Belisle Constr., Inc. v. PerryBelisle Constr., Inc. v. Perry
David T. Ball for Appellant
Mark F. Powell for Appellee
{¶1} Defendant-appellant, Kenneth Perry, d.b.a., Perry’s Heating & Cooling (“Perry”), appeals the September 5, 2017 judgment of the Crawford County Court of Common Pleas denying Perry’s
{¶2} On September 29, 2014, Belisle filed a complaint alleging claims for breach of contract, fraud, trespass to chattels, and theft. (Doc. No. 1). Because Perry did not file an answer to the complaint, Belisle filed a motion for default judgment on December 26, 2014. (Doc. No. 4). The trial court granted Belisle’s motion for default judgment on January 21, 2015. (Doc. No. 6).
{¶3} On February 23, 2017, Perry field a motion for relief from judgment under
{¶4} Following a hearing on May 9, 2017, the trial court denied Perry’s
Assignment of Error No. I
The triаl court erred by refusing to vacate a judgment in a matter that must be resolved by arbitration.
Assignment of Error No. II
The trial court erred by denying Defendant’s motion to vacate Judgment.
{¶6} In his assignments of error, Perry argues that the trial court abused its discretion by denying his motion to vacate the trial court’s default judgment—filed under
Standard of Review
{¶7} “A motion for relief from judgment under
Analysis
{¶8}
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under
Rule 59(B) ; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon whiсh it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
{¶9} In order to prevail on a motion brought under
{¶10} As an initial mattеr, we must note that Perry filed his motion to vacate the trial court’s default judgment under
{¶11} “The authority to vacate a void judgment is not derived from
{¶12} “Nevertheless, where a party attempts to vacate a void judgment through a
{¶13} Generally, “[a] trial court’s decision regarding а motion to vacate a judgment will not be overturned on appeal absent an abuse of discretion.” Id. at ¶ 9, citing C & W Invest. Co. at ¶ 7. As we previously stated, an abuse of discretion
{¶14} In this case, the trial court did not abuse its discretion by denying Perry’s motion to vacate the entry granting default judgment in favor of Belisle because the trial court neither lacked subject-matter jurisdiction nor personal jurisdiction over Perry.
{¶15} Under his first assignment of error, Perry contends that he is entitled to relief from judgment because Belisle’s claims are subject to arbitration under
{¶16} “Subject-matter jurisdiction is the power of a court to entertain and adjudicate a рarticular class of cases.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 19. “A court’s subject-matter jurisdiction is determined without regard to the rights of the individual parties involved in a particular case.” Id.
{¶17} “We review the issue of subject-matter jurisdiction de novo.” Klosterman v. Turnkey-Ohio, L.L.C., 182 Ohio App.3d 515, 2009-Ohio-2508, ¶ 19 (10th Dist.). See also DeChellis v. Estate of DeChellis, 5th Dist. Stark No. 2020CA00025, 2020-Ohio-5111, ¶ 9. “De novo review is independent and without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S. Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.).
{¶18} Under “
{¶19} “Unlike subject-matter jurisdiction, which can be raised at any time, the right to arbitrate may be waived.” Id. at ¶ 17. See also Murtha v. Ravines of McNaughton Condominium Assn., 10th Dist. Franklin No. 09AP-709, 2010-Ohio-1325, ¶ 20. (“Like any other contractual right, the right to arbitrate may be waived.”). “A defendant can “save” [his or her] right to arbitrate pursuant to a written agreement by filing an application to stay legal proceedings pending arbitration pursuant to
{¶20} Here, Perry waived any right to arbitrate (even assuming the existence of an arbitration clause in the contrаct between the parties). Specifically, Perry took no steps to respond to the claims brought against him in this case for more than two years and sat on his rights for more than one year after he became aware of the case when Belisle sought garnishment. See Minkin at ¶ 18. Morever, Perry did not move for a stay under
{¶21} Furthermore, under his second assignment of error, Perry contends that he should be granted relief from judgment because Belisle failed to properly serve him with the summons and complaint in this cаse. “‘“It is rudimentary that in order to render a valid personal judgment, a court must have personal jurisdiction over the defendant.”’” Britton v. Britton, 4th Dist. Washington No. 18CA10, 2019-Ohio-2179, ¶ 12, quoting State ex rel. Doe v. Capper, 132 Ohio St.3d 365, 2012-Ohio-2686, ¶ 13, quoting Maryhew v. Yova, 11 Ohio St.3d 154, 156 (1984). “‘“It is axiomatic that for a court to acquire jurisdiction there must be a proper service of summons or an entry of appearance, and a judgment rendered without proper service or entry of appearance is a nullity and void.”’” Id., quoting State ex rel. Ballard v. O’Donnell, 50 Ohio St.3d 182, 183 (1990), quoting Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61, 64 (1956).
{¶22} “‘An appellate court reviews a trial court’s determination of whether personal jurisdiction over a party exists under a de novo standard of review.’” Id. at ¶ 13, quoting State ex rel. Athens Cty. Dept. of Job & Family Servs. v. Martin, 4th Dist. Athens No. 07CA11, 2008-Ohio-1849, ¶ 13. “However, ‘[a] reviewing court will not disturb a trial court’s finding regarding whеther service was proper unless the trial court abused its discretion.’” Id., quoting Beaver v. Beaver, 4th Dist. Pickaway No. 18CA5, 2018-Ohio-4460, ¶ 8. Again, for this court to conclude that the trial court abused its discretion, we must find that it acted unreasonably, arbitrarily, or unconscionably. Blakemore, 5 Ohio St.3d at 219.
{¶23} “‘The plaintiff bears the burden of obtaining proper service on a defendant.’” Id. at ¶ 14, quoting Beaver at ¶ 9. A rebuttablе presumption “‘of proper service arises when the record reflects that a party has followed the Civil Rules pertaining to service of process.’” Bader v. Ferri, 3d Dist. Allen No. 1-13-01, 2013-Ohio-3074, ¶ 20, quoting Poorman v. Ohio Adult Parole Auth., 4th Dist. Pickaway No. 01CA16, 2002 WL 398721, *2 (Mar. 6, 2002), citing Potter v. Troy, 78 Ohio App.3d 372, 377 (2d Dist.1992).
{¶24} “To rebut the presumption of proper service, ‘“the other party must produce evidentiary-quality information demonstrating that he or she did not receive service.”’” Britton at ¶ 15, quoting Hendrickson v. Grider, 4th Dist. No. 16CA3737, 2016-Ohio-8174, ¶ 32, quoting McWilliams v. Schumacher, 8th Dist. Cuyahoga Nos. 98188, 98288, 98390 and 98423, 2013-Ohio-29, ¶ 51. “‘In general, “[i]n determining whether a defendant has sufficiently rebutted the presumption of valid service, a trial court may assess the credibility and competency of the submitted evidence demonstrating non-service.”’” Id., quoting Boggs v. Denmead, 10th Dist. Franklin No. 17AP-199, 2018-Ohio-2408, ¶ 31, quoting Bowling v. Grange Mut. Cas. Co., 10th Dist. Franklin No. 05AP-51, 2005-Ohio-5924, ¶ 33, and citing Lauver v. Ohio Valley Selective Harvesting, LLC, 12th Dist. Clermont No. CA2016-11-076, 2017-Ohio-5777, ¶ 18. “‘A trial court is not required to give preclusive effect to a movant’s sworn statement that [the movant] did not receive service of process when the record contains no other indication that service was ineffectual.’” Britton at ¶ 15, quoting TCC Mgt., Inc., 2005-Ohio-4357, at ¶ 15.
{¶25} “
{¶26} Here, the trial court concluded that Perry “was unable to rebut the presumption of good service” because “the рarties both agreed that [Perry’s] address was in fact 9438 Harrisburg Pike/State Route 62, Orient, OH [and that] Certified Mail receipt is signed with a date of 10/2/14.” (Doc. No. 59). Based on our review of the record, we conclude that the trial court’s conclusion that service was proper in this case is not unreasonable, arbitrary, or unconscionable. Specifically, the
{¶27} Nevertheless, Perry contends that he was not properly served and that the trial court abused its discretion by failing to vacate its entry granting default judgment in fаvor of Belisle based on “the undisputed evidence [that] shows that [he] was never served with the summons and complaint * * * .” (Appellant’s Brief at 6). However, the evidence that Perry alleges rebuts the presumption of proper service includes affidavits from Perry and his ex-wife averring that neither’s signature аppears on the signed certified-mail receipt as well as Perry’s self-serving testimony from the May 9, 2017 hearing. (See Doc. No. 40); (May 9, 2017 Tr. at 14-16). Specifically, as evidence that he was not served the summons and complaint, Perry avers in his affidavit (and he testified at the hearing) that the signature on the certifiеd-mail receipt is either a forgery of his signature or is illegible. (Doc. No. 40); (May 9, 2017 Tr. at 19).
{¶28} On cross-examination (and on the court’s examination), Perry further testified that he did not receive any document sent by the trial court by regular mail
{¶29} The trial court was not required to give preclusive effect to Perry’s self-serving statements. Chuang Dev. LLC v. Raina, 10th Dist. Franklin No. 15AP-1062, 2017-Ohio-3000, ¶ 49 (“The trial court, however, was not required to give preclusive effect to Raina’s affidavit.”). See also Thompson v. Bayer, 5th Dist. Fairfield No. 2011-CA-00007, 2011-Ohio-5897, ¶ 27 (“Here, it is apparent the court simply did not believe Appellant’s testimony.”). Based on the evidence before the trial court, we cannot say that the trial court acted unreasonably, arbitrarily, or unconscionably by concluding that Perry did not present sufficient evidence to rebut the presumption of proper service. Accordingly, we conclude that the trial court
{¶30} For these reasons, we conclude that the trial court did not abuse its discretion by denying Perry’s motion to vacate its default judgment in favor of Belisle.
{¶31} Perry’s assignments of error are overruled.
{¶32} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and SHAW, J.J., concur.
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