2020 Ohio 2822
Ohio Ct. App.2020Background:
- Corrao sued Bennett for negligence after a 2016 car accident and sought >$25,000.
- Service was attempted twice at the address on the police report; both attempts failed; Bennett had moved before the accident and the police report did not list his current address.
- Corrao’s counsel asked Bennett’s insurer for a current address; the insurer refused to provide it despite prior settlement communications.
- Corrao filed for service by publication under Civ.R. 4.4 with an affidavit recounting efforts and stating the residence could not be ascertained with reasonable diligence; publication was used and a default judgment for $25,000 was entered without a damages hearing.
- Bennett later moved to quash service and to vacate the default judgment, arguing Corrao failed to exercise reasonable diligence (e.g., no Google or BMV search); Bennett first learned of the judgment after its entry.
- The en banc issue accepted for review: whether an internet/Google search is always required to satisfy Civ.R. 4.4’s reasonable-diligence prerequisite for service by publication.
Issues:
| Issue | Plaintiff's Argument (Corrao) | Defendant's Argument (Bennett) | Held |
|---|---|---|---|
| Whether an internet/Google search is a mandatory prerequisite to show reasonable diligence under Civ.R. 4.4 | Internet search is one possible step but not mandatory; reasonable diligence depends on case facts | Counsel must perform internet/BMV searches before resorting to publication | En banc: Not mandatory; internet searches are one of many available steps; whether diligence was exercised is fact-dependent (Sizemore governs); Khatib overruled to the extent inconsistent |
| Whether Corrao exercised reasonable diligence here before service by publication | Made two attempts at the police-report address and sought address from insurer (which refused); affidavit established diligence | Counsel did not perform Google/BMV checks; insurer could have provided address; thus publication premature | Trial court/panel: Corrao exercised reasonable diligence; affidavit sufficient; inference of concealment arose and Bennett failed to rebut it |
| Validity of the default judgment and timeliness of appeal | Default judgment valid because service by publication was proper | Default void for improper service; but appeal of default judgment was untimely | Appellate court: No jurisdiction to review the default-judgment entry (appeal untimely); addressed timely appeal of motion to vacate instead |
| Sufficiency of damages award and need for evidentiary hearing | Complaint sought $25,000; counsel’s affidavit referenced medical bills and lost wages | No evidentiary support in record for $25,000 award; hearing required | Panel: Judgment on liability affirmed but damages reversed; remanded for an evidentiary hearing on damages |
Key Cases Cited
- Sizemore v. Smith, 6 Ohio St.3d 330, 453 N.E.2d 632 (Ohio 1983) (reasonable diligence is fact-dependent and the list of possible steps is not a mandatory checklist)
- Brooks v. Rollins, 9 Ohio St.3d 8, 457 N.E.2d 1158 (Ohio 1984) (inference of concealment may arise from inability to locate a defendant after reasonable diligence)
- Khatib v. Peters, 77 N.E.3d 461 (8th Dist. 2017) (district decision discussing expectations of computer searches; limited by this en banc opinion)
- McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 896 N.E.2d 672 (Ohio 2008) (procedural reference regarding appellate rule/conflict procedure)
- Kraus v. Maurer, 138 Ohio App.3d 163, 740 N.E.2d 722 (8th Dist. 2000) (insurers not required to assist plaintiffs in obtaining insured’s address)