Summary
The Ohio First District Court of Appeals held that service of an amended complaint on a trust was perfected when certified mail was signed for by one of the trust’s cotrustees, even though he signed in his individual capacity. The court also held that the trust waived any defense based on lack of capacity to be sued by failing to specifically raise that defense in its answer. The court reversed summary judgment for the trust in appeal C-240714, remanded for further proceedings, and dismissed appeal C-250239 as moot.
Topics
Practice areas
Questions Presented
- Whether certified-mail service of the amended complaint on Scott Erickson, a cotrustee, was sufficient service on the Foundation when Scott signed the receipt in his individual capacity rather than expressly as trustee.
- Whether the Foundation's use of a commonly accepted version of its name, omitting the word "Family," rendered service insufficient.
- Whether the Foundation waived any defense that it lacked capacity to be sued by failing to specifically raise that defense in its answer.
- Whether the trial court properly granted summary judgment to the Foundation on the service and capacity issues.
- Whether Marie's challenge to the denial of her Civ.R. 60(B) motion remained justiciable after reversal of the underlying summary judgment.
Holdings
- Service of a complaint on a current trustee is sufficient service on the trust.
- Certified-mail service on a trustee is sufficient even when the trustee signs the receipt in an individual capacity rather than expressly in a fiduciary capacity.
- Omitting the word "Family" from the Foundation's name did not render service insufficient.
- A party waives the defense of lack of capacity to be sued by failing to specifically assert it in its answer.
- Summary judgment for the Foundation was improper because the record established sufficient service and the Foundation was not entitled to judgment as a matter of law.
Key quotations
“We hold that it was.” (¶ 1)
“In other words, service via certified mail need not be signed by the defendant, so long as the person or place served is reasonably calculated to apprise the defendant of the action.” (¶ 40)
“We hold that because the Trust’s answer lacked any specific negative averment that it lacked the capacity to be sued, it waived that defense and cannot now assert it.” (¶ 56)
Factual background
Mark Bruce Erickson drove northbound in a southbound highway lane in Wisconsin and collided with Daniel Vincent Ohnstad's vehicle; both drivers died. Marie Ohnstad, individually and as administrator of Daniel's estate, sued Mark's estate and the Bruce and Mary Ann Erickson Foundation for negligence, wrongful death, and loss of consortium. She sent the amended complaint and summons by certified mail addressed to the Foundation and attentioned to Scott F. Erickson, one of the Foundation's cotrustees; Scott signed for the materials on March 13, 2024, within one year after the amended complaint was filed.
Procedural history
Marie Ohnstad filed an amended complaint asserting negligence, wrongful-death, and loss-of-consortium claims against the Bruce and Mary Ann Erickson Foundation. The Foundation moved to dismiss for insufficiency of service and other grounds; by agreement, the trial court converted the motion to one for summary judgment and granted it, concluding that the Foundation was improperly named and that service was insufficient. The trial court later denied Marie's Civ.R. 60(B) motion. The First District consolidated the appeals, reversed the summary judgment, remanded the first appeal, and dismissed the second appeal as moot.
Remand instructions
The summary judgment in favor of the Foundation in appeal C-240714 is reversed, and the cause is remanded to the Hamilton County Court of Common Pleas for further proceedings. Appeal C-250239 concerning the Civ.R. 60(B) motion is dismissed as moot.