[Cite as Waite v. Mahalaxmi, Inc.,

.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: LYNN H. WAITE : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2011-CA-00028 MAHALAXMI, INC. : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court of Common Pleas, Case No. 2009CV1308

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: January 3, 2012

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

MARK A. CHUPARKOFF CLARE E. KRUMLAUF CHUPARKOFF LAW OFFICE 280 N. High Street, Ste. 1010 Box 3775 Columbus, OH 43215 Dublin, OH 43016 [Cite as Waite v. Mahalaxmi, Inc.,

.]

Gwin, P.J.

{1} Plaintiff-appellant Lynn H. Waite appeals a judgment of the Court of

Common Pleas of Fairfield County, Ohio, which found her claim against defendant-

appellee Mahalaxmi, Inc. was barred by the statute of limitations. Appellant assigns a

single error to the trial court:

{2} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING

APPELLEE’S MOTION TO DISMISS/MOTION FOR JUDGMENT ON THE PLEADINGS

TO THE EXTENT THAT OHIO LAW PERMITS SERVICE OF A COMPLAINT OUTSIDE

OF ONE YEAR.”

{3} The record indicates appellant stayed at a Best Western Hotel owned and

operated by appellee. Appellant alleges during her stay she was the victim of a bed bug

attack, resulting in numerous personal injuries to her.

{4} Appellant filed suit against appellee on October 7, 2009, and on the same

day requested service by certified mail. The certified mail was unclaimed, and appellant

issued a praecipe on April 13, 2010 to the clerk of courts for certified mail. Service was

not perfected again. On October 14, 2010, appellant requested service by ordinary U.S.

Mail.

{5} On February 2, 2011, appellees filed a motion to dismiss alleging appellant

had failed to commence her suit within the applicable statute of limitations. The trial

court found appellant had one year from the filing to obtain service on appellee and

commence the action, but failed to do so. The court found under Goolsby v. Anderson

Concrete Company (1991),

,

, appellant’s issuing of

a praecipe for ordinary mail service on October 14, 2010 was the equivalent of Fairfield County, Case No. 2011-CA-00028 3

dismissing and re-filing her action. The court found the re-filing did not occur during the

statute of limitations or within one year of the filing date, and for this reason, the savings

statute did not allow appellant to re-file her complaint.

{6} For the reasons stated below, we do not agree.

{7} In Goolsby, and the subsequent case of Sisk & Associates, Inc. v.

Committee to Elect Timothy Grendell,

,

, the Ohio

Supreme Court explained the law establishing the filing and service of a complaint. In

Goolsby, the plaintiff filed a complaint on February 6, 1986, and asked the clerk to hold

service of the summons and complaint. Two days before the statute of limitations ran,

on July 17, 1987, plaintiff directed the clerk to issue a summons, and service was

obtained on July 23, 1987. The Supreme Court cited Civ. R. 3 (A), which provides a

civil action is commenced by filing a complaint with the court if service is obtained within

one year after such filing upon a named defendant. The Supreme Court explained one

clear consequence of this provision is that it is not necessary to actually serve the

defendant within the statute of limitations. A plaintiff could arguably file her complaint on

the last day of the limitations period and still have a full year in which to obtain service.

{8} The court found while technically, it could find plaintiff had not commenced

her action, she could dismiss her case and re-file an identical complaint. The Supreme

Court found if service has not been obtained within one year of filing of the complaint,

and the subsequent re-filing 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 would be the

equivalent of dismissing and re-filing the complaint. Fairfield County, Case No. 2011-CA-00028 4

{9} The Goolsby court also noted Civ. R. 4 (E) permits the court to dismiss a

case without prejudice if service is not made within six months after filing the complaint.

This provision allows courts to clear their dockets of cases in which plaintiffs have not

pursued service on a defendant, and would be applied if a plaintiff has neglected to

attempt service after original service of process fails. The Supreme Court found the trial

court should have dismissed the complaint without prejudice because service was not

attempted, and then, the plaintiff would have been required to re-file her complaint. The

Supreme Court found the original complaint, however, was never dismissed by the

court, so the filing of the new praecipe constituted a voluntary dismissal and re-filing.

{10} In

the Supreme Court found if a plaintiff files an instruction for

a clerk to attempt service of a complaint that was filed more than a year prior, the

instruction is a notice of voluntary dismissal of the claims, but if the plaintiff has

previously filed a dismissal of a complaint making the same claim, then by action of law

the two dismissal rule results in dismissal of the case with prejudice.

{11} The situation is complicated by R.C. 2305.19, commonly known as the

savings statute. The savings statute provides; “ in an action commenced, or attempted

to be commenced, if in due time *** the plaintiff fails otherwise than upon the merits, and

the time limited for further commencement of such action at the date of *** failure has

expired, the plaintiff *** may commence a new action within one year after such date.”

{12} Civ. R. 3 provides an action is commenced if service is perfected within

one year of filing. Formerly, the more problematic area was whether the action is

“attempted to be commenced” if the plaintiff files the action but fails to serve the

defendant within one year. In Thomas v. Freeman, 79 Ohio State 3d 221, 1997-Ohio- Fairfield County, Case No. 2011-CA-00028 5

395,

, the Ohio Supreme Court explained that Ms. Thomas filed her

initial complaint and demanded service before the two-year statute of limitations

expired. She did not perfect service and the court dismissed her case. The Supreme

Court held a dismissal for failure to accomplish service is otherwise than on the merits

and without prejudice. Syllabus by the court, paragraph 1. The court concluded if a case

is dismissed for lack of service, the saving statute permits a plaintiff to re-file the case

within one year if all other procedural requirements have been met. Syllabus, paragraph

2.

{13} In Abel v. Safety First Industries, Cuyahoga App. No. 80550, 2002-Ohio-

6482, the court found prior to the Thomas decision, courts had found an action is

commenced or attempted to be commenced, for purposes of R.C. 2305.19, only if

effective service of process is obtained upon a defendant. Abel at paragraph 40,

citations deleted. The court of appeals concluded that after Thomas, the applicability of

R.C. 2305.19 is not limited only to circumstances where effective service of process has

been obtained. Rather, by its express language, the savings statute also applies where

there has been an attempt to commence an action. Abel at paragraph 42.

{14} The Abel court also found technically the suit failed otherwise than on the

merits on the date one year after the first lawsuit was filed, following which the lawsuit

could no longer be commenced. However, the court of appeals reasoned that to liberally

construe the Rules in order to resolve cases on their merits, the time should run from

the date the court actually dismissed the case, which was some time after the year had

expired. Id at paragraph 45. Fairfield County, Case No. 2011-CA-00028 6

{15} In Goolsby, the Supreme Court noted the plaintiff had not attempted

service within six months, and the trial court could have dismissed her case for failure to

prosecute pursuant to Civ. R. 4. In the case before us, the record shows appellant

attempted service with the filing of the complaint. Appellant should not be in a worse

situation than the plaintiff in Goolsby because she actively attempted to pursue her

claim. After the initial failure of service, appellant made further attempts to serve the

complaint during the year following the filing. We conclude she “attempted to

commence” the action by filing her complaint and her original praecipe for service within

the two year statute of limitations. Because she had attempted to commence her case,

the saving statute applies to extend the time for filing past the statute of limitations.

{16} We also find appellant’s April 13, 2010 praecipe does not constitute a

dismissal and re-filing, because if service had been successful then, it would have been

made within the one year of filing, and neither the Goolsby rule nor the savings statute

would be necessary to preserve appellant’s action.

{17} We conclude the trial court erred in finding the statute of limitations barred

appellant’s claim.

{18} The assignment of error is sustained. Fairfield County, Case No. 2011-CA-00028 7

{19} For the foregoing reasons, the judgment of the Court of Common Pleas of

Fairfield, Ohio, is reversed, and the cause is remanded to that court for further

proceedings in accord with law and consistent with this opinion.

By Gwin, P.J.,

Wise, J., and

Delaney, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE

_________________________________ HON. PATRICIA A. DELANEY WSG:clw 1212 [Cite as Waite v. Mahalaxmi, Inc.,

.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

FIFTH APPELLATE DISTRICT

LYNN H. WAITE : : Plaintiff-Appellant : : : -vs- : JUDGMENT ENTRY : MAHALAXMI, INC. : : : Defendant-Appellee : CASE NO. 2011-CA-00028

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Fairfield, Ohio, is reversed, and the cause is remanded

to the court for further proceedings in accord with law and consistent with this opinion.

Costs to appellee.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE

_________________________________ HON. PATRICIA A. DELANEY