IN THE SUPREME COURT OF OHIO
Lyman Franklin, On Appeal from the Richland CountyExecutor of the Estate of Court of Appeals, Fifth AppellateMargaret Franklin, deceased District
Plaintiff/Appellant,
V. 0 7 -n 0 4 "71Steven Cole Bear, et al., Court of Appeals
Defendants/Appellees. Case No.: 2006 CA 49
MOTION FOR RECONSIDERATION OF APPELLANT LYMAN FRANKLIN
Cassandra J. M. Mayer (0070656)79 South Main St.Mansfield, Ohio 44902(419) 524-2444Fax No.: (419) 524-2300
COUNSEL FOR APPELLANT, LYMAN FRANKLIN, EXECUTOR OF THE ESTATEOF MARGARET FRANKLIN, DECEASED
Robert J. Foulds (0008633)5843 Mayfield Rd.Cleveland, Ohio 44124(440) 461-9000Fax No.: (440) 461-6108
COUNSEL FOR APPELL)=E, STEVEN COLE BEAR
JUL 0 7- 7007
CLERK OF COURTSUPREME COURT OF OHIO
I. ARGUMENT
This Court should reconsider its decision declining to hear this case because
currently pending in this Court is a case that would be otherwise dispositive of the
issue presented in Appellant's case. Specifically, in Gliozzo v. University Urologists of
Cleveland. Inc., et al., (April 6, 2006), 2006 Ohio App.LEXIS 1586, captioned in this
Court as 2006-1166, Discretionary Appeal (Non-felony), oral arguments were heard
by the Court on May 24, 2007. The issue being that the defendant waived any
affirmative defense of lack of service when the defendant voluntarily entered an
appearance and proceeded to actively participate in the litigation.
This Court indicated that it declined jurisdiction to hear the case and
dismissed the appeal because it did not involve any substantial constitutional
question. The Appellant asserts that the issue presented involves his due process
rights pursuant both the United States Constitution and the Ohio Constitution.
Specifically, the Appellant, as the plaintiff, was denied his due process rights when
his wrongful death case, involving the death of his wife, was dismissed after counsel
for Appellee entered an appearance and participated in the litigation until days prior
to trial and then asserted an affirmative defense of lack of service. The counsel for
Appellee was hired by Appellee's insurance company to enter an appearance and
participate in the litigation up to days before trial.
The lower court, in Gliozzo, stated that the participation in the litigation of the
case almost to trial equates to a submission by the defendant to the personal
jurisdiction of the Court and therefore, constitutes a waiver of the right to proper
service.
The Eighth Appellate District noted that this Court has held that judgment may
be rendered against a defendant who is not properly served with process where the
record shows that he has voluntarily submitted himself to the court's jurisdiction or
committed other acts which constitute a waiver of the jurisdictional defense. Id. citing
Maryhew v. Yova, (1984), 11 Ohio St.3d 154, 156, see also; Garnett v. Garnett, 1986
Ohio App. LEXIS 7778.
In Gliozzo, the court determined that the record reflected that the appellees
timely filed the affirmative defenses of insufficiency of process, the record also
showed appellees contacted PlaintifPs attorney and requested leave to plead, filed
an answer, attended a case management conference, conducted discovery,
exchanged expert reports, attended pretrials, filed a dispositive motion and filed
motions in limine, which the docket reflected and demonstrated that the appellees
vigorously defended the case on the merits, up until the eve of trial. Id.
The position of the Appellant is that, in good faith, counsel for Appellant sent a
complimentary copy of the re-filed complaint, as a courtesy, to counsel for Appellee,
who cooperated throughout the pendency of the matter, including interrogatories,
depositions, settlement discussions, expert opinion information, mediation and then
also the motions for summary judgment.
This case is clearly a situation in which the Appellee waived any insufficiency
of service of process defenses by his complete participation in the litigation process
and preparation for trial. Appellant asserts that this involves a substantial
constitutional issue and respectfully requests this Court reconsider its dismissal of
the appeal and hold his matter for final decision in Gliozzo v. University Urologists of
Cleveland, Inc., et al., (April 6, 2006), 2006 Ohio App.LEXIS 1586, captioned in this
Court as 2006-1166, Discretionary Appeal (Non-felony).
Respectfully submitted,
Cassandra J. M. N}ayer#0070656Counsel for Appellant, LymanFranklin, Executor of the Estate ofMargaret Franklin, deceased
CERTIFICATE OF SERVICE
This is to certify that a true and accurate copy of the foregoing
Appellant's Motion for Reconsideration was sent via US Mail, on the day11of --F, ' , 2007, to counsel for Defendant/Appellee, Robert J. Foulds, 5843
Mayfi Rd., Cleveland, Ohio 44124.
Cassa da MayerAttorney fo laintiff/Appellant#0070656
roV
APPENDIX
roU
Appellant's Exhibit A:
Appellant's Exhibit B:
Appellant's Exhibit C:
Appellant's Exhibit D:
Appellant's Exhibit E:
Judgment Entry of the Supreme Court decliningjurisdiction (June 20, 2007)
Opinion of the Richland County Court of Appeals(January 30, 2007)
Judgment Entry of the Richland County Court of Appeals(January 30, 2007)
Opinion of the Richland County Court of Appeals(December 27, 2005)
Judgment Entry of the Richland County Court of Appeals(December 27, 2005)
^f IfI( 1 ft
`^ ^^ $nVrr.eM:e ^Vrlrxt .af C04t0^ ED,!I_N' 20 2007
wS?s,lA ; i.9E4lGEL, CLERKLyman Franklin, Executor of Estate of Case No. 2007-0471 i%CURT OF OHIOMargaret Franklin
ENTRYV.
Steven Cole Bear et al.
Upon consideration of the jurisdictional memoranda filed in this case, the Courtdeclines jurisdiction to hear the case and dismisses the appeal as not involving anysubstantial constitutional question.
(Richland County Court of Appeals; No. 2006CA49)
Chief Justice
COURT OF APPEALSRICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:LYMAN FRANKLIN, EXECUTOR OF : Hon: W. Scott Gwin, P.J.ESTATE OF MARGARET FRANKLIN : Hon: Sheila G. Farmer, J.
Hon: John W. Wise, J.Plaintiff-Appellant
-vs-
STEVEN COLE BEAR, ET AL
Defendant-Appellee
Case No. 2006-CA-49
OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Richland County Courtof Common Pleas, Case No. 04-CV-126D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY:
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
CASSANDRA J. M. MAYER ROBERT J. FOULDS564 Park Ave. West 5843 Mayfield RoadMansfield, OH 44906 Cleveland, OH 44124
micinaiiu l,ouniy, Gase No. 2006-CA-49 2
Gwin, P.J.
{11} Plaintiff Lyman Franklin appeals a judgment of the Court of Common
Pleas of Richland County, Ohio, which dismissed appellant's complaint because of
failure of service of process on defendant Steven Cole Bear. Appellant assigns a single
error to the trial court:
{12} "I. THE TRIAL COURT ERRED IN DISMISSING THE
PLAINTIFF/APPELLANT'S CASE FOR A FAILURE OF SERVICE OF PROCESS
BECAUSE THE DEFENDANT/APPELLEE ENTERED AN APPEARANCE AND
ACTIVELY PARTICIPATED IN THE CASE AND THEREFORE WAIVED ANY
AFFIRMATIVE DEFENSE REGARDING SERVICE OF PROCESS OR
INSUFFICIENCY OF SERVICE."
{^3} Appellant's wife Margaret died on October 4, 2000. On that day, decedent
was walking her small dog in front of appellee's home when appellee's large dog ran at
them. Decedent ran back to her home and called 911. Decedent lost consciousness
while waiting for the police to arrive, and was pronounced dead at the hospital.
{14} Appellant voluntarily dismissed his first complaint for wrongful death on or
about February 4, 2003. Appellant re-filed his case on February 4, 2004 and sent a
complimentary copy of the re-filed complaint to appellee's counsel. Counsel for
appellee filed an answer, raising the defense of insufficiency of service of process.
{15} Appellee's counsel filed a motion for summary judgment on December 7.,
2004, and the court sustained the motion on March 4, 2005. On March 7, 2005,
appellee moved to strike the complairit for failure of service and lack of jurisdiction.
ounty, Case No. 2006-CA-49 3
{q6J The trial court did not address the motion to strike because it had already
ruled on the merits of the case. Appellant appealed the case to this court in Franklin v.
Bear, Richland App. No. 2005CA0021, 2005-Ohio-7041.
{$7} This court found the .trial court should have addressed the motion to strike
because the issue of personal jurisdiction over appellee had not been resolved. We
found the summary judgment was void ab initio. This court found appellee had not
waived the defense of lack of seruice of process, and remanded the ma#ter to the trial
court to rule on the motion to dismiss. We found unless appellant could produce
evidence to toll the application of Civ. R. 3 (A) the court should dismiss the matter for
lack of jurisdiction.
{T8} On remand, the trial court conducted a hearing wherein appellant offered
evidence and argument. Appellant's counsel argued appellee was no longer at his
former residence, and despite due diligence, she was unable to find a good address at
which to serve him. Appellant argued appellee's actions in avoiding service, coupled
with his counsel's appearance and participation in the action by filing an answer, various
motions, and requests for discovery, should toll the running of the one year to perfect
service required by Civ. R. 3. Appellant's counsel argued appeflee's. cotinsel had
engaged in settlement negotiations with her, leading her to believe there would not be a
problem with service.
{yj9} Appellant conceded there was no evidence appellee had absconded or
concealed himself, but stated she had been unable to discover his address by checking
court records, telephone records, and the Internet.
^Rrcnidriu uounty, uase rVO. 2006-CA-49 4
fl10} Appellee argued absconding from the jurisdiction or otherwise evading
service was not a defense under Civ. R. 3 (A). Appellee denied misleading appellant on
the issue of service of process, and had preserved the defense.
f¶11} In the case of Saunders v. Choi (1984), 12 Ohio St. 3d 247, 466 N.E. 2d
889, the Ohio Supreme Court held the tolling provisions of the saving statues apply to
certain statutes of limitations, but cannot be used to extend the one year time limitation
for service xof process under Civ. R. 3 (A). See also, Spiegel v. Westafer, Union App.
No. 14-05-18, paragraph 9, 2005-Ohio-6033; Blount v. Schindler Elevator Corp.,
Franklin App. No. 02AP-688, 2003-Ohio-2053, paragraph 26.
{T12} In the prior appeal, this court found appellee's participation in the action
did not waive the defense of insufficiency of service of process, and appellant did not
appeal our ruling. The issue is res judicata.
{113} We find the court did not err in dismissing appellant's complaint. The
assignment of error is overruled.
Richland County, Case No. 2006-CA-49 5
f%14} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is affirmed.
By Gwin, P.J.,
Farmer, J., and
Wise, J., concur
11ILA.,If nHON. W. SCOTT"GWIN
HON. SHEI " ^ G^FAFjMER
H9N JO N W. WISE
WSG:clw 0122
/.r/r• iv. I %WJ►
IN THE COURT OF APPEALS FOR RICHLAND COUNTY OHIO
FIFTH APPELLATE DISTRICT ^r1^^J^r^^Or 3 5
LYMAN FRANKLIN, EXECUTOR OFESTATE OF MARGARET FRANKLIN
CL^Rh R)'
Plaintiff-Appellant
-vs-JUDGMENT ENTRY
STEVEN COLE BEAR, ET AL
Defendant-Appellee: CASE NO. 2006-CA-49
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Richland County, Ohio, is affirmed. Costs to appellant.
COURT OF APPEALSRICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LYMAN FRANKLIN, EXECUTOR OFTHE ESTATE OF MARGARETFRANKLIN, DECEASED
Plaintiff-Appellant
vs.
STE-VEN COLE BEAR, ET AL.
Defendants-Appellees
CHARACTER OF PROCEEDING:
JUDGMENT:
DATE OF JUDGMENT ENTRY:
APPEARANCES:
For Plaintiff-Appellant
CASSANDRA J. M. MAYER564 Park Avenue WestMansfield, OH 44906
F^^p GHIOzc^^za}e^
CIP,/^ )4810,34
C(.eR'kRY
JUDGES:Hon. William B. Hoffman, P.J.Hon. Sheila G. Farmer, J.Hon. Julie A. Edwards, J.
Case No. 2005CA0021
OPINION
Appeal from the Court of Common Pleas,Case No. 2004CV126D
Dismissed and Remanded
For Defendants-Appellees
ROBERT J. FOULDS5843 Mayfield RoadMayfield Heights, OH 44124
Richland County, App. No. 2005CA0021 2
Farmer, J.
{q1} On February 4, 2004, appellant, Lyman Franklin, Executor of the Estate of
Margaret Frankfin, Deceased, filed a complaint for wrongful death against appellee,
Steven Cole Bear. Appellant alleged Mrs. Franklin's death was proximately caused by
the attack of a dog owned by appellee.
{¶Z} On Decerimber 7, 2004, appellee filed a motion for summary judgment,
claiming appellant failed to establish proximate cause. By entry filed March 4, 2005, the
trial court granted said motion.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
1
{14} "THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY
JUDGMENT ON BEHALF OF THE DEFENDANT DESPITE COMPETENT AND
CREDIBLE EVIDENCE THAT THERE EXISTED GENUINE ISSUES OF MATERIAL
FACT AS SUPPORTED BY COMPETENT AFFIDAVIT EVIDENCE."
If
{15} "THE TRIAL COURT ERRED WHEN IT RELIED UPON INADMISSABLE
HEARSAY IN THE FORM OF THE AUTOPSY REPORT OF DR. PATRICK FARDAL
REGARDING THE CAUSE OF DEATH TO ASSIGNMENT OF ERRORS PRESENTED
FOR REVIEW." ,
III
{16} "THE TRIAL COURT FURTHER ERRED IN FAILING TO GRANT A
HEARING AS REQUESTED BY THE PLAINTIFF REGARDING THE DEFENDANT'S
,.i,i t ai iu ^,uunty, App. No. 2005CA0021 3
REQUEST THAT THE COURT TAKE JUDICIAL NOTICE, PURSUANT TO EVIDENCE
RULE 201, OF THE FACTS AND VERDICT AND THE AFFIDAVIT OF STEPHEN
BANKO, MD."
IV
{¶7} "THE TRIAL COURT ERRED IN FAILING TO VACATE THE SUMMARY
JUDGMENT UPON THE FILING OF AN AMENDED AFFIDAVIT FROM DR. PADIVAL,
THE PLAINTIFF'S EXPERT WITNESS, CURING THE COURT'S PERCEIVED
DEFECTS IN THE INTIAL AFFIDAVIT, AS OUTLINED BY THE COURT IN THE
SUMMARY JUDGMENT ENTRY."
{¶H) Pending before this court and the trial court are motions to dismiss and/or
strike the complaint for failure of service of process on appellee. Because this is a
jurisdictional issue as to personal jurisdiction over appellee, we believe it is an issue we
must first address before any discussion on the assignments of error.
{¶9} The facts on this issue are unchallenged. Appellant filed a complaint and
served appellee. Appellant voluntarily dismissed this complaint and refiled under the
savings statute. As the docket indicates, there were attempts at service, but they failed.
See, Notices filed February 25, 2004 and March 1, 2004. Appellant sent a courtesy
copy to appellee's counsel. Appellee filed an answer and specifically raised the issue of
insufficiency of process. See, Answer filed February 17, 2004, Fifth Affirmative
Defense. The remainder of the answer denies the allegations of the complaint.
{¶10} On behalf of appellee, a motion for summary judgment was filed on
December 7, 2004. The trial court granted the motion on March 4, 2005. On March 7,
Richland County, App. No. 2005CA0021 4
2005, appellee moved to strike the complaint for failure of service and lack of jurisdiction
pursuant to Civ.R. 3(A) which states the following:
{¶11} "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, or upon an
incorrectly named defendant whose name is later corrected pursuant to Civ.R. 15(C), or
upon a defendant identified by a fictitious name whose name is later corrected pursuant
to Civ.R. 15(D)."
{¶12} The trial court never addressed the motion to strike, as it had already
granted the motion for summary judgment in favor of appellee even though the trial
court lacked jurisdiction over appellee.
{¶.13} We find the issue of personal jurisdiction over appellee has not been
resolved. It is the status of the law in Ohio that a defense claiming lack of service of
process in an answer does not waive ttie issue of personal jurisdiction:
{¶14} "Appellant properly raised the issue of sufficiency of service as an
affirmative defense in his first responsive pleading. Appellee maintains that this
defense' is waived, though, if a party proceeds to trial without requesting a pretrial
hearing on the motion, pursuant to Civ.R. 12(D).
f1lis} "***
{¶16} "The rule does not require a party to request a preliminary hearing on the
specified motions, nor does it mandate a waiver of such defenses for failure to do so. It
merely allows either party to demand a pretrial determination of certain issues which
could be dispositive of the cause. Accordingly, appellant did not waive the defense of
ictiland County, App. No. 2005CA0021 5
insufficiency of service by choosing not to ask for a pretrial hearing." First Bank of
Marietta v. Cline (1984), 12 Ohio St.3d 317, 318.
{117} Upon review, we conclude the trial court lacked personal jurisdiction over
appellee and therefore any judgment entry rendered is void ab initio.
{118} We decline to rule on our motion to dismiss and remand the issue to the
trial court for hearing on its motion to strike as defenses may exist that would toll the
application of Civ.R. 3(A).
{119} Accordingly, the appeal is dismissed with a specific remand to the trial
court to consider the pending motion to strike and any evidence that might pertain to the
issue of personal jurisdiction.
{120} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby dismissed and remanded.
By Farmer, J.
Edwards, J. concurs
Hoffman, P.J. dissents without opinion
JUDGES
SGF/db 1128
^,^lr®rr^^Yir•l%Q`1^' ^
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO^^/'U ; Cy^C
FIFTH APPELLATE DISTRICT4l1y /C. 35
CC^^'K ^a.^rY
LYMAN FRANKLIN, EXECUTOROF THE ESTATE OF MARGARETFRANKLIN, DECEASED
Plaintiff-Appellant
vs.
STEVEN COLE BEAR, ET AL.
Defend a nts-Appellees
JUDGMENT ENTRY
CASE NO. 2005CA0021
For the reasons stated in the Memorandum-Opinion on file, the appeal is
dismissed with a specific remand to the Court of Common Pleas of Richland County,
Ohio to consider the pending motion to strike and any evidence that might pertain to the
issue of personal jurisdiction.
JUDGES