Seger v. For Women, Inc.

Pfeifer, J. ¶ 1 The complaint in this case alleges that beginning in 2001, appellees, For Women, Inc., Deanna L. Parbbeck, M.D., Nancy M. Wozniak, M.D., TriHealth, Inc., Good Samaritan Hospital of Cincinnati, and various unknown colleagues, agents, and employees (collectively, “For Women”), provided medical services, including a hysterectomy, to appellant, Lynn J. Seger. Seger alleges that during the hysterectomy, a suture was incorrectly placed, blocking her ureter, the tube that connects the kidneys to the urinary bladder. For Women sent Seger to a urologist, and additional surgeries were performed to correct the problem. 452 Seger alleges that despite the corrective measures, she still suffers from incontinence and pain in her kidney area, that she lacks strength, and that she is unable to lead a normal life. ¶ 2 On March 27, 2003, Seger filed a complaint against For Women in the Hamilton County Court of Common Pleas. Even though Seger still did not know which of the two named doctors was responsible for the incorrectly placed suture, she filed her complaint because there were only two days left before the expiration of the limitations period under R.C. 2305.113(B)(1). Seger’s counsel requested the clerk of courts to hold the complaint without serving it. The clerk stamped the cover of the complaint “Do Not Serve,” with the notation “Per Atty” and the date, “3/28/03.” There is a similar handwritten notation on the complaint, with Seger’s counsel’s signature appearing below it. ¶ 3 The complaint remained in the clerk’s office for over four months, awaiting counsel’s request for service. Even though Seger’s counsel had still been unable to identify the responsible doctor, on August 15, 2003, he requested service of the complaint. Service was made to all named defendants not later than August 25, 2003. ¶ 4 In two separate motions, For Women moved to dismiss the complaint because service had not been demanded within the limitations period pursuant to R.C. 2305.17. The trial court granted the motions. ¶ 5 Seger appealed, and the court of appeals reversed the judgment and remanded the cause. The court concluded that all defendants had been served pursuant to Civ.R. 3(A) and, therefore, that the action had been properly commenced. ¶ 6 The cause is now before this court upon the acceptance of a discretionary appeal. ¶ 7 In Ohio, “[a] civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing * * Civ.R. 3(A). This is in apparent conflict with R.C. 2305.17, which requires the filing of a praecipe with the complaint for an action to be considered “commenced.” Civ.R. 3(A) does not require a praecipe to be filed. Because the Civil Rules govern procedure in Ohio, Seger did not need to comply with the praecipe requirement of R.C. 2305.17. State ex rel. Loyd v. Lovelady, 108 Ohio St.3d 86, 2006-Ohio-161, 840 N.E.2d 1062, ¶ 6 (“Section 5(B), Article IV of the Ohio Constitution states that the Supreme Court is vested with exclusive authority to ‘prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. * * * All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.’ Pursuant to this constitutional authority, the court has adopted the Rules of Civil 453 Procedure, which ‘prescribe the procedure to be followed in all courts of this state in the exercise of civil jurisdiction.’ Civ.R. 1(A)”). ¶ 8 While conceding that the praecipe requirement of R.C. 2305.17 has been superseded by the Civil Rules, For Women argues that service outside the limitations period is not timely. To the contrary, Civ.R. 3(A) plainly states that an action is commenced upon the filing of a complaint “if service is obtained within one year from” the filing of the complaint. See Goolsby v. Anderson Concrete Corp. (1991), 61 Ohio St.3d 549, 550, 575 N.E.2d 801 (“One clear consequence of Civ.R. 3(A) is that it is not necessary to obtain service upon a defendant within the limitations period * * *”). ¶ 9 For Women also argues that Civ.R. 3(A) should be read in conjunction with Civ.R. 4(A), which requires the clerk of courts, upon the filing of a complaint, to issue a summons for service upon the defendant “forthwith.” “Forthwith” means “[immediately,” “without delay,” or “promptly.” Black’s Law Dictionary (8th Ed.2004) 680. The clerk did not comply with Civ.R. 4(A). Counsel for Seger wanted to delay service to have more time to identify the responsible doctor. We understand why counsel requested the clerk to hold the complaint without serving it. But the clerk was not required to comply with counsel’s request, and should not have. ¶ 10 The fact that the clerk has a “DO NOT SERVE” rubber stamp suggests that it is common practice in Hamilton County to serve complaints other than “forthwith.” Though we cannot condone this general practice or the specific actions of the clerk in this case, this failure of the clerk is not grounds for dismissal of Seger’s complaint. First, For Women was not prejudiced. Seger’s action was timely commenced, and For Women received notice as prescribed by Civ.R. 3(A). Second, to hold otherwise would lead to a host of potential problems, including determining on a case-by-case basis whether the clerk ordered service “forthwith,” and, if not, whether the delay was intentional or the result of negligence, and what the consequences of the delay should be. Our conclusion is unaffected by Seger’s encouragement of the clerk to ignore the requirement of ordering service found in Civ.R. 4(A). ¶ 11 We conclude, as did the court of appeals, that Seger commenced her action in compliance with Civ.R. 3(A). Accordingly, we affirm the judgment of the court of appeals. Judgment affirmed. Moyer, C.J., Resnick, Lundberg Stratton and Lanzinger, JJ., concur. O’Connor and O’Donnell, JJ., concur separately.