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7th District reverses ruling on residential service in negligence suit
TRACEY BLAIR
Legal News Reporter
Published: January 27, 2020
A Mahoning County trial court erred by granting summary judgment in favor of an appellee in a negligence claim because there is a genuine issue of material fact as to whether notice was properly served, according to the 7th District Court of Appeals.
Plaintiff-appellant, Dawn Roscoe argued summary judgment should not have been granted to defendant-appellee Mark DelFraino.
Roscoe was injured in an Aug. 15, 2012 car accident in Poland, Ohio. She filed a negligence complaint in 2014 against Mark DelFraino and his father, Joseph DelFraino, and a negligent entrustment claim against Joseph. Roscoe voluntarily dismissed her complaint in 2015 and then refiled the action in March 2016.
Service was perfected on Joseph on March 12, 2016, but not on Mark. Her complaint listed the service address for Mark as 510 Boardman-Canfield Road in Boardman. At some point in August of 2016, Roscoe attempted to serve Mark at Joseph’s Lowelville address.
Joseph later 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 Mark on Aug. 15, 2016. Joseph also stated that Mark did not live with him nor use his address as his own.
On Oct. 19, 2016, Roscoe filed a request to serve Mark by U.S. certified mail at 2609 Roanoke Avenue in Newport News, Va. A month later, she filed another request to serve appellee at the same Virginia address by personal service. Neither method was successful.
The trial court granted Joseph’s motion for summary judgment on Nov. 21, 2016.
In March 2017, Roscoe filed a motion to serve appellee by publication and an affidavit for constructive service against appellee. The trial court granted this motion and ordered the service by publication to appear in The Daily Legal News.
Roscoe argued that the trial court failed to find valid residential service at the defendant’s voting address.
On Oct.17, 2017, the trial court granted Mark’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.
The appellate panel disagreed, noting the process server’s affidavit states that he completed service upon Mark by hand delivering service to his father, which was believed to be Mark’s home at the time.
“Based on the certificate of registration, (the server’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,” 7th District Judge Gene Donofrio said in his opinion. “With appellant’s burden satisfied, the burden shifted to appellee to provide evidence that there was no genuine issue of material fact.”
Mark raised several arguments in response. First, he claimed that because appellant voluntarily dismissed the action once before, this motion for service by publication resulted in a second voluntary dismissal.
He also contended that Roscoe 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.
In addition, the appellee claimed appellant did not comply with the rule governing residence service because the service request at issue requested personal service on appellee at the Boardman-Canfield Road address, not residence service at the Kennedy Road address.
“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,” Donofrio wrote. “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. Accordingly, appellant’s first assignment of error has merit and is sustained.”
Appellate judges Cheryl L. Waite and David D’Apolito concurred that the trial court’s judgment should be reversed and remanded. The case is cited Roscoe v. DelFraino, 2019-Ohio-5253.