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Kraus v. Maurer2/19/2004
. Defendant-appellant, Christine Maurer, n.k.a. Christine Benyo, appeals from the judgment of the Cuyahoga County Common Pleas Court, rendered after a jury verdict, finding her liable for negligence and awarding plaintiff-appellee, Diana M. Kraus, $15,000 in damages. Maurer contends that the trial court erred in denying her motions to dismiss Kraus' complaint, to limit Kraus' testimony at trial, and for a directed verdict. For the reasons that follow, we reverse and remand, with instructions to the trial court to enter judgment for Maurer.
. The record in case No. 340520 reflects that Kraus filed her original complaint against defendants Maurer and Judith Belke on September 16, 1997, seeking damages for injuries allegedly incurred in an automobile accident that occurred on April 28, 1997. Maurer was the driver of the car that rear-ended Kraus; Belke allegedly negligently entrusted the car to Maurer.
. Kraus then attempted to serve her complaint and summons on Maurer and Belke. With respect to Maurer, certified service was attempted on September 16, 1997 and October 14, 1997. Both of these attempts were returned, marked "Failure of service on defendant Maurer, Christine-et al, moved. Notice mailed to plaintiff's attorney." Certified mail service was also attempted twice on Belke; both attempts failed.
. On March 10, 1998, Kraus filed an amended complaint adding Western Reserve Group as a defendant. Although service was obtained on Western Reserve Group, the summons and complaint sent by certified mail to Maurer were returned on March 16, 1998, marked "Failure of service on Defendant Maurer, Christine-et al moved. Notice mailed to plaintiff's attorney."
. The record reflects that another attempt at certified mail service on Maurer was returned on July 8, 1998, marked "Failure of service on Defendant Maurer, Christine-et al. Not deliverable as addressed. Notice mailed to plaintiff's attorney." Kraus' attempts to serve Belke similarly failed.
. In an attempt to locate Maurer and Belke, on September 9, 1998, Kraus caused a subpoena duces tecum to be served on Allstate Insurance Company, Belke's insurer, commanding that Allstate produce its entire claims file relating to Belke. When Allstate failed to respond, Kraus filed a motion to compel and, subsequently, a motion to show cause why Allstate should not be found in contempt of court for failure to produce its file. After entering an appearance for the limited purpose of responding to Kraus' motion to show cause, Allstate's counsel filed a motion for a protective order. The trial court denied Allstate's motion, however, and granted Kraus' motion to compel.
. On March 22, 1999, Allstate filed an interlocutory appeal and this court subsequently issued its opinion reversing the trial court's order. Kraus v. Maurer (June 8, 2000), Cuyahoga App. No. 76172 ("Kraus I"). We found that, as of the time of Allstate's appeal, Kraus had not perfected service on either Belke or Maurer. We also found that prior to seeking the intervention of the court to compel the production of Allstate's claims file, Kraus had not attempted service by publication, a method of service prescribed by the Civil Rules where the address of the named defendant is unknown. We further found that "in order to take advantage of the provisions permitting service by publication, plaintiff's counsel must first establish reasonable diligence in attempting to learn a defendant's address." We held that Kraus' counsel had failed to exercise reasonable diligence in attempting to locate Belke, and that the trial court's order compelling production of Allstate's claims file effectively ratified and excused counsel's failure to e
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