Gibson v. Williams

2023 Ohio 3760

• Court: Ohio Court of Appeals
• Decided: October 16, 2023
• Docket: 2023-A-0026
• Status: Published

Opinion

[Cite as Gibson v. Williams, 2023-Ohio-3760.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

ROBERT E. GIBSON, CASE NO. 2023-A-0026

Plaintiff-Appellant, Civil Appeal from the - vs - Court of Common Pleas

PATRICIA L. WILLIAMS, Trial Court No. 2022 DR 00190 Defendant-Appellee.

OPINION

Decided: October 16, 2023 Judgment: Reversed and remanded

Robert E. Gibson, pro se, PID# A532-829, Lebanon Correctional Institution, P.O. Box 56, Lebanon, OH 45036 (Plaintiff-Appellant).

Patricia L. Williams, pro se, 1127 Forest Avenue, Alliance, OH 44601 (Defendant- Appellee).

MATT LYNCH, J.

{¶1} Plaintiff-appellant, Robert E. Gibson, appeals the dismissal of his Complaint

for Annulment for failure to prosecute. For the following reasons, we reverse the decision

of the lower court and remand for further proceedings consistent with this Opinion.

{¶2} On May 10, 2022, Gibson filed a Complaint for Annulment against

defendant-appellee, Patricia L. Williams.

{¶3} On June 3, 2022, service by certified mail was attempted on Williams at a

Warren, Ohio address and returned unclaimed. {¶4} On December 1, 2022, a Magistrate’s Order issued noting that “[i]t has been

six months since the filing of the Complaint” and “[s]ervice has not been perfected.”

Gibson was allowed 30 days “to show good cause why the Complaint should not be

dismissed.”

{¶5} On December 30, 2022, Gibson filed a Motion for Good Cause setting forth

the following reasons why the Complaint should not be dismissed:

1. When plaintiff filed the complaint 1734 Ogden Avenue, Warren, Ohio 44483 was the last known address Plaintiff had of the defendant.

2. Plaintiff is an inmate who cannot afford to pay a private investigator to locate defendant Patricia Williams[’] whereabouts. Also when the complaint was filed the defendant changed her phone number and removed herself from jpay, in which plaintiff lost all contact with her up until now.

3. Just recently defendant contacted plaintiff and sent her number [sic] where I was able to call and receive her new address.

{¶6} On January 30, 2023, service by certified mail was attempted on Williams

at an Alliance, Ohio address and returned unclaimed.

{¶7} On February 9, 2023, Gibson filed a Written Request for Ordinary Mail

Service on Williams at the Alliance address. Service by ordinary mail was effected on

February 13.

{¶8} On April 6, 2023, the trial court issued a Judgment Entry dismissing the

Complaint for Annulment for failure to prosecute. The Entry stated: “The docket reflects

that Robert Gibson has not shown good cause as to why the Complaint for Annulment

should not be dismissed. By Magistrate’s Order filed on December 1, 2022 he was given

thirty days to show good cause and has failed to do so.”

Case No. 2023-A-0026 {¶9} On April 27, 2023, Gibson filed a Notice of Appeal. On appeal, he raises

the following assignments of error:

[1.] The trial court erred and abused its discretion in dismissing Appellant’s Complaint for Annulment for failure to prosecute where Appellant showed cause why the Complaint should not be dismissed.

[2.] The trial court erred and abused its discretion in dismissing Appellant’s Complaint for Annulment for failure to prosecute where Appellant exercised reasonable due diligence to serve the Complaint upon the Appellee.

{¶10} The assignments of error will be considered jointly.

{¶11} “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 * * *.” Civ.R. 3(A).

“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.” Civ.R. 4(E).

{¶12} Alternatively, “[w]here the plaintiff fails to prosecute, or comply with these

rules or any court order, the court upon motion of a defendant or on its own motion may,

after notice to the plaintiff’s counsel, dismiss an action or claim.” Civ.R. 41(B)(1).

{¶13} Dismissal of a complaint, whether under Civ.R. 4(E) or 41(B)(1), is reviewed

for abuse of discretion. Cleavenger v. B.O., 2022-Ohio-454, 184 N.E.3d 968, ¶ 31 (9th

Dist.); Troxel v. Mabe, 12th Dist. Clermont No. CA2008-02-018, 2008-Ohio-5420, ¶ 8.

Likewise, under either Rule the dismissal for failure to obtain service is without prejudice,

Case No. 2023-A-0026 i.e., “otherwise than on merits.” Thomas v. Freeman, 79 Ohio St.3d 221, 680 N.E.2d 997

(1997), paragraph one of the syllabus.

{¶14} In the present case, neither the Magistrate’s Order for Gibson to show

cause nor the Judgment Entry dismissing the complaint specified the Rule under which

the Complaint was being dismissed. Id. (“[s]ince Civ.R. 4(E) allows a plaintiff to show

good cause why his or her case should not be dismissed, the lack of a showing of good

cause is the equivalent of a failure to prosecute”).

{¶15} We find the dismissal of the Complaint to be an abuse of discretion. Gibson

complied with the Magistrate’s Order to show cause for not dismissing the Complaint

within 30 days of the Order. Gibson, an inmate, did attempt service within six months of

the filing of the Complaint at Williams’ last known address. Gibson further advised the

trial court that he had been contacted by Williams and anticipated learning her current

address. As noted above, it is unclear from the Entry dismissing the Complaint whether

the court considered or was aware of Gibson’s cause for failing to perfect service.

{¶16} About thirty days after the filing of the Motion for Cause, Gibson attempted

service by certified mail on Williams at a new address and about two weeks after the

second attempted service by certified mail completed service by ordinary mail. See

Civ.R. 4.6(D). Thus, at the time the trial court dismissed the Complaint, service had been

perfected upon Williams within the time allowed by Civ.R. 3(A). At this point, there was

little justification for dismissal inasmuch as Gibson had shown cause for not obtaining

service within six months of filing the Complaint and had shown diligence in obtaining

service. Compare Briggs v. Glenbeigh Health Servs., 8th Dist. Cuyahoga Nos. 77395

and 77665, 2000 WL 1754008, *4 (“[w]e do not believe that Civ.R. 4(E) is meant to be

Case No. 2023-A-0026 used as a vehicle to dismiss cases once service has been properly perfected, but rather

is intended to apply to those situations where there is no service and where the plaintiff

has been dilatory in attempting to obtain service on a defendant”).

{¶17} The sole assignment of error is with merit.

{¶18} For the foregoing reasons, the Judgment of the Ashtabula County Court of

Common Pleas is reversed and this matter is remanded for further proceedings consistent

with this Opinion. Costs to be taxed against the appellee.

EUGENE A. LUCCI, J.,

ROBERT J. PATTON, J.,

concur.

Case No. 2023-A-0026