BROOKVILLE ENTERPRISES INC. v. CLARENCE J. KESSLER ESTATE HCF MANAGEMENT INC. ADMINISTRATOR, et al.
Appellate Case No. 29314
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
April 29, 2022
2022-Ohio-1420
Trial Court Case No. 2020-CV-4171
Attorney for Plaintiff-Appellee
R.C. WIESENMAYER, Atty. Reg. No. 0007207, 15 Willipie Street, Suite 300, P.O. Box 299, Wapakoneta, Ohio 45895
Attorney for Defendant-Appellant
OPINION
WELBAUM, J.
{¶ 2} We conclude that the trial court abused its discretion in overruling Kessler‘s motion for relief from the default judgment, which was based on Kessler‘s claim that he had not been properly served with the complaint. The court incorrectly analyzed the motion by referring to
{¶ 3} Accordingly, the judgment of the trial court will be reversed, and this cause will be remanded for further proceedings.
I. Facts and Course of Proceedings
{¶ 5} The address listed in the complaint for Bruce Kessler was 903 Avery Lane, Englewood, Ohio, 45322. On October 28, 2020, Brookhaven asked the sheriff to deliver personal service of the complaint to Kessler at that address. A summons for personal service, with tracking number CVPS000000000048715, was issued on October 29, 2020.
{¶ 6} On October 31, 2020, HFC filed an answer admitting that the estate was insolvent.1 On November 20, 2020, the sheriff filed a return of service, indicating that he had received the summons on November 2, 2020, and had made three attempts to serve it, on November 15, November 16, and November 17, 2020. The door was never answered, nor did the sheriff receive a call back.
{¶ 7} On December 1, 2020, Brookhaven instructed the clerk to issue service to
{¶ 8} On December 14, 2020, the clerk sent Brookhaven a notification of a failure of service for tracking number CVPS000000000048715. The reason for the failure was “never got an answer at door or a call back.”
{¶ 9} On December 28, 2020, Brookhaven asked the clerk to issue service by ordinary mail to Kessler at the Avery Lane address. As a result, the clerk issued service by ordinary mail to Kessler the same day. Kessler did not thereafter file an answer in the action. The ordinary mail was also not returned to the court.
{¶ 10} On January 28, 2021, the trial court filed a default notice, stating that a review of the file indicated that service had been perfected and that Kessler was in default for failure to answer. The court instructed Brookhaven to review its file and ascertain if default proceedings were in order. In addition, the court noted that a failure to file a response to the order within 14 days could result in administrative dismissal of the action. The court electronically notified Brookhaven and HFC and sent a copy of the default notice to Kessler by ordinary mail at the Avery Lane address.
{¶ 11} On February 2, 2021, Brookhaven filed a motion for default judgment, asking the court to grant judgment against Kessler in the amount of $27,188.43, based on his failure to timely file an answer. Brookhaven also attached affidavits to its motion regarding the matters alleged in the complaint and the fact that Kessler was not in the military service. The same day, the court filed a default judgment against Kessler and awarded Brookhaven $27,188.43, plus interest at the statutory rate and costs. The
{¶ 12} Nothing further occurred until June 9, 2021, when the clerk filed a copy of the certified mail envelope that was returned to the court. The envelope was marked with written notations, including “Unclaimed,” and “LN PM 12/3/20.” Further, a printed label stated “Return to Sender,” “Attempted – Not Known,” and “Unable to Forward.”
{¶ 13} On June 30, 2021, Kessler filed a motion for relief from judgment under
{¶ 14} On July 1, 2021, the clerk sent Brookhaven a failure of service notification concerning tracking number 9414726699042175108098, indicating that service had not been perfected due to “Civil Unsuccessful Service.” The comment was: “Attempted Not Known.”
I. Perfection of Service
{¶ 16} Kessler‘s first assignment of error states that:
The Trial Court Committed an Error of Law and/or Abused Its Discretion When It Found That Service Had Been Perfected on Appellant Bruce Kessler.
{¶ 17} Under this assignment of error, Kessler argues that the trial court erred in rejecting his motion because he was never properly served with the complaint. Specifically, Brookhaven‘s request for service by ordinary mail preceded the determination that certified mail had failed, in violation of
{¶ 18} The trial court‘s decision was quite brief and did not discuss all the factors relevant to relief from judgment under
Specifically, the Court notes that successful service was perfected on Defendant Kessler at his home via regular mail on December 29, 2020. Although Defendant Kessler claims he was frequently out of town and had others checking his mail, the Court finds this does not arise to the level of excusable neglect and further notes that the service of the Complaint to
Defendant Kessler‘s home address was reasonably calculated to apprise him of the pendency of this action.
Decision, Order, and Entry Overruling Motion to Set Aside Judgment (Oct. 25, 2021) (“Decision“), p. 2.
{¶ 19} As a preliminary point, Kessler did not need to file a
{¶ 20} Despite the fact that the appropriate procedure was a common law motion to vacate rather than a
{¶ 22} The issue here is whether Kessler was properly served. If not, the default judgment would have been void. “Service of process must be made in a manner reasonably calculated to apprise interested parties of the action and to afford them an opportunity to respond.” Carter-Jones Lumber Co. v. Meyers, 2d Dist. Clark No. 2005-CA-97, 2006-Ohio-5380, ¶ 11, citing Akron-Canton Regional Airport Auth. v. Swinehart, 62 Ohio St.2d 403, 406, 406 N.E.2d 811 (1980). “The plaintiff bears the burden of obtaining proper service on a defendant.” Id., citing Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d 61, 63, 705 N.E.2d 408 (1st Dist. 1997). “In those instances where the plaintiff follows the Civil Rules governing service of process, courts presume that service is proper unless the defendant rebuts this presumption with sufficient evidence of non-service.” Id.
{¶ 23} The threshold issue, then, is whether Brookhaven followed the rules
{¶ 24} In the case before us, the clerk did follow the notification procedures for failure of personal service by notifying Brookhaven‘s attorney on December 14, 2020, of a failure of service for tracking number CVPS000000000048715. This was the tracking number assigned to the personal service request.
{¶ 25} However, for reasons that are unclear from the record, the clerk did not follow the notification procedures for the failure of certified mail service. Instead, the clerk failed to file the returned certified mail envelope until June 9, 2021, which was months after service was issued and after the default judgment was granted.
{¶ 26} What appears to have happened (at least based on the record before us) is that Brookhaven‘s attorney mistakenly assumed that the December 14, 2020 failure of service notification related to the certified mail service, which had been issued on December 1, 2020. However, the tracking number for the certified mail service was 9414726699042175108098. This was quite different than the tracking number used for
{¶ 27} In situations where certified mail is unclaimed,
If a United States certified or express mail envelope attempting service within or outside the state is returned with an endorsement stating that the envelope was unclaimed, the clerk shall forthwith notify the attorney of record * * * and enter the fact and method of notification on the appearance docket. If the attorney, * * * after notification by the clerk, files with the clerk a written request for ordinary mail service, the clerk shall send by United States ordinary mail a copy of the summons and complaint or other document to be served to the defendant at the address set forth in the caption, or at the address set forth in written instructions furnished to the clerk. The mailing shall be evidenced by a certificate of mailing which shall be completed and filed by the clerk. Answer day shall be twenty-eight days after the date of mailing as evidenced by the certificate of mailing. The clerk shall endorse this answer date upon the summons which is sent by ordinary mail. Service shall be deemed complete when the fact of mailing is entered of record, provided that the ordinary mail envelope is not returned by the postal authorities with an endorsement showing failure of delivery. If the ordinary mail envelope is returned undelivered, the clerk shall forthwith
notify the attorney, or serving party.
(Emphasis added.)
{¶ 28} This rule allows an attorney to ask the clerk to issue service by ordinary mail after the clerk notifies the attorney that certified mail service has failed. However, since the clerk had not yet notified Brookhaven‘s attorney that certified mail service had failed, ordinary mail service was not appropriate when Brookhaven filed its request. Again, what appears to have happened is that Brookhaven‘s attorney believed the December 14, 2020 notice of failure of service applied to the certified mail service rather than to the previously-failed personal service.
{¶ 29} As indicated in the statement of facts, Brookhaven requested ordinary mail service on December 28, 2020. One month later, the trial court sent a default notification because service “had been perfected” on Kessler and he had not answered or appeared in the action. This notice was erroneous since service had not been perfected at that point.
{¶ 30} Notably,
{¶ 31} Rather than following these instructions, Brookhaven filed a motion for default judgment on February 2, 2021, and the default judgment was granted the same day. Had the file been reviewed at that time, it would have indicated that the clerk had not filed a return regarding certified mail service.
{¶ 32} In responding to Kessler‘s argument, Brookhaven argues that service was perfected because it was “reasonably calculated” to inform Kessler of the action. Brookhaven relies on the fact that a copy of the motion for default judgment was mailed to Kessler at the address listed in the complaint. Brookhaven further contends that even if it “jumped the gun” by prematurely using ordinary mail service, service was sent to an address where there was a reasonable expectation that Kessler would receive it (Kessler‘s home address). Since the ordinary mail was not returned to the court, Brookhaven argues there was a “reasonable expectation” that it would have been delivered to Kessler.
{¶ 33} Brookhaven does not provide specific authority for these contentions but does point to one case in which we discussed the fact that a party had “jumped the gun” by sending ordinary mail at the same time certified mail was sent. Brookhaven Brief at p. 18, discussing In re S.A., 2d Dist. Montgomery No. 25532, 2013-Ohio-3047. This was in response to Kessler‘s use of S.A. as authority. Id. However, S.A. and the case on which it relied differed in important ways from the current situation.
{¶ 34} S.A. involved change of custody proceedings in which the clerk sent the
{¶ 35} Notably, however, we relied on the fact that the mother was not prejudiced by the contemporaneous filings. In this regard, we stressed that “[s]ignificantly, Mother provided the trial court with no evidentiary materials to support her claim that she did not receive service of the summons at that address, and she appeared by seeking and obtaining a continuance of the initial hearing date of July 16, 2012.” Id. at ¶ 13.
{¶ 36} Certainly, by appearing in the action, the mother could be said to have waived defects in service. There is no question that parties may waive personal jurisdiction by appearing and failing to properly raise the issue. E.g., Lundeen v. Turner, 164 Ohio St.3d 159, 2021-Ohio-1533, 172 N.E.3d 150, ¶ 19; State ex rel. Skyway Invest. Corp. v. Ashtabula Cty. Court of Common Pleas, 130 Ohio St.3d 220, 2011-Ohio-5452, 957 N.E.2d 24, ¶ 16. This is not true in the case before us, since Kessler did not appear in the action before default judgment was granted. In addition, unlike the mother in S.A., Kessler provided evidentiary materials to support his claim of lack of service.
{¶ 37} Cheatham involved two proceedings: a request to enforce a foreign support
{¶ 38} On appeal, we rejected the defendant‘s contention that he was not properly served with notice of the May 1992 hearing on the support arrearage. We noted that due to the defendant‘s previous failure to claim certified mail service, there was little likelihood that he would claim certified service, and ordinary service would be needed. Id. More importantly, we failed to see any prejudice, because the defendant “did not dispute that he received regular mail notice of the May 19, 1992 hearing in time to defend the motion.” Id. at *3. Again, this was not the situation in the case before us.
{¶ 40} The Supreme Court of Ohio has previously distinguished between “Unclaimed” mail and mail that is marked “Attempted – Not Known.” Specifically, the court remarked that “the endorsement ‘Unclaimed’ means that the reason for nondelivery was that the ‘[a]ddressee abandoned or failed to call for mail,’ while the endorsement ‘Attempted – Not Known’ means ‘[d]elivery attempted, addressee not known at place of address.‘” In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 22, quoting The United States Postal Service, Domestic Mail Manual, Section 507, Exhibit 1.4.1, available at http://pe.usps.gov/text/dmm300/507.htm.4
{¶ 41} The court further noted in Thompkins that:
When a postal return reads “Attempted Not Known,” no purpose would be served by a follow-up ordinary mail letter sent to the same address. The “Unclaimed” designation implies that the person may in fact
reside or receive mail at the designated address but for whatever reason has chosen not to sign for the certified mail. In that situation, a follow-up communication by ordinary mail is reasonably calculated to provide the interested party with notice and an opportunity to be heard. Such a communication, not returned, bears a strong inference that the intended recipient received the letter. This is not so, however, with ordinary mail following the return of a certified letter with the endorsement “Attempted Not Known.” The inference then is that the intended recipient does not reside or receive mail at the designated address and is not known to the residents there. A follow-up letter in these circumstances would not permit a similar inference of receipt.
Id. at ¶ 23.
{¶ 42} Due to the inconsistency in the certified mail envelope filed with the clerk of courts, we cannot conclude that a presumption of service attached. The most that can be said is that a dispute existed, given that contradictory descriptions appeared.
{¶ 43} The only further evidence before the court in the context of the motion to vacate was Kessler‘s affidavit, in which Kessler said that he did not have notice of the complaint against him until he received it during a visit with his attorney on June 24, 2021. Kessler further explained that he was out of town during relevant periods of time and had asked two separate friends to collect his mail and to preserve anything important. According to Kessler, these individuals did not inform him that he had received a letter from the Montgomery County Clerk of Courts. Finally, Kessler also stated that he had
{¶ 44} Brookhaven argues that Kessler should have submitted evidence from these friends, and that the trial court was not required to accept his affidavit as credible. However, the court‘s decision was not based on lack of credibility; it was primarily based on a finding that Kessler failed to demonstrate “excusable neglect.” Decision at p. 2. As noted, Kessler was not required to prove excusable neglect; he only had to establish a lack of service. Carter-Jones Lumber, 2d Dist. Clark No. 2005-CA-97, 2006-Ohio-5380, at ¶ 10. The court also failed to consider the failure of notification and the inconsistency in the notations on the certified mail envelope.
{¶ 45} Accordingly, the trial court erred in analyzing the motion to vacate, and its decision was based on unsound reasoning. Kessler‘s first assignment of error therefore is sustained.
III. Failure to Hold Evidentiary Hearing
{¶ 46} Kessler‘s second assignment of error states that:
The Trial Court Committed an Error of Law and/or Abused Its Discretion By Failing to Hold a Hearing Before Ruling on Appellant Bruce R. Kessler‘s Motion for Relief From Judgment.
{¶ 47} Under this assignment of error, Kessler argues that the trial court erred in failing to hold a hearing on whether he had been properly served. In support of this position, Kessler has cited Portfolio Recovery Assocs., L.L.C. v. Thacker, 2d Dist. Clark No. 2008-CA-119, 2009-Ohio-4406. In Portfolio Recovery, the defendant was served at her residence address by certified mail, which was unclaimed. Ordinary mail service was then sent to the same address. Id. at ¶ 2. The defendant was not, however, served with a copy of the motion for default judgment; our opinion also does not indicate whether a copy of the default judgment was sent to her. Id. at ¶ 2-3.
{¶ 48} In any event, the defendant filed a motion to vacate the default judgment shortly after it had been filed, and she submitted an affidavit claiming she had not received the complaint or the default judgment entry. Id. at ¶ 5. The trial court overruled the motion without holding a hearing. Id. at ¶ 7-8.
{¶ 49} On appeal, we concluded that “when process was sent to a defendant at the defendant‘s correct address and the defendant has only his self-serving testimony that he did not receive service of process, the court must hold a hearing to determine whether service was proper.” Id. at ¶ 31, citing Sec. Nat. Bank & Trust Co. v. Murphy, 2d Dist. Clark No. 2552, 1989 WL 80954 (July 20, 1989).
{¶ 50} Unlike the present case, the clerk in Portfolio Recovery appears to have properly complied with procedures for service. Therefore, the case is not controlling.
{¶ 51} Nonetheless, there is disputed evidence here about whether service was, in fact, “Unclaimed” or was “Attempted – Not Known.” There is also some confusion about the proper zip code. The default notice, the motion for default judgment, and the default judgment entry were all sent by ordinary mail to the 903 Avery Lane address, which is also the address listed on Kessler‘s affidavit. However, the zip code on these documents and on the service documents was 45322, whereas the zip code on Kessler‘s
{¶ 52} Based on the preceding discussion, the second assignment of error is sustained. This cause will be remanded for a hearing on the service of process.
IV. Relief Under Civ.R. 60(B)
{¶ 53} Kessler‘s third assignment of error is as follows:
The Trial Court Abused Its Discretion By Denying Appellant Bruce R. Kessler‘s Motion for Relief from Judgment Pursuant to Civ.R. 60(B)(1) and Civ.R. 60(B)(5).
{¶ 54} As an alternative argument, Kessler contends that his motion should have been granted under
VI. Conclusion
{¶ 55} The judgment of the trial court is reversed, and this matter is remanded for further proceedings consistent with this opinion.
Copies sent to:
Alexander W. Cloonan
R.C. Wiesenmayer
Hon. Dennis J. Adkins