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