Wright v. Mirza

[Cite as Wright v. Mirza, 2017-Ohio-7183.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

RACHEL WRIGHT, : APPEAL NO. C-160734
TRIAL NO. A-1501800
and :
O P I N I O N.
ALICIA WISE-DAVIS, :

Plaintiffs-Appellants, :

vs. :

FAROOQ A. MIRZA, M.D., :

Defendant-Appellee, :

and :

CLARENCE E. LAMB, JR., :

CLARENCE E. LAMB, JR., M.D., INC., :

STEPHANIE FREEMAN, M.D., :

ADAM NICKEL, D.O., :

BETHESDA HOSPITAL, INC., :

and :

TRIHEALTH, INC., :

Defendants. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 11, 2017
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Schachter, Hendy and Johnson and Penny Unkraut Hendy, for Plaintiffs-
Appellants,

Calderhead, Lockemeyer & Peschke, David S. Lockemeyer and Stephanie P.
Franckewitz, and Montgomery, Rennie & Jonson, George D. Jonson and G. Todd
Hoffpauir, for Defendant-Appellee.

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MILLER, Judge.

{¶1} Rachel Wright and Alicia Wise-Davis (“appellants”) appeal from the trial

court’s entry of summary judgment dismissing Dr. Farooq A. Mirza from appellants’

medical malpractice and wrongful death action for lack of proper service. We affirm.

{¶2} Appellants originally brought their lawsuit in 2011. They voluntarily

dismissed their complaint on April 9, 2014, under Civ.R. 41(A). Pursuant to R.C.

2305.19, the savings statute, appellants refiled their complaint on April 2, 2015. They

attempted to serve Dr. Mirza by certified mail at a business address appellants found on

the Ohio Medical Licensure Board’s website. Service failed. Appellants’ counsel

claimed she did not receive notice of failed service from the clerk. However, she

became aware that service had failed after reviewing the court’s docket. Next,

appellants requested certified mail service at The Jewish Hospital—an address also

found on the Ohio Medical Licensure Board’s website, which listed, apparently

erroneously, Dr. Mirza as a supervising physician to a physician’s assistant at The

Jewish Hospital. A notice of delivery was signed, but the certified mail envelope was

later marked “return to sender” and was returned to the Hamilton County Clerk’s office.

The clerk sent appellants’ counsel a notice of failure of service on May 22, 2015. The

failure of service was docketed. There were no further attempts to serve Dr. Mirza.

{¶3} On May 27, 2015, after counsel had been notified that service had failed

and more than ten months before appellants’ deadline to perfect service, Dr. Mirza

answered appellants’ complaint, raising, inter alia, the affirmative defense of

insufficiency of service of process. On March 28, 2016, Dr. Mirza filed his expert

witness disclosure. He listed himself as an expert but did not specify an address for

himself.

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{¶4} Dr. Mirza later moved for summary judgment on the issue of

insufficiency of service of process. He submitted an affidavit to the court stating that he

closed his Auburn Avenue office in March of 2014. He also stated that he had never

had a business office at The Jewish Hospital and had resigned his privileges from

Mercy Health Systems, of which The Jewish Hospital was a part, in March 2014. Dr.

Mirza submitted a second affidavit to the court stating that he had never been served,

and that he had resided at the same address in Cincinnati for 29 years. Following

briefing and arguments by the parties, the trial court dismissed the claims against Dr.

Mirza.

{¶5} In their sole assignment of error, appellants contend that the trial court

erred by dismissing Dr. Mirza from their lawsuit for lack of proper service of process.

We review the granting of summary judgment de novo. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriate

when (1) there is no genuine issue of material fact, (2) the moving party is entitled to

judgment as a matter of law, and (3) the evidence, when viewed in favor of the

nonmoving party, permits only one reasonable conclusion and that conclusion is

adverse to the nonmoving party. Civ.R. 56(C); Grafton; State ex rel. Howard v.

Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994).

{¶6} Appellants first argue that due process had been met by their attempts at

service, and therefore, the trial court acquired personal jurisdiction over Dr. Mirza.

{¶7} In pertinent part, Civ.R. 3(A) provides 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.” Attempted service satisfies the notice

requirement of due process when it is “reasonably calculated” to appraise parties of the

pendency of an action. Akron-Canton Regional Airport Auth. v. Swinehart, 62 Ohio

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St.2d 403, 406, 406 N.E.2d 811 (1980); Cincinnati v. York Rite Bldg. Assn., 164 Ohio

App.3d 591, 2005-Ohio-6771, 843 N.E.2d 250, ¶ 10 (1st Dist). The Ohio Supreme Court

has cautioned that residential service is preferred over service at a business address

because residential service is more likely to succeed. Swinehart at 406. However,

certified mail service sent to a business address comports with due process provided

“circumstances are such that successful notification could be reasonably anticipated.”

Id. In Swinehart, affidavits submitted to the court demonstrated that appellee “only

sporadically visited the business where service was attempted, usually two or three

times per month.” Id. at 407. The court determined that “[s]ervice at this business

address under these circumstances simply does not comport with due process.” Id.

{¶8} Appellants claim that service was “reasonably calculated” to appraise Dr.

Mirza of the pendency of their action because Dr. Mirza had indicated at his deposition

in their previous voluntarily dismissed action that the Auburn Avenue address was his

correct business address. They further claim that, because Dr. Mirza never

supplemented his deposition testimony with a new address, it was reasonable for them

to serve Dr. Mirza at Auburn Avenue. We are unpersuaded by this argument.

{¶9} “After its voluntary dismissal, an action is treated as if it had never been

commenced.” Zimmie v. Zimmie 11 Ohio St.3d 94, 95, 464 N.E.2d 142 (1984). So, even

assuming, arguendo, that Dr. Mirza had a duty in the dismissed action to supplement

his deposition testimony with a new address, any such obligation did not extend to the

subsequently filed action. See Austin v. White Castle Sys., Inc., 10th Dist. Franklin No.

12AP-1029, 2013-Ohio-5107, ¶ 11 (holding that any alleged representations made by

appellee’s counsel relating to service of pleadings in a voluntarily dismissed action had

no bearing on the refiled complaint). Appellants did not request Dr. Mirza provide

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them with a current address in the present case even after they had notice that service

had failed.

{¶10} Appellants next contend that service at each business address was

“reasonably calculated” to apprise Dr. Mirza of the pending action because each address

appeared on the Ohio Medical Licensure Board’s website. They argue that because Dr.

Mirza had a duty under R.C. 4731.281(G)(1) to update his business address with the

Ohio Medical Board, service was reasonably calculated to reach him. We disagree.

{¶11} The website contained a disclaimer that the information was “provided

as a public service and no user may claim detrimental reliance thereon.” More

significant to our analysis, however, is the undisputed fact that Dr. Mirza had not

maintained a business office at the Auburn Avenue location for over a year, and had

never had a business office at The Jewish Hospital. In accordance with Swinehart,

service at these business addresses was not reasonably calculated to apprise Dr. Mirza

of the pending action.

{¶12} Finally, appellants claim that Dr. Mirza intentionally frustrated service,

and that he should be equitably estopped from raising the defense of insufficiency of

process. They point to Dr. Mirza’s failure to update his business address on the Ohio

Medical Licensure Board’s website and failure to supplement his deposition testimony.

They also claim that Dr. Mirza attempted to frustrate service by not listing his address

in his disclosure of expert witnesses, filed with the court.

{¶13} “Equitable estoppel prevents relief when one party induces another to

believe certain facts exist and the other party changes his position in reasonable

reliance on those facts to his detriment.” State ex rel. Chavis v. Sycamore City School

Dist. Bd. of Edn., 71 Ohio St.3d 26, 34, 641 N.E.2d 188 (1994). The purpose of

equitable estoppel is to prevent actual or constructive fraud and to promote the ends of

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justice. Ohio State Bd. of Pharmacy v. Frantz, 51 Ohio St.3d 143, 145, 555 N.E.2d 630

(1990).

{¶14} This doctrine does not apply. Dr. Mirza did not induce appellants to

believe that his business address was on Auburn Avenue or at The Jewish Hospital. In

Dr. Mirza’s answer to appellants’ complaint, he raised the affirmative defense of

insufficiency of service of process. This answer was filed more than ten months before

appellants’ service deadline and after appellants had notice that both of their attempts

at service had failed. Further, Dr. Mirza had lived at the same address in Cincinnati,

Ohio for 29 years. There is absolutely no evidence in the record that Dr. Mirza had

attempted to hide his residential address from appellants. Appellants never requested

that Dr. Mirza provide his address in the present action.

{¶15} Accordingly, we overrule appellants’ sole assignment of error. The trial

court properly dismissed the complaint as to Dr. Mirza for lack of service. The

judgment of the trial court is affirmed.

Judgment affirmed.

M OCK , P.J., and M YERS , J., concur.

Please note:
The court has recorded its own entry on the date of the release of this opinion.

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