2019 Ohio 3932
Ohio Ct. App.2019Background
- Lucas County Treasurer filed a tax-foreclosure action against Mt. Airy Investments (Aug 2017); case assigned to the board of revision.
- Clerk sent certified mail to Mt. Airy’s statutory agent (Dan Robinson) which was returned unclaimed; clerk then mailed service by ordinary mail to same address and the ordinary-mail envelope was not returned.
- Board of revision adjudicated foreclosure (Dec 15, 2017), finding default, delinquent taxes, and that the parcel was abandoned land.
- Mt. Airy moved for relief from judgment (June 21, 2018), claiming it never received service, pointing to an unrelated complaint appearing on the court docket and submitting affidavits from the member (Kamal), his attorney-in-fact (Aldabel), and the statutory agent (Robinson).
- Trial court denied the motion (Nov 8, 2018); Mt. Airy appealed seeking void-judgment relief and Civ.R. 60(B) relief for excusable neglect and other reasons.
Issues
| Issue | Plaintiff's Argument (Treasurer) | Defendant's Argument (Mt. Airy) | Held |
|---|---|---|---|
| Whether the foreclosure adjudication was void for lack of service | Proper service presumed under Civ.R. 4.6(D) after certified mail returned unclaimed and ordinary mail not returned; presumption not rebutted | Service was insufficient: docket showed an unrelated complaint so mail may not have given notice; statutory agent says he never received a summons | Service presumed proper; Mt. Airy failed to rebut presumption; adjudication not void |
| Whether Mt. Airy is entitled to relief under Civ.R. 60(B) (excusable neglect / other reasons) | Mt. Airy failed to allege operative facts showing excusable neglect or a meritorious defense; agent’s claimed nonreceipt is insufficient | Agent’s failure to forward summons caused defendant’s default; Mt. Airy has meritorious defense (redeem/not abandoned) and seeks relief under Civ.R. 60(B)(1) and (5) | Denial affirmed: Mt. Airy did not meet GTE test (no operative facts showing excusable neglect or meritorious defense); Civ.R. 60(B)(5) inapplicable to void-judgment/service claim |
Key Cases Cited
- Mantho v. Bd. of Liquor Control, 120 N.E.2d 730 (court must have jurisdiction to render valid judgment)
- Maryhew v. Yova, 464 N.E.2d 538 (service of process is source of personal jurisdiction)
- Akron-Canton Reg'l Airport Auth. v. Swinehart, 406 N.E.2d 811 (service must be reasonably calculated to give notice)
- GTE Automatic Elec., Inc. v. Arc Indus., Inc., 351 N.E.2d 113 (three-part test for Civ.R. 60(B) relief)
- Kay v. Marc Glassman, Inc., 665 N.E.2d 1102 (movant need not support 60(B) motion with evidentiary materials but must allege operative facts)
- Strack v. Pelton, 637 N.E.2d 914 (GTE requirements are conjunctive)
- Gaston v. Medina Cty. Bd. of Revision, 975 N.E.2d 941 (what procedural flaws rebut presumption of mailed notice)
- State v. Apanovitch, 121 N.E.3d 351 (courts may vacate void judgments because they are nullities)