[Cite as Truckly v. Streets, 2016-Ohio-4732.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                       GEAUGA COUNTY, OHIO


CHERIE I. TRUCKLY, et al.,                       :         OPINION

                 Plaintiffs-Appellants,          :
                                                           CASE NO. 2015-G-0026
        - vs -                                   :

CYNTHIA M. STREETS, et al.,                      :

                 Defendant-Appellee.             :


Civil Appeal from the Geauga County Court of Common Pleas, Case No. 14 P 00109.

Judgment: Modified and affirmed as modified.


Terry A. Swauger, 1129 Niles-Cortland Road, S.E., Warren, OH 44484 (For Plaintiffs-
Appellants).

John A. Rubis, Ritzler, Coughlin & Paglia, Ltd., 1360 East Ninth Street, 1000 IMG
Center, Cleveland, OH 44114 (For Defendant-Appellee).



TIMOTHY P. CANNON, J.

        {¶1}     Appellants, James A. and Cherie I. Truckly, appeal from the judgment of

the Geauga County Court of Common Pleas dismissing their negligence complaint, with

prejudice, filed against defendants Cynthia M. Streets and John Doe, in connection with

a February 11, 2012 automobile accident.             Based on the following, we affirm the

judgment of the trial court as modified herein.

        {¶2}     The Trucklys filed their negligence complaint against Ms. Streets and John

Doe on February 7, 2014, within the two-year statute of limitations. The complaint
noted “the identity and address of John Doe are unknown.” On February 21, 2014, the

Geauga County Clerk of Courts notified counsel for the Trucklys that certified mail

service upon Ms. Streets failed as it was “not deliverable as addressed.” No further

attempts were made to effectuate service.

       {¶3}   On June 10, 2014, counsel for Ms. Streets filed an answer and notice of

service of discovery. In her answer, Ms. Streets asserted the affirmative defense, inter

alia, of failure to perfect service of the complaint.

       {¶4}   On February 2, 2015, counsel for Ms. Streets filed a motion to dismiss the

complaint as service had not yet been perfected upon Ms. Streets. Specifically, Ms.

Streets’ motion maintained that she had not been properly served within six months,

and pursuant to Civ.R. 4(E), she asserted the Trucklys were required to show good

cause as why service was not made within that period. Ms. Streets noted that after the

failure of certified mail service, the Trucklys made no other attempts to perfect service.

Ms. Streets moved to dismiss the matter “without prejudice for failure to obtain service

in accordance with Civ.R. 4(E).”

       {¶5}   The Trucklys filed a response on March 12, 2015. In their response, the

Trucklys argued R.C. 2305.19, Ohio’s savings statute, was applicable. The Trucklys

maintained that dismissal would be prejudicial and may prevent them from re-filing the

complaint. On the same day of filing their response, the Trucklys instructed the clerk to

again serve Ms. Streets via certified mail.

       {¶6}   The trial court granted Ms. Streets’ motion to dismiss, but dismissed the

case with prejudice. In its judgment, the trial court noted the Trucklys were required to

obtain service within one year of filing pursuant to Civ.R. 3(A), and because service was




                                               2
not perfected, the action was never commenced. The trial court therefore concluded

that because the statute of limitations expired and the action never commenced, it

lacked jurisdiction over Ms. Streets and John Doe. The trial court further stated that

although Ms. Streets filed an answer, her defenses included lack of service.

       {¶7}   In discussing Civ.R. 4(E), the trial court reasoned that although the

Trucklys were notified of unsuccessful service, they did not take any further steps to

obtain service on Ms. Streets. And, therefore, they failed to demonstrate good cause

for their failure to obtain service within six months. The trial court dismissed the action

with prejudice.

       {¶8}   The Trucklys filed a timely notice of appeal and assert the following

assignments of error:

              [1.] The trial court erred in dismissing the complaint of the
              appellants.

              [2.] The trial court erred in determining the dismissal of the
              complaint of the appellants was with prejudice prohibiting the
              appellants from re-filing their complaint.

For ease of discussion, we address the Trucklys’ assigned errors in a consolidated

analysis.

       {¶9}   On appeal, the Trucklys present three arguments for our review: (1) a

dismissal was not warranted because their additional instructions for service, made

March 12, 2015, acted as a re-filing of the complaint; (2) the savings statute is

applicable to this situation because although service was not perfected, they attempted

to commence their action; and (3) the trial court erred in dismissing their complaint with

prejudice.




                                            3
       {¶10} “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).

Civ.R. 4(E) states, with emphasis added:

              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 * * * cannot show good cause why such service was not made
              * * *, the action shall be dismissed as to that defendant without
              prejudice * * *.

       {¶11} We first address whether the trial court erred in dismissing the Trucklys’

complaint with prejudice.     The Trucklys’ complaint against Ms. Streets alleged a

negligence claim for bodily injuries sustained in the February 11, 2012 automobile

accident. The Trucklys filed the complaint on February 7, 2014, within the two-year

statute of limitations. R.C. 2305.10(A) provides, “an action for bodily injury * * * shall be

brought within two years after the cause of action accrues.”

       {¶12} The Trucklys attempted to serve Ms. Streets via certified mail, but it was

returned with the notation “not deliverable as addressed.” After receiving notification

from the clerk, counsel for the Trucklys made no further attempts to serve Ms. Streets.

See Civ.R. 4(A). Prior to the expiration of one year from the filing of the complaint,

counsel for Ms. Streets moved to dismiss the Trucklys’ complaint, pursuant to Civ.R.

4(E), not Civ.R. 3(A).

       {¶13} In Thomas v. Freeman, 79 Ohio St.3d 221 (1997), the trial court dismissed

the plaintiffs’ complaint with prejudice for “lack of prosecution” seven months after the

complaint was filed, pursuant to Civ.R. 4(E). Civ.R. 4(E) permits a trial court to dismiss

a complaint if service has not been completed within six months after filing. Discussing

Civ.R. 4(E), the Ohio Supreme Court stated, “[t]his rule clearly intends that where




                                             4
service is not perfected within six months of the date of the filing of the complaint, the

action shall be dismissed without prejudice. Since Civ.R. 4(E) allows a plaintiff to show

good cause why his or her case should not be dismissed, the lack of a showing of good

cause is the equivalent of a failure to prosecute.” Id. at 226-227. Finding the trial court

erred in dismissing plaintiff’s complaint with prejudice, the Ohio Supreme Court held:

“When a plaintiff has failed to obtain service on a defendant, whether the court

dismisses the case under Civ.R. 4(E) (failure to obtain service) or Civ.R. 41(B)(1)

(failure to prosecute), the dismissal is otherwise than on the merits pursuant to Civ.R.

41(B)(4).” Id. at paragraph one of the syllabus.

              [W]here the facts indicate that a plaintiff has not acquired service
              on the defendant, the court may characterize its dismissal as a
              failure to prosecute pursuant to Civ.R. 41(B)(1), or as a failure to
              obtain service under Civ.R. 4(E), but the dismissal under either rule
              will be otherwise than on the merits under Civ. R. 41(B)(4).

              This analysis strikes a balance between the competing public
              policies of construing and applying the Civil Rules to eliminate
              those cases merely languishing on the docket versus deciding
              cases upon their merits. Dismissal with prejudice is a very severe
              and permanent sanction, to be applied with great caution.

Id. at 226 (citations omitted).

       {¶14} In its judgment, the trial court determined the Trucklys failed to show good

cause as to why their case should not be dismissed. A dismissal for failure to establish

good cause is equivalent to a failure to prosecute. The trial court went beyond the

scope of Ms. Streets’ Civ.R. 4(E) motion to dismiss by dismissing the action with

prejudice, in essence barring the Trucklys from refiling their complaint. In its analysis,

the trial court considered Civ.R. 3(A) and made a determination the action was never

commenced, and because the two-year statute of limitations had passed, the action




                                            5
should be dismissed with prejudice. Whether the two-year statute of limitations period

had expired, however, was not an issue before the trial court. There is nothing in the

record that would allow consideration as to the applicability of any tolling provisions,

such as those found in R.C. 2305.15. Under the facts presented, we find the trial court

erred. Although a dismissal of the Trucklys’ complaint was proper, it should have been

without prejudice.

       {¶15} Finding that a dismissal without prejudice was warranted, we next address

the Trucklys’ argument that Ohio’s savings statute, R.C. 2305.19, is applicable in this

case. If the Trucklys filed their initial complaint and demanded service prior to the

expiration of the two-year statute of limitations, and if the statute of limitations has

expired, the Trucklys argue they have one-year from the date of the dismissal without

prejudice to refile their complaint.

       {¶16} R.C. 2305.19(A) states, with emphasis added:

              In any action that is commenced or attempted to be commenced, if
              in due time a judgment for the plaintiff is reversed or if the plaintiff
              fails otherwise than upon the merits, the plaintiff * * * may
              commence a new action within one year after the date of the
              reversal of the judgment or the plaintiff’s failure otherwise than
              upon the merits or within the period of the original applicable statute
              of limitations, whichever occurs later.

       {¶17} The savings statute allows a plaintiff to refile a complaint beyond the

applicable statute of limitations under certain circumstances.           For example, if a

dismissal is without prejudice, i.e., otherwise than upon the merits, a plaintiff may utilize

the savings statute to refile the complaint; but if a dismissal is with prejudice, i.e., on the

merits, a plaintiff is unable to utilize the savings statute.        We find, however, the

applicability of the savings statute and/or the expiration of the statute of limitations are




                                              6
issues that are not ripe for review. These issues are to be resolved if, and when, the

Trucklys refile suit.

       {¶18} We next address the Trucklys’ argument that the additional instructions for

service, made to the clerk more than one year after filing the complaint, should have the

effect as a refiling of the original complaint. To support this argument, the Trucklys rely

on the Ohio Supreme Court’s case of Goolsby v. Anderson Concrete Corp., 61 Ohio

St.3d 549 (1991). This court, however, has determined that Goolsby is applicable only

under very limited circumstances. Gibson v. Summers, 11th Dist. Portage No. 2008-P-

0032, 2008-Ohio-6995, ¶41.

       {¶19} The plaintiff in Goolsby was involved in an automobile accident on July 19,

1985. Although she filed her complaint seven months after the accident, she refrained

from giving service instructions until two days prior to expiration of the statute of

limitations. Service was perfected after the statute of limitations period. The plaintiff

voluntarily dismissed the action, pursuant to Civ.R. 41(A)(2), on October 11, 1988. She

later refiled her action. She asserted this refiling was permitted by the savings statute.

The Tenth District Court of Appeals held that because the plaintiff never “commenced”

her action under Civ.R. 3(A), as she failed to obtain service within one year of filing her

complaint, she could not refile the complaint under the savings statute. Goolsby v.

Anderson Concrete Corp., 10th Dist. Franklin No. 89AP-1473, 1990 Ohio App. LEXIS

1661 (Apr. 26, 1990).

       {¶20} The Ohio Supreme Court reversed. The Goolsby Court reasoned 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




                                            7
for service was made within the limitations period prescribed by statute.” Goolsby, 61

Ohio St.3d at 550. The Court further reasoned that the plaintiff could have dismissed

her complaint and filed it again when service instructions were given to the clerk, thus

commencing the action within 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.” Id. at 551 (emphasis added). The plaintiff’s

“ability to refile the original complaint within the statutory period and gain an additional

year to obtain service under Civ.R. 3(A) is really why the [C]ourt held that a plaintiff in

her situation need not go through the formality of dismissing her action and then

promptly refile her action.” Gibson, supra, at ¶41.

       {¶21} Although Goolsby is inapplicable to the instant case to support the

Trucklys’ argument, Goolsby does instruct the trial court to properly apply the Civil

Rules. Specifically, the Court notes the trial court should have utilized Civ.R. 4(E),

dismissing the plaintiff’s complaint without prejudice as service was not attempted.

Citing Civ.R. 4(E), the Court observes that in most instances this rule “would be applied

when a plaintiff has neglected to again attempt service after original service of process

fails.” Goolsby, 61 Ohio St.3d at 551.

       {¶22} As we previously discussed, it was error for the trial court, under the

circumstances presented, to dismiss the Trucklys’ complaint with prejudice, pursuant to

Civ.R. 3(A); rather, the Trucklys’ complaint should have been dismissed without

prejudice, pursuant to Civ.R. 4(E) as requested by Ms. Streets.

       {¶23} The Trucklys’ assignments of error have merit to the extent indicated.




                                             8
       {¶24} Based on the opinion of this court, the judgment of the Geauga County

Court of Common Pleas is hereby modified and affirmed as modified. The matter was

properly dismissed, but as modified herein, it is dismissed as of the date of this

judgment without prejudice.



CYNTHIA WESTCOTT RICE, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.


                                 ____________________


COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

       {¶25} While I concur with the majority’s well-reasoned opinion I write separately

to note that, rather than modifying the trial court’s judgment, this writer feels that it would

be simpler to vacate it and enter a new judgment. The majority correctly notes that the

trial court dismissed appellant’s complaint, but should have done so without prejudice.

The order of this court modifies the dismissal from one with prejudice to one without

prejudice.

       {¶26} This writer feels that it would be more efficacious to vacate the current trial

court’s judgment and issue a new judgment dismissing appellant’s complaint without

prejudice, effective the date of issuance.




                                              9
