[Cite as Clawson v. Hts. Chiropractic Physicians, L.L.C.,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

CYNTHIA CLAWSON : : Plaintiff-Appellant : Appellate Case No. 28632 : v. : Trial Court Case No. 2018-CV-3685 : HEIGHTS CHIROPRACTIC : (Civil Appeal from PHYSICIANS, LLC, et al. : Common Pleas Court) : Defendant-Appellee :

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OPINION

Rendered on the 20th day of November, 2020.

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P.J. CONBOY, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424 Attorney for Plaintiff-Appellant

CHARLES J. DAVIS, Atty. Reg. No. 0031862, 205 West Fourth Street, Suite 1280, Cincinnati, Ohio 45202 Attorney for Defendant-Appellee

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HALL, J. -2-

{¶ 1} Cynthia Clawson appeals from the trial court’s dismissal of her complaint

against appellee Don Bisesi for failure of service of process and its subsequent entry of

summary judgment in favor of appellee Heights Chiropractic Physicians, LLC.

{¶ 2} Clawson advances two assignments of error. First, she contends the trial

court erred in sustaining Bisesi’s motion to dismiss. Second, she claims the trial court

erred in entering summary judgment in favor of Heights Chiropractic.

{¶ 3} The present appeal stems from a medical-negligence complaint Clawson

filed against Bisesi, a chiropractor, and Heights Chiropractic, his employer. The record

reflects that Clawson originally filed the complaint in April 2016. She voluntarily dismissed

that complaint in September 2017. She then refiled the present lawsuit on August 10,

2018, which was within the one-year time limit provided by Ohio’s saving statute, R.C.

2305.19(A). Her complaint alleged that she went to Heights Chiropractic and was treated

by Bisesi, who was an employee of Heights Chiropractic. According to the complaint,

Bisesi, a licensed chiropractor, negligently ruptured Clawson’s breast implant while

applying pressure to her back when she was face down on a table. She sought damages

against Bisesi and Heights Chiropractic in excess of $25,000. In his November 19, 2018

answer, Bisesi raised several defenses, including a failure of service of process.

{¶ 4} On August 15, 2019, Bisesi moved to dismiss the complaint or, alternatively,

for summary judgment on the grounds that Clawson had failed to perfect service of

process within one year of refiling her complaint. Therefore, Bisesi argued that the action

had not been “commenced” against him under Civ.R. 3(A) and that the time for doing so

had expired. Alternatively, Bisesi sought summary judgment on the basis that the action -3-

had not been commenced against him under Civ.R. 3(A) and the statute of limitation had

expired. Accompanying Bisesi’s motion was his affidavit and supporting documentation

pertaining to service of process. Bisesi averred that Clawson had attempted service at

661 Coconut Grove Avenue, West Melbourne, Florida, as evidenced by a Federal

Express signature card signed by a “B. Kanapill.” He further averred that he had not

resided at that address since June 2018, that the signature on the card was not his, that

he did not know the person who signed the card, and that he did not authorize “B.

Kanapill” or anyone else to sign for him. He further averred that the person who signed

the card did not contact him or forward the summons and complaint to him.

{¶ 5} In response to Bisesi’s motion to dismiss and affidavit, the trial court

established a briefing schedule for Clawson to respond. The trial court stated that the

motion would be deemed submitted for decision on September 23, 2019 and that “no oral

hearing [would] be conducted unless requested by any party * * *.” (August 16, 2019

Entry.) Clawson subsequently filed a memorandum arguing that a presumption of proper

service arose because she served someone at Bisesi’s last known address. With respect

to a hearing, she simply asked the trial court to hold a hearing “if the Court deems [it]

necessary to determine if the presumption can be overcome.” (September 16, 2019

Memorandum Contra at 4.) Accompanying Clawson’s filing was an affidavit from Cara

Caldwell, who was her attorney’s administrative assistant. In relevant part, Caldwell

averred that an internet search had established 661 Coconut Grove Avenue in West

Melbourne, Florida as Bisesi’s last known residential address.

{¶ 6} The trial court sustained Bisesi’s motion to dismiss on September 26, 2019,

reasoning: -4-

Here, although an “individual” signed the service return receipt, the

Court finds that there is sufficient evidence to establish that the address

where service occurred was not Defendant’s correct address and,

therefore, Defendant did not receive proper notice of this action.

Specifically, Defendant has provided testimony that he has not resided at

that address since June of 2018. See Ex. D to Defendant’s Motion to

Dismiss. Moreover, pursuant to Defendant’s sworn affidavit, he does not

know B. Kanapill, nor did B. Kanapill, or anyone else, contacted [sic] him

regarding the Complaint or forwarded [sic] the Complaint to him. This

determination is further supported by the docket in this case, as well as

Plaintiff’s own admission, that the initial attempt to serve Defendant at the

address at issue was unsuccessful. See Docket. At the very least, this

should have put Plaintiff on notice that Defendant might not live there

anymore, or that an alternative method of service might be necessary.

Accordingly, the Court finds that Plaintiff did not properly serve Defendant

with notice of this action.

{¶ 7} Following the trial court’s dismissal of Bisesi, Height’s Chiropractic moved

for summary judgment. In its October 11, 2019 motion, Heights Chiropractic argued that

its alleged liability was vicarious based on its status as Bisesi’s employer. That being so,

Heights Chiropractic asserted that the entry of judgment against Clawson on her claims

against Bisesi necessarily extinguished any liability on the part of Heights Chiropractic.

{¶ 8} In a November 12, 2019 ruling, the trial court agreed with Heights

Chiropractic. It reasoned that Heights Chiropractic’s “liability is contingent upon the -5-

alleged liability of Dr. Bisesi, and the law in Ohio is clear that, because the primary claims

against Dr. Bisesi were extinguished, so too is the secondary claim against [Heights

Chiropractic].” (November 12, 2019 Decision, Order, and Entry at 4.) As a result, the trial

court found Heights Chiropractic entitled to summary judgment.

{¶ 9} In her first assignment of error, Clawson challenges the trial court’s

dismissal of her complaint insofar as it pertained to Bisesi. She acknowledges that

someone other than Bisesi signed for a copy of the summons and complaint at the

Coconut Grove address in Florida. (Appellant’s Brief at 4.) She argues, however, that a

rebuttable presumption of proper service arose because she served a person at Bisesi’s

last known address. (Id. at 4-6.) Clawson asserts that Bisesi’s affidavit denying having

any present connection with the Coconut Grove address or knowing a person named “B.

Kanapill” was insufficient to overcome the presumption. She also asserts that the trial

court was required to hold a hearing before it could rely on Bisesi’s affidavit to find a lack

of service of process.

{¶ 10} We apply abuse-of-discretion review to a trial court’s dismissal for

insufficient service of process. 1 Lewis v. Buxton, 2d Dist. Greene No. 2006-CA-122,

, quoting Spiegel v. Westafer, 3d Dist. Union No. 14-05-18, 2005-

Ohio-6033, ¶ 12; see also Cellan v. Lancione, 10th Dist. Franklin No. 16AP-677, 2017-

Ohio-1460, ¶ 6; Eisel v. Austin, 9th Dist. Lorain No. 09CA009653,

, ¶ 18;

1 Clawson cites Pugh v. Sloan, 11th Dist. Ashtabula No. 2019-A-0031,

, for the proposition that a ruling on a motion to dismiss is subject to de novo review. But Pugh involved a motion to dismiss for failure to state a claim, not a motion to dismiss for insufficient service of process. “The determination of whether service of process was sufficient in any particular case rests on the factual evaluation by the court and is within the sound discretion of the court.” C&W Invest. Co. v. Midwest Vending, Inc., 10th Dist. Franklin No. 03AP-40,

, ¶ 13. -6-

Matteo v. Principe, 8th Dist. Cuyahoga No. 92894,

, ¶ 9; Tuckosh v.

Cummings, 7th Dist. Harrison No. 07HA9,

. Having reviewed

Bisesi’s motion and affidavit as well as Clawson’s response and competing affidavit, we

see no abuse of discretion in the trial court’s dismissal of Bisesi without holding an

evidentiary hearing.

{¶ 11} Pursuant to Civ.R. 4.1(A)(1)(b) and Civ.R. 4.3(B), Clawson was permitted

to perfect service in Florida through a commercial carrier with a signed receipt. “In those

instances where the plaintiff follows the Civil Rules governing service of process, courts

presume that service is proper unless the defendant rebuts this presumption with

sufficient evidence of non-service.” Carter-Jones Lumber Co. v. Meyers, 2d Dist. Clark

No. 2005-CA-97,

. The presumption only arises, however, if service

is attempted at “an address where there is a reasonable expectation that it will be

delivered to the defendant.” In re S.A., 2d Dist. Montgomery No. 25532,

, citing Portfolio Recovery Assocs., L.L.C. v. Thacker, 2d Dist. Clark No. 2008-CA-

119,

.

{¶ 12} Here it is questionable whether Clawson’s attempt to serve her refiled

complaint on Bisesi at 661 Coconut Grove Avenue reasonably could have been expected

to reach him. This is so because a prior attempt to serve him at the same address via

Federal Express had been returned with the notation “Fedex Unsuccessful Service

Customer Not Available or Business Closed.” (Failure of Service Notification, Aug. 22,

2018.) We are unconvinced that trying the same method of service at the same location

reasonably could be expected to produce a different result.

{¶ 13} But even if Clawson’s subsequent successful service on “B. Kanapill” at 661 -7-

Coconut Grove Avenue did create a rebuttable presumption of service on Bisesi, the trial

court correctly found the presumption rebutted based on the affidavit Bisesi filed with his

motion to dismiss. As set forth above, Bisesi averred that that he had not resided at the

Coconut Grove address since June 2018, that the signature on the card was not his, that

he did not know the person who signed the card, that he did not authorize “B. Kanapill”

or anyone else to sign for him, and that the person who signed the card did not contact

him or forward the summons and complaint to him. These averments by Bisesi were

sufficient to rebut any presumption of proper service. Capital One Bank v. Smith, 2020-

Ohio-1614,

, ¶ 17 (8th Dist.) (recognizing that the presumption is rebutted

where a defendant swears under oath that he did not reside that the address where

service was made).

{¶ 14} The only remaining question is whether the trial court was required to hold

an evidentiary hearing to determine whether Bisesi had been served. We conclude that

no evidentiary hearing was required for at least two reasons. First, Clawson’s written

response to Bisesi’s motion and affidavit did not specifically request an oral hearing. She

suggested only that the trial court hold a hearing if the court deemed one necessary.

Second, and more importantly, a hearing was not necessary on the record before us.

Although Clawson maintains that service was made at Bisesi’s last known address, she

does not appear to dispute that Bisesi in fact no longer lived there. The affidavit Clawson

filed in the trial court made no assertion that Bisesi actually still resided at the Coconut

Grove address at the time of service. Therefore, the record contains uncontroverted

evidence in the form of Bisesi’s affidavit that service was made at the wrong address.

“[T]he fact that the service of process has been sent to an incorrect address is strong -8-

corroboration of [a] defendant’s otherwise unsupported and obviously self-serving

testimony that he did not receive service of process.” Sec. Natl. Bank & Tr. Co. v. Murphy,

2d Dist. Clark No. 2552,

, *2 (July 20, 1989).

{¶ 15} This court has found a hearing required “when process was sent to a

defendant at the defendant's correct address and the defendant has only his self-serving

testimony that he did not receive service of process[.]” Discover Bank v. Wells, 2d Dist.

Clark No. 2018-CA-44,

; see also Portfolio Recovery Assocs. at

¶ 31. Here, however, Bisesi presented uncontroverted evidence that process was sent to

the wrong address, a fact that Clawson does not appear to dispute on appeal. Under

these circumstances, we see no abuse of discretion in the trial court’s relying on Bisesi’s

affidavit to find insufficient service of process and to sustain his motion to dismiss.

Accordingly, the first assignment of error is overruled.

{¶ 16} In her second assignment of error, Clawson contends the trial court erred

in entering summary judgment in favor of Heights Chiropractic.

{¶ 17} We begin with the pleadings. The complaint alleges that at relevant times

Heights Chiropractic Physicians, LLC was the employer of Don Bisesi, D.C. (Complaint,

¶ 3.) Heights Chiropractic’s answer admits “Donald Bisesi, was its employee at all times

material.” (Answer, ¶ 3.) For our purposes, the employer-employee relationship between

Heights Chiropractic and Bisesi is undisputed.

{¶ 18} Because the claim against Bisesi personally was dismissed for lack of

service, which we affirm, Bisesi is no longer a party to the litigation. Ordinarily, “[f]or the

wrong of a servant acting within the scope of his authority, the plaintiff has a right of action

against either the master or the servant, or against both, in separate actions, as a -9-

judgment against one is no bar to an action or judgment against the other until one

judgment is satisfied.” Losito v. Kruse,

,

(1940). In

the trial court, Heights Chiropractic argued, and the trial court determined, that the case

of Comer v. Risko,

,

,

, held that “[i]If

there is no liability assigned to the agent, it logically flows that there can be no liability

imposed upon the principal for the agent’s actions.” Id. at ¶ 20. Therefore, upon the

dismissal of Bisesi, the trial court reasoned, Clawson’s claim against Heights Chiropractic

had to be dismissed.

{¶ 19} To the contrary, Clawson argues that the physician in Comer was an

independent contractor and liability of the principal in that case, Knox Community

Hospital, was based on a theory of agency-by-estoppel rather than a traditional master-

servant relationship. As such, Clawson contends Comer does not apply here. In support,

she cites Taylor v. Belmont Community Hosp., 7th Dist. Belmont No. 09 BE 30, 2010-

Ohio-3986, in which the Seventh District held that a plaintiff could sue a hospital based

on traditional respondeat superior liability for claims of medical negligence even though

no suit had been filed against the allegedly negligent employees, a physician and two

nurses. We agree with Clawson.

{¶ 20} The Supreme Court stated in Comer that “[t]he narrow issue before us is

whether * * * a viable claim exists against a hospital under a theory of agency by estoppel

for the negligence of an independent-contractor physician when the physician cannot be

made a party because the statute of limitations has expired.” Comer at ¶ 1. Because the

case before us, like the case before the court in Taylor v. Belmont Community Hospital,

involves traditional employer-employee relationships rather than agency-by-estoppel -10-

liability, we conclude that Comer does not apply. Although Heights Chiropractic argues

that Comer’s holding should apply, it does not even mention or try to distinguish Taylor.

{¶ 21} Others have argued that the Ohio Supreme Court case of Natl. Union Fire

Ins. Co. of Pittsburgh, PA v. Wuerth,

,

,

, which applied Comer’s holding to legal malpractice, extended Comer to require

dismissal of the case against the principal when the agent is not a party. We disagree.

Significantly, the relationship in Wuerth was that of partner and law firm, not a traditional

employer-employee relationship. See, e.g., Tisdale v. Toledo Hosp.,

,

,

(6th Dist.) (“The nature of Wuerth's relation

to his firm suffices to place this type of agency in a third classification—one that is

distinguishable from both respondeat superior and agency by estoppel. Wuerth was a

senior partner and part-owner of Lane Alton [the firm]. While attorneys are generally

independent contractors in relation to their clients, Wuerth himself, in relation to Lane

Alton, was neither an independent contractor nor an employee.”). Thus, we believe

Wuerth too is inapplicable.

{¶ 22} Finally, we note the holding, which neither party cites, in Rush v. Univ. of

Cincinnati Physicians, Inc., 1st Dist. Hamilton No. C–150309,

. There the

First District held that an employer, “UC Physicians,” could not be held liable for the

negligence of one of its physician-employees who was not named in the litigation. In

support of its decision, the appellate court cited Wuerth without addressing the fact that

the relationship in Wuerth was not that of employer-employee. To the extent that Rush

could be contrary to our decision, we disagree with its application of Wuerth.

{¶ 23} We sustain the second assignment of error and hold that a plaintiff may -11-

pursue the undisputed employer of a defendant chiropractor when the individual

employee has been dismissed from the case for lack of service of the complaint on the

employee within one year.

{¶ 24} The trial court’s judgment is affirmed with respect to its dismissal of Bisesi

individually and reversed with respect to its entry of summary judgment in favor of Heights

Chiropractic. The case is remanded for further proceedings consistent with this opinion.

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FROELICH, J. and WELBAUM, J., concur.

Copies sent to:

P.J. Conboy Charles J. Davis Hon. Dennis J. Adkins