[Cite as Palmer v. O'Brien, 2011-Ohio-5208.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

 : 

DAVID D. PALMER 

Plaintiff-Appellant : C.A. CASE NO. 24258 

vs. : T.C. CASE NO. 10-CV-362 

 : (Civil Appeal from 

DANIEL L. O’BRIEN Common Pleas Court) 

Defendant-Appellee : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 7th day of October, 2011. 

 . . . . . . . . . 

David Palmer, #329-601, 1001 Olivesburg Road, P.O. Box 8107, 

Mansfield, OH 44901 

Pro Se Plaintiff-Appellant 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} This is an appeal from a final order entered in Montgomery 

County Common Pleas Court Case No. 2010CV00362 pursuant to Civ.R. 

4(E), dismissing the action, with prejudice, pursuant to Civ.R. 

12(B)(5) for failure of service of process. 

{¶ 2} On May 18, 2010, the trial court entered an order, sua 

sponte, requiring Plaintiff David D. Palmer to show cause within 

fourteen days why his action should not be dismissed pursuant to 
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Civ.R. 12(B)(5) for failure of service on Defendant Daniel L. 

O’Brien. The court found that, pursuant to Civ.R. 3(A), the action 

had not been “commenced” because service was not obtained within 

one year after the complaint in the action was filed. The court 

also ordered the clerk “to serve a copy of this decision and Judgment 

Entry upon the plaintiff within three (3) days of the entering 

of the Judgment on the Journal, in a manner prescribed in Civ.R. 

5(B)[sic] and note service in the appearance docket.” (Dkt 7). 

{¶ 3} Palmer filed no response to the show cause order within 

the fourteen days the court allowed. On August 16, 2010, the trial 

court ordered the action “dismissed with prejudice” . .. “[f]or 

the reasons set forth in the Court’s prior judgment entry, filed 

May 18, 2010.” Palmer filed a notice of appeal from the order 

of dismissal on September 13, 2010. (Dkt. 15). 

FIRST ASSIGNMENT OF ERROR

{¶ 4} “THE TRIAL COURT ERRED TO THE SUBSTANTIAL PRINCIPLES 

[SIC] OF APPELLANT BY DISMISSAL OF CASE FOR JUDGMENT AGAINST 

DEFENDANT WHEN THE DAYTON BAR ASSOCIATION HAD RULES [SIC] ON THE 

MATTER OF FEE DISPUTE. THE TRIAL COURT EXCEEDED IT’S [SIC] 

AUTHORITY WHEN IT REFUSED TO FOLLOW THE DAYTON BAR ASSOCIATION 

RULINGS.” 

{¶ 5} Prior to 2004, Palmer retained O’Brien as counsel to 

represent Palmer in criminal proceedings. A fee dispute arose 
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between Palmer and O’Brien. In January of 2004, Palmer and O’Brien 

submitted the fee dispute to binding arbitration before the 

Committee on Fee Dispute Arbitration of the Dayton Bar Association. 

 The Committee on Fee Dispute found that O’Brien was entitled to 

only $2,950 of the $7,000.00 retainer he collected from Palmer. 

 O’Brien has since been indefinitely suspended from the practice 

of law. Dayton Bar Association v. Daniel L. O’Brien (August 11, 

2004), Sup. Ct. Case No. 04-85. 

{¶ 6} Palmer argues that the trial court should have granted 

a judgment in his favor for the amount which the Dayton Bar 

Association found that O’Brien owes Palmer. That argument 

involves the merits of Palmer’s claim for relief. Absent timely 

service of process on O’Brien, Palmer is not entitled to relief 

on his claim. 

{¶ 7} The first assignment of error is overruled. 

SECOND ASSIGNMENT OF ERROR

{¶ 8} “THE HONORABLE COURT OF RICHLAND COUNTY, OHIO ERRED BY 

TRANSFERRING THIS CASE TO THE COMMON PLEAS COURT OF MONTGOMERY 

COUNTY, OHIO.” 

{¶ 9} Palmer filed a prior action against O’Brien seeking 

similar relief in Richland County, where Palmer is incarcerated. 

 The Richland County court dismissed the action for lack of subject 

matter jurisdiction and improper venue. On review, the Fifth 
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District Court of Appeals reversed, holding that the action should 

instead have been transferred to Montgomery County. Palmer v. 

O’Brien, Richland App. No. 04CA38, 2004-Ohio-5365. 

{¶ 10} The present case involves a second action against O’Brien 

that Palmer also filed in Richland County. The Richland County 

Court likewise transferred that action to Montgomery County, where 

it was docketed as Case No. 2010CV00362. 

{¶ 11} Palmer does not explain how the Richland County Court 

erred in transferring his case. The issue of venue in the present 

action is no different from the issue of venue the Fifth District 

decided in the prior action. The Richland County court did not 

err when it also transferred the present action to Montgomery 

County. 

{¶ 12} The second assignment of error is overruled. 

THIRD ASSIGNMENT OF ERROR

{¶ 13} “THE TRIAL COURT OF MONTGOMERY COUNTY ERRED TO THE 

PRINCIPLE [SIC] OF APPELLANTS [SIC] SUBSTANTIAL RIGHTS BY NOT 

PROVIDING SERVICE ON THE JUDGMENT ENTY [SIC] THEY FILED ON MAY 

18, 2010 AND SHOWN ON THE FINAL JUDGMENT ENTRY BY THE VISITING 

JUDGE. THIS VIOLATES THE APPELLANTS [SIC] CONSTITUTIONAL RIGHTS.” 

{¶ 14} The Montgomery County Court of Common Pleas stated in 

its May 18, 2010 order to show cause that it intended to dismiss 

Palmer’s complaint because he failed to serve the summons and 
5

complaint on O’Brien within the one year that Civ.R. 3(A) requires. 

 In doing that, the court acted sua sponte. Civ.R. 4(E) authorizes 

such dismissals, and provides: 

{¶ 15} “Summons: time limit for service. If a service of the 

summons and complaint is not made upon a defendant within six months 

after the filing of the complaint and the party on whose behalf 

such service was required cannot show good cause why such service 

was not made within that period, the action shall be dismissed 

as to that defendant without prejudice upon the court's own 

initiative with notice to such party or upon motion. This division 

shall not apply to out-of-state service pursuant to Rule 4.3 or 

to service in a foreign country pursuant to Rule 4.5.” (Emphasis 

supplied.) 

{¶ 16} The May 18, 2010 order gave Palmer both notice of its 

intent to dismiss the action and an opportunity to show why the 

action should not be dismissed. Palmer contends that he did not 

respond because he did not receive a copy of the May 18, 2010 order. 

 On the last page of its May 18, 2010 order, the court directed 

the clerk of courts to serve a copy of the entry upon Palmer within 

three days of entering of the judgment on the journal and to note 

service in the appearance docket. That requirement relies on 

Civ.R. 58(B), which provides: 

{¶ 17} “Notice of filing. When the court signs a judgment, 
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the court shall endorse thereon a direction to the clerk to serve 

upon all parties not in default for failure to appear notice of 

the judgment and its date of entry upon the journal. Within three 

days of entering the judgment upon the journal, the clerk shall 

serve the parties in a manner prescribed by Civ.R. 5(B) and note 

the service in the appearance docket. Upon serving the notice 

and notation of the service in the appearance docket, the service 

is complete. The failure of the clerk to serve notice does not 

affect the validity of the judgment or the running of the time 

for appeal except as provided in App.R. 4(A).” (Emphasis 

supplied.) 

{¶ 18} The record fails to demonstrate that the clerk of courts 

noted service of the order to show cause on Palmer in the appearance 

docket. Therefore, per Civ.R. 58(B), service of the May 18, 2010 

judgment entry on Palmer was not complete. Lacking service of 

the order, Palmer was deprived of notice that his action would 

be dismissed absent a showing of cause. Civ.R. 4(E) required 

notice to Palmer prior to dismissal of the action on the court’s 

own initiative, a fact which the court acknowledged in its May 

18, 2010 order. 

{¶ 19} On the record before us, we find that the trial court 

erred in dismissing Palmer’s action pursuant to Civ.R. 4(E). We 

also note that Civ.R. 4(E) provides that dismissal pursuant to 
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that rule, when proper, is without prejudice, not with prejudice, 

as the court ordered in the present case. The third assignment 

of error is sustained. The judgment of the trial court will be 

reversed and the cause will be remanded to the trial court for 

further proceedings consistent with this opinion. 

FROELICH, J. and CANNON, J. concur. 

(Hon. Timothy P. Cannon, Eleventh District Court of Appeals, 

sitting by assignment of the Chief Justice of the Supreme Court 

of Ohio.) 

Copies mailed to: 

David D. Palmer 

Hon. Sumner Walters 

Hon. Barbara P. Gorman, Administrative Judge