[Cite as Rossiter v. Smith,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

DENISE L. ROSSITER, et al. C.A. No. 12CA0023

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE KYLE B. SMITH, et al. COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO Appellees CASE No. 10-CV-0879

DECISION AND JOURNAL ENTRY

Dated: September 28, 2012

WHITMORE, Presiding Judge.

{¶1} Plaintiff-Appellant, Denise Rossiter, the Administrator of the Estate of Justin

Rossiter (“Administrator”), appeals from the judgment of the Wayne County Court of Common

Pleas, granting summary judgment in favor of Defendant-Appellee, Kyle Smith. This Court

reverses.

I

{¶2} Justin Rossiter died after a car driven by Smith collided with a utility pole.

Administrator, Justin’s mother, filed a wrongful death complaint against Smith within the statute

of limitations period for wrongful death actions.1 Administrator asked the clerk of courts to

serve Smith by certified mail at his last known address, but the certified mail was returned as

1 Although the instant litigation also involved multiple insurance companies, we do not discuss their involvement as it is irrelevant to the issue on appeal. 2

unclaimed. Administrator later voluntarily dismissed her complaint. At the point Administrator

dismissed her complaint the statute of limitations had expired.

{¶3} Within one year of the dismissal of her complaint, Administrator re-filed her

complaint against Smith and obtained service of process. Smith filed a motion for summary

judgment in which he argued that Administrator could not rely upon the savings statute

applicable to wrongful death actions, R.C. 2125.04, to re-file her complaint. Specifically, Smith

argued that Administrator never commenced or attempted to commence a civil action for

wrongful death against him within the original statute of limitations period because she never

served him with her first complaint. Administrator filed a memorandum in opposition, arguing

that her attempt to serve Smith through certified mail in the first action constituted an attempt to

commence her civil action for wrongful death. The trial court agreed with Smith’s interpretation

of the savings statute and concluded that Administrator never commenced or attempted to

commence her civil action against Smith before voluntarily dismissing her complaint.

Accordingly, the court granted Smith’s motion for summary judgment on the basis of the statute

of limitations.

{¶4} Administrator now appeals from the trial court’s judgment and raises two

assignments of error for our review.

II

Assignment of Error Number One

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO SMITH[.]

{¶5} In her first assignment of error, Administrator argues that the trial court erred by

granting Smith’s motion for summary judgment. Specifically, she argues that the wrongful death 3

savings statute applied to her re-filed complaint because she attempted to commence a civil

action against Smith before voluntarily dismissing her first complaint. We agree.

{¶6} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co.,

(1996). Pursuant to Civ.R. 56(C), summary judgment is

proper if:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc.,

(1977). The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for the motion and

pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher

v. Burt,

(1996). Specifically, the moving party must support the

motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C).

Once

this burden is satisfied, the non-moving party bears the burden of offering specific facts to show

a genuine issue for trial.

. The non-moving party may not rest upon the mere

allegations and denials in the pleadings but instead must point to or submit some evidentiary

material that demonstrates a genuine dispute over a material fact. Henkle v. Henkle,

(12th Dist. 1991).

{¶7} With the exception of a products liability claim, a cause of action for wrongful

death “shall be commenced within two years after the decedent’s death.” R.C. 2125.02(D)(1). A

plaintiff may file a wrongful death action beyond the two-year period only if he or she satisfies

the conditions set forth in R.C. 2125.04, the wrongful death savings statute. The savings statute

provides that: 4

[i]n every civil action for wrongful death that is commenced or attempted to be commenced within the time specified by [R.C. 2125.02(D)(1)] * * *, if * * * the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new civil action for wrongful death within one year after the date of * * * the plaintiff’s failure otherwise than upon the merits * * *.

R.C. 2125.04. “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). As for

attempted commencement, the Supreme Court has held that “[t]he mere filing of a complaint

does not constitute an attempted commencement of an action for purposes of R.C. 2125.04.”

Motorists Mut. Ins. Co. v. Huron Rd. Hosp.,

(1995), paragraph two of the

syllabus.

{¶8} The legal issue on appeal is a narrow one. Both parties agree that Administrator

filed her initial complaint within two years of her son’s death and re-filed her complaint within

one year of voluntarily dismissing it. Therefore, none of the filing deadlines applicable to

wrongful death actions are in dispute. The only issue on appeal is the meaning of the phrase

“attempted to be commenced,” as is it used in R.C. 2125.04.

{¶9} Smith sought summary judgment on the basis that Administrator never

commenced or attempted to commence an action against him when she first filed suit. Smith

argued that Administrator had to perfect service upon him in the first suit in order to commence

or attempt to commence her wrongful death action for purposes of the savings statute. Because

Administrator’s attempt to serve Smith with her first complaint by certified mail at his last

known address failed, Smith argued, Administrator did not commence or attempt to commence

her suit against him. The trial court agreed that the phrase “attempted to be commenced” was

synonymous with “commenced” for purposes of the savings statute and granted Smith’s motion

for summary judgment. 5

{¶10} Administrator concedes that she did not commence her wrongful death action

against Smith in the first suit because she did not obtain service upon him within a year. See

Civ.R. 3(A). Even so, Administrator argues that she attempted to commence her action in the

first suit by trying to serve Smith at his last known address through certified mail. Thus, the sole

issue on appeal is whether an unsuccessful attempt to serve a defendant by certified mail at his

last known address constitutes an attempt to commence a wrongful death action for purposes of

the wrongful death savings statute. For the following reasons, we conclude that it does.

{¶11} As applied to this case, the language in the wrongful death savings statute is

virtually identical to the language contained in R.C. 2305.19, the general savings statute.

Compare R.C. 2125.04 with R.C. 2305.19(A). Both statutes use the phrase “commenced or

attempted to be commenced.” R.C. 2125.04; R.C. 2305.19(A). Before the adoption of the Ohio

Rules of Civil Procedure, R.C. Chapter 2305 defined the phrase “attempted to be commenced.”

Specifically, it provided that “an attempt to commence an action is equivalent to its

commencement, when the party diligently endeavors to procure a service, if such attempt is

followed by service within sixty days.” Former R.C. 2305.17 (G.C. 11231). After Civ.R. 3(A)

was enacted, however, the General Assembly revised R.C. 2305.17 and eliminated the definition

of “attempt to commence.” See R.C. 2305.17. Although both Civ.R. 3(A) and R.C. 2305.17

currently define how an action “is commenced,” neither defines an “attempt to commence” an

action. Absent any authority, the Eighth District concluded in Simonetti v. Piorkowski that the

General Assembly deleted the definition of “attempt to commence” because it intended that

definition to be subsumed within the definition of commence. Simonetti v. Piorkowski, 8th Dist.

No. 42270,

, *2 (Dec. 18, 1980). The Eighth District held that to either

commence or attempt to commence an action under the savings statute, a plaintiff must have 6

served a defendant with his original complaint.

The trial court here agreed with that

interpretation.

{¶12} Because Civ.R. 3(A) supersedes R.C. 2305.17, we focus solely on the definition

of commencement contained within the civil rule. See Seger v. For Women, Inc.,

,

, ¶ 7. As previously set forth, Civ.R. 3(A) provides: “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 * * *.” In Motorists Mut. Ins. Co., the Ohio Supreme Court

considered whether plaintiffs had attempted to commence their wrongful death suit for purposes

of the wrongful death savings statute. Motorists Mut. Ins. Co.,

. There,

the plaintiffs filed their complaint and requested the appointment of a process server. Although a

server was appointed, service was never attempted before the plaintiffs voluntarily dismissed

their complaint.

. The Court held that the “mere filing of a complaint does not

constitute an attempted commencement of an action for purposes of R.C. 2125.04.”

.

In so holding, the Court reasoned that “[s]ervice is too vital a part of commencement of a lawsuit

for a party to be deemed to have attempted commencement without even attempting service.”

(Emphasis added.)

Notably, the Court did not hold that the plaintiffs had to obtain service in

order to take advantage of the savings statute. The Court based its holding on the plaintiffs’

failure to even attempt service.

Similarly, with regard to the general savings statute, the

Court has recognized that attempting service differs from perfecting service. LaNeve v. Atlas

Recycling, Inc.,

,

, ¶ 17-19.

{¶13} “[S]avings statutes should be liberally construed to ensure that cases are decided

on the merits whenever possible, rather than on procedural technicalities.” Barker v. Strunk, 9th

Dist. No. 06CA008939,

. Further, “[a]n unambiguous statute must be applied 7

in a manner consistent with the plain meaning of the statutory language, and a court cannot

simply ignore or add words.” Portage Cty. Bd. of Commrs. v. Akron,

, 2006-

Ohio-954, ¶ 52. Smith’s interpretation of R.C. 2125.04 would have this Court essentially ignore

the phrase “attempt to commence” as it is used within the statute. Common sense alone dictates

that “commence” and “attempt to commence” do not mean the same thing. We agree with our

sister district that “an attempt to commence obviously contemplates something less than

commencement.” Thacker v. Sells, 10th Dist. No. 90AP-669,

, *4 (Dec. 31,

1990) (wrongful death plaintiff had attempted to commence the action by requesting proper

certified mail service upon a defendant, even though the suit was dismissed “before it could be

determined that effective service was not made”).

{¶14} Other districts have reached the same result with regard to the general savings

statute. The Seventh District has held that “an action is attempted to be commenced, as

contemplated by R.C. 2305.19, when a party files a complaint with the clerk of the court within

the applicable statute of limitations and demands service on that complaint.” Sorrell v. Estate of

Datko,

,

, ¶ 22 (7th Dist. 2001). Similarly, the Second

District has held that “the attempted commencement provision of R.C. 2305.19 requires only that

a Plaintiff has taken action to effect service on a defendant within the applicable limitations

period according to one of the methods provided in the Civil Rules.” (Emphasis sic.) Schneider

v. Steinbrunner, 2d Dist. No. 15257,

, *4 (Nov. 8, 1995). Even the Eighth

District later rejected the approach it took in Simonetti v. Piorkowski and held that the phrases

“commence” and “attempt to commence” are not synonymous. Husarcik v. Levy, 8th Dist. No.

75114,

, *2-3 (Nov. 10, 1999). In Husarcik, the Eighth District held that a 8

plaintiff had attempted to commence his action when he filed a request for service by certified

mail, but service was never perfected. Id. at *1-3.

{¶15} After Administrator filed her first complaint, she attempted to serve Smith by

certified mail at his last known address. Certified mail was a proper method of service under the

Civil Rules. See LaNeve,

,

, at ¶ 17 (“An attempt to

commence an action as contemplated * * * must be pursuant to a method of service that is proper

under the Civil Rules.”). By attempting to serve Smith by certified mail, Administrator did more

than merely file her complaint. See Motorists Mut. Ins. Co.,

.

Administrator’s demand for service upon Smith by certified mail constituted an attempt to

commence her wrongful death action against him.

. See also Sorrell at ¶ 22;

;

. The trial court erred by equating the phrase “commence”

with the phrase “attempt to commence” and by relying upon a position the Eighth District later

rejected. Because Administrator attempted to commence her initial wrongful death action

against Smith, Smith was not entitled to summary judgment on the basis of the statute of

limitations. Administrator’s first assignment of error is sustained.

Assignment of Error Number Two

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE MOTION TO VACATE JUDGMENT.

{¶16} In her second assignment of error, Administrator argues that the trial court abused

its discretion by denying her motion to vacate. The record reflects that Administrator filed her

notice of appeal before the trial court ruled on her Civ.R. 60(B) motion. “Where a party files a

motion for relief from judgment pursuant to Civ.R. 60(B), then files a notice of appeal before the

trial court has ruled on the Civ.R. 60(B) motion, the notice of appeal deprives the trial court of

jurisdiction to vacate the judgment challenged by the appeal.” Klinginsmith v. Felix,

9

App.3d 147, 150-151 (9th Dist. 1989), quoting Dempsey v. Chicago Title Ins. Co.,

(8th Dist. 1985), paragraph one of the syllabus. Because the trial court lacked

jurisdiction to consider Administrator’s motion, “the order denying it is null and void.” State v.

Smith, 9th Dist. Nos. 07CA009220 & 07CA009252,

. We do not reach

the merits of Administrator’s second assignment of error, as the trial court’s ruling on her Civ.R.

60(B) motion is a nullity.

III

{¶17} Administrator’s first assignment of error is sustained. We do not reach the merits

of Administrator’s second assignment of error as it pertains to a void judgment. The judgment of

the Wayne County Court of Common Pleas is reversed, and the cause is remanded for further

proceedings consistent with the foregoing opinion.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 10

Costs taxed to Appellee.

BETH WHITMORE FOR THE COURT

MOORE, J. DICKINSON, J. CONCUR.

APPEARANCES:

TIMOTHY B. SAYLOR, Attorney at Law, for Appellant.

MARK BASERMAN, Attorney at Law, for Appellee.