MICHAEL FAMAGELTTO d.b.а. FIVE STAR LANDSCAPING v. LOUIS A. TELERICO
CASE NO. 2012-P-0146
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
August 19, 2013
2013-Ohio-3666
COLLEEN MARY O‘TOOLE, J.
[Cite as Famalgeltto v. Telerico, 2013-Ohio-3666.] OPINION. Civil Appeal from the Portage County Court of Common Pleas, Case No. 2012 CV 0352. Judgment: Reversed and Remanded.
Susan J. Lax, 755 White Pond Drive, #403, Akron, OH 44320 (For Defendant-Appellant).
COLLEEN MARY O‘TOOLE, J.
{¶1} Appellant, Louis A. Telerico (hereafter Telerico), appeals from judgments of the Portage County Common Plеas Court, ordering default judgment against him in the amount of $42,231.65 and denying his subsequent motion to vacate.
{¶2} This case involves whether Telerico received proper service of a comрlaint which was sent to his home address. Thus, dates and events are relevant.
{¶4} As a result, Famageltto requested the court serve Telerico via ordinary U.S. mail. On May 2, 2012, the clerk of court sent the summons and a copy of the complaint via ordinary U.S. mail to Louis A. Telerico, 545 Bristol Way, Aurora, Ohio 44202. The ordinary mail complaint was never returned as undeliverable. Telerico did not file an answer to the complaint.
{¶5} On June 6, 2012, Famagelttо filed a motion for default judgment alleging that Telerico failed to answer or otherwise plead to the complaint. There is no indication from the common pleas docket thаt a copy of the motion was sent to Telerico. On July 6, 2012, the court granted Famageltto‘s motion for default and entered judgment against
{¶6} On August 29, 2012, Telerico filed a motion to vacate the July 6, 2012 judgment pursuant to
{¶7} In his October 10, 2012 decision, the judge determined that Telerico failed to establish a meritorious defense under
{¶8} Telerico filed a timely appeal, asserting a sole assignment of error:
{¶9} “The trial court erred and abused its discretion in finding that Defendant-Appellant did not raise a ‘meritorious defense’ in Defendant‘s Motion for Relief under
{¶10} An appellate court reviews the denial of a motion to vаcate under an abuse of discretion standard. See e.g. Linquist v. Drossel, 5th Dist. Stark No. 2006-CA-00119, 2006-Ohio-5712. The phrase “abuse of discretion” indicates the trial court‘s attitude in issuing its decision was arbitrary, unreasonable, or otherwise unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Even though there is a preference in the law for deciding matters upon their merits, a court‘s decision
{¶11} In Ohio, it is well-established that before a trial court can enter judgment against a defendant, it must first have personal jurisdiction over the defendant. Sweeney v. Smythe, Cramer Co., 11th Dist. Geauga Nos. 2002-G-2422 and 2002-G-2448, 2003-Ohio-4032, ¶12. Accordingly, a default judgment issued by a court without jurisdiction over the person of the defendant is void. Id. The authority to vacate a void judgment is not derived from
{¶12} To be valid, service of process must satisfy
{¶13} “If a United States certified or express mail envelope attempting service within or outside thе state is returned with an endorsement stating that the envelope was unclaimed, the clerk shall forthwith notify the attorney of record or, if there is no attorney of record, the party at whose instance process was issued and enter the fact and method of notification on the appearance docket. If the attorney, or serving party,
{¶14} Under the above rule, servicе is effective when the fact of mailing is entered on the record, unless the ordinary mail envelope is returned undelivered. The ordinary mail envelope was not returned as undelivered in this mаtter. There is a presumption that proper service has been perfected as long as the ordinary mail was sent to an address where there is a reasonable expeсtation that it will be delivered to the defendant. Redfoot v. Mikouis, 11th Dist. Trumbull No. 96-T-5398, 1996 Ohio App. LEXIS 5415, *5 (Nov. 29, 1996); see also News-Herald v. Bahr, 11th Dist. Lake No. 2002-L-176, 2003-Ohio-6223, ¶18. However, this presumption is rebuttable where the defendant presents sufficient evidence that service was not properly perfected. Redfoot, supra.
{¶16} Telerico‘s argument is supported by the Eighth Appellate District‘s opinion in Rafalski v. Oates, 17 Ohio App.3d 65 (8th Dist.1984). In Rafalski, the court held:
{¶17} “Where a party seeking a motion to vacate makes an uncontradicted sworn statеment that she never received service of a complaint, she is entitled to have the judgment against her vacated even if her opponent complied with
{¶18} However, various districts, including this one, have found a blanket application оf the rule announced in Rafalski inappropriate. See Redfoot, supra; see also Old Meadow Farm Co. v. Petrowski, 11th Dist. Geauga No. 2000-G-2265, 2001 Ohio App. LEXIS 782, *8-9 (Mar. 2, 2001); Infinity Broadcasting, Inc. v. Brewer, 1st Dist. Hamilton No. C-020329, 2003-Ohio-1022, ¶8; Sec. Natl. Bank and Trust Co. v. Murphy, 2d Dist. Clark No. 2552, 1989 Ohio App. LEXIS 2868, *4 (July 20, 1989). In these cases, the courts have held that an unchallenged, self-serving affidavit may be insufficient to vacate an еntry of default judgment. These courts have held that a trial court may overrule the motion to vacate if, after an evidentiary hearing is held, it does not find defendant‘s testimony that service was not received credible. Under these circumstances, the self-serving affidavit will not rebut the presumption of proper service of process.
{¶20} A review of the record shows that the trial court did not hold a hearing on Telerico‘s motion to vacate. Additionally, in its decision the trial court did not address Telerico‘s claim that he never received service of the complaint. Instead the trial court held that Telerico had not established a meritorious defense as outlined in
{¶21} The judgment of the Portage County Court of Common Pleas is reversed and this matter is remanded for further proceedings consistent with this opinion. It is ordered that appellee is assessed costs herein taxed.
CYNTHIA WESCTOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.