LEE A. CHILCOTE, ET AL. v. SYLVIA KUGELMAN, ET AL.
No. 98873
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 9, 2013
2013-Ohio-1896
Civil Appeal from the Cleveland Heights Municipal Court
Case No. CVF 1000668
BEFORE: Keough, J., Celebrezze, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: May 9, 2013
Harvey Kugelman
Harvey Kugelman Co., L.P.A.
450 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
Edgar H. Boles
Moriarty & Jaros, P.L.L.
30000 Chagrin Blvd., Suite 200
Pepper Pike, Ohio 44124-5721
Christian F. Moratschek
The Chilcote Law Firm, L.L.P.
12434 Cedar Road, Suite 3
Cleveland Hts., Ohio 44106
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
{¶2} Defendants-appellants, Sylvia Kugelman and K-Property Management, Inc. (collectively “appellants“), appeal the trial court‘s decision denying its motion to set aside void judgment. For the reasons that follow, we reverse and remand.
{¶3} In July 2010, plaintiffs-appellees, attorney Lee A. Chilcote and The Chilcote Law Firm, L.L.P. (collectively “Chilcote“), filed suit against appellants alleging that appellants breached a contract to pay Chilcote for legal services provided to appellants. According to the complaint, Chilcote was retained by appellants in February 2005 for legal services in connection with real estate and business transactions in Cleveland Heights, Ohio. The attorney-client relationship ended in March 2006.
{¶4} Service of process of the lawsuit on K-Property was attempted via certified mail at the address on file with the Ohio Secretary of State. Kugelman was listed as K-Property‘s statutory agent; thus, service was also attempted on her at the address listed with the Secretary of State. In September 2010, the certified mail was returned to the trial court as “unclaimed” for both appellants. Thereafter, on September 27, 2010, Chilcote requested service of process to be reissued to appellants by regular mail at the same address on file with the secretary of state. Despite the one-year attorney-client relationship between the parties, Chilcote did not attempt to serve appellants at any other known address.
{¶6} In October 2011, appellants filed a motion to set aside void judgment contending that they did not receive notice of the lawsuit; thus, the trial court lacked personal jurisdiction to issue a judgment against them. Chilcote opposed appellants’ motion arguing that service was properly issued in accordance with the civil rules. After no action was taken on appellants’ motion for over six months, appellants filed a renewed motion to set aside void judgment on July 25, 2012. Two days later, on July 27, the trial court denied appellants’ motion, finding that Chilcote complied with
{¶7} Appellants appeal from this order, raising as their sole assignment of error that the “trial court erred in granting a default judgment when service was attempted at an invalid address, when plaintiff used an address not reasonably calculated to reach defendants, and where defendant was not served with the lawsuit, never received any type of notice of the lawsuit and was not aware of the existence of the lawsuit.” Although the assignment of error challenges the trial court‘s decision granting default, the issues and arguments raised within the assignment of error challenge the trial court‘s denial of appellants’ motion to set aside void judgment. Accordingly, we will review the appeal based on the arguments and issues raised.
{¶8} An appellate court reviews the denial of a motion to vacate for an abuse of
{¶9} In this case, the appellants moved to void the default judgment based on lack of personal jurisdiction asserting that they were not served with the lawsuit. Chilcote opposed the motion, arguing that it complied with
It is well accepted that in order to render a valid personal judgment, a court must have personal jurisdiction over the defendant. Personal jurisdiction may only be acquired by service of process upon the defendant, the voluntary appearance and submission of the defendant or his legal representative, or by an appearance that waives of [sic] certain affirmative defenses, including jurisdiction over the person under the Rules of Civil Procedure.
Abuhilwa v. O‘Brien, 2d Dist. No. 21603, 2007-Ohio-4328, ¶ 14, citing Maryhew v. Yova, 11 Ohio St.3d 154, 464 N.E.2d 538 (1984).
{¶10} “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.” Akron-Canton Regional Airport Auth. v. Swinehart, 62 Ohio St.2d 403, 406, 406 N.E.2d 811 (1980), quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The plaintiff bears the burden of obtaining proper service on a defendant. Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d 61, 63, 705 N.E.2d 408 (1st Dist.1997). “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.” Carter-Jones Lumber Co. v. Meyers, 2d Dist. No. 2005 CA 97, 2006-Ohio-5380, ¶ 11.
{¶11} Under
[T]he clerk shall send by 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. * * * 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.
Id.
{¶12} Where service of process is not made in accordance with the Rules of Civil Procedure, the trial court lacks jurisdiction to consider the complaint, and any judgment on that complaint is void ab initio. Rite Rug Co., Inc. v. Wilson, 106 Ohio App.3d 59, 62, 665 N.E.2d 260 (10th Dist.1995). Because a court has the inherent authority to
{¶13} In Rafalski v. Oates, 17 Ohio App.3d 65, 477 N.E.2d 1212 (8th Dist.1984), this court held that
Where a defendant seeking a motion to vacate [a void judgment] makes an uncontradicted sworn statement that she never received service of the complaint, she is entitled to have the judgment against her vacated even if her opponent complied with Civ.R. 4.6 and had service made at an address where it could reasonably be anticipated that the defendant would receive it.
Id., paragraph one of the syllabus.
{¶14} We recognize that other appellate districts have limited this court‘s holding and the effect of a defendant‘s affidavit in these circumstances. See Cincinnati Ins. Co. v Lafitte, 2d Dist. No. 21055, 2006-Ohio-1806; United Home Fed.; Redfoot v. Mikouis, 11th Dist. No. 96-T-5398, 1996 Ohio App. LEXIS 5415 (Nov. 29, 1996) (when process is 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).
{¶15} In this case, and unlike in the cases cited above including Rafalski, appellants attached to their motion more than an uncontroverted affidavit from Kugelman. Appellants attached to their motion an affidavit from Kugelman asserting that (1) service
{¶16} The evidence attached to appellants’ motion is sufficient to rebut the presumption that service was proper. At the very least, the evidence was sufficient for the trial court to hold a hearing or engage in a determination whether the evidence was competent and credible to rebut the presumption of proper service. See United Home Fed., 76 Ohio App.3d at 123. While service at the address listed with the secretary of state may be “reasonably calculated” in most cases, a court should not discount evidence when presented that the serving party has knowledge of another, and possibly, more appropriate address.
{¶17} In Madorsky v. Radiant Telecom, 8th Dist. No. 87231, 2006-Ohio-6409, this court considered a similar case and upheld the trial court‘s decision that the plaintiff failed to demonstrate that service had been perfected on the defendant. This court made specific reference to the fact that nine months prior to filing the lawsuit, the plaintiff sent
{¶18} Much like the plaintiff in Madorsky, counsel for Chilcote received an email from K-Property‘s counsel on October 23, 2009, stating K-Property‘s address. This email was received approximately nine months prior to Chilcote filing the within lawsuit. Despite receiving this email with a different address than listed with the secretary of state, Chilcote did not attempt to send any service of process to this address. This is even more troubling considering that notice was received that the certified mail to the address listed with the secretary of state was returned as “unclaimed.”
{¶19} The Ohio Supreme Court held that courts are to “examine each case upon its particularized facts to determine if notice was reasonably calculated to reach the interested party.” Akron-Canton Regional Airport Auth., 62 Ohio St.2d at 406-407. In this case, the trial court‘s decision did not examine any facts regarding notice. Importantly, it did not analyze or even mention any of the exhibits attached to appellants’ motion. The evidence attached is sufficient to overcome the presumption that service was perfected or, at the very least, sufficient for the trial court to engage in a discussion in its judgment entry or conduct a hearing on the motion. The trial court did
{¶20} Accordingly, we find the trial court abused its discretion in denying appellants’ motion to set aside void judgment because sufficient evidence existed to rebut the presumption that service was proper. Moreover, the trial court‘s reliance on
{¶21} Judgment reversed and remanded for the trial court to vacate the default judgment.
It is ordered that appellants recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS (SEE ATTACHED DISSENTING OPINION)
MARY EILEEN KILBANE, J., DISSENTING:
{¶22} I respectfully dissent. I would affirm the trial court‘s decision denying
{¶23} As the majority notes, 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. Akron-Canton Regional Airport Auth., 62 Ohio St.2d at 406, citing Cent. Hanover Bank & Trust Co. (1950), 339 U.S. at 314. “[I]t is not necessary that service be attempted through the most likely means of success * * * it is sufficient that the method adopted be ‘reasonably calculated’ to reach its intended recipient.” Id. at 406.
{¶24} In support of its decision, the majority cites to Madorsky, 8th Dist. No. 87231, 2006-Ohio-6409. The facts in this case, however, are distinguishable. In Madorsky, the trial court found that the plaintiff presented no evidence to demonstrate the entity it served the complaint upon was, in fact, the defendant‘s statutory agent authorized to receive service on its behalf. Id. at ¶ 8. In footnote 1, this court noted:
[a]lthough not relevant to our review of the trial court‘s determination regarding service, the record on appeal includes a letter dated March 13, 2006[,] from Wayne Rafanelli, Manager, Registered Agent Services, for National Corporate Research, Ltd., 615 South DuPont Highway, Dover, Delaware 19901, informing this court that he was returning a notice of motion the court had attempted to serve in this case, because neither TCS Corporate Services, Inc. nor National Corporate Research, Ltd. are listed as the registered agent for [the defendant] in the State of Ohio and, therefore, cannot accept service on its behalf. Id.
{¶25} Unlike Madorsky, in the instant case the record is clear that Chilcote served the appellants under
{¶26} It is difficult to contemplate a method that is more “reasonably calculated” to reach the intended recipient than the method outlined by the rules of civil procedure. On appeal, we review the denial of a motion to vacate for an abuse of discretion. Linquist, 5th Dist. No. 2006-CA-00119, 2006-Ohio-5712, ¶ 8. Based on the facts of this case, I would find that the trial court‘s decision denying appellants’ motion, without conducting a hearing, was not arbitrary, unreasonable, or unconscionable.
{¶27} Accordingly, I would affirm the trial court‘s decision.