Beck v. Lally

CourtUnited States Court of Appeals (Ohio)
Citation2020 Ohio 4305
Docket NumberNo. 109429,No. 109374,109374,109429
PartiesSHAVONDA L. BECK, Plaintiff-Appellant, v. MARSHA LALLY, ET AL. Defendants-Appellees.
Decision Date03 September 2020

2020 Ohio 4305

SHAVONDA L. BECK, Plaintiff-Appellant,

No. 109374
No. 109429


September 3, 2020



Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No.


Lawrence Mays, for appellant.

Law Offices of Terrence J. Kenneally & Associates Co., Terrence J. Kenneally, and Sean M. Kenneally, for appellees.


{¶ 1} Plaintiff-appellant Shavonda Beck1 brings this appeal challenging the trial court's judgment granting summary judgment in favor of defendant-appellee

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Marsha Lally ("Marsha") on Beck's negligence claim and dismissing the negligence claim against defendant-appellee Karyn Lally ("Karyn") for insufficient service of process. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} This appeal involves a rear-end motor vehicle accident that occurred on December 3, 2015, on State Road in Parma, Ohio. Karyn collided with Beck. At the time, Karyn was operating a vehicle owned by Marsha.

{¶ 3} On November 30, 2018, Beck filed a complaint against Marsha, as owner of the vehicle involved in the accident, and Karyn, as operator of the vehicle involved in the accident. Beck asserted a single cause of action for negligence. Beck alleged that she was operating her vehicle in a "prudent and careful manner," and Karyn was operating her vehicle "in an inattentive manner[.]" Beck asserted that "[Karyn] with negligence and wanton disregard for the safety of other motorists navigated [her] vehicle to collide with great force and violence with [Beck's] automobile."

{¶ 4} Beck alleged that Karyn breached the duty she owed to Beck to operate her vehicle in a safe and reasonable manner, and that Karyn directly caused the December 3, 2015 accident by negligently operating her vehicle. Beck asserted that as a direct and proximate result of Karyn's "negligence and/or recklessness," she sustained "injuries to her person, experienced pain, suffering and disability, loss of enjoyment of life, and incurred expenses for her medical care and attention." Beck further alleged that she suffered "uncompensated property damage."

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{¶ 5} Beck's complaint was sent by Federal Express to Marsha and Karyn at different locations on November 30, 2018. On December 8, 2018, a Federal Express receipt confirming delivery of the summons and complaint to Marsha was filed. On December 14, 2018, the following entry was docketed: "FX Receipt NO. 37161749 Returned 12/5/2018 Failure of Service on Party Lally/Karen/ - Bad Address After 8 Days." There is no evidence in the record that service was attempted upon Karyn at a different address or that service of the summons and complaint was ever perfected upon Karyn.

{¶ 6} On December 10, 2018, counsel filed a notice of appearance on behalf of Marsha and Karyn.

{¶ 7} On December 27, 2018, Marsha filed an answer to Beck's complaint. Therein, Marsha asserted several defenses, including the defense that Beck's complaint failed to state a claim upon which relief could be granted as the complaint pertained to Marsha.

{¶ 8} In March 2019, the matter was referred to mediation. A mediation hearing was held in September 2019. The parties did not resolve the matter through mediation. As a result, the case was returned to the trial court's docket on September 26, 2019.

{¶ 9} On October 1, 2019, Marsha and Karyn filed a motion for leave to file a motion for summary judgment. On the same day, Marsha filed a motion for summary judgment. Therein, Marsha argued that she was entitled to judgment as a matter of law because genuine issues of material fact did not exist regarding

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whether she negligently entrusted Karyn with her vehicle. Marsha submitted an affidavit in support of her summary judgment motion. The trial court granted the motion for leave on October 15, 2019, and deemed Marsha's motion for summary judgment filed on October 1, 2019.

{¶ 10} On October 23, 2019, Beck filed a notice of voluntary dismissal of her negligent entrustment claim pursuant to Civ.R. 41(A)(1)(a).

{¶ 11} On the same day, the trial court struck Beck's notice of voluntarily dismissal. The trial court's judgment entry provided, in relevant part, that Beck's notice "is stricken by the court as being improperly filed. Civil Rule 41(A) only contemplates the dismissal of all claims against a defendant. Plaintiff's notice improperly seeks to dismiss a claim (that arguably may not even be contained in the complaint) against both defendants."

{¶ 12} Beck filed a brief in opposition to Marsha's summary judgment motion on October 29, 2019. Therein, Beck argued that genuine issues of material fact did exist regarding whether Marsha negligently entrusted her vehicle to Karyn, such that Marsha was not entitled to judgment as a matter of law. Specifically, Beck asserted that there was evidence in the record "indicat[ing] that [Marsha] had knowledge, actual or implied, that [Karyn] had a history of being an inexperienced or incompetent operator of a motor vehicle." In support of her brief in opposition, Beck directed the trial court to Marsha's affidavit in which Marsha averred, in relevant part, "to my knowledge, [Karyn] may have had 1 prior motor vehicle accident prior to the date of the [December 3, 2015 accident involving Beck]."

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{¶ 13} On November 7, 2019, the trial court granted Marsha's motion for summary judgment. The trial court's judgment entry improperly referenced Karyn rather than Marsha. As a result, the trial court vacated its November 7, 2019 judgment entry, and issued a nunc pro tunc entry on December 13, 2019, reflecting that summary judgment was entered in favor of Marsha, not Karyn, and that Beck's claim against Marsha was dismissed.

{¶ 14} On December 13, 2019, Karyn filed a motion to dismiss the action, pursuant to Civ.R. 12(B)(5), based on insufficient service of process. Therein, Karyn argued that more than one year had passed since Beck refiled her complaint on November 30, 2018, and Beck failed to serve the summons and complaint upon her within one year of filing her complaint, as required by Civ.R. 3(A).2

{¶ 15} Beck filed a brief in opposition to Karyn's motion to dismiss on December 20, 2019. Therein, Beck argued that Karyn had notice of the lawsuit filed against her and waived the defense of insufficiency of service of process by participating in the case.

{¶ 16} On January 1, 2020, the trial court granted Karyn's motion to dismiss. The trial court's judgment entry provides, in relevant part, "motion to dismiss filed for insufficiency of service of process, filed 12/13/2019, is granted. Plaintiff has failed to commence this action as required by Civ.R. 3(A), and the court therefore

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lacks jurisdiction over the defendant [Karyn]. All remaining claims against Karyn Lally are dismissed."

{¶ 17} On January 9, 2020, Beck filed an appeal challenging the trial court's December 13, 2019 nunc pro tunc judgment entry granting Marsha's motion for summary judgment and dismissing Beck's claims against Marsha. Beck v. Lally, 8th Dist. Cuyahoga No. 109374. On January 24, 2020, Beck filed an appeal challenging the trial court's January 1, 2020 judgment granting Karyn's motion to dismiss. Beck v. Lally, 8th Dist. Cuyahoga No. 109429.

{¶ 18} On January 30, 2020, this court consolidated Beck's two appeals, 8th Dist. Cuyahoga Nos. 109374 and 109429, for purposes of briefing, hearing, and disposition.

{¶ 19} On April 1, 2020, Karyn filed a motion to dismiss, 8th Dist. Cuyahoga No. 109429, arguing that the trial court only issued one final appealable order, and as a result, appellant's second appeal was a "nullity." This court denied Karyn's motion to dismiss on April 28, 2020, noting that Beck's two appeals have been consolidated.

{¶ 20} In this appeal, Beck assigns two errors for review:

I. The trial court erred in granting summary judgment for Marsha Lally on all claims in violation of [Civ.R. 56(C)].

II. The trial court erred in dismissing Karyn Lally from Case No. CV-18-907741.

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II. Law and Analysis
A. Final Appealable Order

{¶ 21} As an initial matter, we note that the consolidated appeals before this court involve a final, appealable order capable of invoking this court's jurisdiction.

Our appellate jurisdiction is limited to reviewing orders that are both final and appealable. See Article IV, Section 3(B)(2), Ohio Constitution; R.C. 2505.02, 2505.03. "'If an order is not final and appealable, then an appellate court has no jurisdiction to review the matter and the appeal must be dismissed.'" Scheel v. Rock Ohio Caesars Cleveland, L.L.C., 8th Dist. Cuyahoga No. 105037, 2017-Ohio-7174, ¶ 7, quoting Assn. of Cleveland Firefighters, #93 v. Campbell, 8th Dist. Cuyahoga No. 84148, 2005-Ohio-1841, ¶ 6. This court has a duty to examine, sua sponte, potential deficiencies in jurisdiction. See, e.g., Scheel at ¶ 7; Arch Bay Holdings, L.L.C. v. Goler, 8th Dist. Cuyahoga No. 102455, 2015-Ohio-3036, ¶ 9; see also Scanlon v. Scanlon, 8th Dist. Cuyahoga No. 97724, 2012-Ohio-2514, ¶ 5 ("In the absence of a final, appealable order, the appellate court does not possess jurisdiction to review the matter and must dismiss the case sua sponte.").

Rae-Ann Suburban, Inc. v. Wolfe, 8th Dist. Cuyahoga No. 107536, 2019-Ohio-1451, ¶ 9.

The Ohio Supreme Court has held that where multiple claims and/or parties exist, an order adjudicating one or more but fewer than all the claims or the rights and liabilities of fewer than all of the parties must meet the requirements of both R.C. 2505.02 and Civ.R. 54(B) in order to constitute a final appealable order. [Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989)]. The court explained that Civ.R. 54(B) "makes mandatory the use of the language, 'there is no just reason for delay.' Unless those words appear where multiple claims and/or

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