Roscoe v. DelFraino , 2019 Ohio 5253 ( 2019 )

[Cite as Roscoe v. DelFraino, 2019-Ohio-5253.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
DAWN ROSCOE ET AL.,
Plaintiffs-Appellants,
v.
MARK DELFRAINO ET AL.,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0038
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2016 CV 689
BEFORE:
Gene Donofrio, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Reversed and Remanded.
Atty. James Lanzo, 4126 Youngstown-Poland Road, Youngstown, Ohio 44514, for
Plaintiffs-Appellants, and
Atty. Kimberly Wyss, Atty. Brian Coulter, Day Ketterer Ltd., 200 Market Avenue North,
Suite 300, Canton, Ohio 44702, for Defendants-Appellees.
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Dated:
December 10, 2019
DONOFRIO, J.
{¶1} Plaintiff-appellant, Dawn Roscoe, appeals the judgment of the Mahoning
County Common Pleas Court granting summary judgment in favor of defendant-appellee,
Mark DelFraino.
{¶2} This action stems from a car accident that happened on August 15, 2012
in Poland, Ohio. Appellant was injured in this car accident. On August 6, 2014, appellant
filed a complaint asserting a negligence claim against appellee and appellee’s father,
Joseph DelFraino, and a negligent entrustment claim against Joseph. On July 9, 2015,
appellant voluntarily dismissed her complaint.
{¶3} On March 3, 2016, appellant refiled a complaint against appellee and
Joseph asserting the same claims as in the previous action. Appellant’s complaint listed
the service address for appellee as 510 Boardman-Canfield Road in Boardman, Ohio and
the service address for Joseph at 4592 Kennedy Road in Lowellville, Ohio. Service was
perfected on Joseph on March 12, 2016. But service was not perfected on appellee. On
April 8, 2016, Joseph filed an answer.
{¶4} On May 4, 2016, appellant filed a request to have appellee personally
served at 510 Boardman-Canfield Road. But service was not perfected on appellee by
this method.
{¶5} On August 8, 2016, Joseph filed a motion for summary judgment.
{¶6} At some point in August of 2016, appellant attempted to serve appellee at
Joseph’s Kennedy Road address. The docket does not reflect a request to serve process
on appellee at the Kennedy Road address. But the docket contains an entry dated August
24, 2016 which states “SUMMONS RETURNED AND FILE SERVED MARK DELFRAINO
8-15-16.”
{¶7} On September 19, 2016, Joseph filed a notice of failure and refusal to
accept service on appellee’s behalf. Joseph stated that a process server attempted to
hand him a summons and complaint addressed to appellee on August 15, 2016. Joseph
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also stated that appellee did not live with him nor did appellee use Kennedy Road as his
address.
{¶8} On October 19, 2016, appellant filed a request to serve appellee by U.S.
certified mail at 2609 Roanoke Avenue in Newport News, Virginia. On November 17,
2016, appellant filed another request to serve appellee at the same Virginia address by
personal service. Neither method of service was successful.
{¶9} On November 21, 2016, the trial court granted Joseph’s motion for
summary judgment.
{¶10} On either March 1, 2017 or March 20, 2017, appellant filed a motion to
serve appellee by publication and an affidavit for constructive service against appellee.
The trial court granted this motion on March 21, 2017 and ordered the service by
publication to appear in The Daily Legal News.
{¶11} On June 19, 2017, appellee appeared in the action by filing a motion for
summary judgment. Appellee argued that, pursuant to R.C. 2305.17 and Civ.R. 3(A),
appellant was required to perfect service before March 3, 2017. Because appellant had
not perfected service before March 3, 2017, appellee argued that the trial court lacked
jurisdiction over appellant’s claims.
{¶12} On August 7, 2017, appellant filed a response to appellee’s motion for
summary judgment. Appellant’s response made three arguments. First, she argued that
appellee was properly served at the Boardman-Canfield Road address in the previous
action. Second, she argued that appellee’s certificate of registration from the Mahoning
County Board of Elections listed his address as Joseph’s Kennedy Road address and
service was timely sent to that address. Third, she argued that residence service on
appellee was completed when the process server personally delivered service to Joseph
at the Kennedy Road address.
{¶13} In support of the third argument, appellant attached the affidavit of the
process server, Patrick Bundy. Bundy’s affidavit averred that he attempted to personally
serve appellee at the Boardman-Canfield Road address. After the attempt to personally
serve appellee failed, Bundy delivered appellee’s service to Joseph at the Kennedy Road
address and Joseph stated that he would deliver the service to appellee.
Case No. 19 MA 0038
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{¶14} On September 27, 2017, appellee filed a supplemental memorandum in
support of his motion for summary judgment. Appellee argued that he lived out of state
and had not lived at the Kennedy Road address for over two years. He argued that
residential service did not apply because the Kennedy Road address was not his usual
place of residence. Finally, he argued that his voter registration was out of date and the
registration could not provide a sufficient basis to support the argument that he was
properly served. Attached to this supplemental memorandum was an affidavit from
Joseph. Joseph’s affidavit averred that he was approached by a process server seeking
to serve appellee. But Joseph refused to accept service and told the process server that
appellee did not reside with him.
{¶15} On the same day, appellant filed a supplemental response to the motion
for summary judgment. This response argued that, because appellee’s Ohio voter
registration listed his address as the Kennedy Road address, the voter registration was
sufficient to qualify Kennedy Road as appellee’s usual place of residence.
{¶16} On October 17, 2017, the trial court granted appellee’s motion for summary
judgment. The trial court held that there was no genuine issue of material fact that
appellant failed to perfect service on appellee within one year of filing her complaint and,
therefore, the trial court lacked jurisdiction over appellant’s claims.
{¶17} Appellant was never served with a copy of the trial court’s judgment entry,
which is evidenced by the court’s docket. Therefore, she did not file her notice of appeal
until March 26, 2019. Appellant now raises two assignments of error.
{¶18} Appellant’s first assignment of error states:
THE TRIAL COURT ERRED IN FAILING TO FIND VALID
RESIDENTIAL SERVICE AT THE VOTING ADDRESS OF THE
DEFENDANT HEREIN.
{¶19} Appellant argues that the trial court’s summary judgment ruling in
appellee’s favor was error. Appellant contends she completed residential service
pursuant to Civ.R. 4.1(C) on appellee when appellee was served at the Kennedy Road
address, which is appellee’s address according to a certificate of registration from the
Mahoning County Board of Elections.
Case No. 19 MA 0038
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{¶20} An appellate court reviews a trial court’s summary judgment decision de
novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v.
Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. A motion for
summary judgment is properly granted if the court, upon viewing the evidence in a light
most favorable to the nonmoving party, determines that: (1) there are no genuine issues
as to any material facts; (2) the movant is entitled to judgment as a matter of law; and (3)
the evidence is such that reasonable minds can come to but one conclusion and that
conclusion is adverse to the opposing party. Civ.R. 56(C); Byrd v. Smith, 110 Ohio St.
3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10.
{¶21} “[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record which
demonstrate the absence of a genuine issue of fact on a material element of the
nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264(1996). The trial court’s decision must be based upon “the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence, and
written stipulations of fact, if any, timely filed in the action.” Civ.R. 56(C). The nonmoving
party has the reciprocal burden of specificity and cannot rest on the mere allegations or
denials in the pleadings. Id. at 293.
{¶22} Summary judgment is appropriate when there is no genuine issue as to
any material fact. A “material fact” depends on the substantive law of the claim being
litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d, 598, 603, 662 N.E.2d
1088 (8th Dist.1995), citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-248, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986).
{¶23} Due process requires that service of process be accomplished in a manner
“reasonably calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.”
Samson Sales, Inc. v. Honeywell, Inc., 66 Ohio St.2d 290, 293, 421 N.E.2d 522 (1981)
quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94
L.Ed. 865 (1950).
{¶24} Pursuant to Civ.R. 3(A), “[a] civil action is commenced by filing a complaint
with the court, if service is obtained within one year from such filing upon a named
Case No. 19 MA 0038
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defendant[.]” As appellant refiled this action on March 3, 2016, she had to perfect service
on appellee by March 3, 2017.
{¶25} Service of process must comply with Civ.R. 4.1 through 4.6. The plaintiff
bears the burden of achieving proper service on the defendant. Draghin v. Issa, 8th Dist.
Cuyahoga No. 98890, 2013-Ohio-1898, ¶ 21. There is a rebuttable presumption of proper
service when the civil rules governing service are followed. Id. at ¶ 10.
{¶26} Service in this case had to occur by March 3, 2017. The service in question
occurred in August of 2016. Appellant argues that this service was proper residence
service. Residence service is governed by Civ.R. 4.1(C). The rule states, in relevant
part:
When the plaintiff files a written request with the clerk for residence service,
service of process shall be made by that method. * * * process may be
delivered by the clerk to any person not less than eighteen years of age,
who is not a party and who has been designated by order of the court to
make residence service of process under this division. The person serving
process shall effect service by leaving a copy of the process and the
complaint, or other document to be served, at the usual place of residence
of the person to be served with some person of suitable age and discretion
then residing therein. When the copy of the process has been served, the
person serving process shall endorse that fact on the process and return it
to the clerk, who shall make the appropriate entry on the appearance
docket.
{¶27} In support of proper service, appellant submitted: appellee’s certificate of
registration from the Mahoning County Board of Elections and the affidavit of Patrick
Bundy. The certificate’s registration date is September 3, 2004. It lists appellee’s
residence as 4592 Kennedy Road in Lowellville, Ohio and indicates appellant voted in
Ohio in the November 2014 and November 2016 elections.
{¶28} Bundy was the process server who attempted to serve appellee. His
affidavit avers that he “completed service upon [appellee] by hand delivering service to
his father, Joseph DelFraino, at 4592 Kennedy Road, Lowellville, OH 44436 which was
Case No. 19 MA 0038
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believed to be the residence of Mark DelFraino at the time.” (Aff. of Bundy ¶ 4). The
service request at issue is not part of the record, although appellant concedes that the
request was for personal service of appellee, not residence service of appellee at
Kennedy Road. The docket does have an entry dated August 24, 2016, which states
“SUMMONS RETURNED & FILED SERVED - - MARK DELFRAINO 8-15-16.”
{¶29} Based on the certificate of registration, Bundy’s affidavit, appellee last
voting in November 2016, and the August 24, 2016 docket entry, there was sufficient
evidence to create a genuine issue of material fact that appellee was timely served
process. With appellant’s burden satisfied, the burden shifted to appellee to provide
evidence that there was no genuine issue of material fact.
{¶30} Appellee raises numerous arguments in response. First, appellee argues
that, by operation of law, appellant dismissed this action with prejudice when she filed a
motion for service by publication on March 20, 2017. Appellee argues that because
appellant voluntarily dismissed the action once before, this motion for service by
publication resulted in a second voluntary dismissal.
{¶31} In support of this argument, appellee cites Sisk & Associates, Inc. v.
Committee to Elect Timothy Grendell, 123 Ohio St.3d 447, 2009-Ohio-5591, 917 N.E.2d
271. In Sisk, the Ohio Supreme Court held:
[W]hen a plaintiff files an instruction for a clerk to attempt service of a
complaint that was filed more than a year prior, the instruction, by operation
of law, is a notice dismissal of the claims, and if the plaintiff had previously
filed a notice dismissing a complaint making the same claim, the instruction,
by operation of law, is a second notice dismissal, resulting in dismissal with
prejudice of the claims.
Id. at ¶ 9.
{¶32} Sisk is distinguishable. In Sisk, Sisk had not obtained proper service
within a year of filing the complaint and then filed a request for service after the one-year
time period of Civ.R. 3(A). Id. at ¶ 2. In this case, there is a genuine issue of material
fact as to whether appellant did obtain proper service on appellee in August of 2016,
which is within the one-year time period of Civ.R. 3(A).
Case No. 19 MA 0038
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{¶33} Second, appellee argues that appellant did not comply with the rule
governing residence service. Civ.R. 4.1(C) states “[w]hen the plaintiff files a written
request with the clerk for residence service, service of process shall be made by that
method.” Appellee argues that the service request at issue requested personal service
on appellee at the Boardman-Canfield Road address, not residence service at the
Kennedy Road address.
{¶34} Appellant concedes that her August 2016 service request was for personal
service. But “[c]ourts have held that a defendant has no valid objection if residence
service which is otherwise proper is effected after the plaintiff requests personal service.”
In re Alexander-Segar, 2d Dist. Montgomery No. 22080, 2008-Ohio-1580, ¶ 12 citing
Wuerzey v. Fasy, 9th Dist. Summit No. C.A. NO. 11622, 1984 WL 3935; Citibank v.
Edelstein, 10th Dist. Franklin No. 79AP-125, 1979 WL 209393. Thus, even though
appellant requested personal service, residence service could still be proper.
{¶35} Third, appellee argues that appellant could have timely requested service
by publication or service of process upon nonresident owners or operators of motor
vehicles pursuant to R.C. 2703.20. But this argument does not negate that there is a
genuine issue of material fact as to whether appellant perfected residence service on
appellee in August of 2016.
{¶36} Based on the above, there is a genuine issue of material fact as to whether
appellee was properly served notice of this action. As such, the trial court erred when it
granted summary judgment in favor of appellee on this issue.
{¶37} Accordingly, appellant’s first assignment of error has merit and is
sustained.
{¶38} Appellant’s second assignment of error states:
THE TRIAL COURT ERRED IN FINDING THAT THE SERVICE BY
PUBLICATION WAS NOT TIMELY.
{¶39} Appellant argues that her motion for service by publication was timely filed
and the trial court erred in granting summary judgment in appellee’s favor on this issue.
Case No. 19 MA 0038
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{¶40} As this assignment of error also challenges the trial court’s award of
summary judgment, it is subject to the same de novo standard of review previously set
forth in appellant’s first assignment of error.
{¶41} As previously stated, appellant had to perfect service on appellee by
March 3, 2017. Appellant’s motion for service by publication has two date stamps: one
for March 1, 2017 and the other for March 20, 2017.
{¶42} Pursuant to Civ.R. 4.4(A)(1), service by publication must be published in a
newspaper of general circulation for six successive weeks and is deemed completed on
the last date of publication. Assuming appellant’s motion for service by publication was
filed on March 1, 2017, service by publication would not have been completed until, at the
earliest, April 12, 2017. As appellant’s service by publication was not completed before
March 3, 2017, the trial court’s award of summary judgment on this issue was proper.
{¶43} Accordingly, appellant’s second of assignment is without merit and is
overruled.
{¶44} For the reasons stated above, the trial court’s judgment is hereby reversed
and this matter is remanded for further proceedings pursuant to law and consistent with
this opinion.
Waite, P. J., concurs.
D’Apolito. J., concurs.
Case No. 19 MA 0038
[Cite as Roscoe v. DelFraino, 2019-Ohio-5253.]
For the reasons stated in the Opinion rendered herein, Appellant’s first
assignment of error is sustained. Appellant’s second assignment of error is overruled.
It is the final judgment and order of this Court that the judgment of the Court of Common
Pleas of Mahoning County, Ohio, is reversed. We hereby remand this matter to the
trial court for further proceedings according to law and consistent with this Court’s
Opinion. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.