[Cite as Garrett v. Gill, 2011-Ohio-3449.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
ANGELA RENEE GARRETT : APPEAL NO. C-100624 TRIAL NO. A-0702111 Plaintiff-Appellant, : D E C I S I O N. vs. :
SHARON L. GILL :
and :
JENRICK FELTNER, :
Defendants-Appellees, :
AMERICAN FAMILY MUTUAL : INSURANCE COMPANY
Defendant. :
Civil Appeal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 13, 2011
Edward T. Kathman, for Plaintiff-Appellant,
Joyce V. Kimbler, for Defendants-Appellees.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
H ILDEBRANDT , Presiding Judge.
{¶1} Plaintiff-appellant Angela Renee Garrett appeals from the trial court’s
grant of summary judgment to defendants-appellees Sharon Gill and Jenrick Feltner.
For the following reasons, we affirm.
{¶2} On March 4, 2005, Garrett was a passenger in an automobile driven
by Feltner, a Kentucky resident. The vehicle was involved in an accident on Kellogg
Avenue in Hamilton County, Ohi0, and Garrett was injured. On March 5, 2007, she
filed suit against Gill, the owner of the vehicle, Feltner, Nationwide Mutual Fire
Insurance Company, and American Family Mutual Insurance Company. Nationwide
insured Gill and Feltner, and Garrett was insured by American Family. Garrett was
initially unable to obtain service upon Gill and Feltner, and on March 19, 2008, a
special process server was appointed, who successfully served Gill and Feltner with a
copy of the complaint and summons.
{¶3} Gill and Feltner filed a motion to dismiss the claims against them,
arguing that they were not served within the allotted statutory period. A hearing was
held on November 24, 2008, at which the trial court ordered counsel to “convert [the
motion to dismiss] to summary judgment and submit any affidavits.” The trial judge
told the parties in open court to “get a new date for summary judgment,” and then
stated, “I don’t think anything else needs to be filed, [except] any other affidavits that
you would consider appropriate.”
{¶4} Feltner and Gill filed affidavits in December 2008. Feltner stated in
his affidavit the following: At the time of the accident, he was living at “710 Fairfield
Avenue, Bellvue, Kentucky, 41073” with his mother, Gill. He stated that he had
provided that address to the police officer who had responded to the traffic accident
2 OHIO FIRST DISTRICT COURT OF APPEALS
and had completed the traffic crash report. A copy of the police report indicated that
Feltner lived at the Fairfield Avenue address. Feltner also stated that at the time that
Garrett filed her complaint in 2007, he was still living at this same address; however,
Garrett’s complaint, attached to Feltner’s affidavit, indicated that Feltner was living
at “710 Kentucky Route 8, Dayton, Kentucky, 41074.” Feltner stated that he moved
to his current address, 510 Main Street, Apartment #2, Dayton, Kentucky, 41074, in
February 2008. He was served at the Main Street address by the special process
server on March 19, 2008. He stated that before and after his move he had had
uninterrupted mail service and that at no time since the traffic accident had he
attempted to “abscond, conceal [himself], or avoid service of process. He stated that
the only reason he moved was because the owner at his previous address had sold the
building. Gill’s affidavit essentially contained the same information, and she stated
that at no time since the traffic accident had she attempted to abscond, conceal
herself, or avoid service of process.
{¶5} On March 11, 2009, the trial court held a hearing on the summary
judgment motions, and concluded that Gill and Feltner were not served within the
statutory period and entered summary judgment in their favor. In its entry granting
summary judgment, the trial court stated that this was a final appealable order but
the “remainder of this suit, pending against Defendants [American Family and
Nationwide1] is still pending before this court.” Garrett appealed the grant of
summary judgment and this court dismissed the appeal, holding that the trial court’s
order had lacked “the requisite language under Civ.R. 54” and thus was not “final
and appealable.”2
1 Nationwide was dismissed as a defendant on May 14, 2009. 2 Garrett v. Gill (April 21, 2010), 1st Dist. No. C-090282.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Garrett filed a motion for the trial court to amend its entry granting
summary judgment in favor of Gill and Feltner to include the appropriate language
under Civ.R. 54(B). The court did so, and Garrett now appeals from that entry,
setting forth three assignments of error.
{¶7} Before we address her assignments of error, we must address
Garrett’s argument that this appeal should also be dismissed because it is not a final,
appealable order. But in her argument Garrett refers only to the original judgment
entry, which we have already held was not a final, appealable order. She raises no
argument with respect to the corrected judgment entry from which she is now
appealing. After reviewing the current judgment entry, we hold that it is a final,
appealable order as it contains the requisite Civ.R. 54(B) language.3
{¶8} Turning to her assignments of error, we only address the second and
third assignments as Garrett withdrew her first assignment of error at oral argument
before this court.
{¶9} In her second assignment of error, Garrett maintains that the trial
court erred by granting “defendants Sharon L. Gill and Jenrick Feltners’ motion to
dismiss after considering extraneous evidence submitted by the defendants.” Garrett
argues that although the trial court had requested that the “motion to dismiss” be
converted to a “motion for summary judgment,” Feltner and Gill never filed a motion
for summary judgment and, therefore, the trial court erred by considering their
affidavits in ruling on the motion to dismiss.
{¶10} After a review of the record, we overrule this assignment of error. The
record clearly demonstrates that the trial court, upon its own motion in open court,
3 Wiley v. Good Samaritan Hosp., 1st Dist. Nos. C-030131 and C-030181, 2004-Ohio-763, ¶18 (internal citation omitted).
4 OHIO FIRST DISTRICT COURT OF APPEALS
when both parties were present, converted the motion to dismiss to one for summary
judgment, and then ordered the parties to select a new date for arguments on the
summary-judgment motion. The trial court then told the parties that nothing else
needed to be filed with the court except possibly any affidavits that the parties
wanted to submit in support of or in opposition to summary judgment.
{¶11} In her third assignment of error, Garrett maintains that the trial court
erred by finding that Gill and Feltner were not served within the allotted statutory
time period and thus erred by entering summary judgment in their favor. We are
unpersuaded.
{¶12} Civ.R. 56(C) provides that summary judgment shall be rendered
where (1) there is no genuine issue of material fact; (2) the moving party is entitled to
summary judgment as a matter of law; and (3) reasonable minds can come to only
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Garrett v. Gill, 2011-Ohio-3449.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
ANGELA RENEE GARRETT : APPEAL NO. C-100624 TRIAL NO. A-0702111 Plaintiff-Appellant, : D E C I S I O N. vs. :
SHARON L. GILL :
and :
JENRICK FELTNER, :
Defendants-Appellees, :
AMERICAN FAMILY MUTUAL : INSURANCE COMPANY
Defendant. :
Civil Appeal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 13, 2011
Edward T. Kathman, for Plaintiff-Appellant,
Joyce V. Kimbler, for Defendants-Appellees.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
H ILDEBRANDT , Presiding Judge.
{¶1} Plaintiff-appellant Angela Renee Garrett appeals from the trial court’s
grant of summary judgment to defendants-appellees Sharon Gill and Jenrick Feltner.
For the following reasons, we affirm.
{¶2} On March 4, 2005, Garrett was a passenger in an automobile driven
by Feltner, a Kentucky resident. The vehicle was involved in an accident on Kellogg
Avenue in Hamilton County, Ohi0, and Garrett was injured. On March 5, 2007, she
filed suit against Gill, the owner of the vehicle, Feltner, Nationwide Mutual Fire
Insurance Company, and American Family Mutual Insurance Company. Nationwide
insured Gill and Feltner, and Garrett was insured by American Family. Garrett was
initially unable to obtain service upon Gill and Feltner, and on March 19, 2008, a
special process server was appointed, who successfully served Gill and Feltner with a
copy of the complaint and summons.
{¶3} Gill and Feltner filed a motion to dismiss the claims against them,
arguing that they were not served within the allotted statutory period. A hearing was
held on November 24, 2008, at which the trial court ordered counsel to “convert [the
motion to dismiss] to summary judgment and submit any affidavits.” The trial judge
told the parties in open court to “get a new date for summary judgment,” and then
stated, “I don’t think anything else needs to be filed, [except] any other affidavits that
you would consider appropriate.”
{¶4} Feltner and Gill filed affidavits in December 2008. Feltner stated in
his affidavit the following: At the time of the accident, he was living at “710 Fairfield
Avenue, Bellvue, Kentucky, 41073” with his mother, Gill. He stated that he had
provided that address to the police officer who had responded to the traffic accident
2 OHIO FIRST DISTRICT COURT OF APPEALS
and had completed the traffic crash report. A copy of the police report indicated that
Feltner lived at the Fairfield Avenue address. Feltner also stated that at the time that
Garrett filed her complaint in 2007, he was still living at this same address; however,
Garrett’s complaint, attached to Feltner’s affidavit, indicated that Feltner was living
at “710 Kentucky Route 8, Dayton, Kentucky, 41074.” Feltner stated that he moved
to his current address, 510 Main Street, Apartment #2, Dayton, Kentucky, 41074, in
February 2008. He was served at the Main Street address by the special process
server on March 19, 2008. He stated that before and after his move he had had
uninterrupted mail service and that at no time since the traffic accident had he
attempted to “abscond, conceal [himself], or avoid service of process. He stated that
the only reason he moved was because the owner at his previous address had sold the
building. Gill’s affidavit essentially contained the same information, and she stated
that at no time since the traffic accident had she attempted to abscond, conceal
herself, or avoid service of process.
{¶5} On March 11, 2009, the trial court held a hearing on the summary
judgment motions, and concluded that Gill and Feltner were not served within the
statutory period and entered summary judgment in their favor. In its entry granting
summary judgment, the trial court stated that this was a final appealable order but
the “remainder of this suit, pending against Defendants [American Family and
Nationwide1] is still pending before this court.” Garrett appealed the grant of
summary judgment and this court dismissed the appeal, holding that the trial court’s
order had lacked “the requisite language under Civ.R. 54” and thus was not “final
and appealable.”2
1 Nationwide was dismissed as a defendant on May 14, 2009. 2 Garrett v. Gill (April 21, 2010), 1st Dist. No. C-090282.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Garrett filed a motion for the trial court to amend its entry granting
summary judgment in favor of Gill and Feltner to include the appropriate language
under Civ.R. 54(B). The court did so, and Garrett now appeals from that entry,
setting forth three assignments of error.
{¶7} Before we address her assignments of error, we must address
Garrett’s argument that this appeal should also be dismissed because it is not a final,
appealable order. But in her argument Garrett refers only to the original judgment
entry, which we have already held was not a final, appealable order. She raises no
argument with respect to the corrected judgment entry from which she is now
appealing. After reviewing the current judgment entry, we hold that it is a final,
appealable order as it contains the requisite Civ.R. 54(B) language.3
{¶8} Turning to her assignments of error, we only address the second and
third assignments as Garrett withdrew her first assignment of error at oral argument
before this court.
{¶9} In her second assignment of error, Garrett maintains that the trial
court erred by granting “defendants Sharon L. Gill and Jenrick Feltners’ motion to
dismiss after considering extraneous evidence submitted by the defendants.” Garrett
argues that although the trial court had requested that the “motion to dismiss” be
converted to a “motion for summary judgment,” Feltner and Gill never filed a motion
for summary judgment and, therefore, the trial court erred by considering their
affidavits in ruling on the motion to dismiss.
{¶10} After a review of the record, we overrule this assignment of error. The
record clearly demonstrates that the trial court, upon its own motion in open court,
3 Wiley v. Good Samaritan Hosp., 1st Dist. Nos. C-030131 and C-030181, 2004-Ohio-763, ¶18 (internal citation omitted).
4 OHIO FIRST DISTRICT COURT OF APPEALS
when both parties were present, converted the motion to dismiss to one for summary
judgment, and then ordered the parties to select a new date for arguments on the
summary-judgment motion. The trial court then told the parties that nothing else
needed to be filed with the court except possibly any affidavits that the parties
wanted to submit in support of or in opposition to summary judgment.
{¶11} In her third assignment of error, Garrett maintains that the trial court
erred by finding that Gill and Feltner were not served within the allotted statutory
time period and thus erred by entering summary judgment in their favor. We are
unpersuaded.
{¶12} Civ.R. 56(C) provides that summary judgment shall be rendered
where (1) there is no genuine issue of material fact; (2) the moving party is entitled to
summary judgment as a matter of law; and (3) reasonable minds can come to only
one conclusion, and that conclusion is adverse to the party against whom the motion
for summary judgment is made, who is entitled to have the evidence construed most
strongly in his favor.4 An appellate court’s standard of review on appeal from
summary judgment is de novo.5
{¶13} In their original motion to dismiss, later converted to a summary-
judgment motion, Gill and Feltner argued that the complaint against them should be
dismissed because Garrett had not perfected service within one year of filing her
complaint, as required by Civ.R. 3(A). In response, Garrett argued that because Gill
and Feltner were out of state defendants, R.C. 2305.15 applied to toll the time period
set forth in Civ.R. 3(A).
4 Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46. 5 Burgess v. Tackas (1998), 125 Ohio App.3d 294, 296, 708 N.E.2d 285.
5 OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} Initially, we note that Garrett had two years from the date of the
traffic accident to bring her cause of action for bodily injury under R.C. 2305.10(A).
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.” Thus, for purposes of the statute of limitations, a cause of action is
considered commenced if the action is filed within the applicable limitations period
and service is obtained within one year from the filing of the complaint.6 If service is
not obtained within one year after the filing of the complaint against a defendant, the
action commences, for purposes of applying the statute of limitations, on the date
service is obtained.7
{¶15} As noted above, Garrett had to bring her personal injury action within
two years from the date of the traffic accident, which occurred on March 4, 2005.
Garrett filed her complaint on March 5, 2007, the day that the statute of limitations
expired under R.C. 2305.10(A). (Technically, the statute of limitations expired on
March 4, 2007, but that date was a Sunday and the Hamilton County Clerk of Courts
office was closed. Therefore, under Civ.R. 6(A), Garrett had until the next business
day to file her complaint.) Although her complaint was filed on March 5, 2007, Gill
and Feltner were not served until March 19, 2008, over one year later. Under a plain
reading of Civ.R. 3(A), Garrett’s complaint was properly dismissed. Further, the trial
court properly entered summary judgment in favor of Gill and Feltner because the
limitations period had run on Garrett’s personal injury claim as her action was
considered commenced as of March 19, 2008, over three years after the traffic
accident had occurred.8
6 See Braswell v. Duncan (Nov. 26, 1997), 8th Dist. No. 72038. 7 Allis-Chalmers Credit Corp. v. Herbolt (1984), 17 Ohio App.3d 230, 235, 479 N.E.2d 293. 8 See Id.; Braswell, supra.
6 OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} Nevertheless, Garrett maintains that R.C. 2305.15 tolled the one-year
period to perfect service under Civ.R. 3(A) while the defendants were absent from
the state. We disagree.
{¶17} R.C. 2305.15 provides that “[w]hen a cause of action accrues against a
person, if he is out of the state, has absconded, or conceals self, the period of
limitation for the commencement of the action as provided in sections 2305.04 to
2305.14, 1302.98, 1304.35 of the Revised Code does not begin to run until the person
comes into the state or while the person is so absconded or concealed. After the
cause of action accrues if the person departs from the state, absconds, or conceals
self, the time of the person’s absence or concealment shall not be computed as any
part of a period within which the action must be brought.”
{¶18} By its plain language, R.C. 2305.15 is only applicable to the specific
limitation-of-action statutes it identifies, which concern when an action is brought.9
Thus, while R.C. 2305.15 may apply to toll the two-year statute of limitations period
for bringing a personal injury action, it does not apply to toll time limits set forth in
the civil rules.10 In fact, the Ohio Supreme Court, in Saunders v. Choi, held that the
tolling provisions of R.C. 2305.15 cannot be used to extend the one-year time
limitation within which to commence an action under Civ.R. 3(A).11 Accordingly, the
effect of Saunders combined with a plain reading of R.C. 2305.15 is that a plaintiff
may choose to defer the filing of his complaint indefinitely while the defendant is
absent from the state under R.C. 2305.15, but if the plaintiff does file during such
time, service must nevertheless be obtained within one year from the date of filing
9 Gay v. Tarke (Mar. 9, 1994), 2nd Dist. No. C.A. 14034. 10 Greene v. Goulding (Dec. 11, 1991), 5th Dist. No. CA-2856; Spiegel v. Westafer, 3rd Dist. No. 14-05-18, 2005-Ohio-6033; Jones v. Casey (Aug. 11, 1994), 8th Dist. No. 65624; Poinar v. Richfield Twp. (Aug. 22, 2001), 9th Dist. Nos. 20383 and 20384. 11 (1984), 12 Ohio St.3d 247, 466 N.E.2d 889, syllabus.
7 OHIO FIRST DISTRICT COURT OF APPEALS
under Civ.R. 3(A).12 Thus, although Garrett could have indefinitely waited to bring
her cause of action while the defendants were absent from the state, once she made
the choice to file the action, she had to abide by Civ.R. 3(A) and serve the defendants
within one year. She failed to do so.
{¶19} We briefly note that we are not making any judgment as to whether
Garrett would have been successful in applying the tolling provisions under R.C.
2305.15 to the statute of limitations period for a personal injury action if she had
chosen to delay bringing her action. While the parties would like us to reach that
issue because there is current case law suggesting that R.C. 2305.15 may not be
applied to out-of-state defendants when to do so would be an impermissible burden
on interstate commerce by subjecting such defendants to perpetual liability,13 it is
unnecessary for us to do so as Garrett brought her action within the limitations
period set forth in R.C. 2305.10(A). Therefore, the only issue before us is whether
the tolling provisions of R.C. 2305.15 apply to Civ.R. 3(A). Relying on Saunders, we
have held that they do not. Finally, if any of Garrett’s arguments on appeal can be
construed as asserting that Feltner and Gill avoided service, we reject those. Feltner
and Gill both provided affidavits indicating that at no time since the traffic accident
occurred had they attempted to avoid service of process. Garrett did not present any
evidence to refute the affidavits.
{¶20} Accordingly, we hold that summary judgment was properly entered in
favor of Gill and Feltner as Garrett’s action was barred by the statute of limitations
because she had failed to perfect service within a year of bringing her action.
Gay, supra, citing Saunders at 251 (Brown, J. dissenting); Greene, supra. 12 13See Reynoldsville Casket Co. v. Hyde (1995), 514 U.S. 749, 115 S.Ct. 1745; Ruble v. Ream, 4th Dist. No. 03CA14, 2003-Ohio-5969.
8 OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} The third assignment of error is overruled, and the trial court’s
judgment is affirmed.
Judgment affirmed.
C UNNINGHAM and F ISCHER , JJ., concur.
Please Note: The court has recorded its own entry this date.