[Cite as Palmer v. O'Brien, 2011-Ohio-5208.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
: DAVID D. PALMER Plaintiff-Appellant : C.A. CASE NO. 24258
vs. : T.C. CASE NO. 10-CV-362
: (Civil Appeal from DANIEL L. O’BRIEN Common Pleas Court) Defendant-Appellee :
. . . . . . . . .
O P I N I O N
Rendered on the 7th day of October, 2011.
David Palmer, #329-601, 1001 Olivesburg Road, P.O. Box 8107, Mansfield, OH 44901 Pro Se Plaintiff-Appellant
GRADY, P.J.:
{¶ 1} This is an appeal from a final order entered in Montgomery
County Common Pleas Court Case No. 2010CV00362 pursuant to Civ.R.
4(E), dismissing the action, with prejudice, pursuant to Civ.R.
12(B)(5) for failure of service of process.
{¶ 2} On May 18, 2010, the trial court entered an order, sua
sponte, requiring Plaintiff David D. Palmer to show cause within
fourteen days why his action should not be dismissed pursuant to 2
Civ.R. 12(B)(5) for failure of service on Defendant Daniel L.
O’Brien. The court found that, pursuant to Civ.R. 3(A), the action
had not been “commenced” because service was not obtained within
one year after the complaint in the action was filed. The court
also ordered the clerk “to serve a copy of this decision and Judgment
Entry upon the plaintiff within three (3) days of the entering
of the Judgment on the Journal, in a manner prescribed in Civ.R.
5(B)[sic] and note service in the appearance docket.” (Dkt 7).
{¶ 3} Palmer filed no response to the show cause order within
the fourteen days the court allowed. On August 16, 2010, the trial
court ordered the action “dismissed with prejudice” . .. “[f]or
the reasons set forth in the Court’s prior judgment entry, filed
May 18, 2010.” Palmer filed a notice of appeal from the order
of dismissal on September 13, 2010. (Dkt. 15).
FIRST ASSIGNMENT OF ERROR
{¶ 4} “THE TRIAL COURT ERRED TO THE SUBSTANTIAL PRINCIPLES
[SIC] OF APPELLANT BY DISMISSAL OF CASE FOR JUDGMENT AGAINST
DEFENDANT WHEN THE DAYTON BAR ASSOCIATION HAD RULES [SIC] ON THE
MATTER OF FEE DISPUTE. THE TRIAL COURT EXCEEDED IT’S [SIC]
AUTHORITY WHEN IT REFUSED TO FOLLOW THE DAYTON BAR ASSOCIATION
RULINGS.”
{¶ 5} Prior to 2004, Palmer retained O’Brien as counsel to
represent Palmer in criminal proceedings. A fee dispute arose 3
between Palmer and O’Brien. In January of 2004, Palmer and O’Brien
submitted the fee dispute to binding arbitration before the
Committee on Fee Dispute Arbitration of the Dayton Bar Association.
The Committee on Fee Dispute found that O’Brien was entitled to
only $2,950 of the $7,000.00 retainer he collected from Palmer.
O’Brien has since been indefinitely suspended from the practice
of law. Dayton Bar Association v. Daniel L. O’Brien (August 11,
2004), Sup. Ct. Case No. 04-85.
{¶ 6} Palmer argues that the trial court should have granted
a judgment in his favor for the amount which the Dayton Bar
Association found that O’Brien owes Palmer. That argument
involves the merits of Palmer’s claim for relief. Absent timely
service of process on O’Brien, Palmer is not entitled to relief
on his claim.
{¶ 7} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 8} “THE HONORABLE COURT OF RICHLAND COUNTY, OHIO ERRED BY
TRANSFERRING THIS CASE TO THE COMMON PLEAS COURT OF MONTGOMERY
COUNTY, OHIO.”
{¶ 9} Palmer filed a prior action against O’Brien seeking
similar relief in Richland County, where Palmer is incarcerated.
The Richland County court dismissed the action for lack of subject
matter jurisdiction and improper venue. On review, the Fifth 4
District Court of Appeals reversed, holding that the action should
instead have been transferred to Montgomery County. Palmer v.
O’Brien, Richland App. No. 04CA38, 2004-Ohio-5365.
{¶ 10} The present case involves a second action against O’Brien
that Palmer also filed in Richland County. The Richland County
Court likewise transferred that action to Montgomery County, where
it was docketed as Case No. 2010CV00362.
{¶ 11} Palmer does not explain how the Richland County Court
erred in transferring his case. The issue of venue in the present
action is no different from the issue of venue the Fifth District
decided in the prior action. The Richland County court did not
err when it also transferred the present action to Montgomery
County.
{¶ 12} The second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 13} “THE TRIAL COURT OF MONTGOMERY COUNTY ERRED TO THE
PRINCIPLE [SIC] OF APPELLANTS [SIC] SUBSTANTIAL RIGHTS BY NOT
PROVIDING SERVICE ON THE JUDGMENT ENTY [SIC] THEY FILED ON MAY
18, 2010 AND SHOWN ON THE FINAL JUDGMENT ENTRY BY THE VISITING
JUDGE. THIS VIOLATES THE APPELLANTS [SIC] CONSTITUTIONAL RIGHTS.”
{¶ 14} The Montgomery County Court of Common Pleas stated in
its May 18, 2010 order to show cause that it intended to dismiss
Palmer’s complaint because he failed to serve the summons and 5
complaint on O’Brien within the one year that Civ.R. 3(A) requires.
In doing that, the court acted sua sponte. Civ.R. 4(E) authorizes
such dismissals, and provides:
{¶ 15} “Summons: time limit for service. 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. This division
shall not apply to out-of-state service pursuant to Rule 4.3 or
to service in a foreign country pursuant to Rule 4.5.” (Emphasis
supplied.)
{¶ 16} The May 18, 2010 order gave Palmer both notice of its
intent to dismiss the action and an opportunity to show why the
action should not be dismissed. Palmer contends that he did not
respond because he did not receive a copy of the May 18, 2010 order.
On the last page of its May 18, 2010 order, the court directed
the clerk of courts to serve a copy of the entry upon Palmer within
three days of entering of the judgment on the journal and to note
service in the appearance docket. That requirement relies on
Civ.R. 58(B), which provides:
{¶ 17} “Notice of filing. When the court signs a judgment, 6
the court shall endorse thereon a direction to the clerk to serve
upon all parties not in default for failure to appear notice of
the judgment and its date of entry upon the journal. Within three
days of entering the judgment upon the journal, the clerk shall
serve the parties in a manner prescribed by Civ.R. 5(B) and note
the service in the appearance docket. Upon serving the notice
and notation of the service in the appearance docket, the service
is complete. The failure of the clerk to serve notice does not
affect the validity of the judgment or the running of the time
for appeal except as provided in App.R. 4(A).” (Emphasis
{¶ 18} The record fails to demonstrate that the clerk of courts
noted service of the order to show cause on Palmer in the appearance
docket. Therefore, per Civ.R. 58(B), service of the May 18, 2010
judgment entry on Palmer was not complete. Lacking service of
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[Cite as Palmer v. O'Brien, 2011-Ohio-5208.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
: DAVID D. PALMER Plaintiff-Appellant : C.A. CASE NO. 24258
vs. : T.C. CASE NO. 10-CV-362
: (Civil Appeal from DANIEL L. O’BRIEN Common Pleas Court) Defendant-Appellee :
. . . . . . . . .
O P I N I O N
Rendered on the 7th day of October, 2011.
David Palmer, #329-601, 1001 Olivesburg Road, P.O. Box 8107, Mansfield, OH 44901 Pro Se Plaintiff-Appellant
GRADY, P.J.:
{¶ 1} This is an appeal from a final order entered in Montgomery
County Common Pleas Court Case No. 2010CV00362 pursuant to Civ.R.
4(E), dismissing the action, with prejudice, pursuant to Civ.R.
12(B)(5) for failure of service of process.
{¶ 2} On May 18, 2010, the trial court entered an order, sua
sponte, requiring Plaintiff David D. Palmer to show cause within
fourteen days why his action should not be dismissed pursuant to 2
Civ.R. 12(B)(5) for failure of service on Defendant Daniel L.
O’Brien. The court found that, pursuant to Civ.R. 3(A), the action
had not been “commenced” because service was not obtained within
one year after the complaint in the action was filed. The court
also ordered the clerk “to serve a copy of this decision and Judgment
Entry upon the plaintiff within three (3) days of the entering
of the Judgment on the Journal, in a manner prescribed in Civ.R.
5(B)[sic] and note service in the appearance docket.” (Dkt 7).
{¶ 3} Palmer filed no response to the show cause order within
the fourteen days the court allowed. On August 16, 2010, the trial
court ordered the action “dismissed with prejudice” . .. “[f]or
the reasons set forth in the Court’s prior judgment entry, filed
May 18, 2010.” Palmer filed a notice of appeal from the order
of dismissal on September 13, 2010. (Dkt. 15).
FIRST ASSIGNMENT OF ERROR
{¶ 4} “THE TRIAL COURT ERRED TO THE SUBSTANTIAL PRINCIPLES
[SIC] OF APPELLANT BY DISMISSAL OF CASE FOR JUDGMENT AGAINST
DEFENDANT WHEN THE DAYTON BAR ASSOCIATION HAD RULES [SIC] ON THE
MATTER OF FEE DISPUTE. THE TRIAL COURT EXCEEDED IT’S [SIC]
AUTHORITY WHEN IT REFUSED TO FOLLOW THE DAYTON BAR ASSOCIATION
RULINGS.”
{¶ 5} Prior to 2004, Palmer retained O’Brien as counsel to
represent Palmer in criminal proceedings. A fee dispute arose 3
between Palmer and O’Brien. In January of 2004, Palmer and O’Brien
submitted the fee dispute to binding arbitration before the
Committee on Fee Dispute Arbitration of the Dayton Bar Association.
The Committee on Fee Dispute found that O’Brien was entitled to
only $2,950 of the $7,000.00 retainer he collected from Palmer.
O’Brien has since been indefinitely suspended from the practice
of law. Dayton Bar Association v. Daniel L. O’Brien (August 11,
2004), Sup. Ct. Case No. 04-85.
{¶ 6} Palmer argues that the trial court should have granted
a judgment in his favor for the amount which the Dayton Bar
Association found that O’Brien owes Palmer. That argument
involves the merits of Palmer’s claim for relief. Absent timely
service of process on O’Brien, Palmer is not entitled to relief
on his claim.
{¶ 7} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 8} “THE HONORABLE COURT OF RICHLAND COUNTY, OHIO ERRED BY
TRANSFERRING THIS CASE TO THE COMMON PLEAS COURT OF MONTGOMERY
COUNTY, OHIO.”
{¶ 9} Palmer filed a prior action against O’Brien seeking
similar relief in Richland County, where Palmer is incarcerated.
The Richland County court dismissed the action for lack of subject
matter jurisdiction and improper venue. On review, the Fifth 4
District Court of Appeals reversed, holding that the action should
instead have been transferred to Montgomery County. Palmer v.
O’Brien, Richland App. No. 04CA38, 2004-Ohio-5365.
{¶ 10} The present case involves a second action against O’Brien
that Palmer also filed in Richland County. The Richland County
Court likewise transferred that action to Montgomery County, where
it was docketed as Case No. 2010CV00362.
{¶ 11} Palmer does not explain how the Richland County Court
erred in transferring his case. The issue of venue in the present
action is no different from the issue of venue the Fifth District
decided in the prior action. The Richland County court did not
err when it also transferred the present action to Montgomery
County.
{¶ 12} The second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 13} “THE TRIAL COURT OF MONTGOMERY COUNTY ERRED TO THE
PRINCIPLE [SIC] OF APPELLANTS [SIC] SUBSTANTIAL RIGHTS BY NOT
PROVIDING SERVICE ON THE JUDGMENT ENTY [SIC] THEY FILED ON MAY
18, 2010 AND SHOWN ON THE FINAL JUDGMENT ENTRY BY THE VISITING
JUDGE. THIS VIOLATES THE APPELLANTS [SIC] CONSTITUTIONAL RIGHTS.”
{¶ 14} The Montgomery County Court of Common Pleas stated in
its May 18, 2010 order to show cause that it intended to dismiss
Palmer’s complaint because he failed to serve the summons and 5
complaint on O’Brien within the one year that Civ.R. 3(A) requires.
In doing that, the court acted sua sponte. Civ.R. 4(E) authorizes
such dismissals, and provides:
{¶ 15} “Summons: time limit for service. 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. This division
shall not apply to out-of-state service pursuant to Rule 4.3 or
to service in a foreign country pursuant to Rule 4.5.” (Emphasis
supplied.)
{¶ 16} The May 18, 2010 order gave Palmer both notice of its
intent to dismiss the action and an opportunity to show why the
action should not be dismissed. Palmer contends that he did not
respond because he did not receive a copy of the May 18, 2010 order.
On the last page of its May 18, 2010 order, the court directed
the clerk of courts to serve a copy of the entry upon Palmer within
three days of entering of the judgment on the journal and to note
service in the appearance docket. That requirement relies on
Civ.R. 58(B), which provides:
{¶ 17} “Notice of filing. When the court signs a judgment, 6
the court shall endorse thereon a direction to the clerk to serve
upon all parties not in default for failure to appear notice of
the judgment and its date of entry upon the journal. Within three
days of entering the judgment upon the journal, the clerk shall
serve the parties in a manner prescribed by Civ.R. 5(B) and note
the service in the appearance docket. Upon serving the notice
and notation of the service in the appearance docket, the service
is complete. The failure of the clerk to serve notice does not
affect the validity of the judgment or the running of the time
for appeal except as provided in App.R. 4(A).” (Emphasis
{¶ 18} The record fails to demonstrate that the clerk of courts
noted service of the order to show cause on Palmer in the appearance
docket. Therefore, per Civ.R. 58(B), service of the May 18, 2010
judgment entry on Palmer was not complete. Lacking service of
the order, Palmer was deprived of notice that his action would
be dismissed absent a showing of cause. Civ.R. 4(E) required
notice to Palmer prior to dismissal of the action on the court’s
own initiative, a fact which the court acknowledged in its May
18, 2010 order.
{¶ 19} On the record before us, we find that the trial court
erred in dismissing Palmer’s action pursuant to Civ.R. 4(E). We
also note that Civ.R. 4(E) provides that dismissal pursuant to 7
that rule, when proper, is without prejudice, not with prejudice,
as the court ordered in the present case. The third assignment
of error is sustained. The judgment of the trial court will be
reversed and the cause will be remanded to the trial court for
further proceedings consistent with this opinion.
FROELICH, J. and CANNON, J. concur.
(Hon. Timothy P. Cannon, Eleventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
David D. Palmer Hon. Sumner Walters Hon. Barbara P. Gorman, Administrative Judge