[Cite as Clawson v. Hts. Chiropractic Physicians, L.L.C. , 2020-Ohio-5351.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

CYNTHIA CLAWSON Plaintiff-Appellant

v. HEIGHTS CHIROPRACTIC PHYSICIANS, LLC, et al. Defendant-Appellee : : : : : : : : : : Appellate Case No. 28632

Trial Court Case No. 2018-CV-3685 (Civil Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 20th day of November, 2020.

. . . . . . . . . . . P.J. CONBOY, Atty. Reg. No. 0070 073, 5613 Brandt Pike, Huber He ights, Ohio 45424 Attorney for Plaintiff-Appellant CHARLES J. DAVIS, Atty. Reg. No. 0031862, 205 West Fourth Stree t, Suite 1280, Cincinnati, Ohio 45202 Attorney for Defendant-Appellee

. . . . . . . . . . . . . HALL, J.-2-

{¶ 1} Cynthia Clawson appeals from the trial court’s dismissal of her complaint against appellee Don Bisesi for failure of service of process a nd its subsequent entry of summary judgment in favor of appellee Heights Chiropractic Phys icians, LLC. {¶ 2} Clawson advances two assignments of error. First, she contends the trial court erred in sustaining Bisesi’s motion to dismiss. Second, s he claims the trial court erred in entering summary judgment in favor of Heights Chiropra ctic. {¶ 3} The present appeal stems from a medical-negligence complaint C lawson filed against Bisesi, a chiropractor, and Heights Chiropractic, his employer. The record reflects that Clawson originally filed the complaint in April 2 016. She voluntarily dismissed that complaint in September 2017. She then refiled the present lawsuit on August 10, 2018, which was within the one-year time limit provided by Ohio ’s saving statute, R.C. 2305.19(A). Her complaint alleged that she went to Heights Chir opractic and was treated by Bisesi, who was an employee of Heights Chiropractic. Accordi ng to the complaint, Bisesi, a licensed chiropractor, negligently ruptured Clawson’s breast implant while applying pressure to her back when she was face down on a table . She sought damages against Bisesi and Heights Chiropractic in excess of $25,000. I n his November 19, 2018 answer, Bisesi raised several defenses, including a failure of service of process. {¶ 4} On August 15, 2019, Bisesi moved to dismiss the complaint or, alternatively, for summary judgment on the grounds that Clawson had failed to perfect service of process within one year of refiling her complaint. Therefore, B isesi argued that the action had not been “commenced” against him under Civ.R. 3(A) and that the time for doing so had expired. Alternatively, Bisesi sought summary judgment on t he basis that the action-3- had not been commenced against him under Civ.R. 3(A) and the st atute of limitation had expired. Accompanying Bisesi’s motion was his affidavit and sup porting documentation pertaining to service of process. Bisesi averred that Clawson h ad attempted service at 661 Coconut Grove Avenue, West Melbourne, Florida, as evidenced by a Federal Express signature card signed by a “B. Kanapill.” He further av erred that he had not resided at that address since June 2018, that the signature on the card was not his, that he did not know the person who signed the card, and that he did not authorize “B. Kanapill” or anyone else to sign f or him. He further averred th at the person who signed the card did not contact him or forward the summons and complai nt to him. {¶ 5} In response to Bisesi’s motion to dismiss and affidavit, the tr ial court established a briefing schedule for Clawson to respond. The tri al court stated that the motion would be deemed submitted for decision on September 23, 2019 and that “no oral hearing [would] be conducted unless requested by any party * * *.” (August 16, 2019 Entry.) Clawson subsequently filed a memorandum arguing that a presumption of proper

service arose because she served someone at Bisesi’s last known address. With respect to a hearing, she simply asked the trial court to hold a hearin g “if the Court deems [it] necessary to determine if the presumption can be overcome.” (Se ptember 16, 2019 Memorandum Contra at 4.) Accompanying Clawson’s filing was an a ffidavit from Cara Caldwell, who was her attorney’s administrative assistant. In r elevant part, Caldwell

averred that an internet search had established 661 Coconut Gro ve Avenue in West Melbourne, Florida as Bisesi’s last known residential address. {¶ 6} The trial court sustained Bisesi’s motion to dismiss on Septem ber 26, 2019, reasoning:-4- Here, although an “individual” signed the service return recei pt, the

Court finds that there is sufficient evidence to establish that the address where service occurred was not Defendant’s correct address and, therefore, Defendant did not receive proper notice of this acti on. Specifically, Defendant has provided testimony that he has not resided at

that address since June of 2018. See Ex. D to Defendant’s Motion to Dismiss. Moreover, pursuant to Defendant’s sworn affidavit, he does not know B. Kanapill, nor did B. Kanapill, or anyone else, contacte d [sic] him regarding the Complaint or forwarded [sic] the Complaint to him . This determination is further supported by the docket in this case, as well as Plaintiff’s own admission, that the initial attempt to serve De fendant at the

address at issue was unsuccessful. See Docket. At the very least, this should have put Plaintiff on notice that Defendant might not li ve there anymore, or that an alternative method of service might be nece ssary. Accordingly, the Court finds that Plaintiff did not properly se rve Defendant

with notice of this action. {¶ 7} Following the trial court’s dismissal of Bisesi, Height’s Chir opractic moved for summary judgment. In its October 11, 2019 motion, Heights C hiropractic argued that its alleged liability was vicarious based on its status as Bise si’s employer. That being so, Heights Chiropractic asserted that the entry of judgment agains t Clawson on her claims against Bisesi necessarily ext inguished any liability on the pa rt of Heights Chiropractic. {¶ 8} In a November 12, 2019 ruling, the trial court agreed with Hei ghts Chiropractic. It reasoned that Heights Chiropractic’s “liabilit y is contingent upon the-5- alleged liability of Dr. Bisesi, and the law in Ohio is clear t hat, because the primary claims against Dr. Bisesi were extinguished, so too is the secondary c laim against [Heights Chiropractic].” (November 12, 2019 Decision, Order, and Entry a t 4.) As a result, the trial court found Heights Chiropractic entitled to summary judgment. {¶ 9} In her first assignment of error, Clawson challenges the trial court’s dismissal of her complaint insofar as it pertained to Bisesi. S he acknowledges that someone other than Bisesi signed for a copy of the summons and complaint at the Coconut Grove address in Florida. (Appellant’s Brief at 4.) She argues, however, that a rebuttable presumption of proper service arose because she serv ed a person at Bisesi’s last known address. ( Id . at 4-6.) Clawson asserts that Bisesi’s affidavit denying havi ng any present connection with the Coconut Grove address or knowin g a person named “B. Kanapill” was insufficient to overcome the presumption. She als o asserts that the trial court was required to hold a hearing before it could rely on Bi sesi’s affidavit to find a lack of service of process. {¶ 10} We apply abuse-of-discretion review to a trial court’s dismissa l for insufficient service of process. 1 Lewis v. Buxton , 2d Dist. Greene No. 2006-CA-122, 2007-Ohio-5986, ¶ 5, quoting Spiegel v. Westafer , 3d Dist. Union No. 14-05-18, 2005- Ohio-6033, ¶ 12; see also Cellan v. Lancione , 10th Dist. Franklin No. 16AP-677, 2017- Ohio-1460, ¶ 6; Eisel v. Austin , 9th Dist. Lorain No. 09CA009653, 2010-Ohio-3458, ¶ 18;

1 Clawson cites Pugh v. Sloan , 11th Dist. Ashtabula No. 2019-A-0031, 2019-Ohio-3615, for the proposition that a ruling on a motion to dismiss is sub ject to de novo review. But Pugh involved a motion to dismiss for failure to state a claim, not a motion to dismiss for insufficient service of process. “The determination of whether service of process was sufficient in any particular case rests on the factual evaluati on by the court and is within the sound discretion of the court.” C&W Invest. Co. v. Midwest Vending, Inc ., 10th Dist. Franklin No. 03AP-40, 2003-Ohio-4688, ¶ 13.-6- Matteo v. Principe , 8th Dist. Cuyahoga No. 92894, 2010-Ohio-1204, ¶ 9; Tuckosh v. Cummings , 7th Dist. Harrison No. 07HA9, 2008-Ohio-5819, ¶ 18. Having re viewed Bisesi’s motion and affidavit as well as Clawson’s response and competing affidavit, we

see no abuse of discretion in the trial court’s dismissal of Bi sesi without holding an evidentiary hearing. {¶ 11} Pursuant to Civ.R. 4.1(A)(1)(b) and Civ.R. 4.3(B), Clawson was permitted to perfect service in Florida through a commercial carrier with a signed receipt. “In those instances where the plaintiff follows the Civil Rules governing service of process, courts presume that service is proper unless the defendant rebuts this presumption with

sufficient evidence of non-service.” Carter-Jones Lumber Co. v. Meyers , 2d Dist. Clark No. 2005-CA-97, 2006-Ohio-5380, ¶ 11. The presumption only aris es, however, if service is attempted at “an address where there is a reasonable expecta tion that it will be

delivered to the defendant.” In re S.A ., 2d Dist. Montgomery No. 25532, 2013-Ohio-3047, ¶ 13, citing Portfolio Recovery Asso cs., L.L.C. v. Thacker, 2d Dist. Clark No. 2008-CA119, 2009-Ohio-4406. {¶ 12} Here it is questionable whether Clawson’s attempt to serve her refiled complaint on Bisesi at 661 Coconut Grove Avenue reasonably coul d have been expected to reach him. This is so because a prior attempt to serve him a t the same address via Federal Express had been returned with the notation “Fedex Unsu ccessful Service Customer Not Available or Business Closed.” (Failure of Service Notification, Aug. 22, 2018.) We are unconvinced that trying the same method of servi ce at the same location reasonably could be expected to produce a different result. {¶ 13} But even if Clawson’s subsequent successful service on “B. Kana pill” at 661-7- Coconut Grove Avenue did create a rebuttable presumption of ser vice on Bisesi, the trial court correctly found the presumption rebutted based on the aff idavit Bisesi filed with his motion to dismiss. As set forth above, Bisesi averred that that he had not resided at the Coconut Grove address since June 2018, that the signature on th e card was not his, that he did not know the person who signed the card, that he did not authorize “B. Kanapill” or anyone else to sign for him, and that the person who signed the card did not contact him or forward the summons and complaint to him. These averment s by Bisesi were sufficient to rebut any presumption of proper service. Capital One Bank v. Smith , 2020- Ohio-1614, 154 N.E.3d 240, ¶ 17 (8th Dist.) (recognizing that t he presumption is rebutted

where a defendant swears under oath that he did not reside that the address where service was made). {¶ 14} The only remaining question is whether the trial court was requ ired to hold an evidentiary hearing to determine whether Bisesi had been ser ved. We conclude that no evidentiary hearing was required for at least two reasons. F irst, Clawson’s written response to Bisesi’s motion and affidavit did not specifically request an oral hearing. She suggested only that the trial court hold a hearing if the court deemed one necessary. Second, and more importantly, a hearing was not necessary on th e record before us. Although Clawson maintains that service was made at Bisesi’s la st known address, she does not appear to dispute that Bisesi in fact no longer lived there. The affidavit Clawson filed in the trial court made no assertion that Bisesi actuallystill resided at the Coconut Grove address at the time of service. Therefore, the record con tains uncontroverted

evidence in the form of Bisesi’s affidavit that service was mad e at the wrong address. “[T]he fact that the service of process has been sent to an inc orrect address is strong-8- corroboration of [a] defendant’s otherwise unsupported and obvi ously self-serving testimony that he did not receive service of process.” Sec. Natl. Bank & Tr. Co. v. Murphy , 2d Dist. Clark No. 2552, 1989 WL 80954, *2 (July 20, 1989). {¶ 15} This court has found a hearing required “when process was sent to a

defendant at the defendant's correct address and the defendant has only his self-serving testimony that he did not receive service of process[.]” Discover Bank v. Wells , 2d Dist. Clark No. 2018-CA-44, 2018-Ohio-4637, ¶ 13; see also Portfolio Recovery Assocs . at ¶ 31. Here, however, Bisesi presented uncontroverted evidence t hat process was sent to

the wrong address, a fact that Clawson does not appear to dispute on app eal. Under these circumstances, we see no abuse of discretion in the trial court’s relying on Bisesi’s affidavit to find insufficient service of process and to sustai n his motion to dismiss. Accordingly, the first assignment of error is overruled. {¶ 16} In her second assignment of error, Clawson contends the trial c ourt erred in entering summary judgment in favor of Heights Chiropractic. {¶ 17} We begin with the pleadings. The complaint alleges that at rele vant times Heights Chiropractic Physicians, LLC was the employer of Don Bi sesi, D.C. (Complaint, ¶ 3.) Heights Chiropractic’s answer admits “Donald Bisesi, was its employee at all times material.” (Answer, ¶ 3.) For our purposes, the employer-employ ee relationship between Heights Chiropractic and Bisesi is undisputed. {¶ 18} Because the claim against Bisesi personally was dismissed for lack of service, which we affirm, Bisesi is no longer a party to the li tigation. Ordinarily, “[f]or the wrong of a servant acting within the scope of his authority, th e plaintiff has a right of action against either the master or the servant, or against both, in s eparate actions, as a-9- judgment against one is no bar to an action or judgment against the other until one judgment is satisfied.” Losito v. Kruse , 136 Ohio St. 183, 187, 24 N.E.2d 705 (1940). In the trial court, Heights Chiropractic argued, and the trial cou rt determined, that the case

of Comer v. Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, held that “[i]If there is no liability assigned to the agent, it logically flows that there can be no liability imposed upon the principal for the agent’s actions.” Id . at ¶ 20. Therefore, upon the dismissal of Bisesi, the trial court reasoned, Clawson’s claim against Heights Chiropractic

had to be dismissed. {¶ 19} To the contrary, Clawson argues that the physician in Comer was an independent contractor and liabilit y of the principal in that c ase, Knox Community Hospital, was based on a theory of agency-by-estoppel rather th an a traditional masterservant relationship. As such, Clawson contends Comer does not apply here. In support,

she cites Taylor v. Belmont Community Hosp ., 7th Dist. Belmont No. 09 BE 30, 2010- Ohio-3986, in which the Seventh District held that a plaintiff could sue a hospital based on traditional respondeat superior liability for claims of medi cal negligence even though no suit had been filed against the allegedly negligent employee s, a physician and two nurses. We agree with Clawson. {¶ 20} The Supreme Court stated in Comer that “[t]he narrow issue before us is whether * * * a viable claim exists against a hospital under a theory of agency by estoppel for the negligence of an independent-contractor physician when the physician cannot be made a party because the statute of limitations has expired.” Comer at ¶ 1. Because the case before us, like the case before the court in Taylor v. Belmont Community Hospital , involves traditional employer-employee relationships rather tha n agency-by-estoppel-10- liability, we conclude that Comer does not apply. Although Heights Chiropractic argues

that Comer’s holding should apply, it does not even mention or try to disti nguish Taylor

. {¶ 21} Others have argued that the Ohio Supreme Court case of Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth , 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, which applied Comer’s holding to legal malpractice, extended Comer to require dismissal of the case against the principal when the agent is n ot a party. We disagree. Significantly, the relationship in Wuerth was that of partner and law firm, not a traditional employer-employee relationship. See , e.g ., Tisdale v. Toledo Hosp ., 197 Ohio App.3d 316, 2012-Ohio-1110, 967 N.E.2d 280, ¶ 29 (6th Dist.) (“The nat ure of Wuerth's relation to his firm suffices to place this type of agency in a third cl assification—one that is distinguishable from both respondeat superior and agency by est oppel. Wuerth was a senior partner and part-owner of Lane Alton [the firm]. While a ttorneys are generally independent contractors in relation to their clients, Wuerth hi mself, in relation to Lane Alton, was neither an independent contractor nor an employee.”) . Thus, we believe

Wuerth too is inapplicable. {¶ 22} Finally, we note the holding, which neither party cites, in Rush v. Univ. of Cincinnati Physicians, Inc ., 1st Dist. Hamilton No. C–150309, 2016-Ohio-947. There the First District held that an employer, “UC Physicians,” could no t be held liable for the negligence of one of its physician-employees who was not named in the litigation. In support of its decision, the appellate court cited Wuerth without addressing the fact that the relationship in Wuerth was not that of employer-employee. To the extent that Rush could be contrary to our decision, we disagree with its applica tion of Wuerth

. {¶ 23} We sustain the second assignment of error and hold that a plain tiff may-11- pursue the undisputed employer of a defendant chiropractor when the individual employee has been dismissed from the case for lack of service o f the complaint on the employee within one year. {¶ 24} The trial court’s judgment is affirmed with respect to its dism issal of Bisesi individually and reversed with respect to its entry of summary judgment in favor of Heights Chiropractic. The case is remanded for further proceedings cons istent with this opinion.

. . . . . . . . . . . . .

FROELICH, J. and WELBAUM, J., concur.

Copies sent to: P.J. Conboy Charles J. Davis Hon. Dennis J. Adkins