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Gooch v. Toth3/20/1997
PER CURIAM
JUDGMENT Affirmed
This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25.
Plaintiff-appellant Deborah Gooch appeals from the trial court's dismissal without prejudice of her refiled personal injury action against defendant-appellee Matthew Toth. Plaintiff claims the trial court improperly dismissed the complaint under Civ.R. 4(E) for failure to obtain service of process upon the defendant within six months following commencement of the action because the trial court did not hold a hearing and plaintiff had made adequate efforts to obtain service relieving her of dismissal under Civ.R. 4(E). We find no error and affirm.
This action arises from an automobile/pedestrian collision occurring on or about December 29, 1990. On December 28, 1992, plaintiff filed her original complaint in this action and the matter proceeded through discovery to a scheduled trial date of February 22, 1994. Prior to trial, on or about February 15, 1994, plaintiff voluntarily dismissed her case without prejudice pursuant to Civ.R. 41(A).
Plaintiff's complaint was refiled on February 14, 1995 within the one year savings statute (R.C. 2305.19). The clerk of courts was instructed to serve the defendant at the address in the complaint, which was the same address at which the defendant was served in the original case. Certified mail service was attempted, but was not completed and the complaint was returned, "not deliverable as addressed. No forwarding order on file." Plaintiff's counsel was unable to locate a new address for the defendant, but sent a time-stamped copy of the complaint five months later to the attorney for the defendant, the same attorney who represented defendant in the original case.
Plaintiff's attorney claims he continued to attempt to locate the defendant in this matter, but was unable to do so. No affidavit or evidence was submitted documenting plaintiff's efforts. After a period of time, the case was transferred to the judge in the original action.
On May 6, 1996, defense counsel filed a motion to dismiss on the grounds that the plaintiff had failed to achieve service within the six month time period prescribed by Civ.R. 4(E). Plaintiff filed a brief in opposition describing the efforts to serve the defendant. However, the court granted the motion to dismiss on July 3, 1996, almost sixteen months after commencement of the refiled action. Plaintiff has filed a timely appeal.
The plaintiff has not designated assignments of error as required by App.R. 16(A)(3). Nevertheless, we will treat the following issues presented as assignments of error for purposes of disposing of the appeal.
I. THE TRIAL COURT ERRED IN DISMISSING THE COMPLAINT OF PLAINTIFF-APPELLANT WITHOUT CONDUCTING A HEARING AND PROVIDING PLAINTIFF-APPELLANT WITH AN OPPORTUNITY TO SHOW GOOD CAUSE AS TO WHY SERVICE HAD NOT BEEN COMPLETED WITHIN SIX MONTHS.
II. THE TRIAL COURT ERRED IN DISMISSING THE COMPLAINT OF PLAINTIFF-APPELLANT BECAUSE THE DISMISSAL VIOLATES THE SPIRIT AND PURPOSE OF THE CIVIL RULES OF PROCEDURE.
III. THE TRIAL COURT ERRED IN DISMISSING THE COMPLAINT OF PLAINTIFF-APPELLANT BECAUSE THE DISMISSAL WAS NOT WARRANTED UNDER THE CIVIL RULES OF PROCEDURE.
Civ.R. 4(E) states as follows:
(E) Summons: Time Limit For Service.
If a service of the summons and complaint is not made upon a defendant within six months after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismi
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