COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71061 DEBORAH GOOCH : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION MATTHEW TOTH : : Defendant-Appellee : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION MARCH 20, 1997 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 284760 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: EMERY J. LEUCHTAG, ESQ. CURTIS SCOTT, JR., ESQ. DENNIS P. ZAPKA, ESQ. 14600 Detroit Avenue Zapka & Leuchtag Suite 450 308 Bank One Building Lakewood, Ohio 44107-4210 106 East Market Street Warren, Ohio 44481 - 2 - PER CURIAM: 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 - 3 - 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. - 4 - 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 dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion ***. Civ.R. 4(E) requires dismissal of a complaint without prejudice where service is not perfected within six months of its filing. This rule is to be applied unless the plaintiff has been diligent in attempting to obtain service. Bentz v. Carter (1988), 55 Ohio App.3d 120, 123. In Bentz, the plaintiffs made numerous attempts to serve the defendant unsuccessfully. When plaintiffs received notice of failure of certified mail service, they tried to serve the defendant by ordinary mail. They also corrected the misnomer on the original complaint in an effort to achieve service. This - 5 - behavior was deemed diligent by this Court and adequate to withstand a Civ.R. 4(E) motion. The present case is distinguishable from Bentz. Plaintiff attempted service through the clerk's office by certified mail one time. When that failed, she never again attempted to serve defendant as required by law. Plaintiff's counsel did send a file- stamped copy of the new complaint to defendant's original counsel under cover of a letter dated July 24, 1995. This was five months after the complaint was filed and service first attempted. It stated: "We presume that you will take appropriate steps to notify your client of this matter." The trial court did not enter a Civ.R. 4(E) dismissal until July 3, 1996, almost eleven months later. Plaintiff's attempts were not sufficient. Plaintiff's counsel cannot rely on defense counsel to do his work or to exercise the diligent efforts required by Civ.R. 4(E). Bell v. Midwestern (1993), 89 Ohio App.3d 193, 204 ("In Ohio it is not the defendant's job to assist the plaintiff in perfecting service of process upon the defendant. It is plaintiff's burden to be sure that proper service is accomplished ***"). Plaintiff's reliance on Davis v. Holsinger (June 15, 1989), Franklin App. No. 89AP-79, unreported, offers no support for plaintiff's position. Plaintiff claims that the Holsinger case requires notice to the plaintiff by the court under Civ.R. 4(E) before dismissal under the six month rule. The rule allows for dismissals if "the party on whose behalf such service was required - 6 - cannot show good cause why such service was not made." This suggests the party be given notice of the pending dismissal insofar as necessary to show "good cause." On the other hand, the Rule also provides that the "action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion." The plain reading of this section in pari materia is: if the court is going to dismiss sua sponte, notice should be given, but if a motion to that effect is already pending, no "notice" is required - the motion is enough notice. In Holsinger, the court dismissed the case on its own initiative. In the instant case, defendant filed a motion to dismiss and plaintiff responded so she had sufficient notice and opportunity to show cause - which she was not able to do. Plaintiff suffered no harm from the lack of notice. Plaintiff also waived this failure of notice issue by not raising it in the court below. A reviewing court will not consider issues which the appellant failed to raise in the trial court. Cleveland v. Assn. of Fire Fighters, Local 93 (1991), 73 Ohio App.3d 220, 225. In the instant case, plaintiff also failed to obtain service on the defendant within one year of refiling the complaint as required by the savings statute, R.C. 2305.19. As such, plaintiff did not commence an action within the savings statute and the court correctly dismissed the complaint on those grounds as well. Under Ohio law, a complaint for personal injury requires a plaintiff and defendant. Levering v. Riverside Hospital (1981), 2 - 7 - Ohio App.3d 157. In the instant action, this requirement has not been met - there is no properly served defendant and plaintiff's cause of action must fail. If a defendant has not been served in a lawsuit, there is an insufficiency of process pursuant to Civ.R. 12(b)(5). Plaintiff had six months from the date of refiling the complaint to obtain service upon defendant and failed to do so. Without service on defendant the trial court had no jurisdiction over the defendant. Plaintiff's arguments of "good cause" as to why she failed to serve defendant within the six month period are without merit. Specifically, plaintiff argues that after the failure of service by certified mail, she notified defense counsel in the former action. Plaintiff urges this Court to construe this as the equivalent of good service since "the counsel representing Appellee in the re- filed Complaint is the same counsel who represented Appellee in the original case." (Aplt's Brf. 8). However, there is no legal support for the argument that mere service of the complaint on counsel constitutes service on the defendant. In King v. Hazra (1993), 91 Ohio App.3d 534, the court explicitly held that effective service of process was not achieved where plaintiff served a courtesy copy of the complaint on defendant's attorney. The court in King determined that service on a defendant's attorney is not in compliance with Civ.R. 4. As such, service was never completed. - 8 - Plaintiff cites Harrell v. Guest (1986), 33 Ohio App.3d 163 to support her claim that where a plaintiff has made "further attempts to secure service of process," a court may not dismiss the complaint pursuant to Civ.R. 4(E). Id. at 163. Harrell is readily distinguishable: there, plaintiff had made "numerous further attempts *** over a two and a half month period to secure service of process when the original service of process failed." Id. at 164. Unlike Harrell, plaintiff here made one attempt to serve the defendant by certified mail and thereafter merely relied on the unfounded "presumption" that service of the complaint on defense counsel in the original case would be adequate. Plaintiff did not even send the complaint to defendant's counsel until five months after her attempt to serve defendant by certified mail failed. It is noteworthy that no answer was ever filed, or leave taken to answer, on behalf of defendant in the refiled lawsuit. Nor did plaintiff seek default for defendant's failure to answer. Although the motion to dismiss for lack of service was pending for three months, plaintiff still made no effort to perfect service. Plaintiff cannot claim in good faith that she was somehow deceived into believing that there was service by defense counsel's pretrial appearance or that defendant acquiesced in service by sending a courtesy copy to his attorney. Although it is not clear whether plaintiff is also arguing that defense counsel's appearance at pretrial constituted a waiver of service, this argument also fails. The plaintiff did not raise - 9 - this argument in the trial court and therefore waived this argument on appeal. Cleveland v. Assn. Firefighters, supra. Furthermore, plaintiff did not forward the complaint and letter to defendant's counsel which apprised him of the pretrial date and time until July 24, 1995. Defense counsel had 28 days from that date to answer the complaint. Civ.R. 12(A)(1). Since defendant's counsel's appearance at the pretrial on July 27 was a preanswer appearance, no waiver could take place. See 1 Ohio Civil Practice (1990), Klein, Browne, & Murtaugh, T.3.03 at 42. ("If defendant has made no Rule 12 motion, and the time for answer prescribed by Rule 12(A) *** has not expired, the defendant may appear at, and participate in, status call hearings and pretrial conferences, without waiving his jurisdictional defenses or consenting to the court's exercise of jurisdiction, even if he does not raise the jurisdictional defenses at these hearings.") As the Supreme Court held in Maryhew v. Yova (1984), 11 Ohio St.3d 154, 158: Prior to the adoption of the Rules of Civil Procedure, appearances were classified as either special or general. A special appearance was one made solely for the purpose of objecting to the mode, manner, or absence of the acquisition of jurisdiction of the court over his person. *** Today we only have a general appearance under the Rules of Civil Procedure. *** [P]ursuant to those rules, we need only address whether there has been a waiver of the jurisdictional defenses, rather than the type of appearance. Counsel in the case before us would have had the opportunity to raise the defense in his responsive pleadings, as the time had not - 10 - yet expired to file his responsive pleadings at the time he appeared at the pretrial. Id. at 158. The Ohio Supreme Court noted in Lash v. Miller (1977), 50 Ohio St.2d 63, 65 that "[e]ffective service of summons on the Appellee is a necessary prerequisite to the commencement of a civil action." Pursuant to Civ.R. 3(A), plaintiff had one year from the date of filing the complaint to obtain service. "The philosophy of such rule is that the court dockets should be cleared if service has not been attained within a reasonable time of one year." Maryhew v. Yova, supra at 157. That prerequisite was never met, "good cause" for failure to serve pursuant to Civ.R. 4(E) was not otherwise shown, and the trial court properly exercised its discretion by dismissing plaintiff's refiled complaint. Plaintiff's "assignments of error" are overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant his 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 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. JAMES M. PORTER, PRESIDING JUDGE DIANE KARPINSKI, 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 of decision by the .