2019 Ohio 3892
Ohio Ct. App.2019Background
- June 2016 motor-vehicle collision; Corrao sued Bennett in April 2018 seeking > $25,000.
- Plaintiff attempted service at the address on the police report twice; both attempts failed.
- Plaintiff's counsel affidavit said insurer (Liberty Mutual) refused to provide a new address and the defendant’s current residence could not be ascertained with reasonable diligence; plaintiff published service and moved for default judgment.
- Trial court entered default judgment on October 10, 2018 for $25,000 without a hearing; defendant learned of the default in late October and later filed motions to quash service and to vacate the judgment.
- Trial court denied the motions; on appeal the court held it lacked jurisdiction to review the default-judgment entry because no timely appeal was filed, affirmed that service by publication was proper, denied relief from judgment, but reversed the damages award and remanded for a damages hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication was proper under Civ.R. 4.4(A) | Corrao: exercised reasonable diligence (two attempts at police-report address; insurer refused to disclose new address; affidavit filed) | Bennett: plaintiff did not exercise reasonable diligence (could have used BMV, Google, other searches) | Service by publication was proper; plaintiff’s affidavit supported reasonable-diligence and raised inference of concealment; defendant failed to rebut with independent evidence. |
| Validity of the default judgment entry | Corrao: default valid because proper service and no answer | Bennett: default void due to defective service | Appellate court lacked jurisdiction to review the default-judgment entry (untimely appeal); on the merits the court found service proper and that trial court had jurisdiction to enter default. |
| Denial of motion to vacate the default judgment (Civ.R. 60(B) / void-judgment claim) | Corrao: no operative facts to justify relief; service was proper | Bennett: timely motion alleging excusable neglect, meritorious defense, and that judgment was void for improper service | Denial was proper; because service was proper the judgment was not void and Bennett failed to present operative facts warranting relief. |
| Whether trial court erred by not holding an evidentiary hearing on damages | Corrao: damages as averred in counsel’s affidavit (approx. $7,000 medical + lost wages) justified award | Bennett: no evidentiary support for $25,000 award; no hearing was held | Damages award reversed and remanded for an evidentiary hearing because the record lacks sufficient evidence explaining or substantiating the $25,000 award. |
Key Cases Cited
- Brooks v. Rollins, 9 Ohio St.3d 8 (1984) (an inference of concealment may arise from plaintiff’s inability to locate defendant after reasonable diligence)
- Khatib v. Peters, 77 N.E.3d 461 (2017) (a default judgment rendered without proper service is void and subject to vacation)
- Kraus v. Maurer, 138 Ohio App.3d 163 (2000) (insurer has no duty to disclose insured’s address to plaintiffs)
- State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58 (1988) (appellate jurisdiction requires a timely notice of appeal)