[Cite as Boggs v. Denmead, 2018-Ohio-2408.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Clifford L. Boggs, : 

 

 Plaintiff-Appellant, : No. 17AP-199 

 (C.P.C. No. 12CV-13858) 

v. : 

 (REGULAR CALENDAR) 

Craig Denmead et al., : 

 

 Defendants-Appellees. : 

 

D E C I S I O N 

Rendered on June 21, 2018 

 

On brief: Stewart & DeChant, LLC, and Scott E. Stewart, for 

appellant. Argued: Scott E. Stewart. 

On brief: Reminger Co., L.P.A., Melvin J. Davis, and 

Allison R. Thomas, for appellees. Argued: Allison R. 

Thomas. 

 

APPEAL from the Franklin County Court of Common Pleas 

BROWN, P.J. 

{¶ 1} This is an appeal by plaintiff-appellant, Clifford L. Boggs, from a judgment 

of the Franklin County Court of Common Pleas overruling his objections to a magistrate's 

decision and granting the motion to dismiss filed by defendants-appellees, Craig 

Denmead (individually "Denmead") and Denmead Law Office. 

{¶ 2} On November 2, 2012, appellant filed a complaint against appellees alleging 

legal malpractice. On November 20, 2012, appellant filed a motion for leave to file an 

amended complaint, which the trial court granted by entry filed November 27, 2012. 

{¶ 3} On December 1, 2013, appellees filed a motion to dismiss the complaint and 

amended complaint, pursuant to Civ.R. 12(B), asserting insufficiency of service of process, 
No. 17AP-199 2 

insufficiency of process, and lack of personal jurisdiction. Attached to the motion was the 

affidavit of Denmead, who averred he had never received certified or express mail service 

of the summons and complaint filed in Franklin C.P. No. 12CV-13858. On December 10, 

2013, appellant filed a brief in response to appellees' motion to dismiss. 

{¶ 4} On December 5, 2014, a magistrate of the trial court conducted an 

evidentiary hearing on the motion to dismiss. During the hearing, Denmead testified on 

behalf of appellees, while appellant presented the testimony of Joyce Beauman, manager 

of the clerk's office for the Franklin County Court of Common Pleas, General Division. 

Appellant also called Denmead to testify on cross-examination. 

{¶ 5} On February 6, 2015, the magistrate issued a decision which included the 

following findings of fact. Appellee Denmead is an Ohio licensed attorney "doing business 

as Denmead Law Office." In November 2012, the Denmead Law Office was located at 17 

South High Street, Suite 620, Columbus, Ohio, 43215. Denmead is a sole practitioner, 

and in November 2012 "he did not employ any staff, nor did he share office space with any 

other attorney, or anyone else." Denmead was also "the only person who had access to 

Suite 620 on November 24, 2012." 

{¶ 6} Prior to the filing of the instant action, "Denmead was contacted in writing 

by an attorney representing Clifford Boggs," requesting a copy of a file "related to a 

potential malpractice lawsuit." Denmead "notified his malpractice insurance carrier," and 

the carrier retained counsel for Denmead. 

{¶ 7} On November 2, 2012, appellant requested certified mail service of the 

complaint filed against both appellees. Thereafter, the complaint and summonses "were 

sent to Craig Denmead and Denmead Law Office at 17 South High Street, Suite 620, 

Columbus, Ohio 43215." 

{¶ 8} On November 20, 2012, appellant filed a motion for leave to file an 

amended complaint. Appellant mailed a copy of his motion "to Craig Denmead and 

Denmead Law Office at 17 S. High Street, Suite 620, Columbus, Ohio 43215." On 

November 27, 2012, the trial court granted appellant's motion for leave to file his 

amended complaint instanter. On that same date, "the Franklin County Clerk of Courts 

filed 'return receipts' for the Complaint and summonses issued to [appellees] Craig 

Denmead and Denmead Law Office." Both certified mail envelopes "were delivered on 
No. 17AP-199 3 

November 24, 2012 at 10:03 A.M. in Columbus, Ohio 43216, giving a customer service 

reference number for the Boggs' Complaint on both [appellees]." 

{¶ 9} The parties "agree[d] that the signatures and address on the November 24, 

2012 signed receipt are illegible." In his affidavit, "Denmead stated that neither he, nor an 

agent or an employee, signed or received the certified mail," nor does he "know or 

recognize the signatures or names of the person(s) on the return receipts." 

{¶ 10} On November 28, 2012, attorneys Michael Romanelli and Nicole Koppitch 

entered their appearances on behalf of appellees. On November 29, 2012, the envelopes 

with the original complaint were returned to the Franklin County Clerk of Courts; the 

envelopes were stamped as unclaimed after previously showing receipt. One envelope 

was addressed to "Craig Denmead, Suite 620, 17 South High Street, Columbus, Ohio 

43215," and bore the tracking number "9171 9009 0300 1007 4706 75" the other envelope 

was addressed to "Denmead Law Office, Suite 620, 7 South High Street, Columbus, Ohio 

43215," and bore the tracking number "9171 9009 0300 1007 4706 68." Both of the 

tracking numbers matched "the respective summonses on certified mail sent November 7, 

2012." 

{¶ 11} On November 29, 2012, the Franklin County Clerk of Courts issued a 

"conflict of service notice." The magistrate noted that appellant "made no subsequent 

attempts to obtain service via certified or express mail." 

{¶ 12} Denmead testified that he "received 'pink' slip notices at 17 S. High Street, 

Suite 620, Columbus, Ohio 43215 on November 8 and 23, 2012, indicating that he had 

certified mail." Denmead "was given the option of either requesting that it be redelivered, 

or picking up the certified mail at the United States Post Office, located at 850 Twin 

Rivers Drive." The post office is located in the 43216 zip code area, "but serves the 

downtown Columbus, Ohio area, including the delivery of mail to 17 S. High Street, Suite 

620[,] Columbus, Ohio, which is located in the 43215 zip code area." 

{¶ 13} According to the testimony of Denmead, "sometime during the first week of 

December 2012, prompted by the pink slip notices he received from the United States 

Post Office, he went to the Twin Rivers Drive post office to claim his certified mail." At 

that time, Denmead "learned that the certified mail had been returned to the original 

sender." 
No. 17AP-199 4 

{¶ 14} On December 12, 2012, appellant requested ordinary mail service of the 

amended complaint and summonses sent to Denmead and Denmead Law Office at 17 

South High Street, Suite 620, Columbus, Ohio 43215. The magistrate found no evidence 

indicating "the ordinary mail containing the Amended Complaint and summonses" was 

returned to the clerk of courts, and the magistrate noted testimony by Denmead that "he 

did receive the Amended Complaint." 

{¶ 15} In the magistrate's conclusions of law addressing the issue of service of 

process of the original complaint and summons, the magistrate found "the evidence 

demonstrates that the unopened envelopes were subsequently returned to the clerk's 

office as 'unclaimed.' " The magistrate also noted Denmead's testimony that "Denmead 

Law Office was not open on Saturday, November 24, 2012, and that he is the only person 

who has access to his office, and does not have any employees." Based on the testimony 

and exhibits introduced at the hearing, the magistrate determined that "the evidence 

demonstrates [appellees] were not properly served" with the original complaint. 

{¶ 16} Regarding the amended complaint, the magistrate noted that appellant 

"never attempted to serve his Amended Complaint and summons by certified or express 

mail." Rather, the evidence established appellant "attempted to serve the Amended 

Complaint via ordinary mail." Citing the provisions of Civ.R. 4.6, the magistrate held that 

"absent proof that certified or express mail service of the Amended Complaint and 

summons was either refused or unclaimed, ordinary mail service was not a proper 

method of service of process." Finding that the evidence demonstrated "neither the 

original Complaint nor the Amended Complaint have been served pursuant to the Ohio 

Civil Rules of Procedure on either [appellee] within the one year time period," the 

magistrate concluded the trial court lacked jurisdiction over appellees. 

{¶ 17} Appellant filed objections to the magistrate's decision, challenging the 

magistrate's findings related to Denmead's failure to receive the certified mail service of 

the original complaint, as well as the magistrate's conclusion that ordinary mail service of 

the amended complaint was not proper service under the circumstances. Appellant 

argued the amended complaint related back to the original complaint, pursuant to Civ.R. 

15(C), and that the amended complaint was properly served via ordinary mail after the 

original complaint was returned unclaimed. 
No. 17AP-199 5 

{¶ 18} On March 7, 2017, the trial court filed a decision and entry in which it 

adopted the magistrate's decision, holding the magistrate properly determined appellant 

failed to accomplish service of either the original or amended complaint within the period 

required by Civ.R. 3(A). The trial court therefore granted appellees' motion to dismiss for 

lack of jurisdiction. 

{¶ 19} On appeal, appellant sets forth the following three assignments of error for 

this court's review: 

[I.] The Court erred in finding that the Amended Complaint 

did not relate back in time to the original Complaint and allow 

service of process by ordinary mail which Appellees received 

under Civ.R. 4.6, after service of the original Complaint was 

confirmed as received, and then a conflict notice issued 

stating it was unclaimed. 

[II.] Appellee did not rebut the presumption of service with 

sufficient evidence that service was not completed by certified 

mail. 

[III.] Appellee had adequate notice under the Rules of Civil 

Procedure to obtain proper service and as a result civil 

jurisdiction upon the Appellee. 

{¶ 20} Appellant's assignments of error are interrelated and will be considered 

together. Under these assignments of error, appellant argues: (1) the trial court erred in 

finding the amended complaint did not relate back in time to the original complaint and 

allow service of process by ordinary mail, (2) appellees did not rebut the presumption of 

service by certified mail, and (3) appellees had adequate notice under the rules of Civil 

Procedure to obtain proper service. 

{¶ 21} At issue on appeal is the propriety of the trial court's decision overruling 

appellant's objections to the magistrate's decision and granting appellees' motion to 

dismiss for lack of jurisdiction due to a failure to obtain service of either the original or 

amended complaint within one year of filing. In order to render a valid personal 

judgment, a trial court must have personal jurisdiction over the defendant. Maryhew v. 

Yova, 11 Ohio St.3d 154, 156 (1984). A "[l]ack of jurisdiction over the person, insufficiency 

of process and insufficiency of service of process are affirmative defenses." Confidential 

Servs., Inc. v. Dewey, 10th Dist. No. 98AP-905 (Apr. 15, 1999), citing Civ.R. 12(B)(2), (4) 
No. 17AP-199 6 

and (5). An appellate court's "standard of review of a dismissal due to the lack of personal 

jurisdiction is de novo." Shah v. Simpson, 10th Dist. No. 13AP-24, 2014-Ohio-675, ¶ 9, 

citing Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551. 

{¶ 22} Civ.R. 3(A) states in part that "[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." Thus, under the provisions of Civ.R. 3(A), "an action is not deemed to 

be 'commenced' unless service of process is obtained within one year from the date of the 

filing of the action." Saunders v. Choi, 12 Ohio St.3d 247, 250 (1984). Further, "[i]f 

service is not perfected under Civ.R. 3(A) within a year of filing the complaint, dismissal 

of the complaint is appropriate." McAbee v. Merryman, 7th Dist. No. 13 JE 3, 2013-Ohio5291, ¶ 16. 

{¶ 23} Civ.R. 4.1 "outlines the methods for obtaining service of process within this 

state, including service via certified mail." TCC Mgt. v. Clapp, 10th Dist. No. 05AP-42, 

2005-Ohio-4357, ¶ 11. Civ.R. 4.1(A) states in part: 

(1)(a) Evidenced by return receipt signed by any person, 

service of any process shall be by United States certified or 

express mail unless otherwise permitted by these rules. The 

clerk shall deliver a copy of the process and complaint or 

other document to be served to the United States Postal 

Service for mailing at the address set forth in the caption or at 

the address set forth in written instructions furnished to the 

clerk as certified or express mail return receipt requested, 

with instructions to the delivering postal employee to show to 

whom delivered, date of delivery, and address where 

delivered. 

* * * 

(2) The clerk shall forthwith enter on the appearance docket 

the fact of delivery to the United States Postal Service for 

mailing or the fact of delivery to a specified commercial 

carrier service for delivery, and make a similar entry when the 

return receipt is received. If the return shows failure of 

delivery, the clerk shall forthwith notify the attorney of record 

or * * * the party at whose instance process was issued and 

enter the fact and method of notification on the appearance 

docket. The clerk shall file the return receipt or returned 

envelope in the records of the action. 
No. 17AP-199 7 

{¶ 24} In accordance with Civ.R. 4.1(A), "service of process via certified mail is 

evidenced by a return receipt signed by any person." Clapp at ¶ 11. When service of 

process is attempted by certified mail, "a signed receipt returned to the sender establishes 

a prima facie case of delivery to the addressee." Id. In instances where a plaintiff "follows 

the civil rules governing service of process, a rebuttable presumption of proper service 

arises." Chuang Dev. LLC v. Raina, 10th Dist. No. 15AP-1062, 2017-Ohio-3000, ¶ 31. A 

defendant, however, "can rebut the presumption of proper service with sufficient evidence 

that service was not accomplished." Id. at ¶ 32. 

{¶ 25} Civ.R. 4.6(D) "addresses the failure of certified mail situations of 'service 

refused' or 'service unclaimed.' " Denittis v. Aaron Constr., Inc., 8th Dist. No. 2011-G3031, 2012-Ohio-6213, ¶ 37. Civ.R. 4.6(D) states in part as follows: 

If a United States certified or express mail envelope 

attempting service within or outside the state is returned with 

an endorsement stating that the envelope was unclaimed, the 

clerk shall forthwith notify the attorney of record * * * and 

enter the fact and method of notification on the appearance 

docket. If the attorney, or serving party, after notification by 

the clerk, files with the clerk a written request for ordinary 

mail service, the clerk shall send by United States ordinary 

mail a copy of the summons and complaint or other document 

to be served to the defendant at the address set forth in the 

caption, or at the address set forth in written instructions 

furnished to the clerk. * * * The clerk shall endorse this 

answer date upon the summons which is sent by ordinary 

mail. Service shall be deemed complete when the fact of 

mailing is entered of record, provided that the ordinary mail 

envelope is not returned by the postal authorities with an 

endorsement showing failure of delivery. If the ordinary mail 

envelope is returned undelivered, the clerk shall forthwith 

notify the attorney, or serving party. 

{¶ 26} Thus, Civ.R. 4.6(D) "provides for service by ordinary mail when the certified 

mail is 'unclaimed.' " Olezewski v. Niam, 2d Dist. No. 13936 (Sept. 22, 1993). See also

Cent. Ohio Sheet Metal, Inc. v. Walker, 10th Dist. No. 03AP-951, 2004-Ohio-2816, ¶ 8, 

citing Pittsburgh Hilton v. Reiss, 22 Ohio App.3d 134, 135 (9th Dist.1985) ("Service of 

process by ordinary mail under Civ.R. 4.6(D) is proper after a certified mail delivery to 

appellant's address is returned marked 'unclaimed.' "). 
No. 17AP-199 8 

{¶ 27} As noted, following the evidentiary hearing on the motion to dismiss, the 

magistrate determined appellant failed to properly serve appellees with either the original 

complaint or the amended complaint. We initially consider arguments by appellant with 

respect to the filing of the original complaint. 

{¶ 28} In his objections to the magistrate's decision, appellant asserted the signed 

return receipts created a presumption of service notwithstanding the return of the service 

envelopes. The trial court disagreed, and further found that "[e]ven assuming, arguendo,

that the signed return receipts created a presumption of service," appellees rebutted the 

presumption of service by certified mail "with sufficient evidence that service was not 

completed." 

{¶ 29} As previously noted, the facts as developed at the evidentiary hearing 

indicate appellant attempted to serve the original complaint by certified mail. During the 

hearing, Denmead testified that he was a sole practitioner with no employees, and that his 

office was not open on the date the receipts were signed (i.e., on November 24, 2012 

which, the trial court noted, was the Saturday following Thanksgiving). The signatures on 

the receipts were illegible, and Denmead testified that neither he nor any agent of his 

signed or received the certified mail. The envelopes with the original complaint were 

returned to the clerk of courts, and both envelopes were stamped "UNCLAIMED." The 

clerk's office subsequently issued a "conflict of service" notice. Noting that appellant 

never attempted service of the original complaint by ordinary mail, pursuant to Civ.R. 

4.6(D), after the certified mail envelope was returned unclaimed, the trial court 

determined that the magistrate properly found appellant did not obtain proper service on 

appellees. 

{¶ 30} In further finding that appellees effectively rebutted any presumption that 

may have arisen from the signed return receipts, the trial court cited evidence which 

included: (1) the returned service envelopes marked "unclaimed," (2) Denmead's 

testimony that he was a solo practitioner with no employees, and he had sole access to his 

office, (3) testimony that Denmead's office was not open on the date the receipts were 

signed (i.e., on the Saturday following Thanksgiving), and (4) the hearing testimony and 

affidavit of Denmead stating he did not receive nor sign the receipts, and that he did not 

recognize the receipt signatures. 
No. 17AP-199 9 

{¶ 31} In general, "[i]n determining whether a defendant has sufficiently rebutted 

the presumption of valid service, a trial court may assess the credibility and competency 

of the submitted evidence demonstrating non-service." Bowling v. Grange Mut. Cas. Co., 

10th Dist. No. 05AP-51, 2005-Ohio-5924, ¶ 33. Here, both the magistrate and trial court 

found credible Denmead's testimony and supporting evidence that he did not receive the 

certified mail. On review, we find no error by the trial court in concluding that appellees 

sufficiently rebutted the presumption of valid service by certified mail. Further, as the 

record reflects no attempt to serve the original complaint by ordinary mail, we find no 

error with the trial court's determination that appellant did not obtain proper service of 

the original complaint within one year of the filing. 

{¶ 32} With respect to the amended complaint, the record indicates, as found by 

the magistrate, that appellant undertook service of the amended complaint via ordinary 

mail. The magistrate, noting that Civ.R. 4.6 "provides the only circumstances under 

which ordinary mail service is proper in lieu of certified or express mail," held that in the 

absence of "proof that certified or express mail service of the Amended Complaint and 

summons was either refused or unclaimed, ordinary mail service was not a proper 

method of service of process." The magistrate further cited this court's decision in 

Schafer v. Sunsports Surf Co., 10th Dist. No. 06AP-370, 2006-Ohio-6002, ¶ 14, for the 

proposition that the filing of an amended complaint is equivalent to a refiling of an action, 

and that a refiled complaint must be served pursuant to Civ.R. 3(A). 

{¶ 33} In his objections to the magistrate's decision, appellant argued (and 

similarly argues on appeal) that the amended complaint "related back" to the original 

complaint, for purposes of service pursuant to Civ.R. 15(C). The trial court rejected 

appellant's argument, noting appellant failed to "cite to any [case law] that applies Civ.R. 

15(C) to hold that an amended pleading relates back to an original pleading for purposes 

of service under Civ.R. 4." The trial court further observed that "Civ.R. 15(C) relates to the 

statute of limitations, not to methods of service." 

{¶ 34} We find no error with the trial court's determination. Civ.R. 15(C) states in 

part: "Whenever the claim or defense asserted in the amended pleading arose out of the 

conduct, transaction, or occurrence set forth or attempted to be set forth in the original 

pleading, the amendment relates back to the date of the original pleading." In general, the 
No. 17AP-199 10 

relation back concept of Civ.R. 15(C) "provides, '[i]f plaintiff files his complaint, and if the 

applicable statute of limitations runs, and if plaintiff amends his complaint[,] * * * the 

amendment relates back to the time of the original filing of the action." Laneve v. Atlas 

Recycling, 119 Ohio St.3d 324, 2008-Ohio-3921, ¶ 11, quoting Civ.R. 15 Staff Notes (1970). 

Accordingly, "[b]ecause of relation back, the intervening statute of limitations does not 

interfere with the opportunity to amend." Id.

{¶ 35} As noted, pursuant to Civ.R. 3(A), a civil action is commenced only upon 

obtaining service within one year of the filing of the complaint, and we have previously 

found no error by the trial court in its determination that appellant failed to obtain proper 

service of the original complaint. Here, where the record indicates the original complaint 

was never properly served, we further find no error by the trial court in rejecting 

appellant's claim that the amended complaint somehow related back to the original 

complaint for purposes of perfecting service. See, e.g., Ent. Group Planning v. State 

Farm Ins. Cos., 11th Dist. No. 98-T-0077 (Oct. 22, 1999) (noting that "Civ.R. 15(C) does 

not dispense with the requirements of Civ.R. 3(A) or otherwise extend the time period 

from which to complete service of process as to the original pleading," and therefore 

rejecting application of Civ.R. 15(C) where appellants "never complied with the one year 

service requirements of Civ.R. 3(A)"). See also Martz v. Field Dev. Group, 9th Dist. No. 

21801, 2004-Ohio-4066, ¶ 11, 12 (noting that "Civ.R. 3 requires service upon parties 

brought into an action through a Civ.R. 15(C) and (D) amendment," and further observing 

"[t]he 'relation back' feature" of Civ.R. 15 "applies solely to the statute of limitations," and 

that "personal service does not 'relate back' when" the correct parties are not properly 

served). Accordingly, the trial court did not err in adopting the magistrate's determination 

that appellant failed to obtain proper service of the original and amended complaint 

within one year of filing, thereby depriving the trial court of jurisdiction over appellees. 

{¶ 36} Appellant argues, nonetheless, that appellees had adequate notice under the 

Civil Rules to obtain proper service. Under Ohio law, however, the " 'failure of proper 

service is not a minor, hypertechnical violation of the rules.' " McAbee at ¶ 16, quoting 

Cleveland v. Ohio Civil Rights Comm., 43 Ohio App.3d 153, 157 (8th Dist.1989). Rather, 

in the absence of proper service of process, "a trial court lacks jurisdiction to enter a 

judgment against that defendant." Id. Further, the Supreme Court of Ohio has held that 
No. 17AP-199 11 

"actual knowledge of a lawsuit's filing and lack of prejudice resulting from the use of a 

legally insufficient method of service do not excuse a plaintiff's failure to comply with the 

Civil Rules." Laneve at ¶ 22. Rather, "[t]he Civil Rules are a mechanism that governs the 

conduct of all parties equally." Id. at ¶ 23. 

{¶ 37} On review, we conclude the trial court did not err in overruling appellant's 

objections to the magistrate decision and granting appellees' motion to dismiss for lack of 

jurisdiction. Accordingly, appellant's first, second and third assignments of error are not 

well-taken and are overruled. 

{¶ 38} Based on the foregoing, appellant's three assignments of error are overruled 

and the judgment of the Franklin County Court of Common Pleas is hereby affirmed. 

Judgment affirmed. 

SADLER and BRUNNER, JJ., concur. 

____________________