LaNeve v. Atlas Recycling, Inc.

872 N.E.2d 1277, 172 Ohio App. 3d 44, 2007 Ohio 2856

• Court: Ohio Court of Appeals
• Decided: June 18, 2007
• Docket: No. 2006-T-0032.
• Status: Published

Opinions

Colleen Mary O’Toole, Judge.

{¶ 1} John and Melissa LaNeve appeal from the judgment of the Trumbull County Court of Common Pleas, dismissing their action against China Shipping (North America) Holding Co., Ltd., and ContainerPort Group, Inc., pursuant to Civ.R. 12(B)(6). We reverse and remand.

{¶ 2} Mr. LaNeve alleges that he suffered injuries at his place of employment, Atlas Recycling, Inc., on May 28, 2002. On May 28, 2004, he and Mrs. LaNeve filed the underlying action for intentional tort, negligence, and loss of consortium against Atlas and various “John Doe” defendants. On May 6, 2005, the LaNeves filed an amended complaint, replacing two of the John Doe defendants with China Shipping and ContainerPort and instructing the clerk to issue summons by certified mail. The docket indicates that certified mail containers were prepared on or about May 19, 2005, and summons issued on May 23, 2005. The certified mail receipt from ContainerPort indicates service of the summons and amended complaint was made on May 26, 2005; that from China Shipping shows service was made on June 2, 2005.

{¶ 3} On July 1, 2005, ContainerPort answered the amended complaint, asserting the defenses of failure of and/or improper service and the statute of limitations. On July 28, 2005, China Shipping filed a motion to dismiss the amended complaint for failure to state a claim, pursuant to Civ.R. 12(B)(6). China Shipping asserted that it had not been personally served with the amended complaint and summons, as required with former John Doe defendants pursuant to Civ.R. 15(D), within the year required by Civ.R. 3(A). Consequently, it argued that the amended complaint was time-barred, as it did not relate back to the filing of the original complaint, which occurred the day the statute of limitations for the LaNeves’ claims ran, on May 28, 2004.

{¶ 4} On August 23, 2005, ContainerPort moved to dismiss the amended complaint on substantially the same basis as had China Shipping. The LaNeves opposed on December 19, 2005, and China Shipping filed a reply brief on December 29, 2005. The trial court held an evidentiary hearing on January 5, 2006. On February 7, 2006, the trial court dismissed the claims against China Shipping and ContainerPort, with prejudice, as time-barred. On March 2, 2006, the trial court filed a nunc pro tunc entry, finding that there was “no just reason for delay.”

{¶ 5} On March 7, 2006, the LaNeves timely noticed this appeal, assigning three errors:

{¶ 6} “[1] The trial court erred in ruling that appellants’ claims against appellees were time barred by the two year statute of limitations because Civil Rule 15(D) conflicts with other law, and thus, is invalid, unenforceable and does not apply to this case.

{¶ 7} “[2] The trial court erred in ruling that appellants’ claims against appellees were time barred by the two year statute of limitations because appellants’ amended complaint relates back to the original complaint, which was timely filed.

{¶ 8} “[3] The trial court erred in ruling that appellants’ claims against appellees were time barred by the two year statute of limitations when the clerk of courts unreasonably delayed preparing and issuing summons.”

{¶ 9} We deal with the assignments en masse.

{¶ 10} The basis for the motions to dismiss filed by defendants in this case is the conjunction between Civ.R. 3(A), 15(C), and 15(D), with the two-year statute of limitations for personal injury. China Shipping and ContainerPort argued in the trial court, and continue to argue, as follows:

{¶ 11} Civ.R. 15(D) demands that personal service of the summons and complaint and/or amended complaint be made on a former John Doe defendant when its name is discovered. 1 It requires that the original complaint be served on such a defendant. It requires that certain “magic language” be included in the complaint and/or amended complaint and one or more of the summonses. The LaNeves never served the original complaint on China Shipping or ContainerPort at all; they served the amended complaint by certified mail. Thus, service was improper under Civ.R. 15(D), and the amended complaint does not relate back under Civ.R. 15(C).

{¶ 12} Civ.R. 3(A) provides that a civil action is commenced by filing a complaint with the court, if service is achieved within a year of the filing. The original complaint in this case was filed on May 28, 2004, the last day of the applicable limitations period. Since proper service was not achieved under Civ.R. 15(D) on either China Shipping or ContainerPort within a year of May 28, 2004, this action did not commence within the limitations period, and it is time-barred.

{¶ 13} The flaw in this argument results from failure to account for the interaction of Civ.R. 3(A) and the savings statute, R.C. 2305.19. In Goolsby v. Anderson Concrete Corp. (1991), 61 Ohio St.3d 549, 575 N.E.2d 801, at the syllabus, the Supreme Court of Ohio held:

{¶ 14} “When service has not been obtained within one year of filing a complaint, and the subsequent refiling of an identical complaint within rule would provide an additional year within which to obtain service and commence an action under Civ.R. 3(A), an instruction to the clerk to attempt service on the complaint will be equivalent to a refiling of the complaint.”

{¶ 15} This rule applies, even though the statute of limitations expires during the one-year period for service obtained by the “refiling.” Cf. Goolsby, 61 Ohio St.3d at 550, 575 N.E.2d 801.

{¶ 16} In Fetterolf v. Hoffmann-LaRoche, Inc. (1995), 104 Ohio App.3d 272, 279, 661 N.E.2d 811, we extended the rule in Goolsby to situations in which a would-be plaintiff files an amended complaint, with demand for service, within the limitations period.

{¶ 17} In Nationwide Mut. Ins. Co. v. Galman, 7th Dist. No. 03 MA 202, 2004-Ohio-7206, 2004 WL 3090212, the court held that a second amended complaint, filed outside the two-year statute of limitations for personal injury, was valid, since it benefitted from operation of the savings statute due to filing of the first amended complaint within the limitations period. Id. at ¶ 28.

{¶ 18} In the instant case, the LaNeves filed their original complaint, including various John Doe defendants, on May 28, 2004 — the final day allowed by the two-year statute of limitations, R.C. 2305.10. This was an attempt to commence their actions against China Shipping and ContainerPort, within the limitations period, as required to preserve the savings statute. R.C. 2305.19(A). They filed their amended complaint, with instructions for service, May 6, 2005, within the one-year period allowed for service by Civ.R. 3(A). Pursuant to the authority of Fetterolf, 104 Ohio App.3d at 279, 661 N.E.2d 811, this was the equivalent of a voluntary dismissal and refiling: i.e., a failure “otherwise than upon the merits,” bringing the savings statute into operation. Cf. Calman at ¶ 24-35. Thus, the LaNeves had one year from May 6, 2005, to perfect service upon China Shipping and ContainerPort, pursuant to R.C. 2305.19(A).

{¶ 19} We are aware that other appellate courts have held that a plaintiff may not benefit from the savings statute when its attempt to commence an action is not fully compliant with the Civil Rules. Thus, in Kramer v. Installations Unltd., Inc. (2002), 147 Ohio App.3d 350, 355-356, 770 N.E.2d 632, the Fifth District ruled that a plaintiff had not attempted to commence an action against a John Doe defendant, within the meaning of the savings statute, when that plaintiff did not attempt personal service as required by Civ.R. 15(D). The Kramer court relied, in part, on a similar ruling by the Eighth District in Permanent Gen. Cos Ins. Co. v. Corrigan (May 24, 2001), 8th Dist. No. 78290, 2001 WL 563072. In this case, of course, the LaNeves did not demand personal service on China Shipping or ContainerPort of either the original complaint and summons, or the amended complaint and summons, when the latter was filed. Pursuant to the authority of Kramer and Permanent Gen. Cos Ins. Co., this failure to demand proper service under Civ.R. 15(D) would be fatal to the LaNeves’ actions.

{¶ 20} We respectfully believe that those courts construing the phrase “attempted to be commenced,” as used in the savings statute, R.C. 2305.19(A), to mean “would have commenced except for some failure by the clerk, the process server, or the postal system,” are reading too much into this simple phrase. It means what it says: the savings statute preserves, for a year, any action that a would-be plaintiff has tried to commence, without success, due to the circumstances listed in the statute. A failure to comply with technical service rules— such as that in Civ.R. 15(D) — is exactly the sort of attempt to commence an action to which the savings statute is directed.

{¶ 21} It should be recalled that service of process exists for two reasons: (1) so a defendant knows an action is pending and may properly defend itself and (2) to give the court in which the action is filed personal jurisdiction. Service of process is a practical thing, not an abstraction for the delectation of legal scholars, and the courts of Ohio should construe the civil rules regulating it in a practical light. See, e.g., Civ.R. 1(B). This case is illustrative. Both China Shipping and ContainerPort received actual notice of the pendency of the LaNeves’ claims, within a period appropriate under the statute of limitations, Civ.R. 3(A), and the savings statute, unless the technical service requirements of Civ.R. 15(D) are allowed to trump all other considerations. This runs contrary to the spirit and intent of the Civil Rules.

{¶22} The judgment of the Trumbull County Court of Common Pleas is reversed, and the matter is hereby remanded for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

O’Neill, J., concurs. Grendell, J., dissents.

1 . We do not quibble with the point that personal service is required under the rule. We would note, for benefit of parties and counsel, that there is some question as to whether the original complaint and summons, or the amended complaint and summons, are the matters requiring personal service under Civ.R. 15(D). See, e.g., Burya v. Lake Metroparks Bd. of Park Commrs., 11th Dist. No. 2005-L-015, 2006-Ohio 5192, 2006 WL 2798294, at ¶ 38-39 (original complaint and summons, not amended complaint and summons, must be personally served under Civ.R. 15(D)). See, also, Easter v. Complete Gen. Constr. Co., 10th Dist. No. 06AP-763, 2007-Ohio-1297, 2007 WL 853337, at ¶ 24-29. But, see, Miller v. Am. Family Ins. Co., 6th Dist. No. OT-02-011, 2002-Ohio-7309, 2002 WL 31888219, at ¶ 37 (amended complaint and summons to be personally served). It seems that prudent counsel should request personal service of both the original and amended complaints and summons and should otherwise comply strictly with the provisions of Civ.R. 15(D), in regard to any pleading served on a John Doe or former John Doe defendant.