2019 Ohio 5253
Ohio Ct. App.2019Background
- Auto accident on August 15, 2012; Roscoe (plaintiff) sued Mark DelFraino and his father Joseph asserting negligence and negligent entrustment; initial suit filed 8/6/2014, voluntarily dismissed 7/9/2015, then refiled 3/3/2016.
- Plaintiff perfected service on Joseph but had multiple unsuccessful attempts to serve Mark at: 510 Boardman‑Canfield Rd (OH) and 2609 Roanoke Ave (Newport News, VA).
- In August 2016 process server Patrick Bundy states he left Mark’s process with Joseph at 4592 Kennedy Rd (Lowellville), an address matching Mark’s Mahoning County voter registration; Joseph later filed an affidavit refusing to accept service on Mark’s behalf and denied Mark lived there.
- Trial court granted summary judgment to Joseph (8/2016) and later granted summary judgment to Mark (10/17/2017) on grounds that plaintiff failed to perfect service on Mark within one year of refile (by 3/3/2017), so the court lacked jurisdiction.
- Plaintiff moved for service by publication in March 2017 (two date stamps: Mar 1 and Mar 20); trial court granted that publication motion but held publication would not rescue timeliness. Roscoe appealed.
- Court of Appeals: reversed trial court as to the residence/service issue (genuine issue of material fact existed); affirmed that service by publication would not have been completed within the one‑year window, so that theory was untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mark was properly served by residence service in Aug 2016 (delivery to his father at Kennedy Rd). | Roscoe: Bundy’s affidavit + Mark’s voter registration at Kennedy Rd show residence service was effected and thus service was timely. | Mark: He did not live at Kennedy Rd, his voter registration was outdated, Joseph refused service and said Mark didn’t reside there; the service request sought personal service elsewhere. | Reversed trial court: genuine issue of material fact exists about whether residence service was properly effected; summary judgment on jurisdiction improper. |
| Whether Roscoe’s motion for service by publication was timely (completed within one year of 3/3/2016). | Roscoe: motion for publication filed in March 2017 (stamped Mar 1/Mar 20) and therefore timely. | Mark: publication was not completed within one year; alternatively Sisk rule could operate as dismissal. | Affirmed trial court on this point: publication would not have been completed before 3/3/2017, so service by publication was untimely; Sisk inapplicable because there is a triable issue re prior timely service. |
Key Cases Cited
- Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241 (2007) (appellate review of summary judgment is de novo and summarizes Civ.R. 56 standards)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (plaintiff’s reciprocal burden to present specific evidence opposing summary judgment)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process requires notice reasonably calculated to apprise interested parties)
- Sisk & Associates, Inc. v. Committee to Elect Timothy Grendell, 123 Ohio St.3d 447 (2009) (request to attempt service after one year can operate as a dismissal; effect when prior voluntary dismissal exists)
- Samson Sales, Inc. v. Honeywell, Inc., 66 Ohio St.2d 290 (1981) (service of process must satisfy due process notice requirements)