Article by Holly Olarczuk-Smith, Esq.
On August 22, 2024, the Ohio Supreme Court, in Ackman v. Mercy Health W. Hosp., L.L.C., 2024-Ohio-3159, declined to overturn its prior precedent that a defendant’s years-long active participation in a case does not constitute waiver of a lack of service defense. Ackman reaffirms the Court’s 2007 decision in Gliozzo v. Univ. Urologists of Cleveland, Inc. 2007-Ohio-3762, syllabus, which held that “[w]hen the affirmative defense of insufficiency of service of process is properly raised and properly preserved, a party’s active participation in the litigation of a case does not constitute waiver of that defense.”
In Ackman, the Ohio Supreme Court affirmed summary judgment in a medical malpractice case in favor of a defendant-doctor who had preserved his defense that he had not been properly served with the complaint while actively participating in the proceedings for two years. Under Ohio law, a medical malpractice action must commence one year after the alleged malpractice occurred. Since the defendant had not been served within one year period, the action had not been commenced within the statute of limitations and the trial court correctly dismissed the action against him.
Justice Joseph T. Deters, who authored the majority opinion, explained that “since the adoption of the Civil Rules, this court has rejected the notion that a service defense may be waived by a defendant’s participation in the litigation of a case when that defense is properly raised and preserved.” Ackman at ¶ 17. “[T]here is no reason to depart from this principle now.” Id. “[I]t would hardly be just to excuse [plaintiff’s] noncompliance with the rules relating to service while penalizing [defendant’s] compliance with the rules relating to waiver.” Id. at ¶ 19. Relying on Gliozzo, the majority emphasized that “[r]egardless of how [the defendant’s] behavior is characterized, the Ohio Rules of Civil Procedure govern the conduct of all parties equally, and we cannot disregard [the] rules to assist a party who has failed to abide by them.” Id. at ¶ 19. (Internal quotation marks omitted.) In its closing remarks, the majority repeated the observation made in Gliozzo, “If such behavior should not be permitted in the future, the proper avenue for redress would be to seek to change those rules.” Id. at ¶ 20.
The opinion can be found here.