IN THE SUPREME COURT OF OHIO MEMORANDUM OF APPELLEE VERNON D. REYNOLDS, D.O., IN RESPONSE TO APPELLANT'S REQUEST FOR JLTI2ISDICTION

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1 %fy IN THE SUPREME COURT OF OHIO PHILIP A. CRAIG, NO Appellant, vs. VERNON D. REYNOLDS, D.O., On Appeal from the Franklin County Court ofappeals,tenth Appellate District, Case No. 12 CV Appellee. MEMORANDUM OF APPELLEE VERNON D. REYNOLDS, D.O., IN RESPONSE TO APPELLANT'S REQUEST FOR JLTI2ISDICTION William A. Davis ( ) N. Gerald DiCuccio ( ) BUTLER, CINCIONE & DiCuccio 2200 West Fifth Avenue, 3rd Floor Columbus, OH (614) (614) (fax) wdavispa,,bcdlaws.com Counsel for Appellant, Philip A. Craig Mark L. Schumacher ( ) Sandra R. McIntosh ( ) Bartholomew T. Freeze ( ) Capitol Square Office Building 65 East State Street, Suite 800 Columbus, OH (614) (614) (fax) mschumach erc).,ffalaw. com smcintoshc ffalaw.com Counsel for Appellee, Vernon.D. Reynolds, D. 0. '.^N t..;^ S_. `/^ ^..4' r^...,.-,.a.y. ^^:r;:;f'i^;.i^..3^n-. ^'^^ji)^?;;i- -:/ ^y - roa ` ^. :sfi^.{ ;Si^i;c : 1 t' E:,: 1,,..^..,,,.^,..^......,..^._-_.._.-_.._- ^.l FREiJND, FREEZE & ARNOLD

2 TABLE OF CONTENTS 1. THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION NOR IS THIS CASE OF PUBLIC OR GREAT GENERAL INTEREST... 3 II. STATEMENT OF THE CASE... 4 III. APPELLANT'S PROPOSITIONS OF LAW ARE POORLY TAKEN A. Response to Proposition of Law #1: Ohio Rules of Civil Procedure 4.1 and 4.6(D) work in conjunction to require a plaintiff to send ordinary mail service to the same address as a prior unclaimed certified mail service attempt B. Response to Proposition of Law #2: Craig's attempt to serve process upon Dr. Reynolds by ordinary mail did not satisfy due process reg uirem ents IV. CONCLUSION

3 I. THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION NOR IS THIS CASE OF PUBLIC OR GREAT GENERAL INTEREST. Appellant Philip A. Craig ("Craig") provides no legitimate basis for review. First, no substantial constitutional question exists. A court does not violate the Due Process and Remedies Clause of the Ohio Constitution, when, as here, it simply dismisses a lawsuit based on a plaintiff s failure to properly serve a defendant with process. See Ohio Const. Art. I. 16. Indeed, Craig provides no legal support for his contention otherwise. Second, this case is not of public or great general interest. As discussed infra, every court analyzing the interplay between Civ.R. 4.1 and 4.6(D) has held a plaintiff sending ordinary mail service under Civ.R. 4.6(D) must send it to the same address as the "unclaimed" certified mail service. This Court has likewise explained ordinary mail service garners reliability only when following "unclaimed" certified mail service to the same address. In re Thompkins, 115 Ohio St.3d 409, 413 (2007). In addition, Craig's proposed interpretation (1) inappropriately transforms ordinary mail service into a primary mode of service of process, (2) decreases the reliability of service of process by creating a presumption of proper service based only on delivery of ordinary mail, and (3) increases the potential for default judgments against persons who never actually received proper service of process. -3- FRL,UND, FREEZE & ARNOLD

4 H. STATEMENT OF THE CASE On October 5, 2012, Craig refiled' this lawsuit against Appellee Vernon D. Reynolds, D.O. ("Dr. Reynolds"). On the same date, Craig asked the Clerk of Courts to serve the Complaint (and Summons) by certified mail upon Dr. Reynolds at 5326 Firebush Lane, Columbus, Ohio On March 27, 2013, the Clerk docketed a copy of the certified mail sent to Dr. Reynolds at the Firebush Lane address, which the postal service returned as "UNCLAIMED." On April 9, 2013, Craig asked the Clerk to serve the Complaint (and Summons) by ordinary mail upon Dr. Reynolds at a different address: Knox Community Hospital, 1330 Coshocton Road, Mount Vernon, Ohio Before requesting service by ordinary mail at Knox Community Hospital, Craig did not request service upon Dr. Reynolds at Knox Community Hospital by certified mail. On April 11, 2013, the Clerk entered on the docket an ordinary mail stub, indicating she had sent the Complaint (and Summons) by ordinary mail to Dr. Reynolds at Knox Community Hospital, 1330 Coshocton Road, Mount Vernon, Ohio as requested. Craig made no other attempts to serve process on Dr. Reynolds. Upon motion2, the trial court held Craig failed to properly serve process upon Dr. Reynolds under Civ.R. 4.1 and 4.6(D) when Craig attempted to serve process by ordinary mail at Knox Community Hospital without first attempting certified mail service at this address. The trial court could not exercise personal jurisdiction over Dr. Reynolds due to this lack of service, and dismissed the case as a result of Craig's failure to properly commence the lawsuit per Civ.R. 3(A). The Tenth District Court of Appeals affirmed. i Craig had already voluntarily dismissed his claims against Dr. Reynolds once before. 2 Dr. Reynolds raised insufficiency of service of process as an affirmative defense. _4_ FREUND,FREEZE & ARNOLD

5 III. APPELLANT'S PROPOSITIONS OF LAW ARE POORLY TAKEN. A. Response to Proposition of Law #1: Ohio Rules of Civil Procedure 4.1 and 4.6(D) work in conjunction to reguire a plaintiff to send ordinary mail service to the same address as a prior unclaimed certified mail service attempt. Primary methods of service of process are certified or express mail, commercial carrier service, personal service, and residence service. Civ.R. 4.1(A)(1). If the postal service returns certified mail service as "unclaimed," a plaintiff may then request service by ordinary mail. Civ.R. 4.6(D). Ohio courts consistently hold Civ.R. 4.6(D) applies only if the plaintiff sends the ordinary mail to the same address from which the postal service returns the unclaimed certified mail. See, e.g., Craig v. Reynolds, 10th Dist. No. 14AP-125, 2014-Ohio-3254, 16 ("[S]ervice by ordinary, following an attempt at service by certified mail that was returned marked unclaimed, must be sent to the same address as the atteinpt by certified mail ***") (emphasis added); Nicholas v. Deal, 12th Dist. No. CA , 2003-Ohio-7212, 12 ("Civ.R. 4.6(D) requires that service by ordinary mail be sent to the same address as the attempted service by certified mail.") (emphasis added); Oxley v. Zacks, 10th Dist. No. OOAP-247, 2000 Ohio App. LEXIS 4500, *4-5 ("If * * * service by certified mail is retumed as unclaimed, service may be made by ordinary mail to the address where certified mail was attempted but unclaimed.") (emphasis added); Card v. Rovsden, 2nd Dist. No. 95 CA 108, 1996 Ohio App. LEXIS 2309, *5 (Civ.R. 4.6(D) "provides that if certified mail service is returned with an `unclaimed' endorsement, a party may request ordinary mail service of the complaint at the same address where certified mail service failed,") (emphasis added); Household Retail ServicesInc, v. Colon, 6th Dist. No, E-90-66, 1991 Ohio App. LEXIS 3159, * 1-6 ("Civ.R. 4.1 and 4.6(D) must be read in -5-

6 conjunction with one another so as to require that the ordinary mail service be sent to the same address as the unclaimed certified mail attempt of service.") (emphasis added); United Home Federal v. Rhonehouse, 76 Ohio App.3d 115, 124 (6th Dist.1991) ("We have interpreted Civ.R. 4,1 and 4.6(D) as requiring that the service by ordinary mail be sent to the same address as the attempted service by certified mail.") (emphasis added); Ferrie v. Ferrie, 2 Ohio App.3d 122, 123 (9th Dist. 1981) ("Civ.R. 4.6(D) requires that once the certified mail service is returned `unclaimed,' the clerk shall send the complaint by ordinary mail to the same address.") (emphasis added). In In re Thompkins, 115 Ohio St.3d 409, 413 (2007), this Court also explained why service by ordinary mail is reliable only when following "unclaimed" mail at the same address: When a postal return reads "Attempted Not Known," no pui-pose would be served by a follow-up ordinary mail letter sent to the same address. [In contrast, t]he "Unclaimed" designation implies that the person may in fact reside or receive mail at the designated address but for whatever reason has chosen not to sign for the certified mail. In that situation, a follow-up communication by ordinary niail is reasonably calculated to provide the interested party with notice arid an opportunity to be heard. Such a communication, not returned, bears a strong inference that the intended recipient received the letter. (emphasis added); see id. at 416 ("If [a] certified letter is returned, and the reason given to the sender for its failure to be delivered indicates that the letter was unclaimed, ordinary mail service to that same address is then proper.") (O'Connor, J., concurring in part and dissenting in part) (emphasis added). Ultimately, Craig failed to comply with Civ.R. 4.1 and 4.6(D) when he attempted to serve process upon Dr. Reynolds by ordinary mail at Knox Community Hospital without first attempting to serve him by certifred mail at this address. Due to this failed service, the trial court could not exercise jurisdiction over Dr. Reynolds, and dismissed the case as a result of Craig's -6-

7 failure to commence the lawsuit per Civ.R. 3(A). The Tenth District Court of Appeals rightly affirmed for the same reason. Craig cites no law supporting his claim that ordinary mail is a primary mode of service upon a physician registered with the State Medical Board of Ohio. Furthermore, an address kept on file with the Medical Board is not unassailable. Ohio R.C (B)(2) requires a physician licensed in Ohio to provide notice of a change of address only within thirty days of moving. Thus, at any given time, the address listed with the Medical Board may be twenty-nine days out of date, even when the physician fully complies with the statute. Moreover, in the event a physician fails to update his address with the Medical Board, it does not follow that, by doing so, he waives his right to proper service of process in an unrelated lawsuit. B. Response to Proposition of Law #2: Craig's attempt to serve process upon Dr. Reynolds by ordinary mail did not satisfy due process reguirements. Service of process must comply with both the Civil Rules and due process requirements. See, e.g., In re Thompkins, 115 Ohio St.3d at 412 (service of process must "comport with our rules for service of process and with due process requirements") (emphasis added); Morrison v. Steiner, 32 Ohio St.2d 86, 89 (1972) ("Such service [of process] must be carried out pursuant to the rules governing service of process, and those rules themselves must comport with the due process provisions of the Fourteenth Amendment to the United States Constitution.") (emphasis added). As discussed in the previous section, Craig failed to comply with the Civil Rules governing service of process. Thus, he failed to properly serve process upon Dr. Reynolds regardless of whether his attempt at service otherwise comports with due process requirements. It is important to note, however, that when a plaintiff uses ordinary mail as a primary means of -7-

8 service, as here, it does not satisfy due process requirements. Rather, as this Court intimated in In re Thompkins, 115 Ohio St.3d at 413, ordinary mail service satisfies due process requirements only when following "unclaimed" certified mail returned from the sayne address. IV. CONCLUSION No basis for jurisdiction exists; this case does not involve a substantial constitutional question nor is it a case of public or great general interest. Accordingly, Dr. Reynolds respectfully requests this Court decline to exercise jurisdiction over this appeal. Respectfully submitted, Mark L. Schumacher ( ) Sandra R. McIntosh ( ) Bartholomew T. Freeze ( ) Capitol Square Office Building 65 East State Street, Suite 800 Columbus, OH (614) (614) (fax) m schumachera..ffal aw. com smcintosh@ffalaw.com bfreeze@ffalaw.com Counselfor Appellee, Vernon D. Reynolds, D.O. -8-

9 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing has been served upon the following by regular U.S. and/or electronic mail on this 3rd day of October, 2014: N. Gerald DiCuccio William S. Davis BLrTLER, CINCIONE & DICtJcclo 2200 West Fifth Avenue, 3rd Floor Columbus, OH Counsel for Plaintiff-Appellant Mark L. Schumacher _9_ EREUND,FREEZE & ARNOLD