[Cite as Shehee v. Kings Furniture, 2024-Ohio-2379.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
KEVIN L. SHEHEE : : Appellant : C.A. No. 29902 : v. : Trial Court Case No. 2021 CV 03582 : KINGS FURNITURE et al. : (Civil Appeal from Common Pleas : Court) Appellees : :
...........
OPINION
Rendered on June 21, 2024
DENNIS A. LIEBERMAN and RICHARD HEMPFLING, Attorneys for Appellant
MICHAEL T. COLUMBUS, Attorney for Appellees
.............
WELBAUM, J.
{¶ 1} Appellant, Kevin Shehee, appeals from judgments dismissing his complaint
against Defendants-Appellees, Kings Furniture, JAM & Mash Investments, Inc.
(collectively “Kings”) and Synchrony Bank (“Synchrony”). According to Shehee, the trial
court erred in concluding that he failed to commence his action by properly serving Kings -2-
and Synchrony within one year after filing the complaint.
{¶ 2} For the reasons discussed below, we conclude that the court abused its
discretion in dismissing the complaint. Shehee requested service to be made on Kings
and Synchrony within the statute of limitations for several claims, and the court should
have considered this as a refiling of the complaint pursuant to Goolsby v. Anderson
Concrete Corp., 61 Ohio St.3d 549, 575 N.E.2d 801 (1991), which would have made
violation of Civ.R. 3(A) irrelevant. Accordingly, the judgments of the trial court will be
reversed, and this cause will be remanded for further proceedings.
I. Facts and Course of Proceedings
{¶ 3} On August 31, 2021, Shehee filed a pro se complaint against Kings,
Synchrony, and CT Corporation (Synchrony’s purported owner). The complaint arose
from a dispute about furniture Shehee had purchased from Kings and alleged that Kings
had violated R.C. 1345.02(B) and an implied warranty of merchantability. In addition,
the complaint alleged that both Synchrony and Kings had committed fraud and breach of
contract. On the same day, Shehee requested that the clerk serve the defendants by
regular mail.
{¶ 4} On September 28, 2021, Shehee, again pro se, filed an amended complaint,
adding the Better Business Bureau (“BBB”) as a party and adding a civil conspiracy claim
against Kings, Synchrony, and BBB. The amended complaint indicated that Shehee had
sent it to the defendants by regular mail. Synchrony then, on September 30, 2021, filed
a notice of removal of the action to federal district court and attached a copy of the -3-
removal notice, which had been docketed as S.D. Ohio No. 3:21-cv-00274. Ex. B
attached to the removal notice also stated that Shehee’s complaint had been served by
regular mail on Synchrony through its statutory agent, CT Corporation, on September 7,
2021. Although Shehee objected to removal, the trial court advised him that it lacked
jurisdiction over the case due to the filing of the notice of removal. Notice to Plaintiff
Regarding Lack of Jurisdiction (Oct. 4, 2021).
{¶ 5} On October 15, 2021, the common pleas court clerk issued a failure of
service notification, which stated that service had not been perfected on CT Corporation
at the listed address because there was no such number. A few days later, the trial court
notified Shehee that service by regular mail was not permissible until a return of service
marked “refused” was received. The court further said that service must first be made
by certified mail or express mail pursuant to Civ.R. 4.6(D). See Notice (Service) (Oct.
18, 2021). The court later filed another notice, indicating that the October 18, 2021
notice had been filed in error because Synchrony had filed a notice of removal to federal
court, and the common pleas court lacked jurisdiction to proceed. See Notice Regarding
Notice (Service) filed October 18, 2021 (Oct. 29, 2021).
{¶ 6} For nearly a year, the case proceeded in federal court. On October 25,
2022, Shehee (then represented by counsel) filed a motion in the trial court. The motion
asked the court to compel Synchrony to comply with Loc. R. 2.18 of the Court of Common
Pleas of Montgomery County, General Division, which required parties to file a complete
copy of the federal docket and substantive decisions once the case had been remanded
by the federal court. The remand had apparently occurred on September 27, 2022, and -4-
the remand order was attached to the motion. The remand order noted that Shehee had
failed to obtain proper service on any defendants, but that Synchrony had received notice
of the suit and had removed the case to federal court. Decision and Entry, S.D. Ohio
No. 3:21-cv-274 (Sept. 27, 2022), p. 2 (also reported as Shehee v. Kings Furniture,
S.D.Ohio No. 3:21-CV-274, 2022 WL 4481465 (Sept. 27, 2022).1
{¶ 7} The decision further commented that Shehee had dismissed his federal
claim, had filed a motion to remand, and had asked for an additional 60 days to effect
service of process. Id. In addition, the decision noted that Shehee had failed to obtain
proper service on any of the defendants within 90 days as required by Fed.R.Civ.P. 4(m)
and had not established good cause for the failure. Id. at p. 4. The court remarked that
under this rule, it could either dismiss the case without prejudice (as the magistrate had
recommended) or could order service to be made within a specified time. Id. After
weighing the factors for deciding whether to grant extensions, the court decided to allow
Shehee a 60-day extension to perfect service following remand to the trial court. Id. at
p. 4-5. This extension began as of the date of the remand order, i.e., September 27,
2022. Id. at p. 5. The federal court then declined to exercise supplemental jurisdiction
over the state law claims and remanded the matter to state court. Id. However, the
court did not dismiss Shehee’s state law claims; it simply remanded the case to state
court and terminated the case on its own docket. Id. at p. 7.
{¶ 8} As noted, on October 25, 2022, Synchrony filed the federal docket items in
1 Various documents from the federal case were filed in the trial court, although not on a
timely basis. In fact, Synchrony did not file the remand order and documents until October 25, 2022. As shorthand, we will refer to these documents as “Case 274.” -5-
question with the trial court, and the court then denied the motion to compel as moot.
Decision and Entry Overruling as Moot Plaintiff’s Motion to Compel (Oct. 26, 2022). On
the same day, the trial court filed a notice informing Shehee that service had not been
made on the following defendants: Kings Furniture, Jam & Mash Investment, Inc., CT
Corporation, Synchrony, and BBB. Notice (Service) (Oct. 26, 2022). Shehee, through
counsel, then filed a second amended complaint on October 27, 2022, naming only
Synchrony and Kings Furniture as defendants. The amended complaint contained the
following: (1) claims against Kings for deceptive and unfair practices under R.C. 1345.02,
breach of an implied warranty of merchantability, fraud, and breach of contract; (2) claims
against Synchrony for fraud, breach of contract, and negligence; and (3) a claim against
both parties for offering a lowest price guarantee but failing to honor it in violation of R.C.
1345.05 and R.C. 4165.02. The same day, Shehee asked the clerk to issue service to
the defendants.
{¶ 9} Service on Synchrony was successful on November 1, 2022, and on Kings
on November 28, 2022. Synchrony filed its answer and defenses, including insufficiency
of service of process, on November 29, 2022; Kings filed its answer and the same
defenses on December 19, 2022. Nothing more occurred until April 12, 2023, when
Synchrony filed a motion for a declaratory judgment, a motion to dismiss, and a motion
to strike the second amended complaint. Kings filed the same motions on the same day.
After receiving an extension of time, Shehee responded to Kings’ motions on May 10,
2023, and Kings replied on May 16, 2023. Shehee did not specifically respond to
Synchrony’s motions, but Synchrony and Kings were represented by the same counsel -6-
and their motions were virtually identical.
{¶ 10} On August 10, 2023, the trial court granted Synchrony’s motion to dismiss
based on lack of subject matter jurisdiction. The court then, on August 28, 2023, granted
Kings’ motion to dismiss. Shehee timely appealed from both judgments.
II. Discussion
{¶ 11} Shehee’s sole assignment of error states that:
The Trial Court Erred in Dismissing Appellant’s Claims Against Kings
Furniture and Synchrony Bank.
{¶ 12} Under this assignment of error, Shehee makes several points. The first is
that when the case was removed to federal court, the state court lost jurisdiction and the
matter became subject to federal procedural rules. When the federal court had
jurisdiction over the case, it granted Shehee a time extension for making service after
remand, and Shehee then successfully completed service of the second amended
complaint within the allotted time.
{¶ 13} Shehee also contends that the one-year time period for commencing an
action was a “period of limitations” that was tolled while the state law claims were pending
in federal court. Consequently, since the case was removed one month after being filed
in common pleas court, Shehee argues that when the case was remanded, he still had
11 months left within which to perfect service. Finally, Shehee claims that filing the
second amended complaint plus a request for service was equivalent to refiling the -7-
complaint under Goolsby v. Anderson Concrete Corp., 61 Ohio St.3d 549, 575 N.E.2d
801 (1991). We will consider these claims, but we begin with a discussion of the trial
court’s reason for dismissal.
A. Reason for Dismissal
{¶ 14} The trial court’s decision to dismiss the claims against both parties was
based on R.C. 2305.17 and Civ.R. 3(A), and the fact that Shehee failed to perfect service
within one year after the case was originally filed. Decision and Entry Sustaining
Defendant’s Motion to Dismiss (Kings Decision) (Aug. 28, 2023), p. 3-4. As to Kings, the
court therefore found that it lacked jurisdiction to proceed due to insufficiency of service
on Kings. Id. at 5-6. Regarding Synchrony, the court’s discussion was very brief, but
the court concluded for the same reason, i.e., insufficiency of service, that it lacked subject
matter jurisdiction. Order Granting Synchrony Bank’s Motion to Dismiss for Lack of
Subject Matter Jurisdiction (Aug. 10, 2023), p. 1.
{¶ 15} Although Kings and Synchrony both moved to dismiss the case based on
lack of subject matter jurisdiction, and the trial court agreed (at least with respect to
Synchrony), the focus on subject matter jurisdiction was misplaced. “Subject-matter
jurisdiction refers to the constitutional or statutory power of a court to adjudicate a
particular class or type of case.” Corder v. Ohio Edison Co., 162 Ohio St.3d 639, 2020-
Ohio-5220, 166 N.E.3d 1180, ¶ 14, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-
1980, 806 N.E.2d 992, ¶ 11-12, and 34. “ ‘A court's subject-matter jurisdiction is
determined without regard to the rights of the individual parties involved in a particular -8-
case.’ ” Id., quoting Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275,
21 N.E.3d 1040, ¶ 19. “Instead, ‘the focus is on whether the forum itself is competent to
hear the controversy.’ ” Id., quoting State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-
2913, 159 N.E.3d 248, ¶ 23. Here, the common pleas court clearly had subject matter
jurisdiction over the claims asserted, as it is a court of general jurisdiction. Id. at ¶ 26,
citing R.C. 2305.01.
{¶ 16} “A court's jurisdiction over a particular case refers to the court's authority to
proceed or rule on a case that is within the court's subject-matter jurisdiction. * * * This
latter jurisdictional category involves consideration of the rights of the parties.” Kuchta
at ¶ 19, citing Pratt at ¶ 12. As pertinent here, the issue is whether Shehee’s failure to
perfect service required dismissal under Civ.R. 12(B)(5), which allows dismissal on
grounds of “insufficiency of service of process.” Dismissals on this basis are reviewed
for abuse of discretion. Lewis v. Buxton, 2d Dist. Greene No. 2006-CA-122, 2007-Ohio-
5986, ¶ 5, citing Spiegel v. Westafer, 3d Dist. Union No. 14-05-18, 2005-Ohio-6033. An
abuse of discretion “ ‘implies that the court's attitude is unreasonable, arbitrary or
unconscionable.’ ” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983). “[M]ost instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50
Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Decisions are unreasonable if they are not
supported by a sound reasoning process. Id. -9-
B. Federal Court Extension for Service to be Perfected
{¶ 17} Shehee’s first argument is that the federal court extended the time for
service and that he successfully accomplished service during the extension. His second
argument is that the one-year service period in Civ.R. 3(A) and R.C. 2305.17 is a “period
of limitations” that was tolled due to 28 U.S.C. 1367(d) and the United States Supreme
Court’s decision in Artis v. D.C., 199 L.Ed.2d 473, 138 S.Ct. 594 (2018). In their briefs,
Kings and Synchrony did not reply to these arguments in any detail.
{¶ 18} Under Civ.R. 3(A), “[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
* * *.” As applicable here, R.C. 2305.03(A) states in pertinent part that “unless a different
limitation is prescribed by statute, a civil action may be commenced only within the period
prescribed in sections 2305.04 to 2305.22 of the Revised Code.” In that vein, R.C.
2305.17 further provides that: “An action is commenced within the meaning of sections
2305.03 to 2305.22 and sections 1302.98 and 1304.35 of the Revised Code by filing a
petition in the office of the clerk of the proper court * * *, if service is obtained within one
year.”
{¶ 19} Shehee filed the state court action on August 31, 2021, but the regular mail
service that he requested was clearly incorrect and did not perfect service at that time.
However, as noted, Synchrony filed a notice of removal to federal court. Under 28 U.S.C.
1446(d), “[p]romptly after the filing of such notice of removal of a civil action the defendant
or defendants shall give written notice thereof to all adverse parties and shall file a copy
of the notice with the clerk of such State court, which shall effect the removal and the -10-
State court shall proceed no further unless and until the case is remanded.” There is no
claim here that Synchrony failed to meet the provisions for removal in 28 U.S.C. 1446(d).
{¶ 20} “A basic removal principle is that once the provisions of Section 1446(d),
Title 28, U.S.Code have been met, the state court is divested of jurisdiction to proceed
further until there has been a remand by the federal court.” Borkowski v. Abood, 117
Ohio St.3d 347, 2008-Ohio-857, 884 N.E.2d 7, ¶ 12, citing Yarnevic v. Brink's, Inc., 102
F.3d 753, 754 (4th Cir.1996). “As a result, any subsequent state court proceedings are
without effect even if the federal court later determines that removal was not proper.” Id.,
citing South Carolina v. Moore, 447 F.2d 1067, 1073 (4th Cir.1971). “Upon remand, the
state court's jurisdiction over the matter is revived.” Id., citing 28 U.S.C. 1447(c).
{¶ 21} The Supreme Court of Ohio has interpreted 28 U.S.C. 1446(d) “to mean
that in the interval between the filing of a notice of removal and a federal court's remand
of the proceedings, a state trial court is divested of jurisdiction.” Id. at ¶ 13.
Consequently, in the case before us, the trial court no longer had any jurisdiction between
September 30, 2021 (when the removal notice was filed), and September 27, 2022 (when
the federal court issued the remand order).
{¶ 22} As asserted by Synchrony in the federal case, the basis for removal was
that Shehee's claim under the Fair Debt Collection Practices Act (“FDCPA”) invoked the
federal court's jurisdiction under 28 U.S.C. 1331 for cases arising under federal law. See
Case 274, Report and Recommendation (Mar. 30, 2022), p. 4. In light of this fact, the
magistrate concluded that the federal court had jurisdiction over the case. Id.
Subsequently, after Shehee said that he wished to dismiss his FDCPA claim, the -11-
magistrate granted the request and asked the parties to address supplemental jurisdiction
under 28 U.S.C. 1367. As the magistrate noted, this statute “permits federal courts to
hear state law claims which are part of the same case or controversy as the original
jurisdiction claims.” Case 274, Order Dismissing Fair Debt Collection Practices Claim;
Supplemental Report and Recommendation (May 2, 2022), p. 3.
{¶ 23} After the parties complied, the magistrate issued another decision, finding
that the claims left in the complaint were within the court's supplemental jurisdiction
“because they are part of the same case or controversy with the now-dismissed FDCPA
claim.” Case 274, Second Supplemental Report and Recommendation (June 17, 2022),
p. 2. The magistrate nonetheless recommended that the case be dismissed without
prejudice based on Shehee's failure to obtain service, i.e., Shehee failed to take steps in
federal court to serve the complaint. Id. In addition, the magistrate rejected Shehee's
request for a 60-day extension of time to obtain service of process. Id. at p. 1-2.
{¶ 24} After reviewing Shehee's objections to the magistrate's decisions, the
federal court rejected the magistrate's conclusion that the action should be dismissed.
Instead, the court found that Shehee should be granted 60 days after remand to perfect
service. Case 274, Decision and Entry at p. 4-5. The court further declined to exercise
supplemental jurisdiction over the state law claims and remanded the case to the trial
court. Id. at p. 5.
{¶ 25} Regarding supplemental jurisdiction, 28 U.S.C. 1367(a) states that:
[I]n any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that -12-
are so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article III of the United
States Constitution. Such supplemental jurisdiction shall include claims
that involve the joinder or intervention of additional parties.
{¶ 26} 28 U.S.C. 1367(c) further provides that a district court may decline to
exercise supplemental jurisdiction in various situations, including, as here, where “the
district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.
1367(c)(3). Additionally (and as potentially relevant here), 28 U.S.C. 1367(d) states that:
The period of limitations for any claim asserted under subsection (a),
and for any other claim in the same action that is voluntarily dismissed at
the same time as or after the dismissal of the claim under subsection (a),
shall be tolled while the claim is pending and for a period of 30 days after it
is dismissed unless State law provides for a longer tolling period.
{¶ 27} Shehee’s argument in this context is that the reference to “period of
limitation” in 1367(d) is broader than just a “statute of limitations” and that the one-year
time limitations in R.C. 2305.17 and Civ.R. 3(A) fit within the wording of 1367(d).
Therefore, according to Shehee, Ohio’s limitation on commencing an action was tolled
while the case was pending in federal court.
{¶ 28} In Artis, the United States Supreme Court considered how the tolling
provision in subsection 1367(d) should apply. Artis, 583 U.S. at 77, 138 S.Ct. 594, 199
L.Ed.2d 473. The court remarked that 28 U.S.C. 1367 was added in 1990 to codify the
pendant and ancillary jurisdiction doctrines under the term “supplemental jurisdiction.” -13-
Id. at 75. The court also noted that “if a district court declines to exercise jurisdiction over
a claim asserted under § 1367(a) and the plaintiff wishes to continue pursuing it, she must
refile the claim in state court. If the state court would hold the claim time barred,
however, then, absent a curative provision, the district court's dismissal of the state-law
claim without prejudice would be tantamount to a dismissal with prejudice.” Id. at 76.
{¶ 29} Before Artis was decided, courts had been divided on how to apply 1367(d),
with some using a “stop the clock” approach and others applying a “grace period.” Id. at
78-79. In the former situation, the clock on the statute of limitations would be paused
during the federal proceeding and until 30 days after the state law claims were dismissed;
in the latter situation, a plaintiff would have only 30 days for refiling otherwise barred
claims in state court. Id. at 79, fn. 3. In other words, in the latter case, the statute of
limitations would not be paused, but if it expired while removal proceedings were pending,
a litigant would still have 30 days to file in state court after remand.
{¶ 30} After considering the text of 1367(d), the statutory history, and limitations
on congressional incursion into the States’ domain, the Supreme Court adopted the “stop
the clock” rule. Id. at 80-92. As a result, any state statute of limitations would be
suspended during federal removal proceedings and the suspension would continue for
30 days after remand. At that point, the “clock” on the statute of limitations would again
begin.
{¶ 31} However, 28 U.S.C. 1367(d) does not apply here because it refers only to
tolling where a federal court dismisses the state law claims; it does not refer to situations
like the present case, where the federal court simply remanded the case to the state court -14-
and did not dismiss the state law claims. See Crespo v. Wells Fargo Bank & Co., E.D.
Pa. No. 22-2059, 2022 WL 2392030, *3, fn. 36 (June 30, 2022) (noting that “remand”
rather than “dismissal” appears to conflict with the language in subsection 1367(d), which
mentions dismissal but “does not speak to remand”). Consequently, even if the one-year
period in R.C. 2305.17 and Civ.R. 3(A) could be properly classified as a “period of
limitation” as Shehee suggests (a proposition we doubt but need not decide), 28 U.S.C.
1367(d) would not impact the state court proceedings.
{¶ 32} Notably, before 28 U.S.C.1367 was added to the removal statutes in 1990,
the United States Supreme Court had held that “a district court has discretion to remand
to state court a removed case involving pendent claims upon a proper determination that
retaining jurisdiction over the case would be inappropriate.” Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). When Cohill was
decided, there were no provisions in the removal statutes for remanding pendant (now
supplemental) claims as opposed to dismissing the federal action. Id. at 353-356.
Despite this lack, the court found that district courts could remand cases rather than being
restricted to dismissing them.
{¶ 33} As a result, when Congress enacted Section 1367, including subsection (d)
in 1990, it would have been aware that federal courts could remand cases to state court
instead of dismissing them. E.g., Rodriguez v. United States, 480 U.S. 522, 525, 107
S.Ct. 1391, 94 L.Ed.2d 533 (1987) (noting the presumption that Congress acts “with full
awareness of * * * well-established judicial interpretation”). While being aware of the
distinction between dismissal and remand, Congress did not include remand in the -15-
situations in subsection (d) that would permit tolling of “periods of limitation.” To the
contrary, as noted, 1367(d) refers only to “dismissal.” Therefore, tolling cannot apply
here.
{¶ 34} As an additional matter, the federal court’s 60-day extension of time for
service does not apply. Fed.R.Civ.P. 4(m) provides that: “If a defendant is not served
within 90 days after the complaint is filed, the court – on motion or on its own after notice
to the plaintiff – must dismiss the action without prejudice against that defendant or order
that service be made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.”
{¶ 35} This procedural rule clearly applies to service in the federal court action and
dismissal of that action. It does not vest a federal court with the power to control or affect
state court procedural rules. “It is well-settled that the Federal Rules of Civil Procedure
are not binding on a state court.” Robinson v. Lorain Cty. Printing & Publishing Co., 9th
Dist. Lorain No. 21CA011711, 2023-Ohio-3, ¶ 19, citing Fed.R.Civ.P. 1 and In re Anisha
N., 6th Dist. Lucas No. L-02-1370, 2003 WL 21040311, *2 (May 9, 2003). In Robinson,
the court rejected the plaintiffs’ claim that the trial court erred by failing to notify them that
it intended to dismiss the case. To support this, the plaintiffs cited Fed.R.Civ.P. 4(m)’s
notice requirement. Id. at ¶ 20. As noted, the court of appeals rejected application of
the federal rules.
{¶ 36} Accordingly, the federal district court’s 60-day extension for service had no
impact on the state trial proceedings and did not extend the time for Shehee to perfect
service in state court. The federal district court could have allowed Shehee an additional -16-
60 days to perfect service in its own court, but that is not what it did. Instead, the court
granted an extension to apply in state court after remand, which it could not do.
C. Alleged Refiling of the Complaint
{¶ 37} Shehee’s final argument is that filing the second amended complaint plus a
request for service was equivalent to refiling the complaint under Goolsby, 61 Ohio St.3d
549, 575 N.E.2d 801. In Goolsby, the Supreme Court of Ohio held that:
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.
Id. at syllabus.
{¶ 38} The factual situation in Goolsby was that the plaintiff filed a complaint in
February 1986 but instructed the clerk not to attempt service. However, two days before
the statute of limitations expired, the plaintiff asked the clerk to make service, and service
was perfected after the limitations period expired. Id. at 549. The one-year period for
obtaining service had already lapsed more than five months before the plaintiff requested
service. Id. With the trial court’s permission, the plaintiff then dismissed her action
without prejudice around 15 months later (in October 1988) and then refiled it in June
1989, pursuant to the savings statute in R.C. 2305.19. Id. at 550. -17-
{¶ 39} The defendant moved to dismiss the second action because service had
not been completed in the first action within one year, rendering the first action a nullity
and making the savings statue inapplicable. After the trial court agreed and dismissed
the case, the court of appeals affirmed. Id. On further appeal, the Supreme Court of
Ohio reversed. The court acknowledged that:
A purely technical application of Civ.R. 3(A) would result in a finding
that Goolsby had not commenced her action, despite the fact that the first
complaint was filed and a demand for service was made within the
limitations period prescribed by statute. Yet, it is not disputed that had
Goolsby dismissed her complaint and again filed it at the time instructions
for service were given, the action would have been commenced according
to Civ.R. 3(A). We believe that under these circumstances the Civil Rules
should not require a plaintiff to refile a complaint identical to one which has
previously been, and remains, filed. Such an exercise could not be said to
“effect just results by eliminating delay, unnecessary expense and all other
impediments to the expeditious administration of justice.” Civ.R. 1(B).
Consequently, we hold that 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. -18-
Goolsby, 61 Ohio St.3d at 550-551, 575 N.E.2d 801.
{¶ 40} In a more recent case, the Supreme Court of Ohio considered R.C. 2305.17,
Civ.R. 3(A), R.C. 2305.19, and Goolsby. See Moore v. Mt. Carmel Health Sys., 162
Ohio St.3d 106, 2020-Ohio-4113, 164 N.E.3d 376. In Moore, the plaintiff had filed a
medical malpractice action against a doctor in July 2015 (the day before the statute of
limitations expired) and had requested service of summons on the doctor. However,
service was not perfected within a year. Service was perfected on two other defendants,
including the doctor’s employer. The doctor and his employer then filed an answer
raising defenses based on the statute of limitations and insufficient service of process.
Id. at ¶ 3-6.
{¶ 41} After participating in the action for some time, the doctor moved for
summary judgment in February 2017, contending the action was time barred due to the
plaintiff’s failure to serve him within one year after the complaint was filed. Shortly
thereafter, the plaintiff requested service, and it was then perfected on the doctor in early
March 2017. Id. at ¶ 7. The trial court granted summary judgment, and the plaintiff then
appealed. However, the Tenth District Court of Appeals reversed, concluding that the
savings statute applied. The court of appeals relied on Goolsby, construing the plaintiff’s
“instructions for service of process on March 2, 2017, as a voluntary dismissal of his action
and a refiling of a new action against [the doctor] by operation of law.” Id. at ¶ 9.
{¶ 42} The Tenth District then certified the following conflict:
“ ‘Does the Ohio savings statute, R.C. 2305.19(A), apply to an action
in which a plaintiff attempts, but fails to perfect service on the original -19-
complaint within one year pursuant to Civ.R. 3(A)? If so, when a plaintiff
files instructions for service after the Civ.R. 3(A) one-year period, does the
request act as a dismissal by operation of law and also act as the refiling of
an identical cause of action so as to allow the action to continue?’ ”
Id. at ¶ 10, quoting Moore.
{¶ 43} In deciding the matter, the Supreme Court of Ohio noted that under R.C.
2305.17 and Civ.R. 3(A), “to comply with the statute of limitations, an action must be
‘commenced’ within the limitations period. Under Civ.R. 3(A), this occurs when the
action is filed within the limitations period and service is obtained within one year of that
filing.” Moore at ¶ 16. The court further concluded that:
By its terms, the savings statute cannot save [plaintiff] Moore's claim.
In order for the statute to apply, the claim must have failed “otherwise than
upon the merits” and then Moore must have filed a new claim within one
year thereafter. Here, when Moore issued instructions to the clerk to serve
the complaint in March 2017, Moore's claim hadn't failed other than on the
merits. The case remained on the court's docket – it was subject to
dismissal, to be sure, both because Moore had failed to accomplish service
and because the statute of limitations had run. But no such dismissal had
been entered, and if such dismissal had been entered, the expiration of the
statute of limitations would have made the failure on the merits.
Id. at ¶ 19, quoting R.C. 2305.19.
{¶ 44} After making these remarks, the court acknowledged that its decision was -20-
complicated by Goolsby, which had allowed a case to proceed despite a violation of Civ.R.
3(A). Id. at ¶ 20-21, discussing Goolsby, 61 Ohio St.3d 549, 575 N.E.2d 801. The court
then distinguished Goolsby factually, stating that “[w]hen Goolsby issued her instruction
to the clerk to attempt service of the complaint, she was still within the limitations period.
Because the limitations period had not yet run, she could have simply dismissed her
complaint without prejudice and refiled it. In contrast, when Moore issued his instructions
to the clerk in March 2017, the statute-of-limitations period had already expired.” Id. at
¶ 22.
{¶ 45} The court thus remarked that: “[t]he rationale underlying the rule announced
in Goolsby * * * is that in the circumstances of that case – where the statute of limitations
had not run – it was an unnecessary and onerous procedural hurdle to force a plaintiff to
dismiss and refile an identical complaint. The key distinction between Goolsby and our
case is that here, the statute of limitations had run when Moore requested that the clerk
make a renewed attempt at service. To apply the savings statute to revive the action in
our case, despite the plain terms of Civ.R. 3(A), has the effect not of avoiding unnecessary
procedural hoop jumping, but of extending the statute of limitations beyond the term set
by the legislature.” Id. at ¶ 25.
{¶ 46} The court therefore declined to apply Goolsby but also found that it needed
to consider its continued viability because some courts had extended Goolsby beyond
the facts of the case. As a result, the court held in Moore that:
To prevent any further confusion, we make clear today that Goolsby is
limited to the factual circumstance that motivated its holding. Thus, the rule -21-
announced in Goolsby – that a new instruction to the clerk to serve a
complaint that is made after Civ.R. 3(A)'s commencement period has
expired may be treated as a dismissal and refiling for purposes of the
savings statute -- applies only when the statute of limitations has not yet
expired.
Moore, 162 Ohio St.3d 106, 2020-Ohio-4113, 164 N.E.3d 376, at ¶ 26.
{¶ 47} The dissent in Moore found the majority decision “unsound” because it
eliminated the wording of “attempted to be commenced” from the savings statute. See
Moore at ¶ 58 and 60 (Stewart, J., dissenting), Justice Stewart noted that Civ.R. 3(A) is
a “housekeeping rule,” not a “timing provision,” and “was based on the philosophy that
dockets should be cleared if, within the reasonable time of one year, service has not been
obtained.” (Emphasis sic.) Id. at ¶ 60. In addition, Justice Stewart stressed that
“[p]resently, nothing [in R.C. 2905.19(A)] says that an action meets the definition of an
‘action that is * * * attempted to be commenced’ * * * only if that action is dismissed within
the confines of Civ.R. 3(A)'s one-year service period.” Id. This appears to be accurate.
Specifically, if the savings statute were confined only to actions that were “commenced”
as required by Civ.R. 3(A), the legislature would have had no reason to also include the
words “attempted to be commenced” in R.C. 2305.19(A). Nonetheless, the majority
decision in Moore and its limitation of Goolsby must be applied.
{¶ 48} As noted, Shehee contends that under Goolsby, the filing of his second
amended complaint and request for service should be construed as refiling a complaint.
In responding, Kings and Synchrony (who filed virtually identical briefs and are -22-
represented by the same counsel) argue that Goolsby does not apply because Shehee
did not ask for leave to file an amended complaint. They also maintain that while
“Goolsby permitted service of an amended complaint to achieve a result analogous with
O.R.C. 2305.19,” “the savings statute does not permit two re-filings.” Kings’ Brief, p. 5
and Synchrony Brief, p. 6.
{¶ 49} As a preliminary point, the case before us does not involve “two re-filings.”
Shehee filed his initial complaint in the trial court in August 2021, Synchrony filed a notice
of removal to federal court in September 2021, and the case was remanded back to the
trial court in September 2022. Furthermore, Goolsby did not involve either filing or
service of an amended complaint. The plaintiff in that case filed only one complaint in
the original action, where she requested service a few days before the statute of
limitations expired. Goolsby, 61 Ohio St.3d at 550, 575 N.E.2d 801.
{¶ 50} Moreover, the only thing the Supreme Court of Ohio focused on in Goolsby
was the fact that while the year for perfecting service had elapsed, the plaintiff made –
within the statute of limitations – a request for service. Id. Thus, the plaintiff could have
dismissed her action at that time and refiled, making Civ.R. 3(A) essentially irrelevant. In
this vein, whether Shehee properly asked for permission to file an amended complaint is
also immaterial, since the pertinent action in Goolsby was the request for service.
{¶ 51} The issue here, therefore, is whether the current case is factually similar to
what occurred in Goolsby, since its effect has been limited in that regard. This requires
review of the original complaint and the applicable statutes of limitation that may apply.
{¶ 52} Shehee’s original complaint alleged various improper conduct by Kings that -23-
occurred between June 13, 2020, and July 21, 2020 (when Shehee and Kings were
involved in a furniture sale and disputes about the transaction), as well as during an
unspecified time between June 13, 2020, and October 16, 2020, at the latest (when Kings
allegedly misrepresented material facts to Synchrony about the dispute). The counts
against Kings (and the applicable statutes of limitation) were as follows:
Count 1: This involves Kings’ alleged deceptive acts in “bait
advertising” in violation of R.C.1345.02(B) and Ohio Adm.Code 109:4-3-
01(A)(3). Complaint, ¶s 1-18 and 22. Under R.C. 1345.10(C), an action
for violations of R.C. 1345.01 through R.C. 1346.13 “may not be brought
more than two years after the occurrence of the violation which is the
subject of suit.” Two years from that time would have been June 13, 2022,
or as late as July 21, 2022.
Count Two: This count discusses Kings’ price comparison conduct
in violation of the same statutes involved in Count One. See Complaint,
¶ 23-24. Again, a two-year statute of limitations applies, with the same
expiration dates.
Count Three: This count involves Kings’ alleged conduct concerning
an implied warranty of merchantability as to refund and return of furniture,
in violation of R.C. 1310.19 and U.C.C. 2A-212. Complaint at ¶s 25-26.
Under R.C. 1303.16(G)(2), an action for breach of warranty must be brought
within three years after the cause of action accrued, or here, by July 21,
2023. -24-
Count Four: This involves Kings’ alleged fraud as to
misrepresentations during the furniture sale and as to later
misrepresentations to Synchrony (Shehee’s credit card company) during
the credit card dispute. Complaint at ¶s 27-30 and 34. Under R.C.
2305.09(C), the statute of limitations for fraud is four years. Respectively,
here, an action must be brought no later than July 21, 2024, and no later
than October 16, 2024.
Count Five: This count involves breach of contract as to providing
service under an extended warranty agreement that Shehee purchased
from Kings. Complaint at ¶ 35-37. The date of this violation is not
specified, but under the warranty statute of limitations in R.C.
1303.16(G)(2), it appears suit must have been brought within three years,
or by July 21, 2023.
{¶ 53} Considering these claims, when Shehee requested service to be made on
October 27, 2022, the limitations period had expired for Counts One and Two, and
possibly Count Four, if the allegations against Kings in Court Four are considered to fall
within the Ohio Consumer Sales Practice Act (“OCSPA”) rather than common law fraud.
On the other hand, the statute of limitations for Counts Three and Five had not expired,
and possibly had not expired as to Count Four to the extent that common law fraud
applied. Specifically, claims can be made for common law fraud as well as a violation of
the OCSPA. See R.C. 1345.13 (“The remedies in sections 1345.01 to 1345.13 of the
Revised Code, are in addition to remedies otherwise available for the same conduct under -25-
state or local law.”); Mid-America Acceptance Co. v. Lightle, 63 Ohio App.3d 590, 601,
579 N.E.2d 721 (10th Dist.1989) (“It is clear that the legislature fully intended for the
remedies available to the consumer in R.C. 1345.09 to be in addition to remedies already
available such as damages for common-law fraud.”)
{¶ 54} The claims in the original complaint against Synchrony were as follows:
Count Four: This count involves Synchrony’s alleged fraud in
knowingly and recklessly making false representations of material fact to
collect a debt in violation of the Fair Debt Collection Practices Act, 15 USC
1692(e)(f) (later dismissed by Shehee in federal court) and in violation of
the OCSPA [R.C. 1345.01(A); R.C. 1345.02(A) and R.C. 1345.03(A)]. See
Complaint at ¶ 34 [incorrectly labeling these alleged violations as violations
of R.C. 1945.01(A), R.C. 1945.02(A), and R.C. 1945.03(A)]. Again, the
two-year statute of limitations applies, per R.C. 1345.10. The complaint
does not specify a date on which the alleged violations occurred, but it
appears to have been no later than October 16, 2020, when Synchrony
denied Shehee’s dispute. Complaint at ¶ 18. On the other hand, actions
could have been taken thereafter to collect the credit card debt that involved
fraud. The complaint is not specific in this regard.
Count Five: This count alleges Synchrony breached its contract
with Shehee by failing to honor the terms and agreement to allow fair and
honest review of charges on the credit account. Id. at ¶ 34. The statute
of limitations would be either six years per R.C. 2305.06 (for written -26-
contracts), or four years under R.C. 2305.07(A) for “an action upon a
contract not in writing, express or implied.” See Unifund CCR Partners v.
Piaser, 2018-Ohio-3016, 118 N.E.3d 275, ¶ 33 (11th Dist.) (applying six-
year statute to credit card agreement). But see Unifund CCR Partners
Assignee of Palisades Collection, LLC v. Childs, 2d Dist. Montgomery No.
23161, 2010-Ohio-746, ¶ 16-17 (concluding that whether the limitations
period for written contracts applied or period for oral contracts applied was
uncertain in absence of specific proof). Based on the complaint, the latest
filing date would be either four or six years from October 16, 2020, i.e., in
October 2024 or 2026.
{¶ 55} Given these facts, when Shehee’s service request was made on October
27, 2022, the statute of limitations had possibly expired for Count Four against Synchrony
but had not expired for Count Five.
{¶ 56} In light of the above facts, this case is like Goolsby, and the trial court
abused its discretion by dismissing the case rather than allowing the service request
(made within the statute of limitations for several claims) to serve as a refiling of the action.
{¶ 57} As a final matter, we note Synchrony’s claim that Shehee waived any
argument in connection with the trial court’s dismissal of the complaint against Synchrony
by failing to respond to the motion in the trial court. The general rule in this respect is
that “[a]n appellate court need not consider an error which a party complaining of the trial
court's judgment could have called, but did not call, to the trial court's attention at a time
when such error could have been avoided or corrected by the trial court.” State v. -27-
Berezoski, 2d Dist. Montgomery No. 9568, 1986 WL 14770, *6 (Dec. 17, 1986), citing
State v. Williams, 51 Ohio St.2d 112, 114, 364 N.E.2d 1364 (1977). “Need not” is not
the same as “shall not.” Under the circumstances here, we decline to apply this doctrine.
Specifically, Kings and Synchrony (for unexplained reasons) were represented by the
same counsel, who would have received Shehee’s response. Additionally, the
defendants’ motions to dismiss were virtually identical, and Shehee fully responded to
those arguments three months before the trial court ruled on the motions. The trial court
therefore had all relevant facts and arguments before it. A second memorandum
responding to identical arguments would have added nothing.
{¶ 58} Based on the preceding discussion, Shehee’s sole assignment of error is
sustained.
III. Conclusion
{¶ 59} Shehee’s sole assignment of error having been sustained, the judgments
of the trial court are reversed, and this cause is remanded for further proceedings.
LEWIS, J. and HUFFMAN, J., concur.