Bentley v. MillerBentley v. Miller
Dated: June 16, 2010
WHITMORE, Judge.
{¶1} Appellant, Linda Bentley, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.
I
{¶2} Bentley and Sherry Miller were involved in a motor vehicle collision on April 10, 2005. Bentley suffered numerous injuries as a result of the collision and brought a personal injury suit against Miller on April 9, 2007, one day before the statute of limitations was to expire. Bentley attempted to serve Miller by certified mail and later by regular mail, but neither service attempt succeeded. On January 18, 2008, the court issued an order, notifying Bentley that her case would be dismissed within seven days unless she explained why she had not taken any further action on her complaint. In response, Bentley filed a notice of intent to serve Miller by publication. On February 12, 2008, the court ordered Bentley to proceed with the service by publication within twenty-one days.
{¶4} On June 30, 2008, the court issued an order informing Bentley that her complaint would be dismissed without prejudice if she did not seek a motion for default as a result of Miller‘s failure to answer the complaint. Bentley did not respond and the court dismissed the case. Thereafter, Bentley filed a motion to reconsider/vacate the dismissal because her counsel never received the court‘s order. The court granted Bentley‘s motion on October 3, 2008 and gave her fourteen days to seek a default judgment. Bentley sought a default on the basis that “on April 25, 2008, [Miller] accepted certified mail service of the complaint” and failed to file a response. In support of her motion for default, Bentley attached the certified mail receipt that the Allstate representative had signed. The court granted the default judgment and set the matter for a hearing on damages.
{¶5} On January 5, 2009, Miller filed a motion to vacate the default judgment pursuant to
{¶6} On May 14, 2009, Miller filed a motion to dismiss Bentley‘s complaint and a proposed answer in which Miller asserted insufficiency of service of process. Bentley filed a response to Miller‘s motion and requested leave to take Miller‘s deposition “in order to ascertain whether any of the tolling factors contained in ***
{¶7} Bentley now appeals from the trial court‘s judgment and raises four assignments of error for our review. For ease of analysis, this Court consolidates several of the assignments of error.
II
Assignment of Error Number One
“THE TRIAL COURT‘S DECISION GRANTING APPELLEE MILLER‘S MOTION TO DISMISS WAS CONTRARY TO LAW, AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND/OR CONSTITUTED AN ABUSE OF DISCRETION.”
Assignment of Error Number Two
“THE TRIAL COURT‘S DECISION GRANTING APPELLEE MILLER‘S MOTION TO DISMISS WAS AGAINST PUBLIC POLICY.”
Assignment of Error Number Three
“THE TRIAL COURT‘S DECISION GRANTING APPELLEE ALLSTATE‘S 60(B) MOTION TO VACATE THE DEFAULT JUDGMENT PREVIOUSLY
{¶8} In her first and second assignment of error, Bentley argues that the trial court erred by granting Miller‘s motion to dismiss. Specifically, she argues that: (1) by filing a praecipe for regular mail service on June 14, 2007, Bentley restarted the one year time period in which she had to perfect service upon Miller under
{¶9} Generally, “to be entitled to relief under [
{¶10} ”
{¶11} Even assuming that Bentley could serve Allstate in order to bring suit against Miller, the record reflects that Allstate did not accept service until April 23, 2008, more than one year after Bentley filed suit. Bentley acknowledges
{¶12} In Goolsby, the plaintiff filed a personal injury suit against the defendant on February 6, 1986, well within the two year statute of limitations period that was scheduled to end on July 19, 1987. By virtue of
{¶13} The Ohio Supreme Court noted that the plaintiff did not technically comply with
“[W]hen service has not been obtained within one year of filing a complaint, and the subsequent refiling of an identical complaint within rule would provide an additional year within which to obtain service and commence an action under
Civ.R. 3(A) , an instruction to the clerk to attempt service on the complaint will be equivalent to a refiling of the complaint.” Id. at 551.
Contrary to Bentley‘s assertion, Goolsby does not stand for the proposition that every new filing of a praecipe has “the legal effect of a dismissal and [the] refiling of [a] complaint.” Goolsby merely recognizes the Supreme Court‘s unwillingness to engage litigants in the exercise of superfluous and impractical refiling.
{¶14} Bentley filed her complaint on April 9, 2007, one day before the statute of limitations was to end. She did not request service until April 17, 2007 and did not obtain
{¶15} Next, Bentley relies upon
“In any action that is commenced or attempted to be commenced, if in due time *** the plaintiff fails otherwise than upon the merits, the plaintiff *** may commence a new action within one year after the date of *** plaintiff‘s failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.”
Even if Bentley attempted to commence her suit by filing her complaint and trying to serve it upon Miller, she did not “fail[] otherwise than upon the merits” until the court actually vacated her default judgment against Miller and granted Miller‘s motion to dismiss on September 11, 2009.
{¶16} The trial court correctly determined that it lacked personal jurisdiction over Miller because Bentley failed to obtain service of process. Consequently, Bentley‘s first, second, and third assignments of error are overruled.
“THE TRIAL COURT ERRED IN DENYING APPELLANT BENTLEY‘S MOTION FOR LEAVE TO TAKE THE DEPOSITION OF APPELLEE MILLER BEFORE RULING ON APPELLEE MILLER/ALLSTATE‘S 60(B) MOTION TO VACATE AND MOTION TO DISMISS.”
{¶17} In her fourth assignment of error, Bentley argues that the trial court abused its discretion by not granting her motion to depose Miller for the purpose of possibly identifying a tolling event under
{¶18} “This court generally reviews discovery orders for an abuse of discretion.” Giusti v. Akron Gen. Med. Ctr., 9th Dist. No. 24023, 2008-Ohio-4333, at ¶12. “[A]bsent an abuse of discretion, a reviewing court must affirm a trial court‘s disposition of discovery issues.” Novak v. Studebaker, 9th Dist. No. 24615, 2009-Ohio-5337, at ¶16. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶19}
“When a cause of action accrues against a person, if the person is out of the state, has absconded, or conceals self, the period of limitation for the commencement of the action as provided in sections 2305.04 to 2305.14, 1302.98, and 1304.35 of the Revised Code does not begin to run until the person comes into the state or while the person is so absconded or concealed. After the cause of action accrues if the person departs from the state, absconds, or conceals self, the time of the person‘s absence or concealment shall not be computed as any part of a period within which the action must be brought.”
If applicable,
{¶20} Bentley did not seek to depose Miller until April 17, 2009, four years after their motor vehicle collision and four months after Miller sought to vacate the default judgment. Bentley could have sought to depose Miller immediately after she filed her motion to vacate, but she did not. Moreover, any suggestion that Miller left Ohio, absconded, or concealed herself is pure speculation. Miller filed an affidavit, which indicated that she got married in November 2007, changed her last name, and had “been living at [her] present address in Akron, Ohio since September 01, 2006.” Bentley did not contest Miller‘s affidavit and did not produce a shred of evidence that Miller was ever unavailable for purposes of
III
{¶21} Bentley‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
DICKINSON, P. J.
BELFANCE, J.
CONCUR IN JUDGMENT ONLY
APPEARANCES:
JAMES K. REED, Attorney at Law, for Appellant.
MELISSA DAY, Attorney at Law, for Appellee.