[Cite as Haggerty v. Upchurch, 2014-Ohio-3162.]




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

 STEVEN E. HAGGERTY                              :
                                                 :     Appellate Case No. CA 25912
         Plaintiff-Appellee                      :
                                                 :     Trial Court No. 2012 MSC 00110
 v.                                              :
                                                 :
 CAROLE J. UPCHURCH, et al.                      :     (Civil Appeal from Probate Court)
                                                 :
         Defendant-Appellant                     :
                                                 :
                                             ...........
                                            OPINION
                              Rendered on the 18th day of July, 2014.
                                             ...........

CHARLES M. BLUE, Atty. Reg. #0074329, and BROOKS A. COMPTON, Atty. Reg.
#0014767, Murr Compton Claypoole & Macbeth, 401 East Stroop Road, Kettering, Ohio
45429-2829
      Attorneys for Plaintiff-Appellee, Steven E. Haggerty

CARL D. SHERRETS, Atty. Reg. #0040621, and HEATHER F. SHANNON, Atty. Reg.
#0082580, Sherrets Law Offices, LLC, 580 Lincoln Park Boulevard, Suite 399, Kettering, Ohio
45429
      Attorneys for Defendant-Appellant, Carole Upchurch


                                            .............

HALL, J.,

        {¶ 1}    Carole Upchurch appeals the trial-court judgment in her favor that dismisses the
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will-contest action of Steven Haggerty, the appellee, based on untimely service under Civ.R. 3(A)

and 4(E). Upchurch challenges the court’s additional conclusion that the statute of limitations on

will-contest actions in R.C. 2107.76 is not also grounds for dismissal. Whether the limitations

statute applies is a moot issue because the trial court’s judgment, dismissing the action under the

civil rules, is correct. We affirm.

                                        I. BACKGROUND

        {¶ 2}     On November 28, 2011, Upchurch and Haggerty’s mother died, and her will

names Upchurch the executor of her estate. Haggerty was in prison when she died but that did not

stop him from filing a will-contest action a few months after he was notified that his mother’s

will had been admitted to probate. Haggerty named Upchurch as a defendant, but he did not

obtain service on her until over a year after he had filed the action. Upchurch moved to dismiss

the action based on Haggerty’s failure to serve her timely under Civ.R. 3(A), which requires that

for a civil action to commence, service must be obtained on the defendants within one year from

the filing of the complaint, or under Civ.R. 4(E), which requires dismissal if service is not

obtained within six months from the complaint’s filing and the plaintiff fails to show good cause

for late service. Upchurch also sought dismissal based on the will-contest statute of limitations in

R.C. 2107.76, which precludes a person from filing a will-contest action more than three months

after the probate certification was filed, unless the person was under a legal disability at the time.

If the person was under a legal disability, he has until three months after the disability is removed

to file the action.

        {¶ 3}    The trial court concluded that dismissal under both civil rules was proper. The

court found that Haggerty served Upchurch over a year after he had filed his complaint–in excess
                                                                                                                                             3


of Civ.R. 3(A)’s one-year service requirement and well in excess of Civ.R. 4(E)’s six-month

requirement for service. The court also noted that Haggerty failed to offer any explanation for the

untimely service. But the court concluded that dismissal was not proper under the statute of

limitations in R.C. 2107.76. The court found that Haggerty had been in prison since December

10, 2010, and that being in prison is a “legal disability,” giving Haggerty until three months after

his release to file his action. The trial court dismissed the action without prejudice.1

         {¶ 4}        Upchurch appealed.

                                                          II. ANALYSIS

         {¶ 5}        The sole assignment of error challenges the trial court’s determination that the

will-contest statute of limitations in R.C. 2107.76 does not bar Haggerty’s action. Upchurch

contends that the court’s conclusion is incorrect that being in prison is a “legal disability.”

         {¶ 6}        Upchurch does not ask us to reverse the trial court’s judgment of

dismissal–which is in her favor–but asks “that the Trial Court’s Decision be reversed because

Steven Haggerty is not legally disabled due to his imprisonment.” (Emphasis added.) Brief of

Appellant, 10. However, only a judgment may be reversed. See App.R. 12. And if the judgment is

correct, we must affirm it, even if one of the trial court’s reasons for the judgment may be

incorrect. State ex rel. McGrath v. Ohio Adult Parole Auth., 100 Ohio St.3d 72, 2003-Ohio-5062,

796 N.E.2d 526, ¶ 8 (“Reviewing courts are not authorized to reverse a correct judgment on the

basis that some or all of the lower court’s reasons are erroneous.”); see also Baumgartner v.

Duffey, 121 Ohio St.3d 356, 2009-Ohio-1218, 904 N.E.2d 534, ¶ 4 (“[W]e will not reverse a


            1
            In her motion to dismiss, Upchurch also argues that the complaint fails to state a claim upon which relief can be granted. The trial
 court concluded that analysis of this issue was not necessary because the action was not properly commenced under Civ.R. 3(A) and 4(E).
                                                                                                  4


correct judgment even if some or all of the lower court’s rationale was erroneous.” (Citation

omitted.)). Neither party here disputes that dismissal is proper under Civ.R. 3 and 4, so we not

only assume that the trial court’s judgment is correct, we agree that it is correct. Which means

that whether or not the court’s conclusion on the alternative grounds for dismissal, the statute of

limitations, is correct is a moot issue.

        {¶ 7}    We note that, according to the records on the Ohio Department of Rehabilitation

and Correction’s website, Haggerty was released from prison on December 1, 2013. He refiled

his will-contest action on February 20, 2014, which the trial court stayed pending the outcome of

this appeal. Upchurch may move to dismiss the refiled action under R.C. 2107.76 and, if the trial

court denies the motion, may present the statute-of-limitations issue on appeal at the appropriate

time. The issue will then be properly before us.

        {¶ 8}    The sole assignment of error is overruled.

        {¶ 9}    The trial court’s judgment is affirmed.

                                           .............

FROELICH, P.J., and DONOVAN, J., concur.




Copies mailed to:

Charles M. Blue
Brooks A. Compton
Carl D. Sherrets
Heather F. Shannon
Christopher Haggerty
John Haggerty
Tami Haggerty
Hon. Alice O. McCollum
