[Cite as Waite v. Mahalaxmi, Inc., 2012-Ohio-15.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
LYNN H. WAITE : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2011-CA-00028
MAHALAXMI, INC. :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court
of Common Pleas, Case No. 2009CV1308
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: January 3, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MARK A. CHUPARKOFF CLARE E. KRUMLAUF
CHUPARKOFF LAW OFFICE 280 N. High Street, Ste. 1010
Box 3775 Columbus, OH 43215
Dublin, OH 43016
[Cite as Waite v. Mahalaxmi, Inc., 2012-Ohio-15.]
Gwin, P.J.
{1} Plaintiff-appellant Lynn H. Waite appeals a judgment of the Court of
Common Pleas of Fairfield County, Ohio, which found her claim against defendant-
appellee Mahalaxmi, Inc. was barred by the statute of limitations. Appellant assigns a
single error to the trial court:
{2} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
APPELLEE’S MOTION TO DISMISS/MOTION FOR JUDGMENT ON THE PLEADINGS
TO THE EXTENT THAT OHIO LAW PERMITS SERVICE OF A COMPLAINT OUTSIDE
OF ONE YEAR.”
{3} The record indicates appellant stayed at a Best Western Hotel owned and
operated by appellee. Appellant alleges during her stay she was the victim of a bed bug
attack, resulting in numerous personal injuries to her.
{4} Appellant filed suit against appellee on October 7, 2009, and on the same
day requested service by certified mail. The certified mail was unclaimed, and appellant
issued a praecipe on April 13, 2010 to the clerk of courts for certified mail. Service was
not perfected again. On October 14, 2010, appellant requested service by ordinary U.S.
Mail.
{5} On February 2, 2011, appellees filed a motion to dismiss alleging appellant
had failed to commence her suit within the applicable statute of limitations. The trial
court found appellant had one year from the filing to obtain service on appellee and
commence the action, but failed to do so. The court found under Goolsby v. Anderson
Concrete Company (1991), 61 Ohio St. 3d 549, 575 N.E. 2d 801, appellant’s issuing of
a praecipe for ordinary mail service on October 14, 2010 was the equivalent of
Fairfield County, Case No. 2011-CA-00028 3
dismissing and re-filing her action. The court found the re-filing did not occur during the
statute of limitations or within one year of the filing date, and for this reason, the savings
statute did not allow appellant to re-file her complaint.
{6} For the reasons stated below, we do not agree.
{7} In Goolsby, and the subsequent case of Sisk & Associates, Inc. v.
Committee to Elect Timothy Grendell, 123 Ohio St. 3d 447, 2009-Ohio-5591, the Ohio
Supreme Court explained the law establishing the filing and service of a complaint. In
Goolsby, the plaintiff filed a complaint on February 6, 1986, and asked the clerk to hold
service of the summons and complaint. Two days before the statute of limitations ran,
on July 17, 1987, plaintiff directed the clerk to issue a summons, and service was
obtained on July 23, 1987. The Supreme Court cited Civ. R. 3 (A), which provides a
civil action is commenced by filing a complaint with the court if service is obtained within
one year after such filing upon a named defendant. The Supreme Court explained one
clear consequence of this provision is that it is not necessary to actually serve the
defendant within the statute of limitations. A plaintiff could arguably file her complaint on
the last day of the limitations period and still have a full year in which to obtain service.
{8} The court found while technically, it could find plaintiff had not commenced
her action, she could dismiss her case and re-file an identical complaint. The Supreme
Court found if service has not been obtained within one year of filing of the complaint,
and the subsequent re-filing of an identical complaint within rule would provide an
additional year within which to obtain service and commence an action under Civ. R. 3
(A), an instruction to the clerk to attempt service on the complaint would be the
equivalent of dismissing and re-filing the complaint.
Fairfield County, Case No. 2011-CA-00028 4
{9} The Goolsby court also noted Civ. R. 4 (E) permits the court to dismiss a
case without prejudice if service is not made within six months after filing the complaint.
This provision allows courts to clear their dockets of cases in which plaintiffs have not
pursued service on a defendant, and would be applied if a plaintiff has neglected to
attempt service after original service of process fails. The Supreme Court found the trial
court should have dismissed the complaint without prejudice because service was not
attempted, and then, the plaintiff would have been required to re-file her complaint. The
Supreme Court found the original complaint, however, was never dismissed by the
court, so the filing of the new praecipe constituted a voluntary dismissal and re-filing.
{10} In Sisk, supra, the Supreme Court found if a plaintiff files an instruction for
a clerk to attempt service of a complaint that was filed more than a year prior, the
instruction is a notice of voluntary dismissal of the claims, but if the plaintiff has
previously filed a dismissal of a complaint making the same claim, then by action of law
the two dismissal rule results in dismissal of the case with prejudice.
{11} The situation is complicated by R.C. 2305.19, commonly known as the
savings statute. The savings statute provides; “ 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 further commencement of such action at the date of *** failure has
expired, the plaintiff *** may commence a new action within one year after such date.”
{12} Civ. R. 3 provides an action is commenced if service is perfected within
one year of filing. Formerly, the more problematic area was whether the action is
“attempted to be commenced” if the plaintiff files the action but fails to serve the
defendant within one year. In Thomas v. Freeman, 79 Ohio State 3d 221, 1997-Ohio-
Fairfield County, Case No. 2011-CA-00028 5
395, 680 N.E. 2d 997, the Ohio Supreme Court explained that Ms. Thomas filed her
initial complaint and demanded service before the two-year statute of limitations
expired. She did not perfect service and the court dismissed her case. The Supreme
Court held a dismissal for failure to accomplish service is otherwise than on the merits
and without prejudice. Syllabus by the court, paragraph 1. The court concluded if a case
is dismissed for lack of service, the saving statute permits a plaintiff to re-file the case
within one year if all other procedural requirements have been met. Syllabus, paragraph
2.
{13} In Abel v. Safety First Industries, Cuyahoga App. No. 80550, 2002-Ohio-
6482, the court found prior to the Thomas decision, courts had found an action is
commenced or attempted to be commenced, for purposes of R.C. 2305.19, only if
effective service of process is obtained upon a defendant. Abel at paragraph 40,
citations deleted. The court of appeals concluded that after Thomas, the applicability of
R.C. 2305.19 is not limited only to circumstances where effective service of process has
been obtained. Rather, by its express language, the savings statute also applies where
there has been an attempt to commence an action. Abel at paragraph 42.
{14} The Abel court also found technically the suit failed otherwise than on the
merits on the date one year after the first lawsuit was filed, following which the lawsuit
could no longer be commenced. However, the court of appeals reasoned that to liberally
construe the Rules in order to resolve cases on their merits, the time should run from
the date the court actually dismissed the case, which was some time after the year had
expired. Id at paragraph 45.
Fairfield County, Case No. 2011-CA-00028 6
{15} In Goolsby, the Supreme Court noted the plaintiff had not attempted
service within six months, and the trial court could have dismissed her case for failure to
prosecute pursuant to Civ. R. 4. In the case before us, the record shows appellant
attempted service with the filing of the complaint. Appellant should not be in a worse
situation than the plaintiff in Goolsby because she actively attempted to pursue her
claim. After the initial failure of service, appellant made further attempts to serve the
complaint during the year following the filing. We conclude she “attempted to
commence” the action by filing her complaint and her original praecipe for service within
the two year statute of limitations. Because she had attempted to commence her case,
the saving statute applies to extend the time for filing past the statute of limitations.
{16} We also find appellant’s April 13, 2010 praecipe does not constitute a
dismissal and re-filing, because if service had been successful then, it would have been
made within the one year of filing, and neither the Goolsby rule nor the savings statute
would be necessary to preserve appellant’s action.
{17} We conclude the trial court erred in finding the statute of limitations barred
appellant’s claim.
{18} The assignment of error is sustained.
Fairfield County, Case No. 2011-CA-00028 7
{19} For the foregoing reasons, the judgment of the Court of Common Pleas of
Fairfield, Ohio, is reversed, and the cause is remanded to that court for further
proceedings in accord with law and consistent with this opinion.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. PATRICIA A. DELANEY
WSG:clw 1212
[Cite as Waite v. Mahalaxmi, Inc., 2012-Ohio-15.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LYNN H. WAITE :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
MAHALAXMI, INC. :
:
:
Defendant-Appellee : CASE NO. 2011-CA-00028
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Fairfield, Ohio, is reversed, and the cause is remanded
to the court for further proceedings in accord with law and consistent with this opinion.
Costs to appellee.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. PATRICIA A. DELANEY