In a decision issued August 22, 2024, the Ohio Supreme Court upheld its prior ruling in Gliozzo v. Univ. Urologists of Cleveland, Inc. In Ackman v. Mercy Health W. Hosp., L.L.C., Slip Opinion No. 2024-Ohio-3159, the Court held that a party’s active participation in the litigation of a case does not constitute waiver of the affirmative defense of insufficiency of service of process.
The instant case involved a medical malpractice suit where service was not timely perfected on the defendant doctor. With facts similar to Gliozzo, the defendant doctor raised insufficiency of service of process in his answer but otherwise participated in the case until the statute of limitations ran. The Court held that Civ. R. 12 affirmative defenses can be waived only for the circumstances as stated in the Civil Rule. Active participation in the case is not one of the listed circumstances.
Justice Donnelly, joined by Justice Stewart, wrote a concurring opinion, noting that the result was less than perfect in this case and suggested that the service issue leads to gamesmanship. The concurrence further opined that it is time for the Court to ask the Commission on the Rules of Practice and Procedure to determine if a change in the Ohio Civil Rules is needed. The dissent, written by Justice Brunner, opined that Gliozzo should be overruled.
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