COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72056 GARY HELF : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION JOHN DOE EMPLOYEES, CITY OF : CLEVELAND : : Defendant-appellees : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 11, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 312,182 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: WILLIAM T. WULIGER Attorney at Law The Brownell Building 1340 Sumner Court Cleveland, Ohio 44115 For defendant-appellees: SHARON SOBOL JORDAN Director of Law City of Cleveland City Hall Room 106 601 Lakeside Avenue Cleveland, Ohio 44114 TIMOTHY E. McMONAGLE, J.: -2- Plaintiff-appellant, Gary Helf ( appellant ), appeals the decisions of the Cuyahoga County Common Pleas Court that, first, dismissed his complaint for lack of service under Civ.R. 4(E) and, second, denied his motion for relief from that judgment. For the reasons that follow, we reverse and remand. The record reflects that appellant is president of Trinidad Paving Company, Inc. ( Trinidad ), a company that entered into a series of contracts with the City of Cleveland ( City ) for road repair work. At some point, the City alleged that Trinidad had breached one or more of these contracts, whereupon the City terminated the contract(s) and refused further payment. On July 22, 1996, appellant instituted suit against several unknown and unnamed John Doe employees of the City, alleging that their conduct collectively defamed him, caused him emotional distress and violated his right to equal protection. Less than six months later, on January 16, 1997, the trial court dismissed appellant's complaint under Civ.R. 4(E) for lack of service. Appellant timely appeals and assigns the following error for our review: IT CONSTITUTES REVERSIBLE ERROR AND AN ABUSE OF DISCRETION FOR A TRIAL COURT TO DISMISS A CASE PURSUANT TO CIVIL RULE 4(E) WITHOUT NOTICE AND PRIOR TO THE EXPIRATION OF SIX MONTHS AND TO OVERRULE A MOTION FOR RELIEF FROM JUDGMENT, PARTICULARLY WHERE THE SOLE CAUSE OF ANY DELAYS IN IDENTIFYING THE DEFEN- DANTS AND PERFECTING SERVICE UPON THEM WAS THE RECALCITRANT CONDUCT OF SAID DEFENDANTS AND/OR THOSE IN PRIVITY WITH THEM AND WHERE SAID DEFENDANTS WERE LATER SERVED WITH LEAVE OF COURT. -3- As a preliminary matter, we note that appellant challenges not only the dismissal of his complaint but also the denial of his motion for relief from judgment. The record reveals that appellant moved for relief from judgment in the trial court while his appeal before this court was pending. After this court remanded the case to the trial court for the limited purpose of ruling on the motion, the motion was denied. Appellant then attempted to amend his notice of appeal to include a challenge to the denial of his motion for relief from judgment. This court denied appellant's motion and directed appellant to file a separate notice of appeal. This appellant did, and the appeal was assigned Case Number 72773. This second appeal, however, was dismissed sua sponte for failure to file a praecipe in compliance with Loc.App.R. 4. As such, any alleged error on the part of trial court in denying appellant's motion for relief from judgment is not properly before this court. With this in mind, we turn to the merits of appellant's appeal as it relates to that portion of appellant's assigned error that challenges the decision of the trial court dismissing appellant's complaint under Civ.R. 4(E) for lack of service. Civ.R. 4(E) provides, in part: If a service of 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 dis- missed as to that defendant without prejudice upon the court's own initiative with notice to such party or *** . (Emphasis added.) -4- Here, appellant filed his complaint on July 22, 1996. The trial court dismissed appellant's complaint for lack of service on January 16, 1997, just shy of the six months required under the statute. Even if the six-month requirement had been met, a trial court is without authority to sua sponte dismiss an action for lack of service without notice to the affected party. See Civ.R. 4(E). This rule is directed to the less-than-diligent plaintiff who neglects to follow through in obtaining in-state service of process, see Editor's Note to Civ.R. 4(E), see, also, Harrell v. Guest(1986), 33 Ohio App.3d 163, 164-165, and is not to be applied where a plaintiff has been resolute in attempting to obtain service. Bentz v. Carter (1986), 55 Ohio App.3d 120, 123. While we express no opinion as to appellant's diligence in pursuing service, we do note that the record is devoid of the required notice. Moreover, we further note that appellant names unnamed employees of the City as defendants. Under these circumstances, the status of appellant's complaint should be analyzed under Civ.R. 3(A) and Civ.R. 15(D), both of which guide the parties and the court on the proper procedure for dealing with unnamed parties. Civ.R. 3(A) provides, in part: A civil action is commenced by filing a com- plaint with the court, if service is obtained within one year from such filing *** upon a defendant identified by a fictitious name whose name is later corrected pursuant to Rule 15(D).1 1Civ.R. 15(D) provides, in part: -5- In this case, less than six months had elapsed when the trial court prematurely dismissed appellant's complaint, leaving appellant without an opportunity to amend his complaint once the names of his previously unnamed defendants became known. Because Civ.R. 3(A) provides appellant with one year after filing in which to effect service on a later named defendant, it was error for the trial court to dismiss appellant's complaint for lack of service under Civ.R. 4(E). See Hobbs v. Lopez (1994), 96 Ohio App.3d 670, 675-676; Kosa v. Pruchinsky (1992), 82 Ohio App.3d 649, 655. Accordingly, appellant's sole assignment of error, as it relates to the trial court's dismissal of his complaint for lack of service, is well taken. The judgment of the trial court is hereby reversed and remanded for proceedings consistent with this opinion. When the plaintiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. *** -6- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said 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. LEO M. SPELLACY, J. and KENNETH A. ROCCO, J. CONCUR PRESIDING JUDGE TIMOTHY E. McMONAGLE 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 .