Court of Appeals Decision In Waiver of 12(B) Defenses

July 13, 2023 – Collins, Roche, Utley & Garner and its partner, Kurt Anderson, successfully secured the dismissal of a legal malpractice lawsuit because the plaintiff’s attorney failed to timely secure service of process upon the defendant client.

In Michael Mellon v. Aaron A. O’Brien, Esq., et al., 2023-Ohio-2393, the 8th District Court of agreed that the plaintiff, Michael Mellon, never properly commenced the malpractice suit against his former attorney, Aaron O’Brien, because Mellon’s attorney admittedly failed to obtain proper service of summons upon O’Brien within one year of filing the suit, as required by statute. Although the certified mail summons was never delivered, O’Brien had coincidentally learned about the suit from an acquaintance who had noted it on the court’s docket. O’Brien retained Anderson, who filed an answer asserting the defense of failure of service. Despite the answer, and despite notice from the clerk of courts that certified mail service had not been returned, Mellon’s counsel made no further efforts at service. Once the 1-year statutory deadline for service passed, Anderson requested that the suit be dismissed. Because service was never perfected, and because both the original statute of limitations and the Ohio Savings Statute had both expired, the trial judge agreed that the filed lawsuit never properly initiated and could not be resurrected in any way. The Court of Appeals affirmed the dismissal, finding that O’Brien’s participation in the lawsuit did not waive service because O’Brien’s answer preserved the defense from the outset. Nice win that highlights the importance of always preserving the defense of failure of service (or any other 12(B) defense), especially if there are additional grounds that could be asserted as an early 12(B) motion to dismiss.