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Rethinking Service of Process: Key Takeaways from Ohio Supreme Court’s Latest Decision on Proper Service

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In August 2024, the Ohio Supreme Court issued an opinion in Ackman et al. v. Mercy Health West Hospital, LLC, et al. reaffirming the principle that a party’s active participation in litigation does not waive the affirmative defense of insufficient service of process, provided the defense is properly raised. This decision, which builds upon and reinforces the earlier case of Gliozzo v. Univ. Urologists of Cleveland, Inc., could have significant implications on litigation strategy and assertion of affirmative defenses

The Case Background

Ackman arose out of a medical malpractice and wrongful death lawsuit filed against a doctor, his employer, a hospital, and Medicare. The doctor and employer responded with an answer asserting the affirmative defenses of insufficiency of process and insufficiency of service of process. Over two years later, they sought summary judgment, arguing that the case was not timely initiated because the doctor had not been served with the complaint. The plaintiff opposed, asserting that the doctor had waived the defense by actively participating in the litigation.

The Ohio Supreme Court, referencing its opinions in Gliozzo v. Univ. Urologists of Cleveland, Inc. and First Bank of Marietta v. Cline, clarified that a party does not waive the defense of insufficient service of process simply by participating in the litigation, as long as the defense is preserved in the pleadings.

The Court emphasized that it is the plaintiff’s responsibility to ensure proper service, and failure to do so according to the Civil Rules, especially in relation to statutes of limitations, can result in the case being dismissed, regardless of the defendant’s engagement in the litigation.

Potential Implications for Litigation Strategy

  1. Strategic Use of Service of Process Defenses and Litigation Tactics: Defendants can now assert with greater confidence a defense based on insufficient service, even after prolonged litigation. The ruling unequivocally establishes that active participation in the case does not automatically waive this defense, provided it is properly raised within the appropriate timeline. As part of their broader litigation strategy, defendants may strategically delay raising this defense knowing that failure to properly serve a complaint can later serve as a dispositive ground for dismissal.
  2. Increased Importance of Service of Process: This ruling underscores the critical importance of properly effectuating service and adhering to procedural rules and deadlines. Litigators must ensure that all potential affirmative defenses, notably insufficiency of service of process, are raised in the initial responsive pleadings. Plaintiffs must also be diligent in completing service within the prescribed timeframe to avoid dismissal on such grounds.
  3. Risk of Dismissal for Plaintiffs. For plaintiffs, this ruling serves as a reminder that the window for correcting service issues is narrow and high stakes, as failure to perfect service could result in the loss of an entire case. In this case, Ackman, service was not effectuated within the required time frame, and refiling would have been outside the statute of limitations, leading to the dismissal of the claim on summary judgment grounds with no opportunity to refile or correct the service. Litigators must be vigilant in ensuring proper service at the outset, particularly in complex or multi-party actions, to avoid the risk of dismissal and the permanent loss of the claim.

The Ackman’s Decision in the Evolving Landscape of Service of Process Law

This Ohio Supreme Court decision in Ackman significantly contributes to the ongoing discourse surrounding the service of process in Ohio. This ruling builds upon and extends prior case law, particularly in light of procedural challenges posed by the COVID-19 pandemic. A 2021 case, CUC Properties v. SmartLink Ventures, Inc., raised concerns regarding the validity of service when USPS return receipts included notations such as “Covid 19” or “C19.” In that case, the First District Court of Appeals determined that such notations failed to meet the requirements of Civ. R. 4.1 for valid service of process, stressing the need to adhere to procedural rules even amidst pandemic-related disruptions.

The CUC Properties decision highlights that while innovative solutions were necessary during the pandemic, courts cannot compromise due process protections. The recent Ackman ruling reinforces this principle, highlighting the consequences for failing to effectuate proper service, even when a party has otherwise participated in the litigation.  As the Ohio Supreme Court emphasized, certainty in litigation is paramount, and defendants are under no obligation to assist plaintiffs in fulfilling their duty to perfect service. This decision marks a critical point for litigators, urging them to ensure procedural rigor to avoid jeopardizing their cases due to service-related missteps.

For further discussion on the impact of COVID-19 on service of process, see a related article here: Hamilton County Court of Appeals rules that certified mail practice during pandemic is not effective service of process – Finney Law Firm.

Additionally, the full court opinion can be found here: Ackman v. Mercy Health West Hosp., L.L.C..

Meet Our 2022 Summer Law Clerks

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The Finney Law Firm is excited to introduce its 2022 Summer Law Clerks! Each year, we hire incoming 2L or 3L law students to work in our various practice areas, including General Litigation, Labor and Employment, Constitutional/Public Interest, and Real Estate & Commercial Transactional (to name a few).

The Summer Law Clerk Program allows us to get to know the next generation of attorneys and serves as a mutually beneficial opportunity for them to help work on some of our pending cases and, more importantly, learn in a fast-paced, practical legal environment. This Program is something we very much enjoy and strive to make both fun and enriching for our clerks. Our law clerks draft motions and pleadings, observe depositions, assist with due diligence and document review, meet with clients, research some of the many unique legal issues with which we are often presented, and have even helped with multi-day and multi-week trials!

Ashley Duckworth

Ashley Duckworth

Ashley is an incoming 2L at NKU Chase College of Law and is clerking primarily with our General Litigation and Constitutional/Public Interest groups from our Eastgate location, though she also helps with Transactional projects. Ashley grew up in Morganfield (Union County), Kentucky and earned her undergraduate degree in Communication from Western Kentucky University. Outside of work and school, Ashley is an avid reader and enjoys spending time with her friends and family and her new pup, Zoey! While she still has plenty of time to narrow her legal interests, Ashley is enjoying getting to work with several of our practice groups. Fun fact: Ashley was the overall high scorer during our duckpin bowling outing with the young associates and law clerks earlier this month!

Caitlin Lancaster

Caitlin Lancaster

Caitlin is an incoming 3L at University of Cincinnati College of Law and is clerking with our General Litigation group at our Mt. Adams location. She earned her undergraduate degree in Sports Management and Business Administration from the University of Cincinnati. Caitlin is currently a UC Law Admissions Ambassador, just completed her tenure as Social Chair of the Student Bar Association, is a member of the Moot Court Honor Board, and was recently elected to the Executive Board as the External Competitions Director. Caitlin plans to become a litigator after graduation and is enjoying the opportunity to work on a wide range of litigation matters at FLF. Outside of work and school, Caitlin can be found running away her stresses at Orangetheory, out on the town with her friends, or rooting on the Bengals and Sooners (she is also a fantasy football pro). We love that competitive spirit!

Austin Wishart

Austin Wishart

Austin is an incoming 3L at University of Cincinnati College of Law and is clerking with our Labor and Employment Group in both our Eastgate and Mt. Adams office locations. He is from Hamilton, Ohio, and currently lives in Loveland with his fiancé and their cat, Mauricio. Austin earned his undergraduate degree in Philosophy from the University of Dayton (Go Flyers!) and his Master’s in Bioethics from New York University.  He enjoys writing for the University of Cincinnati Law Review and spending time with friends on campus. Austin hopes to enter the practice of labor and employment law after graduation in 2023. Outside of the law, Austin enjoys trawling local record stores for vinyl, cooking new recipes, and supporting local breweries.

Attorney Casey Jones leads our Summer Law Clerk Program. For additional information about the Program or how to apply, feel free to reach out to Casey at [email protected] or to Katherine Fox at [email protected].

How to Serve Legal Process Upon a Foreign Individual or Entity

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Correct service of process is a basic and vital part of initiating a lawsuit. In American jurisprudence, courts need to know that defendants have received actual notice of the existence of lawsuits filed against them. Service of process on a foreign person or entity can be complicated but must be completed properly or the plaintiff risks having the suit dismissed.

The United States is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. The purpose of the Hague Convention is to formalize serving lawsuit papers and other documents in a timely and simple manner to ensure that foreign persons or entities sued in another country receive actual notice of legal actions against them.

Under the Hague Convention, signatories designate a “central authority” to accept documents to be served on persons or entities in that country who are named as defendants. The central authority then effects service on those parties according to local law and provides proof of service to the plaintiffs.

It is important for plaintiffs and their business lawyers who are suing foreign persons or entities in the United States to be aware of the service-of-process laws in the country where the named defendants are situated. Under Alternative A of the Hague Convention, parties may directly serve documents by mail on other parties to the suit if permitted by the country where the defendant lives. If a country does not permit direct service by mail, the serving party must serve legal documents through the central authority. In some countries, the central authority requires that the legal documents to be served are in that country’s official language.

If the country in which a defendant resides is not party to the Hague Convention, Kentucky law permits service of process through registered mail.

Another way to effect service of process on a foreign entity is to serve that entity’s registered agent in the United States. If there is no registered agent, the foreign entity’s subsidiary may be served if it is an actual or apparent agent of the corporate parent and the corporate parent exercises dominion or control over the subsidiary.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Ohio Real Estate Law: Hamilton County delays property tax bills

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Hamilton County property owners will get some measure of relief in the form of a 25 day delay for payment of the second half property tax bills.

Property owners who pay taxes as part of their monthly mortgage payment will not notice any difference, but property owners who normally pay their tax bill by June 22, will have until July 17 to make that payment.

As reported by the Cincinnati Enquirer, Hamilton County Treasurer Robert A. Goering noted that the delay is necessary in part due to the fact that taxpayers cannot get into the Treasurer’s office to make a payment:  “We have to balance the needs financially of the county and the needs of the individual taxpayer. And we have to balance that against the reality that, right now with this crisis, you can’t actually get to the treasurer’s office.”

Thus far, we are unaware of any other local counties who have delayed the property tax bills. We will update this post if any other counties join Hamilton County.

Warren County will continue with its normal tax bill due date of July 29.

Clermont County property tax bills are due July 8.

Butler County property taxes are due August 3.

In Kentucky, the deadline to initiate a property valuation appeal has been extended to begin on July 6 and end on July 20.

Constitutional Law: May public bodies block comments on social media?

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As society changes the way we communicate and receive information, social media has become a more important medium for communicating with the government. This is all the more so as public meetings are moving toward “virtual meetings” on the internet.

When a public body or government official posts on social media and allows comments, it opens a “public forum.” It is well settled constitutional law that government actors cannot pick and choose who may speak in a public forum, and it most certainly cannot discriminate based upon the viewpoint or content of the speaker’s message.

SORTA, the Southwest Ohio Regional Transit Authority – operator of Cincinnati’s bus system – posted on its Facebook page regarding its then plan to offer free fares. Our client, Jordan Arnold, posted a comment suggesting that rather than offer free fares, that the bus system should shut down during the Coronavirus pandemic. SORTA then deleted Mr. Arnold’s comment and blocked him from being able to comment on any of its posts. SORTA left other comments that were supportive of SORTA’s decision undisturbed

By deleting Mr. Arnold’s comment, SORTA stifled Arnold’s speech in a public forum that SORTA itself opened.  SORTA went further by blocking Arnold, but not others, from commenting at all on any of its Facebook posts. There can only be one reason for specifically targeting Mr. Arnold for deleting and blocking – that SORTA was specifically attempting to silence a critical voice. This is the textbook definition of viewpoint discrimination. Other citizens who share SORTA’s viewpoint are permitted to comment, but Mr. Arnold, who does not share SORTA’s position, is silenced.

Just as President Trump may not block critics from commenting on his social media posts, neither may SORTA.

Federal law provides a remedy. Finney Law Firm, along with Curt Hartman, brought suit on behalf of Mr. Arnold pursuant to 28 U.S.C. § 1983, seeking injunctive relief and damages. Via the injunction, we seek to force SORTA to restore Mr. Arnold’s comment and cease blocking him from commenting on its social media posts. Further we seek financial compensation for the damages Arnold suffered by having his speech stifled.

The complaint and motion for injunctive relief are available below and online here and here. Sharon Coolidge’s Cincinnati Enquirer’s coverage of the lawsuit is available here.

If a public official or government body has deleted or blocked your comments on social media, there is a remedy. Email or call Julie Gugino (513) 943-5669.

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Ohio and Kentucky Property Tax: Is COVID-19 relevant to property valuation challenges this year?

Author By Finney Law FirmPosted on

As part of our property valuation work, we have received calls from property owners in Ohio and Kentucky asking how the affects of COVID-19 will come into play in property valuation challenges brought this year.

Effective (or target) date of valuation challenge

As an initial matter it is important to know the valuation date at issue. In Ohio, the “tax lien date” is always one year in arrears, so a challenge that is brought this year is actually challenging the value of the property as of January 1, 2019. In Kentucky, the tax lien date is current, so a challenge filed this year is challenging the value as of January 1, 2020.

Timing of when to file a valuation challenge

Because the valuation is as a specific point in time, it is important to consider what was affecting value on that specific date. When hiring an appraiser for a BOR (Board of Revision) in Ohio, or PVA (Property Valuation Administrator) in Kentucky, the appraiser gives her opinion of value as of the tax lien date. So, for instance, if the overall market takes a tumble in March, that would typically not affect the value of a property two month’s earlier. But may suggest that the values were already heading downward in January.

Thus, a hotel or restaurant property owner contemplating a challenge in Kentucky based upon the drop in income due to the COVID-19 virus and the stay at home order, is unlikely to see much weight given to the effects of COVID-19. That said, comparable sales in the past few months (which may reflect the effect of COVID-19 on the real estate market may have some evidentiary weight worth presenting to the PVA.

A challenge next year may be more successful than this year in Kentucky.

For Ohio property owners, COVID-19 is less relevant this year. This is because, as discussed above, the relevant tax lien date is January 1, 2019. As with Kentucky challenges, comparable sales in the past few months can be used as evidence of the value as of January 1, 2019, although the BOR will likely give such sales less weight than sales closer to the tax lien date.

In Ohio, only one challenge per three-year cycle

In Ohio the county auditors revalue properties every three years (the “triennial”). For Hamilton and Clermont Counties 2019 is the last year of the triennial. A new triennial will start with the 1/1/2020 value determined later this year by the County Auditors. In Warren County, the last year of the triennial is 2020 – meaning that the Warren County Auditor will determine a new three year value as of 1/1/2021.  As a general rule, property owners may only file one challenge per triennial (R.C. 5715.19(A)(2)). So a cautious approach me be the better approach.

If you’ve already filed a challenge in Ohio, it is worth a shot to raise the issue of COVID-19, but as discussed above, it may fall on deaf ears. For Hamilton County property owners, the best bet may be to wait until 2022 to file for the value as of 1/1/2021. For Warren County property owners, a better approach may be to file next year challenging the value as of 1/1/2020 (this may be a futile effort), but you will be able to refile again in 2022.

Legislative change?

The Ohio legislature is working on multiple bills in rapid succession to stabilize the economy and prevent economic hardship to businesses and property owners.  Perhaps this will be one area where the inequity of January 1 versus April 1, 2020 property values will be addressed.

Thus, in light of the spate of COVID-19 relief acts, it would not be surprising to see the state legislatures act to provide property tax relief with a 4/1/20 or 5/1/20 effective or target date for 2021 valuation challenges.  We will keep an eye on the legislatures in Ohio and Kentucky and update our blog as we learn more.

Conclusion

Ultimately, property owners should temper their expectations that the BOR or PVA will recognize the effects of COVID-19 on property values in this year’s challenges.

Hopefully the financial effects of COVID-19 will not be long-lasting. But if they are, it may be a better basis for a valuation challenge in 2021 or even 2022 (for an effective date after the COVID crisis broke out).

Contact Christopher P. Finney  (513-943-6655) for assistance with your property valuation challenge.

Tamaya Dennard media round-up

Author By Finney Law FirmPosted on

Cincinnati media has given extensive coverage to the Probate Court complaint filed by Attorneys Curt Hartman. Here is a quick round-up:

Television coverage of the filing of the complaint by WKRC; WCPO; WLWT; and Fox19

Curt Hartman appeared on WLW with Scott Sloan on Thursday beginning at approximately 95:00, and again on Friday beginning a approximatley 40:00.

WCPO discussed the case against Tamaya Dennard on its podcast Hear Cincinnati

Citizens file complaint to remove Dennard from office

Author By Finney Law FirmPosted on

Attorney Curt C. Hartman, of counsel with Finney Law Firm, has filed a complaint in the Hamilton County Probate Court to remove Cincinnati Councilmember Tamaya Dennard from office pursuant to R.C. 733.72-76.

A copy of the Complaint is below or available here.

The Complaint was filed on behalf of Mark Miller and four other Cincinnati electors, including State Representative Tom Brinkman.

Under Ohio law when five electors file a complaint alleging that a city official has received payment for her services to the city in addition to her salary; has an interest in a public contract; or is otherwise guilty of malfeasance or misfeasance, the City Solicitor shall prosecute the case before the Probate Court Judge, and, if Dennard is found guilty, she shall be removed from office.

The statute provides that Tamaya Dennard should be ordered to appear before the Probate Court within ten days of the filing of the Complaint.

A press conference is scheduled for 10 a.m. at the Mt. Adams office of Finney Law Firm, 1077 Celestial Street.

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Ohio Real Estate Law: LLC membership interest transfers take hit at Ohio Supreme Court

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As we have written about previously, real estate transfers involving the sale of a limited liability company or other entity that owns the underlying real estate are under increasing scrutiny by Ohio’s county auditors and school boards. Now, Ohio’s Supreme Court has declared that these sales are “a contrivance for accomplishing the sale of commercial real estate.”

In a decision that will have broad implications on Ohio’s property tax law,  Columbus City Schools Board of Education v. Franklin County Board of Revision, Slip Opinion 2020-Ohio-353, an LLC that owned a 264-unit apartment building was sold but the contract documents indicated that the transaction was actually the sale of real estate, distinguishing this case from prior cases in which the Court had affirmed the Board of Tax Appeals’ treatment of such sales as the sale of a business rather than the sale of real estate. In those prior cases, the transfer of title to real estate did not appear to be the primary factor in the transaction.

“In stark contrast, the BTA in this case confronted a document labeled by the parties as “Sale of Palmer House on the Boulevard 4121 Palmer Park Circle East New Albany, Ohio” and “Purchase and Sale Agreement.”  That is, the contract identifies itself as a purchase agreement for the real estate at issue.  Beyond its cover page, the contract takes the classic form of a purchase agreement for commercial real estate by identifying as the subject matter of the transaction the specific real property along with categories of personal property appurtenant to the commercial operation of the real estate.  Finally, this particular contract includes an explicit provision setting forth an optional method for consummating the deal as a transfer of corporate ownership rather than a conveyance of real estate from the seller to the buyer.

We conclude that the documentation in this case made it reasonable for the BTA to find that this sale, unlike those in the earlier cases, reflected the parties’ intent to sell and purchase income-producing real estate and supported the BTA’s finding that the parties’ transfer of corporate ownership constituted a contrivance for accomplishing the sale of commercial real estate.”
Decision, at ¶¶ 38-39.

The prior cases involved an existing shareholder buying out other shareholders – indicating that such a sale was not “arm’s length” and that it was truly the business that was being purchased rather than simply the underlying real estate; and sales where the conveyances did not indicate that the real estate was truly the asset being acquired, rather than an actual going concern.

As a result finding that the transfer was a sale of real estate, the Board of Tax Appeals then treated the sale price as the “best evidence of value” of the real estate, thereby shifting the burden to the property owner to defeat the sale price value. Ultimately resulting in an increase of value from $16 million to over $34 million.

As school districts and county auditors become more aggressive in identifying membership interest transfers, and treating them as real estate sales, investors would be wise to review their contract documents with an appreciation for the fact that they may end up as evidence in a valuation dispute.

Cincinnati Council enacts sweeping residential rental regulations

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In the past few months, Cincinnati City Council has passed new laws regulating residential landlord/tenant relationships, including requiring all landlords to file extensive rental registration forms with the City and a first of its kind law requiring landlords to accept alternative security deposit payments. These new laws change the dynamic and financial viability of residential rental property within the City limits.

Presented below is a summary of new laws contained in six different enactments by  City Council.

Rental Registration

New Section 874-6 of the Municipal code requires all landlords to register with the city and supply the following information for each rental unit within the city limits:

  1. Name, address, and telephone number of the owners;
  2. If owned by an entity, the name, address, and telephone number of a member or corporate officer;
  3. The name, address, and telephone number for “any and all persons in control of the property” who can be reached 24 hours a day, 7 days a week, 365 days a year;
  4. Street address and permanent parcel ID of each rental property;
  5. Monthly rent charged; and
  6. The number and size of each rental unit, including the number of bedrooms, bathrooms, and approximate square footage of each unit.

Landlords must update any changes in information on the form, any change in ownership, or any change in use, including if the property is vacant for sixty days or more.

There is a registration fee of up to $1 per unit to be charged every time a unit is registered or updated.

Failure to register is a Class D Civil offense ($750 fine [$1,500 if delinquent]). After receipt of notice of violation, each subsequent day is a separate violation punishable by a fine of $150 per day ($300 per day if delinquent).

The rental registration law goes into effect on May 13, 2020.

Read Chapter 874 here.

Late Fee Regulation

Chapter 871 of the Municipal Code has been amended to regulate late fees charged to residential tenants. Like the registration requirement, this change applies to all residential rental properties within Cincinnati.

Section 871-8 caps late fees at $50 or 5% of the monthly rent, whichever is greater.

Section 871-9 prohibits:

  1. interest on late fees;
  2. late fees on late fees; and
  3. late fees assessed against a tenant where the late rent that is owed is owed by a third party payer (CMHA or other rental assistance organizations).

The late fee regulation went into effect on January 28, 2020.

Security Deposit Regulations

The most sweeping change is the newly enacted security deposit regulation.

Sections 871-9 of the Cincinnati Municipal Code have been amended to require that all landlords provide a receipt to the tenant when the security deposit is paid (unless such payment is by the tenant’s personal check).

871-9 also now requires that landlords “who own and control more than twenty-five rental units” who require security deposits must offer to accept at least one of the following options in lieu of the required security deposit:

  1. Rental security insurance;
  2. Payment of the security deposit over at least six monthly installment payments due on the same day as the rent;
  3. Payment of a reduced security deposit no greater than 50% of the monthly rent charged for that unit.

Additionally, prior to entering into a rental agreement, the landlord must provide the tenant with a written notice of the available security deposit alternatives. The law also prohibits landlords from requiring any additional security should a tenant select an alternative security deposit arrangement.

The security deposit regulations take effect starting on April 14, 2020.

Notably, the security deposit regulations apply only to those landlords who own twenty-five or more units. So long as a distinct LLC or other entity owns less than twenty-five units total, that owner would not have to accept the alternative security deposits.

The municipal code does not provide any specific penalty for landlords who do not comply with the new security deposit provisions, but does provide that a tenant may bring a lawsuit to obtain an injunction to force a landlord to comply with the Cincinnati landlord tenant laws. The city solicitor could also sue for such an injunction.

Read the security deposit ordinance here.

Conclusion

We expect legal challenges to these new laws. If you have questions about how these new laws may affect you, contact us using this link.

If you have specific questions, contact Christopher P. Finney at 513.943.6655.

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