Fay v. Blair

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[Cite as Fay v.Blair , 2001-Ohio-3304.] STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT JOHN FAY, et al., PLAINTIFFS-APPELLEES, - VS LAMONT L. BLAIR, et al., DEFENDANTS-APPELLANTS. ) ) ) ) ) ) ) ) ) CASE NO. 00 CA 166 O P I N I O N CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, Case No. 97 CV 3119. JUDGMENT: Reversed. APPEARANCES: For Plaintiffs-Appellees: For Defendants-Appellants: JUDGES: Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Cheryl L. Waite Attorney Michael Harshman 105 East Boardman Street Youngstown, Ohio 44503 Attorney Marshall Buck 100 Federal Plaza East Youngstown, Ohio 44503-1811 - 2 - Dated: June 26, 2001 VUKOVICH, P.J. {¶1} Defendants-appellants, Lamont L. Blair, et al., appeal from a judgment rendered by the Mahoning County Common Pleas Court overruling their motion to dismiss for insufficient service of process. For the following reasons, the judgment of the trial court is reversed. STATEMENT OF THE FACTS {¶2} Fay, At the outset, we note that plaintiffs-appellees, John et al., have failed to file a brief in this matter. Therefore, we may accept appellants statement of the facts and issues as correct and reverse the judgment if appellants brief reasonably sustains such action. {¶3} App.R. 18(C). On October 29, 1997, appellees filed a complaint against appellants seeking to recover damages from an automobile accident. Appellants were never served with process. served appellants attorney, Marshall Buck. an answer on behalf of appellants. Instead, appellees Attorney Buck filed The answer raised the defenses of insufficiency of process and insufficiency of service of process. In spite of the fact that appellants answer put appellees on notice that process had not been served and time remained in which appellants could have perfected service, appellants did nothing. {¶4} Subsequently, Attorney Buck filed a motion to dismiss for insufficient service of process. because service commenced and had was not thus been The motion contended that perfected, barred by the the action two-year had statute not of limitations for personal injury actions. The motion was overruled. The matter proceeded to trial. favor of followed. appellees in the The jury returned a verdict in amount of $30,500. This appeal - 3 - ASSIGNMENT OF ERROR {¶5} Appellants sole assignment of error on appeal alleges: {¶6} THE TRIAL COURT ERRED BY FAILING TO DISMISS THE CLAIMS AGAINST LAMONT BLAIR AND JAMES ARMSTRONG FOR INSUFFICIENCY OF SERVICE OF PROCESS. {¶7} Appellants contend that service of process upon their attorney was not sufficient under the Rules of Civil Procedure. They further aver that participating in the lawsuit after raising the defense of insufficient service of process did not amount to waiver. LAW AND ANALYSIS {¶8} In Maryhew v. Yova (1984), 11 Ohio St.3d 154, 156, the Ohio Supreme Court held: {¶9} It is rudimentary that in order to render a valid personal judgment, a court must have personal jurisdiction over the defendant. This may be acquired either by service of process upon the defendant, the voluntary appearance and submission of the defendant or his legal representative, or by certain acts of the defendant or his legal representative which constitute an involuntary submission to the jurisdiction of the court. The latter may more accurately be referred to as a waiver of certain affirmative defenses, including jurisdiction over the person under the Rules of Civil Procedure. {¶10} Civ.R. 4.2 provides a specific list of people who may be served with process. that list. An individual s attorney does not appear on Conversely, Civ.R. 5 states that pleadings and other papers filed subsequent to the original complaint must be served upon the party s attorney. {¶11} In King v. Hazra (1993), 91 Ohio App.3d 534, Carolyn King filed a complaint against Dr. Sandra Hazra alleging medical malpractice. The clerk of courts attempted to serve Hazra with the complaint by certified mail. The complaint was returned unclaimed. King sent a courtesy copy of the complaint to Hazra s attorney, who subsequently filed an answer. The Ninth District Court of - 4 - Appeals held that service was incomplete. Id. at 537. It noted that Civ.R. 4.1 through 4.6 provide the methods by which a party must be served. As Hazra was not served with process, the court decided to strike the complaint. The serving party or that party s attorney of record is ultimately responsible for ensuring that service is complete. Id. The court noted that King had notice that service was ineffective when she received the answer filed by Hazra s attorney. That answer raised the affirmative defense of lack of personal jurisdiction, which includes and preserves the defense of insufficient service of process. Id. Despite having notice of the ineffective service, King did nothing to correct the problem. Notwithstanding King s urging, the court did not find that striking the complaint under these circumstances was contrary to the spirit of the Civil Rules. Id. {¶12} The facts of the case at bar resemble King. case, appellants were never served with process. on the other hand, was served. service of process upon a In this Their attorney, At first blush, it seems that defendant s sufficient to apprize him of the lawsuit. attorney should be However, the Rules of Civil Procedure require more. In seeking justification for the service requirement mandated by the Civil Rules, one need only consider the typical lawsuit. In most instances, a plaintiff does not know the identity of the defendant s attorney. Furthermore, even if the defendant ordinarily employed the services of a particular attorney, there is no guarantee that the defendant would choose the same counsel in every instance. the defendant may wish to proceed pro se. Alternatively, In any event, service of the original complaint upon a party s attorney is insufficient under the Rules of Civil Procedure. Therefore, pursuant to Maryhew, supra at 156, the trial court could have exercised jurisdiction over appellants only if they voluntarily appeared and submitted to the court or if they waived their defenses pertaining to the court s jurisdiction. affirmative Neither of these - 5 - situations apply to this case. {¶13} Prior to the adoption of the Rules of Civil Procedure, there were two types of appearances, special and general. Id. Special appearances jurisdiction. Id. were made solely other hand, jurisdiction in jurisdiction. Id. object to personal A defendant making a special appearance did not submit to the court s jurisdiction. Id. the to was a a voluntary way other A general appearance, on submission than to the challenging court s personal A general appearance was a recognition that the case was properly before the court. Id. {¶14} A distinction between the types of appearances is no longer drawn. Id. Instead, today we have only general appearances. To determine whether the trial court obtained personal jurisdiction over the defendant, pursuant to [the Rules of Civil Procedure], we need only address whether there has been a waiver of the jurisdictional appearance. Id. defenses, rather than the type of A review of the Rules of Civil Procedure indicates that appellants did not waive their jurisdictional defenses. {¶15} Civ.R. 12(B) provides that the defenses of insufficiency of process and insufficiency of service of process must be raised in either a responsive pleading or in a motion prior to pleading. If they are not so raised, they are waived. Civ.R. 12(H). In appellants answer, they affirmatively raised the defenses of insufficiency of service and insufficiency of service of process. Therefore, appellants preserved these defenses. {¶16} A civil action is commenced by filing a complaint, if service is obtained within one year from such filing. Civ.R. 3(A). Because service of process was never perfected, the action was never commenced. Pursuant to R.C. 2305.10, actions for personal injuries must commence within two years after the date on which the cause of action arose. In this case, the accident giving rise - 6 - to the lawsuit happened on October 9, 1996. Appellants filed their motion to dismiss on March 29, 1999. No action having commenced within the two-year limitation period, motion to dismiss should have been sustained. appellants' Thus, appellants assignment of error is found to have merit. {¶17} For the foregoing reasons, the judgment of the trial court is hereby reversed. Donofrio, J., concurs. Waite, J., concurs.

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