commenced, if in due time * * * the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired, the plaintiff * * * may commence a new action within one year after such date.”
{¶ 33} In the case at bar, we have determined that the July 14, 1992 dismissal of Thomas‘s case was otherwise than on the merits. Further, since Thomas filed her initial complaint and demanded service before the two-year statute of limitations expired, and since the statute of limitations had subsequently exрired, Thomas had one year from July 14, 1992 to refile her complaint, which she did on July 8, 1993, approximately six days prior to the expiration of the savings statute allowance. See Goolsby v. Anderson Concrete Corp. (1991), 61 Ohio St.3d 549, 575 N.E.2d 801. Therefore, Thomas properly utilized the saving statute to refile her July 8, 1993 complaint.3
CONCLUSION
{¶ 34} We hold that when a plaintiff has failed to obtain sеrvice, whether the court dismisses the case under
{¶ 35} Consequently, when a court dismisses a case for lack of service under
Judgment reversed and cause remanded.
MOYER, C.J., RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS, J., concurs in judgment only.
COOK, J., separately concurs in judgment only.
COOK, J., concurring in judgment only.
{¶ 37} Although I agree that the trial court improperly dismissed this case with prejudice, I respectfully disagree with the analysis employed by the majority opinion.
{¶ 38} The majority acknowledges in paragraph one of the syllabus that dismissal for failure to prosecute pursuant to
{¶ 39} In Jones v. Hartranft (1997), 78 Ohio St.3d 368, 372, 678 N.E.2d 530, 534, we discussed the standard of review in cases where a trial court dismisses
{¶ 40} I would find that the trial court fell below the heightened standard for abuse of discretion by dismissing this case with prejudice.