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Triplett v. Beachwood Village9/3/2004
JUDGMENT: Reversed and Remanded.
{ } Plaintiffs-appellants, William and Sheila Triplett, appeal the decision of the Mahoning County Common Pleas Court that dismissed their lawsuit with prejudice for failure to obtain service over the defendants within one year. We are faced with various arguments concerning the effect of the failure of service and the saving statute. However, the main issues are whether the trial court properly dismissed the complaint with prejudice merely because service was not perfected within one year and whether the filing of an amended complaint was equivalent to filing a new complaint upon which a new attempt of service could be made. For the following reasons, the decision of the trial court is reversed and this case is remanded.
STATEMENT OF THE CASE
{ } The Tripletts contracted to buy a house in what was to be a large development on the East Side of Youngstown on McKelvey Lake. They moved into their house; however, the development never materialized. They claim this constitutes some kind of wrongful inducement, and they also claim various flaws in the construction of their home. Their civil action was filed on June 7, 2001, against Commodore Development Corporation, Beachwood Village I, Limited Partnership, and its general partner, Beachwood Village, Inc. The city of Youngstown and a corporation that was the limited partner in Beachwood Village, Inc. were also sued, but they have since been dismissed as parties.
{ } On October 15, 2002, the trial court gave the Tripletts notice that their action could be dismissed for want of prosecution due to a failure of service upon the three defendants that are now appellees. On October 24, 2002, the Tripletts instructed the clerk to serve the defendants again using the same address for Beachwood Village I and Commodore that had previously been returned as "attempted not known."
{ } As for Beachwood Village, Inc., the clerk was instructed to send the summons to a prior statutory agent. That agent informed the Tripletts that it had not been the agent for Beachwood Village, Inc. since February 1997, when Walter Burks, Beachwood Village, Inc.'s president, replaced it as the statutory agent as evidenced by filings with the Secretary of State. Apparently, Burks was deceased; so, on November 7, 2002, the Tripletts filed a motion to substitute the estate of Burks as a party and to extend the time for service upon the estate. On January 6, 2003, the trial court granted the Tripletts' request.
{ } On February 12, 2003, the Tripletts filed a complaint naming the same three defendants but adding to the caption "c/o Estate of Walter A. Burks [name of estate's attorney and his address]." However, on March 20, 2003, the court vacated its prior order and held that there is no procedure for substituting the estate of a statutory agent upon that agent's death, also noting that the agent was never a defendant in the first place, so substitution of his estate as a party made no sense. The court noted that the Tripletts' motion had misled the court into thinking that Burks had already been served as a party. The court then accepted briefs on the issue of whether the case should be dismissed for a failure to perfect service within one year.
{ } On July 11, 2003, the trial court explained that it had no power to extend the time within which service could be perfected. The court concluded that it lacked personal jurisdiction over the defendants, since service of process was never obtained. The court declined the Tripletts' request to construe their February 12, 2003 amended complaint and praecipe to the clerk as a refiled action. The trial court reasoned that the Supreme Co
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