COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60624 TERENCE CLARK : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION LEON SHAFFOLD, ET AL. : : : : Defendants-Appellees: : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 20, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. CP-188105 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: CLEMENT KOLLIN Kollin & Stampfel 4053 East 71 Street Cleveland, Ohio 44105 For Defendants-Appellees: JEROME COOK Weston, Hurd, Fallon, Paisley & Howley 2500 Terminal Tower Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: Plaintiff-appellant Terence Clark appeals from an order of the trial court granting the motion of defendants-appellees Leon Shaffold and Roselle Banks to dismiss plaintiff's personal injury action as barred by the two year statute of limitations set forth in R.C. 2305.10. Plaintiff's injury allegedly occurred in an automobile accident on October 7, 1987. Plaintiff filed a complaint in Common Pleas Court Case No. 159165 November 1, 1988 against both defendants alleging Shaffold drove a Chevy S-10 pickup truck owned by Banks through a red light and into a vehicle driven by plaintiff. Plaintiff subse- quently filed a notice of voluntary dismissal of Case No. 159165 against both defendants on April 13, 1989 approximately six months before the two year statute of limitations expired for filing the action. Plaintiff thereafter filed an identical second complaint in Common Pleas Court Case No. 188105 against both defendants on April 12, 1990. Defendants filed a joint motion to dismiss Case No. 188105 on June 18, 1990 on the grounds the second complaint was barred by the two year personal injury statute of limitations set forth in R.C. 2305.10. The trial court granted defendants' motion to dismiss Case No. 188105 in a three page opinion and entry journalized September 12, 1990. Plaintiff timely appeals - 3 - 1 the dismissal of the action raising the following sole assign- ment of error: THE TRIAL COURT ERRED IN REFUSING TO APPLY ORC 2305.15 WHICH SUSPENDS THE RUNNING OF THE STATUTE OF LIMITATIONS WHILE THE DEFENDANT INTENTIONALLY CONCEALS HIMSELF IN ORDER TO AVOID SERVICE OR PROCESS. Plaintiff's sole assignment of error lacks merit. Plaintiff contends the trial court improperly found the second complaint in Case No. 188105 was barred by the statute of limitations set forth in R.C. 2305.10. R.C. 2305.10 establishes a two-year personal injury statute of limitations and provides in pertinent part as follows: 2305.10 Bodily injury or injury to personal property; when certain causes of action arise An action for bodily injury or injuring person- al property shall be brought within two years after the cause thereof arose. There is no dispute the second complaint filed in the trial court April 12, 1990 in Case No. 188105 was filed more than two years after the date of the alleged automobile accident and plaintiff's injury on October 7, 1987. However, plaintiff contends the action was timely filed pursuant to the tolling provision set forth in R.C. 2305.15. R.C. 2305.15 provides as follows: 1 Plaintiff's arguments on appeal are directed solely to the dismissal of the action against defendant Shaffold and plaintiff has made no argument concerning the dismissal against defendant Banks. Therefore, this opinion adjudicates only the claims against defendant Shaffold. App. R. 12(A). - 4 - 2305.15 Saving clause; time tolled during imprisonment (A) When a cause of action accrues against a person, if he is out of the state, has absconded, or conceals himself, the period of limitation for the commencement of the action as provided in sections 2305.04 to 2305.14, 1302.98, and 1304.29 of the Revised Code does not begin to run until he comes into the state or while he is so absconded or concealed. After the cause of action accrues if he departs from the state, absconds, or con- ceals himself, the time of his absence or conceal- ment shall not be computed as any part of a period within which the action must be brought. The trial court conducted a hearing and found based upon the stipulated evidence that plaintiff failed to satisfy his burden of demonstrating the two year personal injury statute of limita- tions was tolled pursuant to R.C. 2305.15. See Kossuth v. Bear, 96 Ohio App. 219, 234, rev'd on other grounds, 161 Ohio St. 378; see also, Walter v. Johnson (1983), 10 Ohio App. 3d 201, 203. The trial court specifically concluded that plaintiff's failure to complete service on Shaffold in the original Case No. 159165 was not the result of Shaffold's effort to avoid service of process, stating as follows: Plaintiff's arguments of concealment deals only with service of process incident to the originally filed action. In this regard, plaintiff, through counsel's affidavit, asserts that service of pro- cess in Case No. 159165 had initially been attempted on Leon Saffold [sic] by certified mail "C/O State Window Shade," defendant's employer. When this was returned "unclaimed," plaintiff then attempted ordinary mail service which was likewise unsuccessful. The Court finds that the attempt to serve Leon Saffold [sic] in care of his employer by certified mail is not an authorized manner of perfecting - 5 - service pursuant to Civil Rules 4.1 and 4.6. Thus, the subsequent attempt to serve defendant by ordinary mail was also improper. The record establishes that after this failure of service, plaintiff voluntarily dismissed Case No. 159165 pursuant to Civil Rule 41. Aside from the facts just discussed, plaintiff, although offered an opportunity to do so, could offer no additional evidence to substantiate his allegation of concealment on the part of Leon Saf- fold [sic]. The Court finds that on the facts as admitted, no evidence of concealment has been established and no tolling of the statute of limitations is justified pursuant to O.R.C. Sec- tion 2305.15. Id. at 2 (Emphasis added). Although the trial court incorrectly stated that attempt to serve Leon Shaffold in c/o his employer by certified mail is not an authorized manner of perfecting service, the trial court correctly reasoned that the mere failure by a plaintiff to complete valid service on defendant c/o his employer is insufficient to demonstrate defendant was "concealed" for purposes of R.C. 2305.15. The Franklin County Court of Appeals recognized that "[t]he Civil Rules do not specifically delimit the scope of certified mail service." Branscom v. Birtcher (1988), 55 Ohio App. 3d 242, 244. The Court further stated as follows: Certified mail service, however, must be constitutionally sound. Service is constitutionally sound so long as it is 'reasonably calculated' to reach the intended recipient. (Citations omitted). Id. at 244. Plaintiff has failed to exemplify any error by the trial court since the record contains no transcript of the hearing or - 6 - statement of the evidence presented in connection with defen- dants' motion to dismiss. As a result, this Court must presume regularity and affirm the judgment of the trial court dismissing the second action. Tyrell v. Investment Assoc., Inc. (1984), 16 Ohio App. 3d 47. Plaintiff also contends the refiling of the second action in Case No. 188105 was timely pursuant to the savings statute in R.C. 2305.19. R.C. 2305.19 provides in pertinent part as fol- lows: 2305.19 Saving in case of reversal In an action commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff, or, if he dies and the cause of action survives, his representatives may commence a new action within one year after such date. (Emphasis added). Plaintiff's argument is unpersuasive for two reasons. First, it is well-established that R.C. 2305.19 does not autho- rize the belated refiling of a second action when the plaintiff dismissed the first action prior to the expiration of the initial applicable limitations period as in the case sub judice. Beshai v. Mozeleski (Nov. 8, 1990), Cuyahoga App. No. 59418, unreported; Morris v. Executive Title Agency Corp. (Aug. 27, 1987), Cuyahoga App. No. 53161, unreported; see also Uhas v. New York Central Rd. Co. (1942), 70 Ohio App. 464 (prior General Code provision). - 7 - The Beshai Court relied upon the express language of R.C. 2305.19 in this context, stating as follows: However, R.C. 2305.19 has no application in this case. Under the statute, the savings provi- sion applies only where the original action fails otherwise [sic] upon the merits after the applicable statute of limitation has expired. See R.C. 2305.19 (statute applicable where "time limited for commencement of such action at the date of reversal of [sic] failure has expired"); see, also, Reese v. Ohio St. Univ. Hosp. (1983), 6 Ohio St. 3d 162, 163. In this case, a two-year statute of limitation applies. See R.C. 2305.10 (action for bodily injury). However, by virtue of R.C. 2305.16, which provides for the extension of the applicable statute of limitation for a two- year period following an injured party's attaining the age of majority, the statutory period within which the plaintiff could bring this action did not expire until June 14, 1989. Since the plain- tiff could still have filed his complaint within the statutory period following the dismissal of his original action, the saving provision of R.C. 2305.19 does not apply. Since the plaintiff filed the instant action after the expiration of the statutory period, the trial court properly dismissed that complaint as being untimely. Id. at 2-3 (Emphasis added). Since plaintiff in the case sub judice voluntarily dismissed his first action prior to the expiration of the initial applicable limitations period as in Beshai, supra, R.C. 2305.19 does not apply to permit refiling a second action after the expiration of the original limitations period. Id. Absent compliance with the savings statute in R.C. 2305.19, this Court cannot extend the limitations period beyond the two year period set forth in R.C. 2305.10. Moreover, plaintiff also failed to demonstrate the first action was "commenced or attempted to be commenced" within the - 8 - meaning of R.C. 2305.19 to permit refiling the second case after the expiration of the two year limitations period. The Ohio Supreme Court has held that R.C. 2305.19 does not permit the refiling of a subsequent action when the prior action failed because the case was never commenced due to plaintiff's failure to timely obtain valid service. See Mason v. Walters (1966), 6 Ohio St. 2d 212. The Mason Court distinguished initial actions which fail because the case was never commenced to which the R.C. 2305.19 savings statute does not apply as in the case sub judice from actions within the scope of the statute which were "commenced" or "attempted to be commenced" by the timely completion of valid service. Although the trial court in the case sub judice found plaintiff's first action had not been "commenced" since plaintiff did not properly serve Shaffold prior to filing his notice of voluntary dismissal, plaintiff contends his first action was "attempted to be commenced" within the meaning of R.C. 2305.19 to permit the belated refiling of his second action. The Ohio Supreme Court in Mason, supra, explained what constitutes an "attempt to commence" an action in this context prior to the adoption of the Ohio Rules of Civil Procedure as follows: Within the meaning of such sections [R.C. Sections 2305.17 and 2305.19], an attempt to commence an action is equivalent to its commencement, when the party diligently endeavors to procure a service, if such - 9 - attempt is followed by service within 60 days. Id. at 214 (Emphasis in original). Civ. R. 3(A) has generally extended the sixty day period described above for completing service on a defendant to one year, although the trial court may dismiss an action pursuant to Civ. R. 4(E) if plaintiff does not demonstrate good cause for failing to complete such service upon a resident defendant within six months. See Goolsby v. Anderson Concrete Corp. (1991), 61 Ohio St. 3d 549. However, neither one of these time limitations to complete valid service in the Civil Rules alters the statutory requirement discussed in Mason, supra to obtain effective service in an initial action to enable subsequent refiling pursuant to R.C. 2305.19 after the expiration of the statute of limitations. The failure to timely obtain valid service results in a failure of commencement of the first action and does not enable refiling a second action under R.C. 2305.19 after the expiration of the statute of limitations. The Mason Court emphasized the necessity for obtaining effective service in the initial action as follows: It is clear that the demarcation point is that of obtaining jurisdiction over the per- son of defendant. Unless the court has ac- quired such jurisdiction and the action has been commenced as to defendant, there can not be a failure otherwise than on the merits, and the one year savings provision of Section 2305.19, supra, is inapplicable. Id. at 217 (Emphasis added). - 10 - The Franklin County Court of Appeals recently applied these principles when affirming the dismissal of a case purportedly filed pursuant to R.C. 2305.19 when the first action had not been "commenced or attempted to be commenced" under circumstances similar to the case sub judice. See Branscom v. Birtcher, supra. The Branscom Court held that an initial case is not "commenced or attempted to be commenced" to enable the subsequent refiling of a similar action under R.C. 2305.19 if the original case was voluntarily dismissed after effective service was not obtained within the one year period provided by Civ. R. 3(A). The Court stated as follows: Since defendant was not effectively served within one year of the filing of the initial suit, the action was neither commenced nor attempted to be commenced for purposes of R.C. 2305.19. Cf. DiCello [v. Palmer (Feb. 12, 1980), Franklin App. No. 79AP-402, unreported]. The trial court, therefore, properly dismissed plaintiff's second action as barred by the limitations period set forth in R.C. 2305.10. Id. at 244. Although the plaintiff's voluntary dismissal of his first action prior to obtaining valid service in Branscom occurred after the expiration of the statute of limitations, unlike the case sub judice, we find the reasoning of the Branscom Court to be persuasive in this context. Plaintiff's failure in the case sub judice to obtain valid service in connection with his first action precludes a finding the first action was "attempted to be commenced" for purposes of subsequent refiling under R.C. 2305.1- - 11 - 9. Since plaintiff failed to demonstrate that R.C. 2305.19 extended the period for filing the second case, the trial court 2 dismissed plaintiff's second action based upon the statute of limitations set forth in R.C. 2305.10. Id. Accordingly, plaintiff's sole assignment of error is over- ruled. Judgment affirmed. 2 Some courts believe that under the circumstances of the case sub judice, the action should be stricken instead of dismissed. In Buckeye Union Ins. Co. v. Sheppard (Mar. 2, 1989), Cuyahoga App. No. 55782, unreported, the Eighth Appellate Dis- trict stated as follows: With a non-existent case before it, the trial court could only strike the complaint, it may not dismiss it. Kossuth, at 384. In view of these authorities, it is our opinion that the savings statute would not apply for the reason that no action ever came into existence; thus, there was nothing to 'fail otherwise than on the merits' for purposes of R.C. 2305.19. Sanders v. Choi, 12 Ohio St. 3d at 250; Kossuth v. Bear, sup- ra; Mason v. Waters, supra; cf. Maryhew v. Yova (1984), 11 Ohio St. 3d 154. Id. at 3. - 12 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., and DYKE, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .