[Cite as Hall v. Crystal Clinic, Inc., 2018-Ohio-5314.]


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

ARLAN HALL                                                     C.A. No.   29031

        Appellant

        v.                                                     APPEAL FROM JUDGMENT
                                                               ENTERED IN THE
CRYSTAL CLINIC INC., et al.                                    COURT OF COMMON PLEAS
                                                               COUNTY OF SUMMIT, OHIO
        Appellees                                              CASE No.   CV-2012-08-4446

                                  DECISION AND JOURNAL ENTRY

Dated: December 31, 2018



        TEODOSIO, Judge.

        {¶1}     Arlan Hall appeals the judgment of the Summit County Court of Common Pleas

granting summary judgment in favor of Crystal Clinic, Inc., Crystal Clinic Orthopedic Surgeons,

Inc., and Douglas Ehrler, M.D. We affirm.

                                                          I.

        {¶2}     This medical malpractice action was originally filed by Arlan Hall on June 3,

2010, in the Summit County Court of Common Pleas, with instructions to the Clerk of Court to

serve the defendants via FedEx. See Hall v. Crystal Clinic, Inc., Summit C.P. No. CV 2010-06-

3989 (Sept. 19, 2011). The complaint alleged Crystal Clinic, Inc., Crystal Clinic Orthopedic

Surgeons, Inc., Douglas Ehrler, M.D., and Kenneth Greene, M.D. were negligent in their

treatment of Mr. Hall from October 2008 through December 12, 2008. All defendants were

served by FedEx on June 22, 2010. The defendants filed their answers in July 2010, with each
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stating an affirmative defense of failure to obtain service or insufficiency of service of process.

The case was voluntarily dismissed by Mr. Hall in September 2010.

       {¶3}    The action was refiled under case number CV 2012-08-4446 on August 2, 2012,

naming Crystal Clinic, Inc., Crystal Clinic Orthopedic Surgeons, Inc., and Douglas Ehrler, M.D.

(collectively, “Crystal Clinic”) as defendants. In August 2012, Crystal Clinic filed an answer to

the complaint, and in August 2013, they filed a motion to dismiss for lack of personal

jurisdiction due to a failure to obtain proper service, which was granted in January 2017. Mr.

Hall appealed to this Court, and we reversed and remanded the case on the grounds that the trial

court’s judgment relied upon facts outside of the pleadings. Hall v. Crystal Clinic, Inc., 9th Dist.

Summit No. 28524, 2017-Ohio-8471. Crystal Clinic subsequently filed a motion for summary

judgment on the basis of lack of personal jurisdiction, which was granted by the trial court on

April 24, 2018. Mr. Hall now appeals, raising one assignment of error.

                                                II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF’S/APPELLANT’S
       COMPLAINT BASED ON FAILURE OF SERVICE.

       {¶4}    In his assignment of error, Mr. Hall argues the trial court erred in granting

summary judgment and dismissing his complaint based upon failure of service. We disagree.

       {¶5}    Appellate review of an award of summary judgment is de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56

when: (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) viewing the evidence most strongly in favor of

the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is

adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977),
                                               3


citing Civ.R. 56(C). A court must view the facts in the light most favorable to the non-moving

party and must resolve any doubt in favor of the non-moving party. Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 358–359 (1992). A trial court does not have the liberty to choose among

reasonable inferences in the context of summary judgment, and all competing inferences and

questions of credibility must be resolved in the nonmoving party’s favor. Perez v. Scripps–

Howard Broadcasting Co., 35 Ohio St.3d 215, 218 (1988).

       {¶6}   The Supreme Court of Ohio has set forth the nature of this burden-shifting

paradigm:

       [A] party seeking summary judgment, on the ground that the nonmoving party
       cannot prove its case, bears the initial burden of informing the trial court of the
       basis for the motion, and identifying those portions of the record that demonstrate
       the absence of a genuine issue of material fact on the essential element(s) of the
       nonmoving party’s claims. The moving party cannot discharge its initial burden
       under Civ.R. 56 simply by making a conclusory assertion that the nonmoving
       party has no evidence to prove its case. Rather, the moving party must be able to
       specifically point to some evidence of the type listed in Civ.R. 56(C) which
       affirmatively demonstrates that the nonmoving party has no evidence to support
       the nonmoving party’s claims. If the moving party fails to satisfy its initial
       burden, the motion for summary judgment must be denied. However, if the
       moving party has satisfied its initial burden, the nonmoving party then has a
       reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that
       there is a genuine issue for trial and, if the nonmovant does not so respond,
       summary judgment, if appropriate, shall be entered against the nonmoving party.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

       {¶7}   At the time that Mr. Hall filed his original complaint, the Summit County

Common Pleas Court had issued a standing order designating FedEx and its employees as

process servers for the court. See In re: Appointment of Standing Process Server, Misc. No. 325

(June 23, 2009). Although the Ohio Supreme Court eventually approved commercial carrier

service, the amendment to Civ.R. 4.1 permitting commercial carrier service did not take effect

until July 1, 2012. Therefore, at the time Mr. Hall requested FedEx service upon the Crystal
                                                  4


Clinic defendants in 2010, commercial carrier service had yet to be approved by the Ohio

Supreme Court.

       {¶8}    This Court has previously addressed these circumstances in Hubiak v. Ohio

Family Practice Ctr., Inc.:

       The Ohio Rules of Civil Procedure set forth the appropriate methods of service
       that must be used in order to obtain proper service on a party. See Civ.R. 4.1 et
       seq. The rules are designed to ensure, as much as possible, that parties receive
       adequate notice. Former Civ.R. 4.1(A) provided, “service of any process shall be
       by certified or express mail unless otherwise permitted by these rules.” At the
       time appellants served their complaint, the rules did not provide for initial service
       of a complaint via commercial carrier. In several decisions, this court made clear
       that service via Federal Express did not comport with service rules prior to July 1,
       2012. Haley v. Nomad Preservation, Inc., 9th Dist. Summit No. 26341, 2013-
       Ohio-86 (“At the time the notice and order of garnishment was served via Federal
       Express in 2010, Civ.R. 4.3(B) did not provide for service via Federal Express”);
       Emerson Family Ltd. Partnership v. Emerson Tool, L.L.C., 9th Dist. Summit No.
       26200, 2012-Ohio-5647, ¶ 32; Philco Realty, Ltd. v. Wells Fargo Bank, 9th Dist.
       Summit No. 26289, 2012-Ohio-5400; J. Bowers Constr. Co. v. Vinez, 9th Dist.
       Summit No. 25948, 2012-Ohio-1171.

       ***

       The manner in which appellants’ complaint was served did not comply with
       Ohio’s former civil rules. It is no matter that there existed a standing order of the
       court designating employees of Federal Express as process servers. That
       designation only comes into play under Civ.R. 4.6 after a failure of service that
       comports with Civ.R. 4.1(A). Therefore, at the time service was attempted, it was
       not completed according to the dictates of Civ.R. 4.1.

Hubiak v. Ohio Family Practice Ctr., Inc., 9th Dist. Summit No. 26949, 2014-Ohio-3116, ¶ 10-

11.

       {¶9}    We have noted, however, that “[s]ervice may be waived, and the court will have

jurisdiction over a party who voluntarily submits thereto where lack of service is not properly

preserved.” Hubiak at ¶ 12. “Waiver occurs ‘(1) if a motion is made raising other Civ.R. 12(B)

defenses and it is not included in that motion and (2) if there is no such motion, if it is not raised

by separate motion or included in the responsive pleading.’” Hubiak at ¶ 12, quoting Shah v.
                                                  5


Simpson, 10th Dist. Franklin No. 13AP-24, 2014-Ohio-675, ¶ 15. In the case before us for

review, there was no waiver of service by the defendants, nor has the issue of waiver been raised

by Mr. Hall.

       {¶10} In Suiter v. Karimian, we addressed the issue of whether the amendments to

Civ.R. 4.1 allowing for service of process by commercial carrier applied retroactively. Suiter v.

Karimian, 9th Dist. Summit No. 27496, 2015-Ohio-3330. Civ.R. 86(II) addresses the effective

date of the amendments to Civ.R. 4.1, providing that the amendments to Civ.R. 4.1 “govern all

proceedings in actions brought after they take effect and also all further proceedings in actions

then pending, except to the extent that their application in a particular action pending when the

amendments take effect would not be feasible or would work injustice, in which event the former

procedure applies.” For a civil case to have commenced, service must have been obtained upon

a named defendant within one year of the filing of the complaint. Civ.R. 3(A). “[I]f service was

not perfected within the one-year time frame of Civ.R. 3(A), then the action cannot be deemed

commenced and was never pending.” Hubiak at ¶ 26.

       {¶11} Mr. Hall filed his complaint against the Crystal Clinic defendants on June 3, 2010,

and had through June 3, 2011, to obtain service upon any defendant. See Civ.R. 3(A). See also

Hubiak at ¶ 36 (“The date of commencement of an action for Civ.R. 3(A) purposes is the date of

filing so long as service is obtained within one year.”). Because Mr. Hall failed to obtain service

upon any defendant on or before that date, the action never “commenced” for purposes of Civ.R.

3(A). See Suiter at ¶ 22. Therefore, the matter was not pending against any defendant when the

amendments to Civ.R. 4.1 took effect on July 1, 2012. See Suiter at ¶ 22.

       {¶12} Mr. Hall argues that the Ohio “saving statute,” R.C. 2305.19, should apply

because it preserves a cause of action even if a plaintiff fails to perfect service within one year of
                                                 6


filing the complaint. He further argues that under R.C. 2305, an action need not be commenced,

but only requires that it was “attempted to be commenced.”

       {¶13} R.C. 2305.19(A) provides:

       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.

       {¶14} “An attempt to commence an action as contemplated * * * must be pursuant to a

method of service that is proper under the Civil Rules.” Rossiter v. Smith, 9th Dist. Wayne No.

12CA0023, 2012-Ohio-4434, ¶ 15, quoting LaNeve v. Atlas Recycling Inc., 119 Ohio St.3d 324,

2008-Ohio-3921, ¶ 17. See also Kramer v. Installations Unlimited, Inc., 147 Ohio App.3d 350,

2002-Ohio-1844, ¶ 25 (5th Dist.) (“[A]n attempt to commence as set forth in R.C. 2305.19 must

be pursuant to a method of service that is proper under the Civil Rules.”).

       {¶15} Because service of the original complaint by FedEx was not a proper method of

service under the then-existing version of the Civil Rules, the action was neither commenced, nor

can it be considered to have been attempted to be commenced. As a consequence, the action

could not have been preserved for the one-year period contemplated by R.C. 2305.19.

       {¶16} Mr. Hall also argues that the dismissal of his action violated Article I, Section 16,

of the Ohio Constitution, which provides: “All courts shall be open, and every person, for an

injury done him in his land, goods, person, or reputation, shall have remedy by due course of

law, and shall have justice administered without denial or delay.” Although the end result may

be unsatisfactory and unfortunate, and we are not unsympathetic of that fact, Mr. Hall has not

shown that he was deprived access to the courts or a remedy by due course of law as a result of

the standing order of the Summit County Court of Common Pleas. The instructions for service
                                                7


filed by Mr. Hall in the original action requested service of the complaint by FedEx, and despite

the existence of the order appointing FedEx and its employees as standing process servers, Mr.

Hall has not shown that he was prevented from requesting service that would have been in

compliance with the then-existing version of the Civil Rules. We are therefore unable to

conclude that there has been a violation of Mr. Hall’s rights under Article I, Section 16, of the

Ohio Constitution.

       {¶17} Mr. Hall had one year from the date of the filing of his complaint to obtain proper

service upon one of the named defendants and failed to do so. See Suiter at ¶ 24. “Although

courts should strive to hear cases on their merits whenever possible, ‘the Civil Rules are not just

a technicality, and we may not ignore the plain language of a rule in order to assist a party who

has failed to comply with a rule’s specific requirements.’” Suiter at ¶ 24, quoting LaNeve at ¶

23. “An action may be dismissed when service of process has not been obtained after the

passage of more than one year.” Maryhew v. Yova, 11 Ohio St.3d 154, 157 (1984). Because Mr.

Hall failed to serve any of the defendants in accordance with the then-existing version of the

Civil Rules, the trial court did not err in granting summary judgment. See Suiter at ¶ 24.

       {¶18} Mr. Hall’s assignment of error is overruled.

                                               III.

       {¶19} Mr. Hall’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 8


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

Pleas, County of Summit, 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.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



SCHAFER, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

ANTONIOS P. TSAROUHAS, Attorney at Law, for Appellant.

GREGORY T. ROSSI and DOUGLAS G. LEAK, Attorneys at Law, for Appellee.
