[Cite as Austin v. White Castle Sys., Inc., 2013-Ohio-5107.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


John W. Austin, Jr.,                                     :

                 Plaintiff-Appellant,                    :         No. 12AP-1029
                                                               (C.P.C. No. 10CVC-05-8088)
v.                                                       :
                                                               (REGULAR CALENDAR)
White Castle Systems, Inc.,                              :

                 Defendant-Appellee.                     :




                                          D E C I S I O N

                                    Rendered on November 19, 2013


                 John W. Austin, Jr., pro se.

                 Earl Warburton Adams & Davis, Thomas L. Davis, and
                 Dick M. Warburton, Jr., for appellee.

                   APPEAL from the Franklin County Court of Common Pleas.

BROWN, J.
        {¶ 1} John W. Austin, Jr., plaintiff-appellant, appeals from a judgment of the
Franklin County Court of Common Pleas, in which the court granted the motion to
dismiss filed by White Castle Systems, Inc. ("White Castle"), defendant-appellee.
        {¶ 2} On July 31, 2005, appellant allegedly slipped and fell in a restaurant owned
by White Castle. Appellant filed a complaint ("first complaint") alleging negligence against
White Castle on July 31, 2007 ("first action"). Appellant served the first complaint on
White Castle at its district office. White Castle was represented by attorney Dick
Warburton in the first action. Appellant voluntarily dismissed the case on May 27, 2009.
        {¶ 3} On May 27, 2010, appellant refiled his complaint ("current complaint")
against White Castle ("current action"). Appellant served the current complaint upon
White Castle at the office address of the attorney who represented White Castle in the first
No. 12AP-1029                                                                            2


action, Dick Warburton. White Castle filed an answer, in which it, among other things,
raised the defenses of lack of personal jurisdiction and insufficiency of process and/or
service of process.
       {¶ 4} On August 17, 2011, White Castle filed a motion for summary judgment and
a motion to dismiss. In the motion to dismiss, White Castle argued that appellant failed to
serve it with a summons and complaint within one year, as required by Civ.R. 3(A).
Appellant countered that White Castle's attorney informed him during the pendency of
the first action that he should serve all future pleadings upon Warburton instead of White
Castle. On December 7, 2012, the trial court granted White Castle's motion to dismiss and
found its motion for summary judgment moot. Appellant, pro se, appeals the trial court's
judgment, asserting the following assignments of error:
              [I.] When the trial court refusal that service was accepted and
              satisfied by agreement de facto by the appellant-plaintiff and
              the defendant-appellee attorney/agent in Judge John
              Bender's chambers during a status conference attended by
              only the three on the morning May 27, 2011. And Staff
              Attorney Peck was not in attendance. Total ignoring of these
              facts violating the appellant-plaintiff right to a fair trial
              violating his State of Ohio and Federal Constitutional rights.

              [II.] The trial court erred in its conduct appellant-plaintiff
              right to a fair trial violating his Ohio and Federal
              Constitutional Rights thereof by not illustrating impartiality
              when it would not acknowledge nor hear any motion filed by
              Plaintiff-Appellant nor his requests for open court oral
              hearings throughout the beginning of this case. Allowing this
              matter to linger until the end of judge's term to leave office.

       {¶ 5} Appellant argues in his first assignment of error that the trial court erred
when it dismissed his complaint based upon lack of personal jurisdiction due to his failure
to properly serve process upon White Castle. Absent a waiver of service, a party must be
served with the summons and complaint pursuant to the methods set forth in Civ.R. 4.1
through 4.6. King v. Hazra, 91 Ohio App.3d 534, 536-37 (9th Dist.1993). Proper service of
process is an essential component in the acquisition of personal jurisdiction over a party.
Holm v. Smilowitz, 83 Ohio App.3d 757 (4th Dist.1992).
No. 12AP-1029                                                                              3


       {¶ 6} Once a defendant moves to dismiss for lack of personal jurisdiction, the
plaintiff must prove that the trial court has jurisdiction over the defendant. Joffe v. Cable
Tech, Inc., 163 Ohio App.3d 479, 2005-Ohio-4930, ¶ 10 (10th Dist.). If a trial court does
not hold an evidentiary hearing before considering the defendant's dismissal motion, the
court must view allegations in the pleadings and the documentary evidence in a light most
favorable to the plaintiff, resolving all reasonable competing inferences in its favor.
Goldstein v. Christiansen, 70 Ohio St.3d 232, 236 (1994). Moreover, in the absence of an
evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdiction to
withstand the motion to dismiss. State ex rel. Atty. Gen. v. Grand Tobacco, 171 Ohio
App.3d 551, 2007-Ohio-418, ¶ 13 (10th Dist.). A plaintiff satisfies this burden by
presenting sufficient evidence to allow reasonable minds to conclude that the trial court
has personal jurisdiction. Joffe at ¶ 10. We review a trial court's judgment granting a
motion to dismiss for lack of personal jurisdiction de novo. Information Leasing Corp. v.
Jaskot, 151 Ohio App.3d 546, 2003-Ohio-566, ¶ 9 (1st Dist.).
       {¶ 7} Civ.R. 4.2 details who may be served, and provides, in pertinent part:

              Service of process pursuant to Civ.R. 4 through 4.6, except
              service by publication provided in Civ.R. 4.4(A), shall be made
              as follows:

              ***

              (F) Upon a corporation either domestic or foreign: by serving
              the agent authorized by appointment or by law to receive
              service of process; or by serving the corporation at any of its
              usual places of business by a method authorized under Civ.R.
              4.1(A)(1); or by serving an officer or a managing or general
              agent of the corporation.

       {¶ 8} Furthermore, R.C. 2305.17 provides that "[a]n action is commenced * * * by
filing a petition in the office of the clerk of the proper court together with a praecipe
demanding that summons issue or an affidavit for service by publication, if service is
obtained within one year." Civ.R. 3(A) similarly provides that "[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."
No. 12AP-1029                                                                               4


       {¶ 9} In the present case, appellant alleges that, in a meeting with White Castle's
attorney, Warburton, after appellant's filing of his first complaint, Warburton told him
that his law firm had authorized legal capacity and authority to act as the agent on behalf
of White Castle, and Warburton agreed that his law office would be the proper address for
any subsequent notification, mailings, or contact for White Castle.
       {¶ 10} However, we agree with the trial court's conclusion that, even assuming
arguendo that Warburton made these representations to appellant, the statements related
only to pleadings filed in the first action, which appellant voluntarily dismissed. The
concepts discussed in this court's decision in Furney v. Wynn, 10th Dist. No. 11AP-110,
2011-Ohio-4000, upon which the trial court here relied, are helpful. In Furney, we found
that "[a] trial court must treat a refiled complaint following a voluntary dismissal as if the
first complaint had never been filed." Id. at ¶ 13, citing Kellie Auto Sales, Inc. v. Rahbars
& Ritters Ents., L.L.C., 172 Ohio App.3d 675, 2007-Ohio-4312, ¶ 32 (10th Dist.), citing
Zimmie v. Zimmie, 11 Ohio St.3d 94, 95 (1984). We concluded in Furney that a plaintiff's
service of the first complaint upon the defendant has no bearing on the refiled complaint.
Id.
       {¶ 11} Therefore, applying the holding in Furney to the present case, any alleged
representations made by White Castle's counsel relating to service of pleadings in the first
action had no bearing on the refiled complaint. Outside of these alleged representations
made by White Castle's counsel during the pendency of the first action, there is no other
evidence that Warburton's legal office serves as an agent authorized by appointment or by
law to receive service of process for White Castle pursuant to Civ.R. 4.2(F). There is also
no allegation that Warburton made any statements during the current action to suggest to
appellant that his law office was an authorized agent for White Castle for purposes of
service of process. Accordingly, the trial court properly granted White Castle's motion to
dismiss on this basis, and appellant's first assignment of error is overruled.
       {¶ 12} Appellant argues in his second assignment of error that the trial court
violated his constitutional rights by not demonstrating impartiality when it would not
hear any of his motions or his requests for open court oral hearings throughout the case.
In his brief, appellant contends that when he discussed the trial court's allegedly taking
part in an ex parte conversation with White Castle's counsel on September 15, 2008, the
No. 12AP-1029                                                                              5


trial court's staff attorney dismissed his concern because he was pro se, thereby
demonstrating the court's prejudice toward him. However, initially, we note that
appellant's argument concerns alleged actions and statements that took place during his
first action against White Castle; therefore, they are not relevant to the current action.
Notwithstanding, " '[p]ursuant to R.C. 2701.03, the Ohio Supreme Court, not the courts of
appeals, has authority to determine a claim that a common pleas court judge is biased or
prejudiced.' " Lakhi v. Healthcare Choices & Consultants, 10th Dist. No. 07AP-904,
2008-Ohio-1378, ¶ 27, quoting Wardeh v. Altabchi, 158 Ohio App.3d 325, 2004-Ohio-
4423, ¶ 21 (10th Dist.). R.C. 2701.03 provides the exclusive means by which a litigant may
claim that a common pleas judge is biased or prejudiced. Wardeh at ¶ 21. Apparently,
according to appellant, he did file a request for recusal of the trial judge with the Supreme
Court based upon this alleged ex parte communication; however, the record is unclear as
to whether he filed such during the pendency of the first action or the current action, and
we are unable to determine the outcome of that request from the record before us. For
these reasons, appellant's second assignment of error is overruled.
       {¶ 13} Accordingly, appellant's two assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                        Judgment affirmed.

                           SADLER and CONNOR, JJ., concur.

                                __________________
