Khatib v. Peters
2015 Ohio 5144
Ohio Ct. App.2015Background
- Khatibs filed their tort action on February 19, 2013 seeking damages from Peters for a December 20, 2011 auto accident.
- Efforts to serve Peters at East 260th Street in Euclid via ordinary and certified mail were unsuccessful; case was dismissed for want of prosecution on August 21, 2013.
- Refiled March 12, 2014; attempted service by certified and ordinary mail at Northfield Avenue in Cleveland failed; First Acceptance Insurance was added as a party and moved to dismiss or for summary judgment.
- Due to locating Peters, counsel sought service by publication on June 5, 2014; skip-trace and other searches were conducted to locate Peters’ address.
- Publication was completed; trial court deemed service effected and entered default judgment in September-October 2014 awarding medical expenses, property damage, and pain and suffering.
- Peters moved to vacate the default judgment under Civ.R. 60(B) and to quash service by publication; trial court denied without opinion, prompting appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication was valid and the default judgment void | Khatibs contend service by publication complied with Civ.R. 4.4 and R.C. 2703.14(L) and Peters concealed to avoid service. | Peters argues publication was improper due to lack of valid address and no concealment; service was not validly perfected. | Sustained; service was not clearly valid; remand for evidentiary hearing on service and concealment. |
| Whether Civ.R. 60(B)(5) relief from judgment was warranted | Khatibs contend the requirements for relief were satisfied and the court should grant relief. | Peters argues the motion under Civ.R. 60(B)(5) is improper given lack of valid service and void judgment. | Moot; since first issue sustained, second issue not reached. |
Key Cases Cited
- Sizemore v. Smith, 6 Ohio St.3d 330 (1983) (reasonable diligence defined; steps to locate address)
- Brooks v. Rollins, 9 Ohio St.3d 8 (1984) (concealment inference from inability to locate after diligence)
- Patton v. Diemer, 35 Ohio St.3d 68 (1988) (inherent authority to vacate void judgments; lack of service)
- E. Ohio Gas Co. v. Walker, 59 Ohio App.2d 216 (1978) (distinction between Civ.R. 56 standards and lack of service relief)
- Deutsche Bank Trust Co. Ams. v. Pearlman, 162 Ohio App.3d 164 (2005) (service by publication; standards for relief from judgment)
- State ex rel. Ballard v. O’Donnell, 50 Ohio St.3d 182 (1990) (void judgment for lack of service; entitlement to vacation)