In Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007- Ohio-3762, the Ohio Supreme Court recently issued an important decision on the requirements for service of parties in lawsuits. Service of a lawsuit is the process whereby a defendant is officially provided a copy of a Complaint filed against him, and where the fact of such service is noted on the Court’s docket. This opinion will likely impact how cases are handled, on both the plaintiff and defense side, all across the state. Reminger & Reminger is pleased to have represented the defendants in this matter throughout the trial court and all appellate court levels.
In Gliozzo, the Ohio Supreme Court held as follows:
“When the affirmative defense of insufficiency of service of process is properly preserved, a party’s active participation in the litigation of a case does not constitute waiver of that defense. (citing First Bank of Marietta v. Cline (1984), 12 Ohio St.3d 317, 12 OBR 388, 466 N.E.2d 567.)”
At the trial court level of this case, Plaintiff failed to perfect service on both the doctor and the medical practice group which he sued. Plaintiff made one attempt at service on both defendants, which each failed, and then Plaintiff failed to re-visit this issue. As is often the case, defendants learned of the pendency of the lawsuit, despite not being served, through notification by their insurance company. Defense counsel filed an answer on behalf of both defendants, and appropriately raised the affirmative defense of failure of service of process in the answer.
The trial court proceedings included the usual discovery, such as depositions of the parties and exchange of paper discovery. Also, defendants moved for summary judgment on the merits of the claims against them. After one year had passed from the time of the filing of the action, plaintiffs were no longer able to obtain service on the defendants under Ohio Civil Rule 3(A). Thus, under existing Ohio case law, the lawsuit was a “nullity”, and it was as if it was never filed. The trial court recognized this fact, and granted a Motion to Dismiss shortly before trial.
A divided three judge panel in the Court of Appeals attempted to make new law by stating that the affirmative defense of failure of service was “waived” by the “vigorous” defense of the case, including participating in pretrials and discovery. Judge Colleen Conway Cooney dissented, - authoring an excellent dissenting opinion outlining Ohio case law on this issue, stating that a properly raised affirmative defense of failure of service was not waived by subsequent defense of a lawsuit.
The Ohio Supreme Court, in a 6 to 1 decision, agreed with Judge Cooney’s dissent, stating that under the existing Civil Rules, a defendant who is not properly served may nevertheless file an answer, and
if he raises the affirmative defense of failure of service, he will continue to have that affirmative defense available to him up to and throughout trial.
The Ohio Supreme Court rejected the plaintiffs’ contention that filing an answer raising the affirmative defense of failure of service, proceeding to defend the case, and then raising the lack of service by way of motion practice prior to trial, constitutes undesirable legal “gamesmanship”. The Supreme Court stated that such a strategy is expressly provided for in the Civil Rules and constitutes excellent lawyering, not gamesmanship.
This opinion is of considerable importance to the practice of law in Ohio because it eliminates the uncertainty for defendants who learn of a lawsuit against them, but who have never been properly served. In many cases, the issue of service is not black and white, and a defendant risks having a default judgment entered against him if he simply ignores a lawsuit and does not file an answer or other responsive pleading.
If you would like a complete copy of this decision, or have any other question regarding Ohio procedural or substantive law, contact any member of our Professional Liability Practice Group.