[Cite as Rossiter v. Smith, 2012-Ohio-4434.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF WAYNE ) 

DENISE L. ROSSITER, et al. 

 Appellant 

 v. 

KYLE B. SMITH, et al. 

 Appellees 

C.A. No. 12CA0023 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF WAYNE, OHIO 

CASE No. 10-CV-0879 

DECISION AND JOURNAL ENTRY

Dated: September 28, 2012 

 

WHITMORE, Presiding Judge. 

{¶1} Plaintiff-Appellant, Denise Rossiter, the Administrator of the Estate of Justin 

Rossiter (“Administrator”), appeals from the judgment of the Wayne County Court of Common 

Pleas, granting summary judgment in favor of Defendant-Appellee, Kyle Smith. This Court 

reverses. 

I 

{¶2} Justin Rossiter died after a car driven by Smith collided with a utility pole. 

Administrator, Justin’s mother, filed a wrongful death complaint against Smith within the statute 

of limitations period for wrongful death actions.1

 Administrator asked the clerk of courts to 

serve Smith by certified mail at his last known address, but the certified mail was returned as 

 

1

 Although the instant litigation also involved multiple insurance companies, we do not discuss 

their involvement as it is irrelevant to the issue on appeal. 
2 

 

unclaimed. Administrator later voluntarily dismissed her complaint. At the point Administrator 

dismissed her complaint the statute of limitations had expired. 

{¶3} Within one year of the dismissal of her complaint, Administrator re-filed her 

complaint against Smith and obtained service of process. Smith filed a motion for summary 

judgment in which he argued that Administrator could not rely upon the savings statute 

applicable to wrongful death actions, R.C. 2125.04, to re-file her complaint. Specifically, Smith 

argued that Administrator never commenced or attempted to commence a civil action for 

wrongful death against him within the original statute of limitations period because she never 

served him with her first complaint. Administrator filed a memorandum in opposition, arguing 

that her attempt to serve Smith through certified mail in the first action constituted an attempt to 

commence her civil action for wrongful death. The trial court agreed with Smith’s interpretation 

of the savings statute and concluded that Administrator never commenced or attempted to 

commence her civil action against Smith before voluntarily dismissing her complaint. 

Accordingly, the court granted Smith’s motion for summary judgment on the basis of the statute 

of limitations. 

{¶4} Administrator now appeals from the trial court’s judgment and raises two 

assignments of error for our review. 

II 

Assignment of Error Number One

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO 

SMITH[.] 

{¶5} In her first assignment of error, Administrator argues that the trial court erred by 

granting Smith’s motion for summary judgment. Specifically, she argues that the wrongful death 
3 

 

savings statute applied to her re-filed complaint because she attempted to commence a civil 

action against Smith before voluntarily dismissing her first complaint. We agree. 

{¶6} This Court reviews an award of summary judgment de novo. Grafton v. Ohio 

Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary judgment is 

proper if: 

(1) No genuine issue as to any material fact remains to be litigated; (2) the 

moving party is entitled to judgment as a matter of law; and (3) it appears from 

the evidence that reasonable minds can come to but one conclusion, and viewing 

such evidence most strongly in favor of the party against whom the motion for 

summary judgment is made, that conclusion is adverse to that party. 

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The party moving for summary 

judgment bears the initial burden of informing the trial court of the basis for the motion and 

pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher 

v. Burt, 75 Ohio St.3d 280, 292-293 (1996). Specifically, the moving party must support the 

motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. Once 

this burden is satisfied, the non-moving party bears the burden of offering specific facts to show 

a genuine issue for trial. Id. at 293. The non-moving party may not rest upon the mere 

allegations and denials in the pleadings but instead must point to or submit some evidentiary 

material that demonstrates a genuine dispute over a material fact. Henkle v. Henkle, 75 Ohio 

App.3d 732, 735 (12th Dist.1991). 

{¶7} With the exception of a products liability claim, a cause of action for wrongful 

death “shall be commenced within two years after the decedent’s death.” R.C. 2125.02(D)(1). A 

plaintiff may file a wrongful death action beyond the two-year period only if he or she satisfies 

the conditions set forth in R.C. 2125.04, the wrongful death savings statute. The savings statute 

provides that: 
4 

 

[i]n every civil action for wrongful death that is commenced or attempted to be 

commenced within the time specified by [R.C. 2125.02(D)(1)] * * *, if * * * the 

plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a 

new civil action for wrongful death within one year after the date of * * * the 

plaintiff’s failure otherwise than upon the merits * * *. 

R.C. 2125.04. “A civil action is commenced by filing a complaint with the court, if service is 

obtained within one year from such filing upon a named defendant * * *.” Civ.R. 3(A). As for 

attempted commencement, the Supreme Court has held that “[t]he mere filing of a complaint 

does not constitute an attempted commencement of an action for purposes of R.C. 2125.04.” 

Motorists Mut. Ins. Co. v. Huron Rd. Hosp., 73 Ohio St.3d 391 (1995), paragraph two of the 

syllabus. 

{¶8} The legal issue on appeal is a narrow one. Both parties agree that Administrator 

filed her initial complaint within two years of her son’s death and re-filed her complaint within 

one year of voluntarily dismissing it. Therefore, none of the filing deadlines applicable to 

wrongful death actions are in dispute. The only issue on appeal is the meaning of the phrase 

“attempted to be commenced,” as is it used in R.C. 2125.04. 

{¶9} Smith sought summary judgment on the basis that Administrator never 

commenced or attempted to commence an action against him when she first filed suit. Smith 

argued that Administrator had to perfect service upon him in the first suit in order to commence 

or attempt to commence her wrongful death action for purposes of the savings statute. Because 

Administrator’s attempt to serve Smith with her first complaint by certified mail at his last 

known address failed, Smith argued, Administrator did not commence or attempt to commence 

her suit against him. The trial court agreed that the phrase “attempted to be commenced” was 

synonymous with “commenced” for purposes of the savings statute and granted Smith’s motion 

for summary judgment. 
5 

 

{¶10} Administrator concedes that she did not commence her wrongful death action 

against Smith in the first suit because she did not obtain service upon him within a year. See

Civ.R. 3(A). Even so, Administrator argues that she attempted to commence her action in the 

first suit by trying to serve Smith at his last known address through certified mail. Thus, the sole 

issue on appeal is whether an unsuccessful attempt to serve a defendant by certified mail at his 

last known address constitutes an attempt to commence a wrongful death action for purposes of 

the wrongful death savings statute. For the following reasons, we conclude that it does. 

{¶11} As applied to this case, the language in the wrongful death savings statute is 

virtually identical to the language contained in R.C. 2305.19, the general savings statute. 

Compare R.C. 2125.04 with R.C. 2305.19(A). Both statutes use the phrase “commenced or 

attempted to be commenced.” R.C. 2125.04; R.C. 2305.19(A). Before the adoption of the Ohio 

Rules of Civil Procedure, R.C. Chapter 2305 defined the phrase “attempted to be commenced.” 

Specifically, it provided that “an attempt to commence an action is equivalent to its 

commencement, when the party diligently endeavors to procure a service, if such attempt is 

followed by service within sixty days.” Former R.C. 2305.17 (G.C. 11231). After Civ.R. 3(A) 

was enacted, however, the General Assembly revised R.C. 2305.17 and eliminated the definition 

of “attempt to commence.” See R.C. 2305.17. Although both Civ.R. 3(A) and R.C. 2305.17 

currently define how an action “is commenced,” neither defines an “attempt to commence” an 

action. Absent any authority, the Eighth District concluded in Simonetti v. Piorkowski that the 

General Assembly deleted the definition of “attempt to commence” because it intended that 

definition to be subsumed within the definition of commence. Simonetti v. Piorkowski, 8th Dist. 

No. 42270, 1980 WL 355473, *2 (Dec. 18, 1980). The Eighth District held that to either 

commence or attempt to commence an action under the savings statute, a plaintiff must have 
6 

 

served a defendant with his original complaint. Id. The trial court here agreed with that 

interpretation. 

{¶12} Because Civ.R. 3(A) supersedes R.C. 2305.17, we focus solely on the definition 

of commencement contained within the civil rule. See Seger v. For Women, Inc., 110 Ohio St.3d 

451, 2006-Ohio-4855, ¶ 7. As previously set forth, Civ.R. 3(A) provides: “A civil action is 

commenced by filing a complaint with the court, if service is obtained within one year from such 

filing upon a named defendant * * *.” In Motorists Mut. Ins. Co., the Ohio Supreme Court 

considered whether plaintiffs had attempted to commence their wrongful death suit for purposes 

of the wrongful death savings statute. Motorists Mut. Ins. Co., 73 Ohio St.3d at 396-397. There, 

the plaintiffs filed their complaint and requested the appointment of a process server. Although a 

server was appointed, service was never attempted before the plaintiffs voluntarily dismissed 

their complaint. Id. at 392. The Court held that the “mere filing of a complaint does not 

constitute an attempted commencement of an action for purposes of R.C. 2125.04.” Id. at 396. 

In so holding, the Court reasoned that “[s]ervice is too vital a part of commencement of a lawsuit 

for a party to be deemed to have attempted commencement without even attempting service.” 

(Emphasis added.) Id. Notably, the Court did not hold that the plaintiffs had to obtain service in 

order to take advantage of the savings statute. The Court based its holding on the plaintiffs’ 

failure to even attempt service. Id. Similarly, with regard to the general savings statute, the 

Court has recognized that attempting service differs from perfecting service. LaNeve v. Atlas 

Recycling, Inc., 119 Ohio St.3d 324, 2008-Ohio-3921, ¶ 17-19. 

{¶13} “[S]avings statutes should be liberally construed to ensure that cases are decided 

on the merits whenever possible, rather than on procedural technicalities.” Barker v. Strunk, 9th 

Dist. No. 06CA008939, 2007-Ohio-884, ¶ 9. Further, “[a]n unambiguous statute must be applied 
7 

 

in a manner consistent with the plain meaning of the statutory language, and a court cannot 

simply ignore or add words.” Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-

Ohio-954, ¶ 52. Smith’s interpretation of R.C. 2125.04 would have this Court essentially ignore 

the phrase “attempt to commence” as it is used within the statute. Common sense alone dictates 

that “commence” and “attempt to commence” do not mean the same thing. We agree with our 

sister district that “an attempt to commence obviously contemplates something less than 

commencement.” Thacker v. Sells, 10th Dist. No. 90AP-669, 1990 WL 250512, *4 (Dec. 31, 

1990) (wrongful death plaintiff had attempted to commence the action by requesting proper 

certified mail service upon a defendant, even though the suit was dismissed “before it could be 

determined that effective service was not made”). 

{¶14} Other districts have reached the same result with regard to the general savings 

statute. The Seventh District has held that “an action is attempted to be commenced, as 

contemplated by R.C. 2305.19, when a party files a complaint with the clerk of the court within 

the applicable statute of limitations and demands service on that complaint.” Sorrell v. Estate of 

Datko, 147 Ohio App.3d 319, 2001-Ohio-3460, ¶ 22 (7th Dist.2001). Similarly, the Second 

District has held that “the attempted commencement provision of R.C. 2305.19 requires only that 

a Plaintiff has taken action to effect service on a defendant within the applicable limitations 

period according to one of the methods provided in the Civil Rules.” (Emphasis sic.) Schneider 

v. Steinbrunner, 2d Dist. No. 15257, 1995 WL 737480, *4 (Nov. 8, 1995). Even the Eighth 

District later rejected the approach it took in Simonetti v. Piorkowski and held that the phrases 

“commence” and “attempt to commence” are not synonymous. Husarcik v. Levy, 8th Dist. No. 

75114, 1999 WL 1024135, *2-3 (Nov. 10, 1999). In Husarcik, the Eighth District held that a 
8 

 

plaintiff had attempted to commence his action when he filed a request for service by certified 

mail, but service was never perfected. Id. at *1-3. 

{¶15} After Administrator filed her first complaint, she attempted to serve Smith by 

certified mail at his last known address. Certified mail was a proper method of service under the 

Civil Rules. See LaNeve, 119 Ohio St.3d 324, 2008-Ohio-3921, at ¶ 17 (“An attempt to 

commence an action as contemplated * * * must be pursuant to a method of service that is proper 

under the Civil Rules.”). By attempting to serve Smith by certified mail, Administrator did more 

than merely file her complaint. See Motorists Mut. Ins. Co., 73 Ohio St.3d at 396. 

Administrator’s demand for service upon Smith by certified mail constituted an attempt to 

commence her wrongful death action against him. Thacker at *4. See also Sorrell at ¶ 22; 

Husarcik at *2-3; Schneider at *4. The trial court erred by equating the phrase “commence” 

with the phrase “attempt to commence” and by relying upon a position the Eighth District later 

rejected. Because Administrator attempted to commence her initial wrongful death action 

against Smith, Smith was not entitled to summary judgment on the basis of the statute of 

limitations. Administrator’s first assignment of error is sustained. 

Assignment of Error Number Two

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE 

MOTION TO VACATE JUDGMENT. 

{¶16} In her second assignment of error, Administrator argues that the trial court abused 

its discretion by denying her motion to vacate. The record reflects that Administrator filed her 

notice of appeal before the trial court ruled on her Civ.R. 60(B) motion. “Where a party files a 

motion for relief from judgment pursuant to Civ.R. 60(B), then files a notice of appeal before the 

trial court has ruled on the Civ.R. 60(B) motion, the notice of appeal deprives the trial court of 

jurisdiction to vacate the judgment challenged by the appeal.” Klinginsmith v. Felix, 62 Ohio 
9 

 

App.3d 147, 150-151 (9th Dist.1989), quoting Dempsey v. Chicago Title Ins. Co., 20 Ohio 

App.3d 90 (8th Dist.1985), paragraph one of the syllabus. Because the trial court lacked 

jurisdiction to consider Administrator’s motion, “the order denying it is null and void.” State v. 

Smith, 9th Dist. Nos. 07CA009220 & 07CA009252, 2008-Ohio-3589, ¶ 10. We do not reach 

the merits of Administrator’s second assignment of error, as the trial court’s ruling on her Civ.R. 

60(B) motion is a nullity. 

III 

{¶17} Administrator’s first assignment of error is sustained. We do not reach the merits 

of Administrator’s second assignment of error as it pertains to a void judgment. The judgment of 

the Wayne County Court of Common Pleas is reversed, and the cause is remanded for further 

proceedings consistent with the foregoing opinion. 

Judgment reversed, 

and cause remanded. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 
10 

 

 Costs taxed to Appellee. 

 

 BETH WHITMORE 

 FOR THE COURT 

MOORE, J. 

DICKINSON, J. 

CONCUR.

APPEARANCES:

TIMOTHY B. SAYLOR, Attorney at Law, for Appellant. 

MARK BASERMAN, Attorney at Law, for Appellee.