2013 Ohio 3666
Ohio Ct. App.2013Background
- Famageltto provided landscaping services to Telerico from April 2009 to July 2011, totaling $42,231.65 for goods and services.
- On March 27, 2012, Famageltto filed a three-count complaint naming Telerico and listed his home address; certified mail service to 545 Bristol Way, Aurora, Ohio 44202 was attempted on March 29, 2012.
- When certified mail service failed, the court allowed service by ordinary mail under Civ.R. 4.6(D); the ordinary mail was not returned undelivered.
- A copy of the summons and complaint was mailed by regular mail on May 2, 2012; Telerico did not answer or plead.
- Famageltto moved for default judgment on June 6, 2012; the court granted default on July 6, 2012, finding service adequate and Telerico in default.
- Telerico moved to vacate under Civ.R. 60(B) on August 29, 2012 claiming he never received the complaint; no hearing on service was held.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service satisfied Civ.R. 4.1 and 4.6(D) so as to confer personal jurisdiction | Famageltto contends ordinary-mail service cured defective certified mail when entry of mailing occurred. | Telerico never received service; proper service was not perfected. | Lack of timely, credible service voids the default judgment; remand for proceedings consistent with lack of service. |
| Whether the default judgment should be vacated for lack of notice | Judge properly entered default based on adequate service. | Civ.R. 60(B) relief required; he never received service. | Void judgment for lack of personal jurisdiction; remand for proper proceedings. |
Key Cases Cited
- Rafalski v. Oates, 17 Ohio App.3d 65 (8th Dist. 1984) (uncontradicted sworn statement of no service entitles vacatur)
- Infinity Broad. v. Brewer, 2003-Ohio-1022 (1st Dist. 2003) (self-serving affidavits may be insufficient to vacate without credibility assessment)
- Patton v. Diemer, 35 Ohio St.3d 68 (1988) (inherent power to vacate void judgments not grounded in Civ.R. 60(B))
- O’Donnell, State ex rel. Ballard v. O’Donnell (50 Ohio St.3d 182) (lack of personal jurisdiction due to deficient service voids judgment)