Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kuczirka v. Ellis

Court of Appeals of Ohio, Ninth District, Summit

February 28, 2018

PETER KUCZIRKA Appellant
v.
CECILIA A. ELLIS, D.O., et al. Appellees

         APPEAL 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

          JULIE A. SCHAFER, JUDGE.

         Plaintiff-Appellant, 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.

         I.

         {¶1} 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, 2012.

         {¶2} 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.

         {¶3} 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, 2015-Ohio-3330.

         {¶4} The trial court granted the motion and dismissed the matter with prejudice. Kuczirka filed this timely appeal.

         II.

         Assignment of Error

         The 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.

         {¶5} 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.