VINCENT DENITTIS, Plaintiff-Appellee, - vs - AARON CONSTRUCTION, INC., Defendant-Appellant.
CASE NO. 2011-G-3031
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO
December 24, 2012
[Cite as Denittis v. Aaron Constr., Inc., 2012-Ohio-6213.]
THOMAS R. WRIGHT, J.
Civil Appeal from the Chardon Municipal Court, Case No. 2010 CVF 01236. Judgment: Affirmed.
Nora E. Loftus, Frantz Ward, LLP, 2500 Key Center, 127 Public Square, Cleveland, OH 44114-1230 (For Plaintiff-Appellee).
Thomas J. Zaffiro, 4577 Mayfield Road, South Euclid, OH 44121 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{1} Appellant, Aaron Construction, Inc. (“ACI“), appeals from judgments of the Chardon Municipal Court, ordering default judgment against it in the amount of $9,200 and denying its subsequent motion to vacate.
{2} This case involves whether ACI, an Ohio corporation, received proper service of a complaint which was sent to an address that ACI had listed with the Ohio Secretary of State. Thus, dates and events are pertinent.
{4} Thereafter, Denittis claimed ACI‘s work was defective and he retained counsel. Denittis’ counsel contacted Mark Vaughn, ACI‘s president and statutory agent. They had telephone conversations regarding their differences of opinion with respect to the driveway. Denittis’ counsel also sent ACI two follow-up letters.
{5} The first letter was sent to ACI‘s principal place of business address, c/o Vaughn, on June 21, 2010. That letter claimed the driveway was defective and that Denittis wanted to provide ACI with the opportunity to correct the deficiencies.
{6} The second letter was sent to ACI‘s principal place of business address, c/o Vaughn, on July 20, 2010. That letter claimed the driveway was unacceptable and demanded that ACI provide a proposal and schedule for repair by July 23, 2010 or Denittis would file suit. ACI failed to respond or provide a remediation plan.
{7} On August 26, 2010, Denittis filed a four-count complaint alleging: (1) breach of contract; (2) breach of duty to construct in a workmanlike manner; (3) violations of the Ohio Consumer Sales Practices Act; and (4) negligence. Although prior correspondences were sent to ACI‘s principal place of business address, the summons and a copy of the complaint were served via certified mail upon ACI, c/o Vaughn, 4907 Richmond Road, Warrensville Heights, Ohio, 44128 (“statutory address“).
{8} As a result, Denittis requested the court serve ACI via ordinary U.S. mail. On October 26, 2010, the clerk of court sent the summons and a copy of the complaint via ordinary U.S. mail to ACI, c/o Vaughn, at the statutory address. The ordinary mail complaint was never returned as undeliverable. ACI did not file an answer to the complaint.
{9} On December 17, 2010, Denittis filed a motion for default judgment alleging that ACI failed to answer or otherwise plead to the complaint. A copy of the motion was sent via certified mail to ACI, c/o Vaughn, at the statutory address. On December 27, 2010, that motion was returned to Denittis with the designation, “Don‘t live here - return.” At that time, Denittis’ counsel had her assistant conduct an internet search for Vaughn and located a new address, 45 Meadowhill Lane, Chagrin Falls, Ohio 44022 (“Vaughn‘s home address“). Denittis’ counsel did not send anything else to ACI‘s statutory address.
{10} On December 28, 2010, the court granted Denittis’ motion for default and entered judgment against ACI in the amount of $9,200 plus costs and interest. The court found that a copy of the complaint was properly served upon ACI, c/o Vaughn, by ordinary U.S. mail at its statutory address and that ACI failed to respond.
{11} On January 31, 2011, Denittis’ counsel sent letters demanding payment via certified mail to Vaughn‘s home address and to ACI‘s principal place of business address. The record does not reveal that the letter sent to Vaughn‘s home address was never received. However, the letter sent to ACI‘s principal place of business address
{12} On February 7, 2011, ACI filed a motion to vacate the December 28, 2010 judgment pursuant to
{13} In his June 27, 2011 decision, the magistrate determined that because Denittis secured service of process on ACI in a lawful manner, the court had personal jurisdiction over ACI at the time judgment was granted in favor of Denittis. The magistrate also determined that ACI failed to establish a right to relief from judgment under
{14} The court overruled ACI‘s objections, adopted the magistrate‘s decision, and denied ACI‘s motion to vacate. ACI filed a timely appeal, asserting the following assignments of error:
{15} “[1.] The Trial Court erred in denying Appellant/Defendant‘s Motion for relief from Judgment pursuant to Ohio Civ. Rule 60(B)(1) because the
{16} “[2.] The Trial Court was unreasonable in denying Appellant/Defendant‘s Motion for Relief from Judgment because their decision was against the interests of justice and against the manifest weight of the evidence.
{17} “[3.] Since the trial court erroneously erred when finding that service was proper and that notice was given to the Defendant/Appellant; there was no personal jurisdiction on the Defendant/Appellant and any judgment should be void ab initio, thus, the trial court should have granted Defendant‘s/Appellant‘s Motion to Vacate.”
{18} In its first assignment of error, ACI argues the trial court erred in denying its motion for relief from judgment pursuant to
{19} In its second assignment of error, ACI contends the trial court unreasonably denied its 60(B) motion because the court‘s decision concerning factual findings was against the interests of justice and against the manifest weight of the evidence.
{20} Because ACI‘s first and second assignments of error are interrelated, we will address them together.
{21} “An objection to a factual finding, whether or not specifically designated as a finding of fact * * *, shall be supported by a transcript of all the evidence submitted
{22} The magistrate‘s decision simply reads as follows in pertinent part:
{23} “The Court finds [ACI‘s motion to vacate judgment] is not well taken, and it is denied. Specifically, [Denittis] proceeded in a lawful manner in securing service of process on [ACI], and in fact did secure service of process on [ACI]. Accordingly, the court had jurisdiction over defendant at the time judgment was granted in favor of [Denittis]. Further, defendant failed to establish a right to relief from the judgment under
{24} To the extent that ACI challenges the magistrate‘s implicit factual findings encompassed within the above language, it failed to provide the trial court with a transcript, and therefore, cannot challenge this aspect of the magistrate‘s findings on appeal. DiNunzio v. DiNunzio, 11th Dist. No. 2006-L-106, 2007-Ohio-2578, 17. However, provision of a transcript to the trial court is not necessary to preserve on appeal purely legal issues that were raised before the trial court because
{25} “Under Ohio law, it is well-settled that relief from a prior final judgment can only be granted when the moving party has shown that [it] is entitled to relief under one
{26} Thus, “[i]n order to be entitled to relief under
{27} ACI specifically contends that it set forth sufficient operative facts to warrant a finding of “excusable neglect” under
{29} “What constitutes ‘excusable neglect’ depends on the facts and circumstances of each case.” Katko v. Modic, 85 Ohio App.3d 834, 837 (11th Dist.1993). “‘The term “excusable neglect” is an elusive concept and has not been sufficiently defined.‘” Seven Seventeen Credit Union, Inc. v. Dickey, 11th Dist. No. 2008-T-0107, 2009-Ohio-2946, at 20, quoting Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20 (1996). “Consequently, there is no clear and established standard as to what constitutes ‘excusable neglect’ and therefore it is a determination left to the discretion of the trial court.” Dickey at 20, citing Lewis v. Auto. Techs., 2d Dist. No. 19423, 2003-Ohio-1263, at 10. “The Ohio Supreme Court, however, has ‘defined “excusable neglect” in the negative and has stated that the inaction of a defendant is not “excusable neglect” if it can be labeled as a “complete disregard for the judicial system.“‘” Dickey at 20, quoting Kay at 20.
{30} We turn now to the question of whether or not ACI‘s failure to timely answer the complaint constituted “excusable neglect.” This court has held that:
{31} “[P]ursuant to
{33} As mentioned, ACI is an Ohio corporation. Every corporation is required to maintain a statutory agent upon whom “any process, notice, or demand * * * may be served.”
{34} It is undisputed that after the certified mail complaint was returned as “unclaimed,” “unable to forward,” and “return to sender,” Denittis properly requested the court serve ACI via ordinary U.S. mail at the statutory address listed on file with the Secretary of State. The record contains no indication that the complaint, sent via ordinary mail, was ever returned, and thus, there is a presumption that proper service had been perfected. Since ACI was required to maintain the address of its statutory agent with the Secretary of State, Denittis had every reasonable expectation that the
{35} Based on the facts and circumstances of this case, we fail to find “excusable neglect” under
{36} The record fails to establish that Denittis had any knowledge that ACI‘s statutory address was outdated when he served the complaint. Denittis’ counsel filed an affidavit, attached to Denittis’ brief in opposition to ACI‘s 60(B) motion, averring that when she prepared the complaint, she reviewed the Secretary of State‘s records to confirm that ACI was a valid corporation and to obtain ACI‘s statutory address. She further averred that she never intended to deny ACI the opportunity to defend the action and had no reason to believe that the statutory address listed with the Secretary of State was outdated.
{37} Furthermore, as noted previously, Denittis’ complaint against ACI was initially returned with the notations, “unclaimed,” “unable to forward” and “return to sender” when sent via certified mail.
{38} The notation “unable to forward” is somewhat cryptic. It could mean the addressee no longer lives at that address and never provided a forwarding address. It could also mean that the addressee still lives there and receives mail at that address, thus deeming it inherently “unable to forward.” As previously noted, in this case, ACI is a corporation that is required to keep an address for service of process on file with the Secretary of State. There is no dispute that Denittis served ACI at ACI‘s address on file with the Secretary of State at the time of the filing of the complaint. Therefore, the only conclusion is that the complaint was returned “unable to forward” because ACI never changed its address for receiving service of process as required. Moreover,
{39} We do not reach the issue of whether this analysis would apply in a situation where the same notation appears on an envelope where the addressee is not required to keep a good address for service on file. We leave that for another day.
{41} Accordingly, Denittis complied with the Civil Rules and a presumption arose that service was properly perfected. ACI failed to rebut that presumption. Thus, ACI failed to demonstrate excusable neglect. Therefore, the court did not err in concluding that ACI was not entitled to relief under
{42} ACI further contends that it had a meritorious defense. Though the burden was on ACI to allege in its motion for relief from judgment operative facts that would constitute a meritorious defense if found to be true, ACI failed to provide sufficient facts to demonstrate a meritorious defense. ACI, as the moving party, was required to establish operative facts and present them “‘in a form that meets evidentiary standards such as affidavits, depositions, transcripts of evidence, written stipulations or other evidence given under oath.‘” French v. Gruber, 11th Dist. No. 2005-A-0015, 2006-Ohio-1167, 25, quoting Countrywide Home Loans v. Barclay, 10th Dist. No. 04AP-171, 2004-Ohio-6359, 9.
{43} Although ACI argued it could defend the action, and that there would be a number of defenses which would have merit, ACI failed to establish sufficient operative facts in order to constitute a meritorious defense. Vaughn‘s affidavit, attached to ACI‘s 60(B) motion, only states that “in the event [Denittis] wished to pursue legal action against [ACI, ACI] would vigorously defend the same and present evidence in its favor
{44} In its appellate brief, ACI now contends that Denittis never produced evidence to substantiate the allegations in the complaint and that the allegations could only be verified by an expert. However, the record shows that ACI never asserted this argument at the trial level. As a result, ACI has waived the right to raise it for review on appeal. Graham, supra, at 20.
{45} ACI further contends that the trial court “rocketed” this case through and that the court‘s brevity in its judgment shows an arbitrary and capricious view. However, the record reveals that the court adopted the magistrate‘s decision and denied ACI‘s 60(B) motion almost one year after the complaint was filed. Prior to rendering its judgment, the record shows the magistrate allowed both ACI and Denittis to brief the issue and held an evidentiary hearing, thereby exceeding the requirements of
{46} Thus, we conclude the court did not err in denying ACI‘s
{47} In its third assignment of error, ACI alleges the trial court erred in finding that service was proper and that it received notice. ACI contends there was no personal jurisdiction and any judgment is void ab initio. Thus, ACI argues the court should have granted its
{49} For the foregoing reasons, appellant‘s assignments of error are not well-taken. The judgment of the Chardon Municipal Court is affirmed.
TIMOTHY P. CANNON, P.J., concurs with a Concurring Opinion,
MARY JANE TRAPP, J., dissents with a Dissenting Opinion.
TIMOTHY P. CANNON, P.J., concurring.
{50} I concur, but write separately because I do not believe we should reach the merits of whether ACI overcame the presumption of proper service based on Denittis’ compliance with
{51} In this case, there is a presumption that proper service had been perfected. ACI, however, may provide sufficient evidence to overcome the presumption of proper service based on Denittis’ compliance with the Civil Rules. Inclusion of the phrase “unable to forward” raises a question as to whether Denittis should have
{52} Although ACI filed objections to the magistrate‘s decision, it did not submit a transcript of the evidentiary hearing with the trial court. This was recognized by the trial court in its judgment, stating that ACI did not comply with
MARY JANE TRAPP, dissenting.
{53} I respectfully dissent for the reason that the initial failure of service by certified mail precluded plaintiff from requesting the clerk to reissue the summons and
{54} “[I]n order to render a valid personal judgment, a court must have personal jurisdiction over the defendant.” Maryhew v. Yova, 11 Ohio St.3d 154, 156 (1984). “The obligation to perfect service of process is placed only upon the plaintiff, and the lack of jurisdiction arising from want of, or defects in, process or in the service thereof is ground for reversal.” LaNeve v. Atlas Recycling, Inc. 119 Ohio St.3d 324, 2008-Ohio-3921, 22. In reversing a decision of this court, the Supreme Court of Ohio instructed that “it is an established principle that actual knowledge of a lawsuit‘s filing and lack of prejudice resulting from the use of a legally insufficient method of service do not excuse a plaintiff‘s failure to comply with the Civil Rules.” Id. “[T]he Civil Rules are not just a technicality, and we may not ignore the plain language of the rule in order to assist a party who has failed to comply with a rule‘s specific requirements. The Civil Rules are a mechanism that governs the conduct of all parties equally.” (Citation omitted.) Id. at 23.
{55} The majority finds that Aaron Construction waived the issue of personal jurisdiction by failing to specifically object to the magistrate‘s determination that the court had personal jurisdiction. I disagree. While the term of art “personal jurisdiction” is absent from the objections, due process and notice are expressly discussed, and any fair reading of these objections should have alerted the trial court during its independent review to look at its own file, which demonstrates the original failure of certified mail service, as it is plainly and unambiguously contemplated by the civil rules.
{56} Additionally, while Aaron Construction failed to present the trial court with a transcript of the proceedings before the magistrate, the error is apparent from a
{57} It is undisputed that the initial service attempt via
{58} The clerk‘s office appropriately deemed this a failure of service and sent a Notice of Failure of Service to plaintiff‘s counsel; however, the notice only advised of the “unclaimed” notation and not the “return to sender” and “unable to forward” notations.
{59} I agree with the observation in the concurring opinion that “inclusion of the phrase ‘unable to forward’ raises a question as to whether Denittis should have reasonably expected delivery at this address,” but I would argue further that this wording evinces that the addressee is no longer there for purposes of
{61} The deficiency in service of process in this case was apparent from the trial court‘s file, and there was no need to rely on a transcript to demonstrate the error. See Rimedio, supra.
{62}
{63} The Staff Notes to the rule explain that ordinary mail service is permitted if certified mail fails because it was “unclaimed” or “refused,” as these reasons tend to indicate that the addressee is still residing at the address. Thus, ordinary mail reissued to that same address will be delivered, and the due process notice requirement satisfied. The rule simply does not permit ordinary mail service if any other reason for failure is given, even if it is given in combination with the two reasons explicitly given in the rule.
{64} This rationale is buttressed by the fact that the Rules Commission felt it necessary to amend the
{65} Because the trial court‘s own file demonstrated a failure of service, I would reverse the judgment of the trial court.
THOMAS R. WRIGHT
JUDGE, ELEVENTH APPELLATE DISTRICT