COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70382 : ACCELERATED DOCKET STEPHEN T. HALEY : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION RURAL CELLULAR, et al : : Defendant-Appellees : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 13, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 240,681 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellant: STEPHEN T. HALEY, pro se A226-961 Post Office Box 43140-0069 London, Ohio 43140 For defendant-appellees: MARGARET M. KOESEL Attorney at Law 1700 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1483 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuya- hoga County Court of Common Pleas, and the briefs. Plaintiff-appellant Stephen T. Haley appeals pro se from the lower court's order that granted the motion to quash service of defendants-appellees Elden Heinz and Rural Cellular and their Civ.R. 12(B)(6) motion to dismiss Haley's action against them. The question before us is whether, upon remand, the lower court properly determined that the appellant had failed to meet the requirements of R.C. 2703.14(L) in his attempt to perfect service by publication upon these defendants, thereby failing to timely commence his action. Finding no reversible error in the lower court's decision, we affirm. The record reflects that on October 14, 1992, Haley filed suit against Rural Cellular and Elden J. Heinz alleging fraud and Ohio securities law violations. Haley attempted to perfect service on appellee Heinz by certified mail at two different last known addresses, 1420 West 116th Street, Cleveland, Ohio 44102 and 3301 Bone Road, Jamestown, Ohio 45335. In addition, Haley attempted to serve Rural Cellular by certified mail at its last known address, 1420 West 116th Street, Cleveland, Ohio 44102. - 3 - Both certified mail attempts to the appellees at 1420 West 116th Street were returned with the legend "forwarding time expired." The certified receipt for the summons sent to appellee Heinz at the Bone Road address in Jamestown was returned as "unclaimed." The docket reflects that the court notified the plaintiff of these failures to perfect service on October 29, 1992, and again on November 10, 1992. On December 15, 1992, plaintiff Haley filed a deposit and his affidavit for service on both defendants by publication. On January 12, 1993, the court issued notice to Haley pursuant to Civ.R. 4(E) instructing him to complete service on the defendants by April 14, 1993, or to show good cause why service could not be completed by that date. The notice further warned plaintiff that failure to comply with the notice would result in his complaint being stricken as to the unserved defendants. On February 9, 1993, proof of service by publication was filed. On March 17, 1993, plaintiff filed application for default judgment pursuant to Civ.R. 55(A), asserting that service by pub-lication pursuant to Civ.R. 4.4 was completed on February 23, 1993, and asserting that defendants Rural Cellular and Elden J. Heinz had failed to appear and defend. On April 16, 1993, pursuant to Civ.R. 4(E), the court dis- missed Haley's action without prejudice for his failure to com- mence the action. In its opinion, the lower court held that R.C. 2703.14 does not permit service by publication in contract or tort actions against Ohio residents. On May 3, 1993, Haley moved - 4 - the court to reconsider its decision, claiming sufficiency of service by publication upon these defendants pursuant to R.C. 2703.14(L), the concealment provision. The lower court denied the motion for reconsideration on May 11, 1993, and Haley timely filed a notice of appeal from the April 16, 1993, judgment 1 entry. On June 7, 1993, this court sua sponte dismissed Haley's appeal for lack of a final appealable order citing Foree v. St. 2 Luke's Hospital. Plaintiff Haley then refiled his claim on June 16, 1993. As a refiled and previously-dismissed case, the new case was assigned to the same lower court judge. The lower court dismissed the newly-filed action sua sponte, without prejudice, claiming lack of jurisdiction over a duplicate case on appeal. Haley did not appeal that order. On July 19, 1994, this court sua sponte reinstated Haley's appeal. On January 26, 1995, this court reversed the trial court's order and determined that since the lower court premised its dis- missal of Haley's action upon its determination that service by publication was not authorized by R.C. 2703.14, the court had failed to consider and apply subsection (L) to the facts of the case. This court remanded the matter to the lower court to con- sider Haley's affidavit alleging that the defendants had 1 See Haley v. Rural Cellular, et al (Jan. 26, 1995), Cuyahoga App. No. 65508, unreported. 2 Foree v. St. Luke's Hospital (May 6, 1993), Cuyahoga App. No. 62419, unreported (an appeal does not lie from a dismissal without prejudice). - 5 - concealed themselves and to analyze Haley's allegation that reasonable dili-gence had failed to reveal the defendants' new address. On remand, the lower court set the matter for hearing on June 7, 1995. Plaintiff Haley moved the lower court for a continuance of the hearing, alleging that, during the pendency of his appeal (Case No. 65508), he had determined that the defendants had moved to 3301 Bone Road, Jamestown, Ohio 45335. On May 12, 1995, Haley instructed the clerk to serve both defendants at that address. On May 15, 1995, the court denied Haley's motion for continuance of the June 7th hearing. On June 1, 1995, Haley filed an affidavit of bias and prejudice with the Ohio Supreme Court, alleging that the lower court's denial of his motion for continuance of hearing implied an abuse of discretion and showed that the judge acted contrary to the law as it relates to service by publi-cation and/or certified mail. On June 7, 1995, the supreme court found the application not well taken and denied it. The trial court then continued the June 7th hearing to June 28th at 9:00 a.m. The docket reflects that throughout this time, plaintiff Haley continued his pursuit of in personam service upon the defendants. The certified mail receipt of the summons to Rural Cellular was signed and received at the Bone Road, Jamestown, Ohio, address on May 20, 1995. On July 11, 1995, the certified mail receipt of the summons to Elden Heinz at the Bone Road, Jamestown, Ohio, address was returned to the court as - 6 - "unclaimed." On June 30, 1995, Haley instructed the court to serve Elden Heinz by ordinary mail service at the Jamestown address. Defendant Heinz's answer date was noted to be July 28, 1995. On June 19, 1995, both defendants Heinz and Rural Cellular moved the court to quash the service of process, alleging that Haley failed to meet the statutory requirements of R.C. 2703.14(L). Further, both defendants moved the court to dismiss the complaint against them for plaintiff's failure to timely commence his action. Haley responded to the defendants' motions by asserting that "the issue concerning the validity of plain- tiff's service by publication is moot" and contending that certi- fied mail service had been perfected on Rural Cellular on May 20, 1995, and ordinary mail service upon Elden Heinz on June 30, 1995. On February 20, 1996, the lower court granted defendants' motions to quash service of process and to dismiss the complaint. It is from that order that plaintiff-appellant Haley now appeals and presents three assignments of error for our review. ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ERRED IN QUASHING PLAINTIFFS' [SIC] SERVICE ON THE DEFENDANTS BY FAILING TO TOLL OR SUSPEND THE STATUTE OF LIMITATIONS FOR THE TIME PERIOD BETWEEN THE TRIAL COURT'S DISMISSAL OF PLAINTIFF'S ACTION AND UNTIL THE COURT OF APPEAL'S REVERSAL AND REMAND; AND FOR FAILING TO APPLY THE SAVING PROVISION OF R.C. SECTION 2305.19; SUCH ERROR DENYING PLAINTIFF-APPELLANT ACCESS TO THE COURTS - 7 - WHICH WOULD HAVE ALLOWED HIM TO BE ABLE TO REMEDY THE INJURY DONE TO HIM BY DEFENDANTS AS WAS HIS RIGHT UNDER THE OHIO CONSTITUTION ARTICLE I, SECTION 16, THROUGH ITS FAILURE TO READ R.C. SECTION 2703.14(L) PROPERLY AND THEN SUBSEQUENTLY DENYING PLAINTIFF THE BENE- FIT OF THE COURT OF APPEALS REVERSAL AND RE- MAND MADE IN HIS FAVOR. Appellant contends that the trial court erred in granting the appellees' motions to quash service of process and to dismiss, thereby denying him access to the courts to remedy the injury alleged. Specifically, appellant argues that the statute of limitations should be tolled and the savings provision of R.C. 2305.19 applied for the period of time this case was previously on appeal where the court of appeals reversed the lower court's deci-sion. Appellant asserts that the trial court's error should not work to deprive him of his substantial right to petition the court. Appellant relies on the tolling of the time that this matter was "on appeal" to allow him to perfect in personam service upon the appellees in 1995. This argument of the appellant has no merit. The decision of a court of appeals is the law of the case 3 binding upon a trial court on remand. The trial court is 4 without authority to extend or vary the mandate given. This court's man-date in the previous appeal clearly ordered that this matter was remanded to the lower court for the purpose of "analyzing the appellant's claim that appellees Rural Cellular 3 Hawley v. Ritley (1988), 35 Ohio St.3d 157. 4 Nolan v. Nolan (1984), 11 Ohio St.3d 1. - 8 - and Elden J. Heinz had concealed themselves within the statutory meaning of R.C. 2703.14(L) and that, with due diligence, appellant was unable to determine a proper address." Action by the trial court inconsistent with the mandate of the court of appeals in the first appellate review would exceed the jurisdiction of the trial court. The lower court was without authority to go beyond the mandate given by this court upon re- mand; therefore, appellant's arguments in this first assignment of error go to matters outside the scope of the remand. Accordingly, we find no error, and this assignment of error is overruled. ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ERRED WHEN IT DISMISSED PLAINTIFF'S ACTION, WHEN THERE WAS SUFFICIENT EVIDENCE WITHIN THE RECORD TO ESTABLISH THE FACT THAT PLAINTIFF HAD MET THE REQUIREMENTS OF R.C. SECTION 2703.14(L) WHICH WOULD PERMIT THE PLAINTIFF TO USE SERVICE BY PUBLICATION TO OBTAIN PERSONAM JURISDICTION. In this assigned error, appellant argues that the lower court erred in dismissing his action, contending that the record contains sufficient evidence to meet the requirements of R.C. 2703.14(L), Service by Publication. That provision states that service may be made by publication in any of the following cases: In an action where the defendant, being a resident of this state, has departed from the county of his residence with intent to delay or defraud his creditors or to avoid the ser- - 9 - vice of a summons, or keeps himself concealed with like intent. The record reflects that there is no set of facts which the appellant could present to show that he had met the requirements of R.C. 2703.14(L). Appellant's argument has no merit. We find that the trial court did not err when it dismissed the appellant's action. A careful review of the record reflects that the appellant brought suit against Rural Cellular, a partnership subject to R.C. Chap. 1775, and against Elden Heinz, as the promoter, operator and general partner of Rural Cellular. In Count One, against both defendants, appellant claimed that their actions fraudulently induced him to invest in the partnership, and in Count Two against Elden Heinz, appellant claimed that the limited partnership interest sold to him was a security and was not registered pursuant to R.C. 1707.43. Appellant sought to obtain service on the partnership of Rural Cellular. Civ.R. 4.2(7) provides several alternative methods for service on a partnership: certified mail service at the partnership's usual place of business or certified mail ser- vice upon a partner, manager or member. Appellant sought to obtain service on the promoter, operator and general partner, Elden Heinz, by certified mail service. We note that, in this instance, good service on Elden Heinz would - 10 - additionally constitute good service on the Rural Cellular part- 5 nership. On October 12, 1992, appellant, in accordance with the civil rules, requested the court to serve Rural Cellular at its former place of business, to serve Elden Heinz at the address of Rural Cellular's former place of business, and to serve Elden Heinz at his residence. Appellant attached to his complaint deposition testimony of Elden Heinz that indicated that the partnership of Rural Cellular no longer existed. The record reflects that both certified letters addressed to 1420 West 116th Street, Cleveland, Ohio, were returned to the court as "forwarding time expired," resulting in failure of ser- vice on the defendants at that address. The record reflects that notices of these failures of service were sent to appellant. Further, the record reflects that the certified mail receipt mailed to 3301 Bone Road, Jamestown, Ohio, the residence of defendant Heinz as an individual and as a partner for Rural Cellular, was returned "unclaimed." The court sent notice of this failure of service to the appellant. The record further discloses that appellant did not attempt regular mail service on the accurate address of both appellees in Jamestown, Ohio; instead, the appellant claims to have perfected service by publication on the two appellees due to their "moving" and "concealment." Such is simply not the case. 5 We make no determination whether Rural Cellular is a proper- ly suable entity. - 11 - A careful reading of the appellant's sworn affidavit for service by publication filed with the lower court clearly lists Elden Heinz' address as 3301 Bone Road, Jamestown, Ohio. The published legal notice indicates that Elden Heinz' last known address was 3301 Bone Road, Jamestown, Ohio. The record shows that despite his contentions to the contrary, the appellant has had, since the first day of filing his complaint, an accurate address for both appellee Elden Heinz and appellee Rural Cellular, a partnership, through one of its partners, Elden Heinz. Further, there is no evidence in the record to indicate that service could not be made upon these appellees at the address of which the appellant was at all times aware. Appellant, in his affidavit for service by publication, swore that he exercised reasonable diligence to ascertain the appellees' residences, but such residences could not be ascertained. Obviously, such is not the case; the appellant simply failed to properly attempt service upon the appellees by ordinary mail as authorized by Rule 4.6(D) when certified mail service is returned as "unclaimed." Such attempt by ordinary mail would have apprised the appellant of the accuracy of the address as the defendants' residence. This court reversed and remanded the matter to the lower court for analysis of the appellant's claim that appellees con- cealed themselves, as meant by R.C. 2703.14(L), and of appellant's claim that reasonable diligence failed to reveal the - 12 - 6 appellees' new address. The trial court set a hearing for June 28, 1995, to afford the appellant the opportunity to present evidence to the court. Appellant failed to appear at that hearing and, as a result, presented no evidence to establish that the R.C. 2703.14(L) requirements that would permit him to use service by publication were met. Further, from the record before us, we are compelled to find that where the appellant had actual knowledge of the accurate address of the appellees, there can be no set of facts which the appellant could have presented to the court to demonstrate that the appellees "concealed themselves to avoid service" or that the appellant "exercised reasonable diligence" to ascertain the appellees' residence. The appellant was unable to meet the requirements, and, therefore, the trial court did not err when it granted the appellees' motion to quash service by publication. Accordingly, appellant's second assignment of error has no merit and is overruled. ASSIGNMENT OF ERROR NO. III THE PLAINTIFF-APPELLANT WAS DENIED HIS DUE PROCESS RIGHTS UNDER BOTH THE STATE AND U.S. CONSTITUTIONS WHEN THE TRIAL COURT FAILED TO PROVIDE SUFFICIENT NOTICE FOR CERTAIN HEAR- INGS TO ALLOW LEGAL REPRESENTATION TO APPEAR AND THEN USING PLAINTIFF'S FAILURE TO APPEAR TO DETERMINE THAT PLAINTIFF HAD NOT MET THE REQUIREMENTS OF R.C. SECTION 2703.14(L), AND THEN SUBSEQUENTLY DISMISSING THE ACTION. 6 Haley v. Rural Cellular, et al, supra. - 13 - Appellant contends his due process rights were denied when the court dismissed his action for his failure to appear at the scheduled hearing. Specifically, appellant argues that the court failed to provide him with sufficient notice of the hearing. Appellant's argument has no merit. Appellant's argument is based upon the lower court's opinion that dismissed the appellant's action. The court reasoned that the appellant "failed to appear at this hearing on June 28, 1995 and as a result no evidence was presented. Accordingly, appellant has failed to establish that the requirements of R.C. 2703.14(L) that would permit him to use service by publication to obtain in personam jurisdiction" were met. Upon remand, the trial court set the matter for hearing for consideration of the appellant's proof as to the requirements of service by publication under R.C. 2703.14(L); however, the statute does not require a hearing. Further, the court of appeals did not mandate a hearing on the evidence upon remand. This court merely remanded the matter to the lower court for "analysis" of appellant's claims that the appellees concealed themselves and that his reasonable diligence failed to reveal the appellees' new address. The docket reflects that the notice of hearing was issued to appellant on June 12, 1995. The record reflects, and appellant concedes, that he had at least four days' actual notice of the June 28, 1995 hearing; therefore, where a hearing on remand was not required by the statute or mandate of this court and the appellant had actual notice of the hearing - 14 - that was set but failed to appear, move the court for continuance, or notify the court of the evidence he intended to offer, it cannot be said that the trial court violated his due process rights by failing to provided sufficient notice. The analysis of the record before us shows that the appellant was both in possession of the proper address for in personam ser-vice of the appellees and unable to show that the appellees concealed themselves within the meaning of the statute. Consistent with our determination that the record, itself, indicates that the appellant had not met the requirements of R.C. 2703.14(L), it cannot be said that the appellant was denied his due process rights when the trial court dismissed his action for failure to appear at the hearing that was set for him to provide facts to justify use of service by publication. Upon careful review of the record, we find that the trial court's judgment dismissing the appellant's action was correct; therefore, we find that any error found in the reasons assigned as the basis for this correct judgment is harmless. The court of appeals will not reverse a correct judgment merely because a trial court assigns erroneous reasons as the basis of its 7 judgment. Accordingly, appellant's third assignment of error has no merit and is overruled. The judgment of the trial court is affirmed. 7 Sciko v. Cleveland Elec. Illum. Co. (1992), 83 Ohio App.3d 660, at 670. - 15 - This cause is affirmed. It is ordered that appellees recover of appellant their 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 Cuyahoga County Court of Common Pleas 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, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE TIMOTHY E. McMONAGLE, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .