Corley v. Sullivan-Busman
2013 Ohio 3909
Ohio Ct. App.2013Background
- Corley sued Sullivan-Busman for back rent in a Cleveland FED action joined with a money-damages claim; service attempted by certified and regular mail; certified mail unclaimed, regular mail not returned.
- Sullivan-Busman did not respond; default judgment for Corley issued April 26–28, 2010; Sullivan-Busman moved to vacate on grounds he never received service and did not have personal jurisdiction.
- The trial court denied the motion to vacate on December 19, 2012; Sullivan-Busman appeals on lack of service and jurisdiction grounds.
- Appellate court reviews for abuse of discretion; uncontradicted sworn statements of no service entitle vacatur of a void default judgment.
- Court holds lack of proper service voids the judgment and requires vacatur; reverses and remands for vacating the default judgment, with costs awarded to Sullivan-Busman.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there valid service to confer personal jurisdiction? | Sullivan-Busman asserts no proper service occurred. | Corley asserts service complied with Civ.R. 4.1/4.6. | Lack of proper service voids the judgment; vacate. |
| Did the trial court abuse its discretion in denying the motion to vacate based on lack of service? | Sullivan-Busman provided uncontradicted sworn statements of no service. | Service was adequate and the court should deny vacatur. | Abuse of discretion; vacate and remand. |
Key Cases Cited
- Akron-Canton Regional Airport Auth. v. Swinehart, 62 Ohio St.2d 403 (1980) (service must follow Civ.R. 4.1; proper notice to defendant; completion when mailing is recorded)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process requires reasonably calculated notice)
- Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d 61 (1st Dist.1997) (burden on plaintiff to effect proper service; presumption of validity unless rebutted)
- Rafalski v. Oates, 17 Ohio App.3d 65 (1984) (uncontroverted sworn statement of lack of service triggers vacatur for void judgment)
- Chilcote v. Kugelman, 2013-Ohio-1896 (8th Dist.) (lack of jurisdiction due to improper service renders judgment void ab initio)
- Carter-Jones Lumber Co. v. Meyers, 2006-Ohio-5380 (2d Dist. Clark) ( Civ.R. 4.1 service presumptions; burden on plaintiff)
- Abuhilwa v. O’Brien, 2007-Ohio-4328 (2d Dist. Montgomery) (personal jurisdiction via service or appearance; nonparty defenses waived)
- Maryhew v. Yova, 11 Ohio St.3d 154 (1984) (standards for personal jurisdiction and service)
- Rite Rug Co., Inc. v. Wilson, 106 Ohio App.3d 59 (10th Dist.1995) (service must be proper under Civ.R. 4.1; proof by mailing certificate)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard for appeals of default judgments)