2020 Ohio 3280
Ohio Ct. App.2020Background
- Midland Funding filed a debt-collection complaint against Nathan Cherrier on December 22, 2008; the Cuyahoga County clerk attempted certified-mail service to 3365 Tullamore Rd., Cleveland Heights, which was returned "unclaimed." Ordinary mail was then sent in February 2009 and not returned; no answer was filed and a default judgment entered in May 2009.
- Midland sought to revive the dormant default judgment in October 2018; certified-mail service of the revival motion was again returned "unclaimed," and ordinary mail was sent in December 2018.
- Cherrier moved in January 2019 to quash service and dismiss, testifying under oath he moved out of the Tullamore address in July 2008, had his mail forwarded, never received the complaint or summons, and only learned of the litigation when his mother contacted him in January 2019.
- The trial court denied Cherrier’s motion to vacate the default judgment (converting it to a Civ.R. 60(B) motion) and found service proper because the complaint was mailed to his last known address.
- On appeal the Eighth District held Cherrier’s sworn testimony rebutted the presumption of proper service, Midland offered no evidence to the contrary, and therefore the court lacked personal jurisdiction and the default judgment was void.
- The court reversed, remanded to vacate the default judgment, and ordered the complaint dismissed without prejudice under Civ.R. 12(B)(2),(4),(5).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in denying motion to vacate default judgment for lack of personal jurisdiction/service | Service was complete by ordinary mail to defendant's last known address under Civ.R. 4.6(D) | Defendant swore he did not reside at the address at time of service and never received process; presumption of service rebutted | Reversed — sworn testimony rebutted presumption; plaintiff produced no contrary evidence; default judgment void for lack of personal jurisdiction |
| Whether the court abused discretion by disregarding unrefuted sworn testimony about residence and notice | Mailing to last known address sufficed; docket entry shows mailing | Sworn testimony that defendant moved before service and had no notice until 2019 rebutted the presumption | Abused discretion; court applied incorrect standard (mailing alone not enough once rebutted) |
| Whether the complaint should have been dismissed for failure to effect proper service/commence within required time | Service was timely completed by mailing | Because service was not properly perfected, the action was not properly commenced and dismissal is appropriate | Complaint must be dismissed without prejudice under Civ.R. 12(B)(2),(4),(5); plaintiff may refile if not barred by limitations |
Key Cases Cited
- Maryhew v. Yova, 11 Ohio St.3d 154, 464 N.E.2d 538 (Ohio 1984) (a court must have personal jurisdiction over a defendant to enter a valid judgment)
- Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (Ohio 1988) (a judgment rendered without personal jurisdiction is void; authority to vacate void judgment is inherent)
- State ex rel. Ballard v. O’Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650 (Ohio 1990) (no personal jurisdiction absent proper service or appearance)
- Akron-Canton Reg. Airport Auth. v. Swinehart, 62 Ohio St.2d 403, 406 N.E.2d 811 (Ohio 1980) (service must be reasonably calculated to apprise defendant and afford opportunity to respond)
- Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d 61, 705 N.E.2d 408 (Ohio Ct. App. 1997) (plaintiff bears burden to obtain proper service; courts presume service is proper if rules followed)
- Berger v. Mayfield Heights, 265 F.3d 399 (6th Cir. 2001) (standard for abuse of discretion includes misapplication of legal standard or reliance on clearly erroneous facts)
- Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inc., 114 Ohio St.3d 82, 868 N.E.2d 663 (Ohio 2007) (dismissal otherwise than on the merits operates as failure not on the merits; refiling permitted unless barred by limitations)
- Thomas v. Freeman, 79 Ohio St.3d 221, 680 N.E.2d 997 (Ohio 1997) (statute-of-limitations consequences following dismissal without prejudice)