Sizemore v. Smith

• Decision Date: 31 August 1983
• Docket Number: No. 82-105,82-105
• Citation: 453 N.E.2d 632,6 OBR 387,6 Ohio St. 3d 330
• Parties: , 6 O.B.R. 387 SIZEMORE, Appellee, v. SMITH, Appellant.
• Court: Ohio Supreme Court

Page 330

6 Ohio St.3d 330

453 N.E.2d 632, 6 O.B.R. 387

SIZEMORE, Appellee, v.SMITH, Appellant.

No. 82-105.

Supreme Court of Ohio.

Aug. 31, 1983.

Fiehrer, Brewer & Cooney and Lawrence P. Fiehrer, Hamilton, for appellee.

Millikin & Fitton and James E. Michael, Hamilton, for appellant.

PER CURIAM.

The issue in this case is whether service of process by publication was proper pursuant to Civ.R. 4.4(A)andR.C. 2703.14(L).Resolution of this issue depends upon the answers to two questions: first, whether appellee exercised reasonable diligence in attempting to locate appellant and second, whether appellant kept himself concealed with the intent to avoid service of summons.Because this court finds that service of process was insufficient under the facts herein, the decision of the court of appeals is reversed.

Civ.R. 4.4(A) sets forth the procedural requirements for obtaining service by publication as follows:

"Residence unknown.When the residence of a defendant is unknown, service shall be made by publication in actions where such service is authorized by law.Before service by publication can be made, an affidavit of a party or his counsel must be filed with the court.The affidavit shall aver that service of summons cannot be made because the residence of the defendant is unknown to the affiant and cannot with reasonable diligence be ascertained."

R.C. 2703.14 sets forth those categories of cases where service by publication is authorized by law.The present case was based upon subsection (L) which provides that service may be made by publication:

"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 service of a summons, or keeps himself concealed with like intent."

From the plain and unambiguous language of Civ.R. 4.4(A) it is axiomatic that a plaintiff must exercise reasonable diligence in his attempt to locate a defendant before he is entitled to service by publication.If the defendant cannot be located, plaintiff or his counsel may file an affidavit with the court.The required contents of the affidavit are amply set forth in Civ.R. 4.4(A): that defendant's residence is unknown and that it cannot be discovered with reasonable diligence.Such an averment in the affidavit gives rise to a rebuttable presumption that reasonable diligence was exercised.This court notes that, although there exists some measure of confusion on the point (cf.Wilson v. Sinsabaugh[1978], 61 Ohio App.2d 224, 401 N.E.2d 454[453 N.E.2d 635]withBrown v. Gonzales[1975], 50 Ohio App.2d 254, 362 N.E.2d 658[4 O.O.3d 220] ), facts demonstrating the diligence used to ascertain the address of the defendant are not required to be set forth in the affidavit itself.However, a bare allegation in an affidavit is not conclusive on the subject.Plaintiff, when challenged, must support the fact that he or she used reasonable diligence.

In the present case, the trial court allowed appellee to present evidence with respect to the diligence used.Such evidence demonstrated that appellee made only two attempts to locate appellant's address.First, he contacted the post office and was unable to secure a forwarding address.Secondly, counsel contacted his own client.This court concludes that such minimal efforts do not constitute reasonable diligence.

Black's Law Dictionary (5 Ed.1979), at 412, defines "reasonable diligence" as "[a] fair, proper and due degree of care and activity, measured with reference to the particular circumstances; such diligence, care, or attention as might be expected from a man of ordinary prudence and activity."As indicated by the above definition, what constitutes reasonable diligence will depend on the facts and circumstances of each particular case.A careful examination of appellee's efforts demonstrates that they were perfunctory.While the post office was a good place to begin, it is not a locating service.The trial court took judicial notice that post office regulations allow mail to be forwarded only for a period of one year after a change of address.The accident occurred on June 18, 1976.Appellant moved in September of that year.Service was attempted on February 23, 1978, some twenty months after the accident and seventeen months after defendant-appellant's change of residence.Thus, it is clear that the one-year forwarding period of the postal service had already expired at the time service was attempted.Appellee was or should have been aware that, because of the substantial gap in time, postal records might be of limited assistance in locating appellant.

It would be poor policy for this court to hold that such efforts constituted reasonable diligence.If appellee's efforts satisfied the standard it would be difficult for a plaintiff to ever fail that test.Reasonable diligence requires taking steps which an individual of ordinary prudence would reasonably expect to be successful in locating a defendant's address.Certainly a check of the telephone book or a call to the telephone company would hold more promise than a contact of one's own client.Other probable sources for a defendant's address would include the city directory, a credit bureau, county records such as the auto title department or the board of elections, or an inquiry of former neighbors.These examples do not constitute a mandatory checklist.Rather, they exemplify that reasonable diligence requires counsel to use common and readily available sources in his search.

In addition, before service may be made by publication it must be authorized by law.For purposes of this case, such service is authorized only if the defendant has kept himself concealed with the intent to avoid the service of a summons.The court of appeals found that appellant's change of residence, with knowledge of a potential claim against him, gave rise to the inference that appellant was keeping himself concealed.This court agrees with the proposition that where reasonable diligence has been exercised and a defendant still has not been found there arises an inference of concealment.SeeRasmussen v. Vance(1973), 34 Ohio Misc. 87, 293 N.E.2d 114[63 O.O.2d 400].

In this case it is undisputed that appellant knew or should have known of a possible claim against him at the time of his change of residence.Appellant moved from a residence bearing an Oxford address to one having a Hamilton address.This is sufficient to raise the inference of concealment to avoid service of process.However, this inference was challenged by appellant in his motion for summary judgment and rebutted by the affidavit attached to that motion.Appellant's affidavit stated that he had been a Butler County resident all of his life and that since the date of the accident he had not departed from the county for any period greater than one week.This evidence is undisputed.In response to appellant's averments, appellee submitted no evidence whatsoever to show that the requirements of R.C. 2703.14(L) were satisfied.¹To hold otherwise would impose an affirmative obligation upon a potential defendant in a civil suit to make his new address available to any potential plaintiff.The statute places no such burden on a defendant.Consequently, the present case is not one in which it has been established that service by publication was authorized by law.

For the foregoing reasons, the judgment of the court of appeals, holding that process was sufficient, is reversed and remanded for proceedings not inconsistent with this opinion.²

Judgment reversed and cause remanded.

FRANK D. CELEBREZZE, C.J., and WILLIAM B. BROWN, SWEENEY and HOLMES, JJ., concur.

WEBER, J., concurs in part and dissents in part.

CLIFFORD F. BROWN and JAMES P. CELEBREZZE, JJ., dissent.

WEBER, J., of the Second Appellate District, sitting for LOCHER, J.

WEBER, Justice, concurring in part and dissenting in part.

I concur in that part of the judgment which holds that appellee has not exercised reasonable diligence in attempting to locate appellant so that service by publication would be authorized by law.I concur in the reversal of the court of appeals to that extent.

I dissent from that part of the judgment which permits the common pleas court judgment to remain undisturbed which orders that "the plaintiff take nothing and the action be dismissed for failure of service of process."

The trial court, having found that process was insufficient or that service of process was insufficient, should order plaintiff to issue an alias service, not dismiss the action.However, should the trial court decide to dismiss the action, as in this case, the order should have been limited to the dismissal of the action for insufficient service of process or insufficient process.It should not have ordered that the plaintiff take nothing.

This court, and our judicial system, should encourage the determination of each case on the substantive law applicable, rather than by rigidly applying procedural rules.Justice demands that a court reach the merits of a case rather than allow its resolution on a technical procedural question.

This position is in accord with Civ.R. 41(B)(4) which reads: "Failure other than on the merits.A dismissal (a) for lack of jurisdiction over the person or the subject matter, or (b) for failure to join a party under Rule 19 or Rule 19.1 shall operate as a failure otherwise than on the merits."(Emphasis added.)

The insufficiency of service of process, as in the present case, involves a question of "jurisdiction over the person" under Civ.R. 41(B)(4) and should not result in a dismissal of the action with finality.

If the order had simply read, "It is ordered and adjudged that the action be dismissed for insufficiency of service of process,"Civ.R. 41(B)(4) would protect the rights of the parties to be heard on the merits.The reversal of the court of appeals, which results...