FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV-2012-08-4483
APPEARANCES: STACIE L. ROTH, Attorney at Law, for Appellant.
GREGORY T. ROSSI, Attorney at Law, for Appellees.
DECISION AND JOURNAL ENTRY
A. SCHAFER, JUDGE.
Peter Kuczirka, Administrator of the Estate of Trina
Kuczirka, appeals from the judgment of the Summit County
Court of Common Pleas dismissing his claims against
Defendants-Appellees, Cecilia A. Ellis, D.O. and Obstetrical
and Gynecological Associates of Akron, Inc. We reverse,
albeit on grounds other than those raised on appeal.
Peter Kuczirka, as administrator of the estate of Trina
Kuczirka, ("Kuczirka") filed the refiled complaint
in this action on August 3, 2012. After receiving service of
the complaint by certified mail, Defendants-Appellees,
Cecilia A. Ellis, D.O. and Obstetrical and Gynecological
Associates of Akron, Inc. ("Dr. Ellis and OBGYN
Associates"), each filed a separate answer on August 31,
On August 2, 2013, Dr. Ellis and OBGYN Associates filed a
"motion to dismiss" pursuant to Civ.R. 3(A) and
Civ.R. 4.1. Dr. Ellis and OBGYN Associates argued that
Kuczirka improperly served them, not in the current action,
but rather in the initial action filed August 31, 2009. They
asserted that service of the original complaint by Federal
Express was an improper method of service under the version
of Civ.R. 4.1 then in effect, that Kuczirka never perfected
service within one year of filing the original complaint, and
the failure to commence the suit warranted dismissal of the
action with prejudice. The trial court initially denied the
motion on August 22, 2013.
On September 11, 2013 Dr. Ellis and OBGYN Associates moved
for reconsideration or, in the alternative, to stay the case.
They urged that a case of similar circumstance was pending on
appeal, and a stay was appropriate while awaiting a decision
in that case. The trial court stayed the proceedings on
September 25, 2013. Upon motion, the trial court reactivated
the case on March 7, 2017, and permitted the parties to
submit additional briefing in light of this Court's
rulings in Hubiak v. Ohio Family Practice Ctr., 9th
Dist. Summit No. 26949, 2014-Ohio-3116 and Suiter v.
Karimian, 9th Dist. Summit App. No. 27496,
The trial court granted the motion and dismissed the matter
with prejudice. Kuczirka filed this timely appeal.
trial court erred in dismissing the Plaintiff-Appellant's
case for failure to obtain proper service within one year of
filing of the initial complaint.
In the sole assignment of error, Kuczirka argues that the
trial court erred by granting the motion to dismiss. However,
neither the motion itself nor the trial court's decision
identify the procedural foundation for the motion to dismiss.
"A reviewing court must examine the entire journal entry
and the proceedings below where necessary to ascertain the
precise basis of a lower court's judgment."
State ex rel. Midwest Pride IV, Inc. v. Pontious, 75
Ohio St.3d 565, 569 (1996). Accordingly, we must conduct a