[Cite as Hubiak v. Ohio Family Practice Ctr., 2014-Ohio-3116.]
STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

EVA ANN HUBIAK, ET AL.                                           C.A. No.     26949

        Plaintiffs-Appellants

        and                                                APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
OHIO FAMILY PRACTICE                                       COURT OF COMMON PLEAS
CENTER, INC., ET AL.                                       COUNTY OF SUMMIT, OHIO
                                                           CASE No.   CV 2011-10-6095
        Defendants-Appellees

                                 DECISION AND JOURNAL ENTRY

Dated: July 16, 2014


        CELEBREZZE, Presiding Judge.

        {¶1} Appellants, Eva Ann Hubiak, Milissa Wikman, and Stephen P. Carter, appeal from

the trial court’s dismissal of their medical malpractice suit.       The trial court determined that

appellants had failed to properly serve the defendants and dismissed the suit with prejudice.

After a thorough review of the record and law, we reverse.

                                 I.     Factual and Procedural History

        {¶2} On October 27, 2011, appellants filed their medical malpractice complaint against

Ohio Family Practice Center, Inc. (“Ohio Family”); physician’s assistant Amy C. Newman; Dr.

Richard James Dom Dera; Dr. Kelli Sabin; Summit Ophthalmology, Inc. (“Summit”); Dr.

Charles Peter; Akron Radiology, Inc. (“Akron Radiology”); Dr. Jeffrey S. Unger; and several

John Doe health care providers.            The complaint alleged that these defendants negligently

rendered services to Hubiak from August 24, 2010 through October 29, 2010, which caused

injury to her and a loss of parental consortium to her and her two children, Wikman and Carter.
                                                 3

          {¶3} Upon filing their complaint with the Summit County Clerk of Courts, the attorney

representing appellants completed a form requesting service of the complaint via Federal

Express. Service via Federal Express was completed on each named party within one month.

Each named defendant filed an answer and various pleadings, pretrials were conducted, the

process of discovery commenced, and depositions were conducted.         After a few continuances, a

trial date of December 2, 2013, was set.

          {¶4} On January 16, 2013, Ohio Family, Newman, Dr. Dom Dera, and Dr. Sabin (the

“Ohio Family defendants”) filed a motion for judgment on the pleadings based on a lack of

proper service. The motion set forth that the common pleas court issued a standing order

making employees of Federal Express process servers for the court.        However, the Ohio Rules

of Civil Procedure did not, at the time the complaint was served, provide for initial service of a

complaint other than by certified or express mail.1        Akron Radiology and Dr. Unger (the

“Akron Radiology defendants”) filed a similar combined motion to dismiss and for judgment on

the pleadings the following day.    On January 24, 2013, appellants filed their opposition, arguing

that service by Federal Express provided actual notice and fulfilled the spirit of the rule, and that

the rule was amended effective July 1, 2012, to provide for service via Federal Express. On

April 26, 2013, Summit and Dr. Peter (the “Summit defendants”) filed a motion for summary

judgment making the same argument regarding lack of proper service.

          {¶5} On May 6, 2013, the trial court granted the motions to terminate the case filed by

each group of defendants. Appellants then timely appealed from this decision assigning four

errors:

1
  The rules have since been amended, effective July 1, 2012, to allow service by commercial carriers
such as Federal Express.
                                                4

       I. The trial court erred in dismissing Plaintiffs/Appellants’ cause of action when
       Plaintiffs/Appellants were relying on Miscellaneous Order No. 325.

       II. The trial court erred in holding that Defendants/Appellees had not been
       served pursuant to the Ohio Rules of Civil Procedure.

       III. The trial court’s decision to dismiss Plaintiffs/Appellants’ cause of action
       was contrary to law.

       IV.   The trial court’s decision to dismiss the case with prejudice is
       unconstitutional in that it violates Section 16, Article I, of the Ohio Constitution.


                                     II.   Law and Analysis

                                    A. Standard of Review

       {¶6} Appellants’ first three assignments of error all take issue with the trial court’s

decision to terminate appellants’ case based on a lack of proper service.   The trial court granted

motions to dismiss filed by the Akron Radiology and Ohio Family defendants. The court also

granted summary judgment in favor of the Summit defendants.

       {¶7} The grant of a motion to dismiss under Civ.R. 12(B) or 12(C) motions for judgment

on the pleadings are reviewed by this court de novo. Cashland Fin. Servs., Inc. v. Hoyt, 9th

Dist. Lorain No. 12CA010232, 2013-Ohio-3663.         A motion for judgment on the pleadings is

confined to the allegations raised in the complaint. Gawloski v. Miller Brewing Co., 96 Ohio

App.3d 160, 163, 644 N.E.2d 731 (9th Dist.1994).     It is not the proper vehicle to raise the issues

argued by the parties in this case because they rely on evidence outside of the pleadings,

including service records from the clerk of courts and a document filed by appellants with the

clerk directing service via Federal Express. A Civ.R. 12(B)(2) motion to dismiss for lack of

jurisdiction allows for a broader consideration of the record in rendering a decision including

“other documentary evidence such as affidavits and answers to interrogatories.” Free v. Govt.
                                                5

Emps. Ins., 12th Dist. Butler No. CA89-09-135, 1990 Ohio App. LEXIS 1670, *4 (Apr. 30,

1990), citing Price v. Wheeling Dollar Savs. & Trust Co., 9 Ohio App.3d 315, 460 N.E.2d 264

(12th Dist.1983).

       {¶8} “Regardless of whether the motion is one under Civ.R. 12(B)(2) or 12(C), the

material allegations of the complaint, with all reasonable inferences to be drawn therefrom, are to

be construed in favor of the [nonmoving] party * * *.”       Id., citing Fischer v. Morales, 38 Ohio

App.3d 110, 526 N.E.2d 1098 (10th Dist.1987); Giachetti v. Holmes, 14 Ohio App.3d 306,          471

N.E.2d 165 (8th Dist.1984).

       {¶9} An appellate court reviews a trial court’s decision on a motion for summary

judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241

(1996). Summary judgment is proper when: (1) there is no genuine issue as to any material

fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds

can come to but one conclusion, and that conclusion is adverse to the party against whom the

motion for summary judgment is made, that party being entitled to have the evidence construed

most strongly in his favor. Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d 266, 268, 617

N.E.2d 1068 (1993); Civ.R. 56(C).

                                B.   Service via Federal Express

       {¶10} 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
                                                 6

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. There are no conflicts in these cases.

       [Former] Civ.R. 4.1(A) explicitly provided that “service of any process shall be
       by United States certified or express mail unless otherwise permitted by these
       rules.” The term “express mail,” as used in Civ.R. 4.1(A) both then and now,
       refers only to express mail service via the United States Postal Service, not a
       commercial carrier. Prior to the July 1, 2012, effective date of amendments to
       Civ.R. 4.1 and 4.6, service of the complaint via a commercial carrier did not
       comply with the civil rules. Former Civ.R. 4.6(C) and (D) and 4.1.

Emerson Tool at ¶ 32.

       {¶11} 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.

                                  C. Wavier of Proper Service

       {¶12} The above holding does not end the inquiry in this case. Service may be waived,

and the court will have jurisdiction over a party who voluntarily submits thereto where lack of

service is not properly preserved. Waiver occurs “‘(1) if a motion is made raising other Civ.R.
                                                 7

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.” Shah v. Simpson, 10th Dist.

Franklin No. 13AP-24, 2014-Ohio-675, ¶ 15, quoting Stewart v. Forum Health, 190 Ohio

App.3d 484, 2010-Ohio-4855, 942 N.E.2d 1117, ¶ 36 (7th Dist.), citing Gliozzo v. Univ.

Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, ¶ 9.

       {¶13} Civ.R. 12 explains that certain defenses may be waived.               Civ.R. 12(H)(1)

provides:

       A defense of lack of jurisdiction over the person, * * * insufficiency of process, or
       insufficiency of service of process is waived (A) if omitted from a motion in the
       circumstances described in subdivision (G), or (B) if it is neither made by motion
       under this rule nor included in a responsive pleading or an amendment thereof
       permitted by Rule 15(A) to be made as a matter of course.

       {¶14} The Ohio Supreme Court has recently explained the confines of waiver of service

and the means to properly preserve the defense.         The court held, “[w]hen the affirmative

defense of insufficiency of service of process is properly raised and properly preserved, a party’s

active participation in the litigation of a case does not constitute waiver of that defense.”

Gliozzo at the syllabus, citing First Bank of Marietta v. Cline, 12 Ohio St.3d 317, 466 N.E.2d

567 (1984).    It is necessary to raise the defense of insufficiency of service of process in a

responsive pleading or in certain motions before a responsive pleading.      Gliozzo at ¶ 13, citing

Maryhew v. Yova, 11 Ohio St.3d 154, 156-157, 464 N.E.2d 538 (1984).               If the party does

neither, then participation in the proceedings leads to waiver of proper service and the existence

of personal jurisdiction over the party.
                                                  8

        {¶15} In the present case, no defendant filed a motion to dismiss for lack of proper

service before filing an answer.     Therefore, we look to each party’s answer to determine

whether the defense was raised therein.

        {¶16} The Ohio Family defendants filed a joint answer where they raised several

defenses, including that “[p]laintiffs have failed to obtain appropriate jurisdiction due to lack of

service, inadequacy of service and failure of appropriate service.”

        {¶17} The Akron Radiology defendants filed a joint answer that asserted as a defense that

“the Complaint was not served upon them in accordance with the Ohio Rules of Civil

Procedure.”

        {¶18} Finally, the Summit defendants filed a joint answer that did not raise lack of

service as a defense. The closest defense raised states, “[t]his Court lacks jurisdiction of the

within action by virtue of the Plaintiffs’ failure to comply with the pleading requirements as

required by the Ohio Revised Code.”

        {¶19} The answer of the Ohio Family and Akron Radiology defendants affirmatively

raised lack of service as a defense.      According to the holding in Gliozzo, this preserved the

defense, which was later raised in the motions to dismiss of these defendants.

        {¶20} However, Summit’s answer does not properly preserve the defense.         The general

statement quoted above does not address the lack of service or improper service at issue in this

case.   It also alleges a lack of jurisdiction based on the failure to comply with governing

provisions of the Ohio Revised Code, not the Ohio Rules of Civil Procedure.              Therefore,

Summit and Dr. Peter waived the defense of proper service when they failed to timely raise the
                                                   9

issue in a pre-answer motion or by raising the defense in their answer, and by appearing and

participating wholly in the proceedings.

                 D.   Subsequent Amendment During the Pendency of the Case

       {¶21} Appellants ask this court to hold that the amendment of Civ.R. 4 et seq. during the

pendency of this case means that service, which was not proper at the time it was tried, later

became effective after Civ.R. 4.1 was amended to allow for service via commercial carrier.

       {¶22} Civ.R. 86(II) specifically governs the applicability of these changes in the rules to

pending cases.    It provides:

       The amendments to Civil Rules 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, * * * shall take effect
       on July 1, 2012. They 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.

(Emphasis added.)     Id.

       {¶23} In the present case, the record indicates that all parties were served in November

2011 via Federal Express, evidenced by signed receipts.         The modifications to Civ.R. 4.1,

which now allow commercial carrier service, became effective on July 1, 2012. Civ.R. 4.1(B)

provides, “As an alternative to service under Civ.R. 4.1(A)(1)(a), the clerk may make service of

any process by a commercial carrier service utilizing any form of delivery requiring a signed

receipt.”

       {¶24} The Ohio Family defendants moved for judgment on the pleadings on January 16,

2013. The Akron Radiology defendants moved for judgment on the pleadings and to dismiss

on January 17, 2013.        By the time these motions were filed, the amendments had taken effect.
                                                   10

This court must determine if the trial court erred when it failed to apply the amended rule to the

action.

          {¶25} The defendants argue that the action was not pending, relying on Mason v. Waters,

6 Ohio St.2d 212, 217 N.E.2d 213 (1966), and Laneve v. Atlas Recycling, Inc., 119 Ohio St.3d

324, 2008-Ohio-3921, 894 N.E.2d 25.

          {¶26} In Mason, the Ohio Supreme Court held that where proper service did not take

place within the appropriate time, the action was deemed not to have commenced and there was

no pending case.     Id. at 215-216. Based on this precedent, if 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.

          {¶27} The Ohio Supreme Court addressed Civ.R. 15 in LaNeve and held that failure to

adhere to the requirements specified within the civil rules regarding service affected the

jurisdiction of the trial court.   The court stated, “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.” Id. at ¶ 23.

          {¶28} These cases do not deal with amendment of the civil rules and their application to a

case.     For instance, in Pullar v. Upjohn Health Care Servs., 21 Ohio App.3d 288, 488 N.E.2d

486 (8th Dist.1984), the Eighth District applied amended civil rules to review a decision of the

trial court in an age discrimination action. The defendant in that case filed for summary

judgment raising issues of res judicata and estoppel that were not raised in its answer. After the

motion for summary judgment was filed, Civ.R. 12 was amended to clarify which defenses were
                                                11

subject to waiver.2   The trial court granted summary judgment after the amendment took effect.

The Eighth District ruled that the amendment applied to the then-pending proceedings. Pullar at

294, fn.1, citing Civ.R. 86(I).   This situation is more analogous to the present case than those

cited by the defendants.

       {¶29} If we apply the amendments, what was previously improper service on July 1,

2012, became proper, and the action was commenced and pending on that date because it was

within the statute of limitations and the one-year period for perfecting service.   Even if that

were not the case, defendants are incorrect that there was no pending case because service was

not completed within one year. As explained above and more thoroughly in Section E of this

opinion, there was a pending action because at least one group of defendants waived proper

service, making the action “commenced” on the date of waiver, and therefore, pending. Also,

the application of the amended rules to the present case would be in keeping with the

long-standing tradition to, as much as possible, decide cases on their merits. Patterson v. V &

M Auto Body, 63 Ohio St.3d 573, 577, 589 N.E.2d 1306 (1992).




2
  The rules governing waiver of affirmative defenses were amended to clarify that certain
pleading defenses are waived while other motion defenses are not waived. See Civ.R. 12(H).
[Cite as Hubiak v. Ohio Family Practice Ctr., 2014-Ohio-3116.]
        {¶30} Civ.R. 86(II) directs courts to apply the amended rules to “all further proceedings

in actions then pending” except where it would not be feasible or work an injustice. No

injustice is found after an examination of the record for the application of the amended rules to

the present case.

        {¶31} All defendants received service in compliance with the updated rule within a

month of filing the complaint, as evidenced by signed receipts.           All defendants actively

participated in the proceedings, attending pretrials and depositions, and filing documents as part

of discovery. Defendants also do not assert any specific compelling injustice that would result

in this case from application of the updated rule.

        {¶32} The effect of applying the amended rules to this case is that the trial court lacked

jurisdiction over the Akron Radiology and Ohio Family defendants on June 30, 2012, and then it

had jurisdiction over those parties on July 1, 2012. The application of the amended rule does

not work an injustice in this case because actual service was received by these defendants in a

method in compliance with the amended rules, and the parties were actively involved in the

litigation.   No prejudice results other than relieving the defendants of a defense whose

application to the present case is unjustified. Therefore, Civ.R. 86(II) dictates that the amended

rule should apply.

                                     E.   Service Within One Year

        {¶33} The Summit defendants relied on a different rule of civil procedure in support of

their motion for summary judgment.             Summit argued that because service was imperfect,

appellants did not obtain service within one year of the filing of their complaint, in compliance

with Civ.R. 3.
[Cite as Hubiak v. Ohio Family Practice Ctr., 2014-Ohio-3116.]
        {¶34} “Civ.R. 3(A) provides that an action is not deemed to be ‘commenced’ unless

service of process is obtained within one year from the date of the filing of the action.”     Bentley

v. Miller, 9th Dist. Summit No. 25039, 2010-Ohio-2735, ¶ 10, citing Jacobs v. Szakal, 9th Dist.

Summit No. 22903, 2006-Ohio-1312, ¶ 19.

        [T]he Supreme Court stated that an action may be dismissed when service of
        process has not been obtained after the passage of more than one year.
        However, even without service of process, a defendant may commit acts that
        constitute waiver of the defense of lack of personal jurisdiction.

Sheets v. Sasfy, 10th Dist. Franklin No. 98AP-539, 1999 Ohio App. LEXIS 202, *2, (Jan. 26,

1999), citing Maryhew, 11 Ohio St.3d 154, 157, 464 N.E.2d 538.

        {¶35} The trial court granted Summit’s motion for summary judgment because it found

appellants had not obtained service within one year of filing the complaint. The court reasoned

that this failure to comply with Civ.R. 3(A) subjected appellants’ complaint to dismissal and

rendered the claim against the Summit defendants barred because the one-year statute of

limitations period for medical malpractice had run and Ohio’s savings statute, R.C. 2305.19, was

not applicable. That decision must be reversed because Summit and Dr. Peter waived proper

service, and there is no dispute in the record that these defendants were served in November

2011.

        {¶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.       Where a waiver of service occurs, the date

of service is the date of said waiver.3     The date that service is affirmatively or impliedly waived

constitutes the date of service.    This holding is derived from the principle that “a defendant may


3
  This must be distinguished from cases where there is no waiver and participation. See
Maryhew, 11 Ohio St.3d 154, 157, 464 N.E.2d 538 (1984); Emerson Tool, L.L.C., 9th Dist.
Summit No. 26200, 2012-Ohio-5647.
                                                14

effectively or inferentially waive service of process by failing to assert his claim of lack of

personal jurisdiction over him in the form and manner required of him by Civ. R. 12(H)(1).”

Carlisle v. Benner, 5th Dist. Stark No. CA-6605, 1985 Ohio App. LEXIS 8262 (June 24, 1985).

       {¶37} In the present case, Summit and Dr. Peter were served on November 11, 2011.

Their combined answer, filed November 18, 2011, fails to raise the defense of improper service.

Summit’s motion for judgment on the pleadings, filed December 7, 2011, also fails to raise the

issue of improper service. Therefore, service was completed for Civ.R. 3(A) purposes when

proper service was waived on November 18, 2011. This is well within the one-year period set

forth in Civ.R. 3(A). Service could also be deemed perfected, as explained above, when Civ.R.

4.1 was amended effective July 1, 2012. This was also within Civ.R. 3(A)’s one-year limit.

       {¶38} Summit supports its argument that the action was never commenced according to

Civ.R. 3 with citations to cases where a waiver of service did not occur. See, e.g., Bentley, 9th

Dist. Summit No. 25039, 2010-Ohio-2735, ¶ 10.        This case and similar ones are inapposite

where the lack of adequate service is waived.

       {¶39} In Bentley, the defendant was never served, never appeared, and the plaintiff

obtained a default judgment.      That case is clearly distinguishable where Summit voluntarily

submitted to the court’s jurisdiction on November 18, 2011. This is also distinguishable from

other cases where a waiver of the defense occurred outside of one year from the date of filing.

See Gaul v. Crow, 8th Dist. Cuyahoga Nos. 74600, 74608, 74609, 74610, 74611, and 74612,

1999 Ohio App. LEXIS 4088 (Sep. 2, 1999). This is equivalent to obtaining proper service

outside of the one-year period.
                                                   15

       {¶40} Therefore, the trial court erred in granting Summit’s motion for summary

judgment.

                               F.     Constitutionality of Civ.R. 4(A)

       {¶41} Appellants argue that sustaining the trial court’s decision dismissing its case is a

violation of constitutional rights.    Specifically, appellants argue that Section 5(B), Article IV, of

the Ohio Constitution prohibited the county courts from adopting rules that were inconsistent

with rules promulgated by the Ohio Supreme Court. Having sustained appellants’ first three

assignments of error, this argument is moot.

                                           III.   Conclusion

       {¶42} The amendment of Civ.R. 4.1, which became effective during this case, rendered

what was previously improper service effective to bestow jurisdiction on the trial court over

defendants. The trial court erred in dismissing appellants’ claims against the Akron Radiology

and Ohio Health defendants for this reason. This also means that service was perfected within

one year of filing, rendering the trial court’s grant of summary judgment in favor of the Summit

defendants in error.

                                                                                  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 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.
                                                16

       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 taxes to Appellees.



                                     PRESIDING JUDGE FRANK D. CELEBREZZE, JR.
                                                Eighth Appellate District,
                                                    Sitting by Assignment.
JOSEPH J. VUKOVICH, J.,
Seventh Appellate District,
Sitting by Assignment,

GENE DONOFRIO, J.,
Seventh Appellate District,
Sitting by Assignment,
concur.

APPEARANCES:

PAUL G. PERANTINIDES, Attorney at Law, for Appellants.

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

STACY R. DELGROS, Attorney at Law, for Appellees.

DAVID M. BEST, Attorney at Law, for Appellees.

MARC W. GROEDEL, Attorney at Law, for Appellees.
