Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 2016 CV 689
Reversed and Remanded.
Lanzo, for Plaintiffs-Appellants,
Kimberly Wyss, Atty. Brian Coulter, Day Ketterer Ltd., for
BEFORE: Gene Donofrio, Cheryl L. Waite, David A.
OPINION AND JUDGMENT ENTRY
Plaintiff-appellant, Dawn Roscoe, appeals the judgment of the
Mahoning County Common Pleas Court granting summary judgment
in favor of defendant-appellee, Mark DelFraino.
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.
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.
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.
On August 8, 2016, Joseph filed a motion for summary
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."
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 also stated that appellee did not live with him nor
did appellee use Kennedy Road as his address.
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
On November 21, 2016, the trial court granted Joseph's
motion for summary judgment.
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.
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, ...