Lewis v. Moore

[Cite as Lewis v. Moore, 2017-Ohio-4049.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Richard Lewis, Jr., :

Plaintiff-Appellee, :
No. 16AP-775
v. : (C.P.C. No. 15CV-6313)

Jasmine Moore, : (ACCELERATED CALENDAR)

Defendant-Appellant, :

Alfa [Vision] Insurance Corporation, :

Defendant-Appellee. :

D E C I S I O N

Rendered on May 30, 2017

On brief: Plymale & Dingus, LLC, and Ronald E. Plymale,
for appellee Richard Lewis, Jr. Argued: Ronald E. Plymale.

On brief: Earl, Warburton & Adams, Inc., and
Christopher R. Walsh, for appellant. Argued:
Christopher R. Walsh.

APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Jasmine Moore, appeals from a judgment of the
Franklin County Court of Common Pleas that dismissed the claims against her without
prejudice. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On July 24, 2015, plaintiff-appellee, Richard Lewis, Jr., acting pro se, filed
suit against appellant and Alfa Insurance Corporation ("Alfa"). In his complaint, appellee
alleged he sustained injuries to his body, as well as damages to his 2007 Lincoln MKZ, as
a direct result of a collision caused by appellant. The complaint was served by certified
mail on appellant and Alfa at "P.O. Box 2128[,] Brentwood, TN 37024-2128."
No. 16AP-775 2

(Summons.) The record contains two United States Postal Service notices indicating that
"Jeff Alexander" received and signed for the complaint at that address on August 3, 2015.
Appellee indicated at the top of his complaint that the "[d]ate of loss" was "12/16/13."
(Complaint at 2.)
{¶ 3} On August 18, 2015, Alfa and appellant each filed separate answers. Both
answers denied appellee's claims and asserted several defenses. Appellant specifically
asserted the defense of "insufficiency of service of process and insufficiency of process" as
well as "lack of personal jurisdiction over this answering [d]efendant." (Answer at 2.)
Appellant ultimately stated that "having fully answered the Complaint of Plaintiff[], prays
that same may be dismissed and that she may go hence and recover her costs of suit
herein." (Answer at 3.)
{¶ 4} On December 11, 2015, appellant and Alfa jointly filed an initial
identification of witnesses. On April 11, 2016, appellant and Alfa jointly filed a notice of
deposition of appellee, and, on April 13, 2016, appellant and Alfa jointly filed an amended
notice of deposition of appellee. On July 21, 2016, the case was referred to a magistrate to
preside over a jury trial scheduled for December 6, 2016.
{¶ 5} On August 5, 2016, appellant filed a motion to dismiss the complaint,
pursuant to Civ.R. 3, alleging that appellee had failed to commence this action within the
time provided by law. Specifically, appellant argued that (1) she has never resided or
maintained a post office box in Tennessee, (2) appellee requested service of the complaint
of both her and Alfa at Alfa's post office box in Brentwood Tennessee, (3) at the time of
the filing of the complaint, she was living in Columbus, Ohio, and (4) she never received
any complaint of summons from the Franklin County Court of Common Pleas related to
this case. Appellant moved for dismissal with prejudice of the complaint for failure to
commence the case by serving her within one year from the filing of the complaint.
{¶ 6} On August 18, 2016, appellee, pro se, filed a memorandum contra and
conceded that he had served appellant at the address of Alfa. Appellee stated that he was
now aware of appellant's address and would serve the complaint on her at that address if
permitted to do so. Appellee argued that the clerk was at fault for not informing him that
service on appellant had "failed" and that, as a consequence, the rules should be liberally
construed to permit appellee to serve appellant. Appellee argued the case should not be
dismissed with prejudice. On August 22, 2016, appellant filed a reply memorandum
noting that her answer had specifically notified appellee that she had never been served
No. 16AP-775 3

and rejecting appellee's argument that the rules should be liberally construed to permit
service.
{¶ 7} On October 19, 2016, the trial court granted appellant's motion to dismiss.
The court noted that Civ.R. 3(A) was the rationale for dismissing appellant's claims, but
Civ.R. 12(B)(2) served as the vehicle for effectuating the dismissal. The court rejected
appellee's argument that the lack of service was the clerk's fault, but, nevertheless,
determined that "justice requires this case be dismissed without prejudice so that the
plaintiff may have the opportunity to refile his claims if he so chooses." (Decision and
Entry at 3.) Appellant timely appealed the trial court's decision and entry.
II. Assignments of Error
{¶ 8} Appellant assigns the following two assignments of error for our review:

I. The Trial Court erred to the prejudice of Defendant
Jasmine Moore when it failed to dismiss the Plaintiff's
Complaint with prejudice.

II. The Trial Court erred to the prejudice of Defendant when
it construed the motion to dismiss as a motion pursuant to
Ohio Rule of Civil Procedure 12(B)(2) rather than Ohio Rule
of Civil Procedure 3.

III. Discussion

{¶ 9} "Civ.R. 3(A) states that '[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.' Where service of process is not properly made pursuant to Civ.R. 4 et seq.,
the court lacks jurisdiction to consider the complaint and any judgment on that complaint
is void ab initio." Shah v. Simpson, 10th Dist. No. 13AP-24, 2014-Ohio-675, ¶ 9, citing
Deutsche Bank Natl. Trust Co. v. Boswell, 192 Ohio App.3d 374, 2011-Ohio-673, ¶ 15 (1st
Dist.); Rite Rug Co., Inc. v. Wilson, 106 Ohio App.3d 59 (10th Dist.1995). Our standard of
review of a dismissal due to lack of personal jurisdiction is de novo. Id., citing Kauffman
Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551.
{¶ 10} In support of her second assignment of error, which we will address first,
appellant argues (1) that failure to commence an action within the time provided by law is
not specifically enumerated as a Civ.R. 12(B) defense, and (2) that Civ.R. 3(A) is "in
essence, a statute of limitations issue," and therefore it stands on its own under Civ.R.
3(A). (Appellant's Brief at 11.) Therefore, according to appellant, it was error to construe
No. 16AP-775 4

her motion to dismiss as a motion pursuant to Civ.R. 12(B)(2) rather than pursuant to
Civ.R. 3(A). On the facts of this case, we reject both arguments.
{¶ 11} "In order for a court to acquire personal jurisdiction through service of
process, a plaintiff must complete adequate service of process upon a defendant within
one year from the date the plaintiff files a complaint. Civ.R. 3(A). Lack of jurisdiction over
the person, insufficiency of process and insufficiency of service of process are affirmative
defenses. Civ.R. 12(B)(2), (4) and (5)." Confidential Servs., Inc. v. Dewey, 10th Dist. No.
98AP-905 (Apr. 15, 1999). Here, the trial court dismissed the case pursuant to Civ.R.
12(B)(2), "lack of jurisdiction over the person."1
{¶ 12} On numerous occasions, this court has affirmed a trial court's dismissal,
pursuant to Civ.R. 12(B)(2), (4) or (5), for failure to perfect service within the one-year
period set forth in Civ.R. 3(A). See Craig v. Reynolds, 10th Dist. No. 14AP-125, 2014-
Ohio-3254; Shah; Sheets v. Sasfy, 10th Dist. No. 98AP-539 (Jan. 26, 1999); Coke v.
Mayo, 10th Dist. No. 98AP-550 (Feb. 4, 1999); In re Moore, 14 Ohio App.3d 264 (10th
Dist.1984), syllabus. Therefore, we disagree with appellant that the defense asserted in
appellant's motion to dismiss is not a Civ.R. 12(B) defense.
{¶ 13} In addition, although appellant argues that Civ.R. 3(A) is a statute of
limitations issue, she did not assert a statute of limitations defense below, or in her
appellate brief before us, or what statute of limitations would apply to appellee's claim.2
Therefore, on the facts of this case, we disagree with appellant that the trial court should
have construed Civ.R. 3(A) in the context of a statute of limitations defense. Accordingly,
we overrule appellant's second assignment of error.
{¶ 14} In her first assignment of error, appellant argues the trial court erred by not
dismissing appellee's complaint "with prejudice." In support, appellant points to

1 It is not necessary for us to determine whether the trial court erred in dismissing the case pursuant to
subdivision (B)(2), rather than subdivision (B)(4) or (B)(5), because appellant does not argue that the
alleged error committed was due to the subdivision applied. Rather, appellant argues the dismissal should
have been pursuant to Civ.R. 3(A) standing on its own. Furthermore, appellee did not appeal or file a cross-
assignment of error alleging the trial court erred by dismissing the case pursuant to Civ.R. 12(B)(2).

2 In Knotts v. Solid Rock Ents., 2d Dist. No. 21622, 2007-Ohio-1059, ¶ 49, the Second District recognized
that Civ.R. 3(A) can be grounds for two types of defenses, insufficiency of process and statute of limitations.
"[Appellee] did not raise the defense of insufficiency of service of process in its responsive pleadings or in
a motion filed prior thereto. That failure waives the defense of insufficiency of process in relation to the
second amended complaint that Knotts filed with respect to the one-year service requirement of Civ.R.
3(A) on which the motion for summary judgment relied. State ex rel. Corrigan v. Gillon (1980), 64 Ohio
St.2d 135, 136, 413 N.E.2d 828; Civ.R. 12(B), (H)(1). The waiver likewise applies to [appellee's] statute of
limitations defense, which in its application is dependent on a failure of service required by Civ.R. 3(A)."
(Emphasis added.)
No. 16AP-775 5

Saunders v. Choi, 12 Ohio St.3d 247 (1984), and Schafer v. Sunsports Surf Co., Inc., 10th
Dist. No. 06AP-370, 2006-Ohio-6002. Saunders and Schafer, however, differ from the
case before us. In both those cases, the plaintiff's complaint had previously been
dismissed once before,3 and the court determined it was proper to dismiss with prejudice
the refiled complaint. Here, the complaint had not been previously dismissed. The
complaint had not been refiled. Consequently, we do not find Saunders or Schafer to be
dispositive.
{¶ 15} Civ.R. 41(B)(4) states:
Failure other than on the merits. A dismissal for either
of the following reasons shall operate as a failure otherwise
than on the merits:

(a) lack of jurisdiction over the person or the subject matter.

{¶ 16} Pursuant to Civ.R. 41(B)(4), a dismissal for lack of personal jurisdiction
operates as an adjudication "otherwise than on the merits." A dismissal with prejudice is
treated as an adjudication on the merits. Tower City Properties v. Cuyahoga Cty. Bd. of
Revision, 49 Ohio St.3d 67, 69 (1990). A dismissal without prejudice is an adjudication
otherwise than on the merits. Thomas v. Freeman, 79 Ohio St.3d 221, 225 (1997), fn. 2.
Therefore, here, where the trial court dismissed the complaint pursuant to Civ.R.
12(B)(2),4 for lack of jurisdiction over the person, the court did not err in dismissing the
case without prejudice.
{¶ 17} This conclusion is supported by the Supreme Court of Ohio's holding in
Thomas. In Thomas, the Supreme Court affirmed a trial court's dismissal, without
prejudice, pursuant to Civ.R. 41(B)(4) and 4(E), of a complaint where the plaintiff had
failed to perfect service. The court held:
Having determined that where a defendant 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

3 In Saunders, the previous dismissal was without prejudice, pursuant to Civ.R. 41(B)(1), for failure to

prosecute. Id. at ¶ 1. In Schafer, the previous dismissal was voluntary. Id. at ¶ 2.

4 We are aware this court has held that " '[i]t is apparent that dismissals for insufficiency of process or
insufficiency of service of process are not among the dismissals which Rule 41(B)(4) provides shall operate
as failures otherwise than upon the merits.' " DiCello v. Palmer, 10th Dist. No. 79AP-402 (Feb. 12, 1980),
quoting Howard v. Allen, 28 Ohio App.2d 275, 278 (10th Dist.1971), modified on different grounds in
Vaccariello v. Smith & Nephew Richards, Inc., 94 Ohio St.3d 380 (2002). Because the trial court dismissed
the case, pursuant to Civ.R. 12(B)(2), it is not necessary at this time to consider the precedent set in DiCello.
No. 16AP-775 6

the merits pursuant to Civ.R. 41(B)(4) to the exclusion of
Civ.R. 41(B)(3) (adjudication on the merits) despite the fact
that a trial court's entry may be silent on the issue. This is
because Civ.R. 41(B)(4) provides an exception to the general
rule that an entry dismissing a case pursuant to Civ.R. 41(B)
that does not indicate otherwise is an adjudication on the
merits. Civ.R. 41(B)(3). In other words, 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. Therefore,
Civ.R. 41(B)(4) is the controlling subsection.

(Emphasis sic.) Id. at 225. Although Thomas addressed dismissal on grounds of Civ.R.
41(B)(4) and 4(E),5 whereas in the instant case the dismissal was on grounds of Civ.R.
12(B)(2) and 3(A), we find the same rationale applies here.
{¶ 18} On the facts of this case, where this is an original complaint and where
appellant did not argue a specific statute of limitations applicable to appellee's claims, the
trial court did not err in dismissing the complaint without prejudice. Accordingly, we
overrule appellant's first assignment of error.

5 In Goolsby v. Anderson Concrete Corp., 61 Ohio St.3d 549, 551 (1991), the Supreme Court considered the

application of Civ.R. 3(A) in a different context, but commented that had the trial court applied Civ.R. 4(E),
it would not have been necessary to consider Civ.R. 3(A):

"It is unfortunate that this case demands resolution of a situation that
would have been avoided had the Civil Rules been applied by the trial
court below. Civ.R. 4(E) states: 'Summons: time limit for service. 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. * * *'

This rule is designed to clear the dockets of cases in which a plaintiff has
not pursued service upon a defendant. In most instances, the rule would
be applied when a plaintiff has neglected to again attempt service after
original service of process fails. It is beyond question that the rule should
have been applied in the instant action where the clerk was instructed to
refrain from attempting service. The trial court should have dismissed
Goolsby's complaint without prejudice because service was not
attempted. Goolsby would then have been required to refile, and
presumably would not have done so until the desire to serve Anderson
also arose."

The same sentiment applies to the case at bar.
No. 16AP-775 7

{¶ 19} Finally, we note that appellee has asserted that the savings statute at R.C.
2305.196 permits him to refile this case. We decline to address this issue, but note the
Supreme Court has indicated that when a court dismissed a case for lack of service under
Civ.R. 41(B)(4), the plaintiff may utilize the savings statute to refile within one year,
"providing all other procedural requirements of the savings statute have been met."
Thomas at paragraph two of the syllabus. The parties did not address the procedural
requirements of the savings statute here or below.7 Furthermore, neither the parties nor
the trial court has addressed whether the action was "attempted to be commenced" as
required. See La Barbera v. Batsch, 10 Ohio St.2d 106, 112 (1967) ("before an action may
be recommenced under Section 2305.19, Revised Code, it must first have been
commenced or attempted to be commenced, within the meaning of [R.C.] 2305.17").
(Emphasis added.) Therefore, at this time, we will not consider the same.
IV. Conclusion
{¶ 20} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and HORTON, JJ., concur.

6 R.C. 2305.19 states: "(A) In any action that is commenced or attempted to be commenced, if in due time a
judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff or, if
the plaintiff dies and the cause of action survives, the plaintiff's representative may commence a new action
within one year after the date of the reversal of the judgment or the plaintiff's failure otherwise than upon
the merits or within the period of the original applicable statute of limitations, whichever occurs later. This
division applies to any claim asserted in any pleading by a defendant."

7 Despite not addressing the issue below or in briefing before this court, in her notice of supplemental
authority, appellant cites to Anderson v. Borg-Warner Corp., 8th Dist. No. 80551, 2003-Ohio-1500, and
argues that the savings statute does not apply. However, we do not find this case controlling as the dismissal
therein was on grounds that the statute of limitations had expired. The trial court here did not dismiss on
statute of limitations grounds, but, rather, for lack of jurisdiction over the person. Appellant also refers to
Lewis v. Hayes, 10th Dist. No. 08AP-574, 2009-Ohio-640. Unlike the case before us, Lewis involved a re-
filed complaint as well as application of Civ.R. 15(D) regarding a John Doe plaintiff.