[Cite as Craig v. Reynolds, 2014-Ohio-3254.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Philip A. Craig, :
Plaintiff-Appellant, :
No. 14AP-125
v. : (C.P.C. No. 12CV-12670)
Vernon D. Reynolds, D.O., : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on July 24, 2014
Butler, Cincione & DiCuccio, William A. Davis and N. Gerald
DiCuccio, for appellant.
Freund, Freeze & Arnold, and Mark L. Schumacher, for
appellee.
APPEAL from the Franklin County Court of Common Pleas
O'GRADY, J.
{¶ 1} Plaintiff-appellant, Philip A. Craig, appeals from a judgment of the Franklin
County Court of Common Pleas which dismissed his action against defendant-appellee,
Vernon D. Reynolds, D.O., for insufficient service of process. For the following reasons,
we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In October 2012, appellant filed a medical malpractice action against
appellee, alleging he sustained injuries from medical care and treatment he received
during an attempted surgical procedure in 2007. Appellee answered the complaint
denying appellant's malpractice allegations and asserting various affirmative defenses,
including insufficiency of service of process. Appellee also brought to the trial court's
No. 14AP-125 2
attention that the action was a refiled case. Appellant voluntarily dismissed the prior
action via notice in October 2011.
{¶ 3} Appellant initially attempted to serve appellee by certified mail at 5326
Firebush Lane, Columbus, Ohio 43225. That envelope was returned to the Franklin
County Clerk of Courts marked "unclaimed." Thereafter, appellant requested service
upon appellee by ordinary mail at Knox Community Hospital (the "hospital"), 1330
Coshocton Road, Mount Vernon, Ohio 43050. There is no indication in the record that
delivery by ordinary mail failed.1
{¶ 4} On November 5, 2013, appellee filed a motion to dismiss pursuant to Civ.R.
12(B)(5), 12(B)(2), and 3(A). Appellee argued appellant failed to properly serve him with
process in accordance with the Ohio Rules of Civil Procedure, in particular Civ.R. 4.6(D);
thus, the trial court lacked personal jurisdiction over him. Appellee argued Civ.R. 4.6(D)
required appellant to attempt service by ordinary mail sent to the same address from
where the certified mail envelope was returned marked unclaimed. Appellee cited In re
Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, as well as cases from other Ohio
appellate courts in support of his position. Since service upon appellee was not obtained
within one year of filing the complaint, appellee contended the action never commenced
pursuant to Civ.R. 3(A) and was subject to dismissal.
{¶ 5} Appellant filed a memorandum in opposition arguing that he complied with
the express requirements of Civ.R. 4.6(D). Appellant explained he selected the hospital
address for the ordinary mail service attempt because it was listed on the State Medical
Board of Ohio's website, and appellee was legally obligated to keep his professional
address current with the Board. Moreover, according to appellant, appellee was
successfully served at the hospital during the original lawsuit. Appellant argued the cases
cited by appellee were not binding precedent in this district, they were factually
distinguishable, and the trial court need not abide by them.
1 On January 30, 2014, after the trial court entered final judgment and terminated the case below, appellee
filed an affidavit stating he was never served with the summons and complaint and he learned of the refiled
action from his attorney. We struck that affidavit from the record on March 28, 2014, observing it was
dehors the record.
No. 14AP-125 3
{¶ 6} On January 17, 2014, the trial court issued a decision granting appellee's
motion to dismiss. A judgment entry dismissing the case followed on January 21, 2014.
From that judgment appellant timely appealed.
II. ASSIGNMENT OF ERROR
{¶ 7} Appellant presents us with one assignment of error for review:
THE TRIAL COURT ERRED TO THE PREJUDICE OF
PLAINTIFF IN GRANTING DEFENDANT'S MOTION TO
DISMISS FOR FAILURE OF SERVICE OF PROCESS, BY
RULING THAT ORDINARY MAIL SERVICE OF PROCESS
PURSUANT TO OHIO CIVIL RULE 4.6(D) MUST BE SENT
TO THE SAME ADDRESS AS THE PRIOR UNCLAIMED
CERTIFIED MAIL ATTEMPT OF SERVICE OF PROCESS
UNDER THE CIRCUMSTANCES OF THIS CASE.
III. DISCUSSION
{¶ 8} In his sole assignment of error, appellant contends he complied with the
Ohio Rules of Civil Procedure to achieve proper service of process on appellee.
Specifically, appellant points out Civ.R. 4.6(D) does not explicitly require him to attempt
ordinary mail service at the same address where he sent the certified mail, which was
returned unclaimed. Appellant argues the ordinary mail service attempt to the hospital
was reasonably calculated to apprise appellee of the lawsuit and passes constitutional
muster. Further, appellee did not present the trial court with evidence showing he did not
receive the ordinary mail service. Therefore, appellant contends the trial court erred
when it granted appellee's motion to dismiss for insufficient service of process. We
disagree.
{¶ 9} We review the trial court's judgment dismissing appellant's action due to
insufficient service of process for an abuse of discretion. Lewis v. Buxton, 2d Dist. No.
2006 CA 122, 2007-Ohio-5986, ¶ 5, citing Spiegel v. Westafer, 3d Dist. No. 14-05-18,
2005-Ohio-6033, ¶ 12. An abuse of discretion occurs when a court's decision is arbitrary,
unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
In order to determine if the trial court abused its discretion, we must first decide whether,
in order to comply with Civ.R. 4.6(D), process must be sent by ordinary mail to the same
address where process was previously sent by certified mail and returned marked
unclaimed.
No. 14AP-125 4
{¶ 10} The methods for obtaining service of process within this state are outlined
in Civ.R. 4.1, including service via certified mail. Young v. Locke, 10th Dist. No. 13AP-
608, 2014-Ohio-2500, ¶ 23; First Resolution Invest. Corp. v. Davis, 10th Dist. No. 05AP-
328, 2005-Ohio-4976, ¶ 10. This court has noted "Civ.R. 4 through 4.6 deal[] with
process and should be read together." Kvinta v. Kvinta, 10th Dist. No. 99AP-508
(Feb. 22, 2000).
{¶ 11} Civ.R. 4.6(D)2 provides:
If a United States certified or express mail envelope
attempting service within or outside the state is returned
with an endorsement stating that the envelope was
unclaimed, the clerk shall forthwith notify the attorney of
record * * *. If the attorney, or serving party, after
notification by the clerk, files with the clerk a written request
for ordinary mail service, the clerk shall send by United
States ordinary mail a copy of the summons and complaint
or other document to be served to the defendant at the
address set forth in the caption, or at the address set forth in
written instructions furnished to the clerk.
{¶ 12} Citing Civ.R. 4.6(D), we have recognized that if certified mail is returned as
unclaimed, the serving party can request that the clerk send a copy of the summons and
complaint by ordinary mail to the defendant's address in the caption or to an address
designated in the written request. Young at ¶ 23; First Resolution at ¶ 10; Cent. Ohio
Sheet Metal, Inc. v. Walker, 10th Dist. No. 03AP-951, 2004-Ohio-2816, ¶ 8.
{¶ 13} Like Civ.R. 4.6(D) itself, this court has not explicitly stated that the ordinary
mail attempt must be sent to the same address as a previous attempt by certified mail that
was returned as unclaimed. However, we have previously reflected our understanding of
what Civ.R. 4.6(D) requires. In Oxley v. Zacks, 10th Dist. No. 00AP-247 (Sept. 29, 2000),
we reiterated the general requirements for effective service of process, including that "[i]f
* * * service by certified mail is returned as unclaimed, service may be made by ordinary
2The rebuttable presumption of proper service that arises when ordinary mail is sent in accordance with this
rule, the fact of mailing is entered of record, and the envelope is not returned showing failure of delivery is
not at issue in this case. See Cent. Ohio Sheet Metal, Inc. v. Walker, 10th Dist. No. 03AP-951, 2004-Ohio-
2816, ¶ 9, quoting Grant v. Ivy, 69 Ohio App.2d 40 (10th Dist.1980); Civ.R. 4.6(D). Our threshold issue is
whether appellant satisfied the requirements of Civ.R. 4.6(D). He did not; therefore, the presumption does
not arise. See First Resolution at ¶ 10 ("When the mandates of Civ.R. 4.6(D) are followed, a presumption of
proper service is created.").
No. 14AP-125 5
mail to the address where certified mail was attempted but unclaimed." Id., citing Civ.R.
4.6(D).
{¶ 14} The Supreme Court of Ohio has also provided us with guidance in
Thompkins. The majority explained:
When a postal return reads "Attempted Not Known," no
purpose would be served by a follow-up ordinary mail letter
sent to the same address. [In contrast, t]he "Unclaimed"
designation implies that the person may in fact reside or
receive mail at the designated address but for whatever
reason has chosen not to sign for the certified mail. In that
situation, a follow-up communication by ordinary mail is
reasonably calculated to provide the interested party with
notice and an opportunity to be heard. Such a
communication, not returned, bears a strong inference that
the intended recipient received the letter.
(Emphasis added.) Id. at ¶ 23; ("If [a] certified letter is returned, and the reason given to
the sender for its failure to be delivered indicates that the letter was unclaimed, ordinary
mail service to that same address is then proper.") Id. at ¶ 38 (O'Connor, J., concurring in
part and dissenting in part). See also Freedom Steel, Inc. v. Senn Freight Lines, Inc.,
N.D.Ohio No. 1:09-CV-2750 (Jan. 26, 2010).
{¶ 15} In addition, other district courts have decided the service issue this case
presents. Nicholas v. Deal, 12th Dist. No. CA2002-10-242, 2003-Ohio-7212, ¶ 12, citing
United Home Fed. v. Rhonehouse, 76 Ohio App.3d 115, 124 (6th Dist.1991) ("Civ.R. 4.6(D)
requires that service by ordinary mail be sent to the same address as the attempted service
by certified mail"); Ferrie v. Ferrie, 2 Ohio App.3d 122, 123 (9th Dist.1981) ("Civ. R.
4.6(D) requires that once the certified mail service is returned 'unclaimed,' the clerk shall
send the complaint by ordinary mail to the same address."); Household Retail Servs., Inc.
v. Colon, 6th Dist. No. E-90-66 (July 5, 1991) ("Civ.R. 4.1 and 4.6(D) must be read in
conjunction with one another so as to require that the ordinary mail service be sent to the
same address as the unclaimed certified mail attempt of service."); Rhonehouse at 124,
citing Colon ("We have interpreted Civ.R. 4.1 and 4.6(D) as requiring that the service by
ordinary mail be sent to the same address as the attempted service by certified mail.").
{¶ 16} We agree with the other appellate courts' interpretation of Civ.R. 4.6(D).
Given the rulings of those courts, the instructive language from the Supreme Court of
No. 14AP-125 6
Ohio, and our understanding of what Civ.R. 4.6(D) requires as communicated in Oxley,
appellant's position is untenable. Appellant does not cite any authority, outside of Civ.R.
4.6(D) itself, to support his argument that Civ.R. 4.6(D) authorizes service by ordinary
mail sent to an address other than one from where a certified mail envelope was
previously returned marked unclaimed. The unclaimed designation "implies that the
person may in fact reside or receive mail at the * * * address but for whatever reason has
chosen not to sign for the certified mail. In that situation, a follow-up communication by
ordinary mail[,] * * * not returned, bears a strong inference that the intended recipient
received the letter." Thompkins at ¶ 23. This inference of completed service can only be
reached when service is attempted at the same address. Furthermore, attempting service
by ordinary mail sent to a different address is the equivalent of attempting service by
ordinary mail in the first instance, which is not authorized by Civ.R. 4.1. We read Civ.R.
4.1 and 4.6(D) together to conclude that service by ordinary mail, following an attempt at
service by certified mail that was returned marked unclaimed, must be sent to the same
address as the attempt by certified mail in order to comply with Civ.R. 4.6(D).
Accordingly, we find appellee was not served with process in compliance with the Ohio
Rules of Civil Procedure.
{¶ 17} Appellant contends ordinary mail service to appellee at the hospital was
reasonably calculated to apprise appellee of the lawsuit and give him a chance to appear.
While this may be true, "[i]n Ohio * * * service must be made in accordance with the Ohio
Rules of Civil Procedure. If there is not compliance with these rules, then service is
improper." Miley v. STS Sys., Inc., 153 Ohio App.3d 752, 2003-Ohio-4409, ¶ 20 (10th
Dist.), citing Colon. Furthermore, appellee's actual knowledge of this lawsuit is irrelevant
in light of appellant's failure to comply with the civil rules governing service of process.
See EnRoute Card v. Roysden, 2d Dist. No. 95CA108 (June 7, 1996) ("[A]n individual's
actual knowledge of a pending lawsuit will not cure defective service of process.* * * [I]f
such were not the case, the defense of lack of jurisdiction over the person or insufficiency
of process could never be asserted by a defendant in an answer or a motion, as allowed
* * * by Civ.R. 12(B), because the mere assertion of such defenses would prove that the
defendant knew about the pendency of the action and thus all rules relating to service of
process would be nullities.") (Internal citations and quotations omitted.); see also
No. 14AP-125 7
Nicholas at ¶ 13, citing Bell v. Midwestern Educational Servs., Inc., 89 Ohio App.3d 193,
203 (2d Dist.1993).
IV. CONCLUSION
{¶ 18} The trial court was correct that appellee was not served in accordance with
the Ohio Rules of Civil Procedure. Because we find service was improper in this case, the
trial court did not have jurisdiction over appellee. Shah v. Simpson, 10th Dist. No. 13AP-
24, 2014-Ohio-675, ¶ 21; Colon. Thus, the court did not abuse its discretion in dismissing
appellant's action. Accordingly, appellant's sole assignment of error is overruled and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER, P.J., and TYACK, J., concur.