2017 Ohio 1260
Ohio Ct. App.2017Background
- In 1997 Anthony Fernwalt (plaintiff) conveyed Carroll County real property to Our Lady of Kilgore (a New York religious nonprofit formed by Father John Steger). Fernwalt later sued (2013) to quiet title, alleging defective notarization and undue influence.
- Service to Kilgore at a St. Jude Church/rectory address in New York failed by certified mail; plaintiff then sought and obtained service by publication under Civ.R. 4.4 and R.C. 2703.14.
- Kilgore did not timely answer; the court held a bench trial in May 2014 and entered judgment quieting title in Fernwalt and voiding the deed for undue influence. Notice of that judgment was mailed to the same New York address.
- Kilgore (through officer Thomas Russell) learned of the default months later, retained counsel, filed a notice of appearance and a Civ.R. 60(B) motion to vacate the default judgment; an evidentiary hearing on the motion occurred April 20, 2015.
- The trial court denied the motion to vacate (July 10, 2015). On appeal the Seventh District: (1) upheld service by publication and denial of a motion to strike plaintiff’s late opposition brief; but (2) found reversible error because the trial court failed to make/findings of fact and conclusions of law in compliance with Civ.R. 52 and should have granted Kilgore’s Civ.R. 60(B) motion. The quiet-title judgment was vacated and the case remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service and resulting jurisdiction over Kilgore was proper | Fernwalt argued he exercised reasonable diligence (certified mail to NY address then publication) and satisfied Civ.R.4.4 / R.C.2703.14 | Kilgore argued service was not perfected (should have served NY Secretary of State / proper corporate agent) | Court held service by publication was proper; reasonable diligence shown; jurisdiction proper |
| Whether trial court abused discretion by denying motion to strike plaintiff’s untimely opposition brief | Fernwalt argued the opposition raised no new issues and was timely enough for hearing | Kilgore argued late filing deprived it of preparation and the brief should be stricken | Court held denial of motion to strike was not an abuse of discretion |
| Whether the trial court properly adopted plaintiff’s proposed findings of fact and conclusions of law | Fernwalt relied on adopting his proposed findings/conclusions to support the judgment | Kilgore argued the proposed findings were never served or made part of the record, so adoption was improper | Court held trial court failed to comply with Civ.R.52: plaintiff’s proposed findings are not in the record and the general judgment lacks adequate findings — reversible error |
| Whether Kilgore was entitled to relief from default under Civ.R.60(B) | Fernwalt argued the default judgment was proper and Kilgore did not justify relief | Kilgore argued it had meritorious defenses, excusable neglect, and moved within a reasonable time | Court held Kilgore met all three GTE factors (meritorious defense, grounds for relief, timely motion) and the motion to vacate should have been granted |
Key Cases Cited
- Samson Sales, Inc. v. Honeywell, Inc., 66 Ohio St.2d 290 (due process requires notice reasonably calculated to apprise interested parties)
- Triplett v. Beachwood Village, Inc., 158 Ohio App.3d 465 (service by publication is not void merely because party could have been served through secretary of state)
- GTE Automatic Elec. v. ARC Indus., 47 Ohio St.2d 146 (GTE test for Civ.R.60(B): meritorious defense, grounds for relief, timeliness)
- Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17 (failure to meet any GTE prong requires denial of 60(B) motion)
- Clark v. Smith, 130 Ohio App.3d 648 (trial court may adopt party’s proposed findings if court thoroughly reviews and ensures accuracy)
- Maloney v. Patterson, 63 Ohio App.3d 405 (findings must be supported by competent, credible evidence)
- Stone v. Davis, 66 Ohio St.2d 74 (purpose of Civ.R.52 findings is to enable meaningful appellate review)
- Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18 (neglect not excusable where there is complete disregard for judicial system)
- Mahlerwein v. Mahlerwein, 160 Ohio App.3d 564 (failure to comply with Civ.R.52 is reversible error)