2021 Ohio 3248
Ohio Ct. App.2021Background:
- Plaintiffs (Mammone, R. Fisher, J. Fisher) owned Belmont County land; a 1970 deed reserved one-half of the oil & gas to multiple grantors and their heirs.
- In May 2013 plaintiffs sued to quiet title to the reserved oil & gas, naming 18 defendants (including Huddleston heirs); service on four defendants was attempted and then an affidavit for service by publication was filed after addresses allegedly could not be ascertained.
- Notice was published weekly for six weeks; defendants named in the affidavit failed to answer and the court entered default and a quiet-title judgment in 2013–2014.
- In September 2020 four Huddleston relatives (and one spouse) moved to vacate the default judgment nearly seven years later, arguing lack of personal jurisdiction because plaintiffs had not exercised reasonable diligence before resorting to publication.
- Plaintiffs produced an attorney affidavit and search-file documents listing probate, public-record and online database searches (Westlaw People Search, idocket.com, Whitepages, Google, Peoplesmart, etc.).
- Trial court found the affidavit raised a rebuttable presumption of reasonable diligence that appellants failed to rebut; alternatively, the court found plaintiffs had exercised reasonable diligence. This appeal affirmed the denial of the motion to vacate.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication was proper and the judgment void for lack of personal jurisdiction | Plaintiffs: affidavit + six-week publication complied with Civ.R. 4.4 and R.C. 2703.14; affidavit creates rebuttable presumption of reasonable diligence; appellants failed to rebut | Huddleston Heirs: plaintiffs did not use reasonable diligence to locate four defendants before publication; actual notice lacking; judgment therefore void and vacatable at any time | Court: affidavit created presumption of diligence; appellants did not present sufficient evidence to rebut; even if rebutted plaintiffs proved reasonable diligence; judgment valid and denial of vacatur affirmed |
Key Cases Cited
- Lincoln Tavern Inc. v. Snader, 165 Ohio St. 61 (1956) (judgment without proper service is void)
- Patton v. Diemer, 35 Ohio St.3d 68 (1988) (void judgments may be attacked outside Civ.R. 60(B))
- Sizemore v. Smith, 6 Ohio St.3d 330 (1983) (affidavit for publication gives rise to rebuttable presumption of reasonable diligence; provides examples of reasonable search steps)
- Brooks v. Rollins, 9 Ohio St.3d 8 (1984) (defendant may present independent evidence contradicting plaintiff's diligence)
- In re Thompkins, 115 Ohio St.3d 409 (2007) (due process does not require actual notice; publication adequate when whereabouts cannot reasonably be ascertained)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (publication acceptable as substitute notice where more adequate notice is not reasonably possible)
- American Tax Funding LLC v. Robertson Sandusky Props., 26 N.E.3d 1202 (7th Dist. 2014) (failure to use reasonable diligence before publication can render default judgment void)