Lucas Cty. Treasurer v. Mt. Airy Invests. Ltd.Lucas Cty. Treasurer v. Mt. Airy Invests. Ltd.
Decided: September 27, 2019
Julia R. Bates, Lucas County Prosecuting Attorney, Evy M. Jarrett and Suzanne Mandros, Assistant Prosecuting Attorneys, for appellee.
Howard B. Hershman, for appellant.
David J. Coyle and Emily M. Morrison, for intervenor Lucas County Land Reutilization Corporation.
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MAYLE, P.J.
{¶ 1} Appellant, Mt. Airy Investments Ltd. (“Mt. Airy“), appeals the November 8, 2018 judgment of the Lucas County Court of Common Pleas that denied Mt. Airy‘s motion for relief from judgment. For the following reasons, we affirm.
{¶ 2} In August 2017, appellee, Wade Kapszukiewicz, who was then the Lucas County treasurer (“the treasurer“), filed a tax foreclosure case against property owned by Mt. Airy. The case was assigned to the Lucas County board of revision. The record reflects that the Lucas County clerk of courts sent a summons, by certified mail, to Dan Robinson, Mt. Airy‘s statutory agent, at 1012 St. James Court, Toledo. The certified mail was returned unclaimed. On October 19, 2017, the clerk sent Robinson a summons at the same address by ordinary mail. The ordinary mail was not returned to the clerk of courts.
{¶ 3} On December 15, 2017, the board of revision filed an adjudication of foreclosure against the property, finding that Mt. Airy was in default for failing to answer, Mt. Airy owed $35,157.88 in delinquent taxes, fees, and costs, and that the property was “abandoned land and/or vacant land as defined in
{¶ 4} In support of its motion, Mt. Airy submitted the affidavits of Adel Kamal, the sole member of Mt. Airy; Tammy Aldabel, Kamal‘s “attorney in fact” when the complaint was filed; and Robinson.
{¶ 5} In his affidavit, Kamal averred that he was incarcerated at all relevant times and had given Aldabel power of attorney to exercise his rights as the member of Mt. Airy. According to Kamal, when Mt. Airy received a summons, the usual process was that the summons was forwarded to him to determine what action should be taken. He said that he did not receive a summons, a copy of the complaint in the underlying tax foreclosure case, or any notice that Robinson had received a summons or copy of the complaint. He claimed that, had he been aware of the tax foreclosure case, he would have defended against the case by claiming that the property was not abandoned, or he would have liquidated other assets to pay the delinquent taxes.
{¶ 6} Aldabel, in her affidavit, confirmed that she had power of attorney to act on Kamal‘s behalf at the time the tax foreclosure was filed. She also said that she did not receive notice from Robinson about the proceedings and was unaware of the proceedings until May 2018.
{¶ 7} In his affidavit, Robinson confirmed that he was the statutory agent for Mt. Airy at the time the complaint was filed, that his address was 1012 St. James Court, Toledo, and that if he received any summonses or “official notification[s]” addressed to
{¶ 8} On August 3, 2018, the treasurer filed a memorandum in opposition to Mt. Airy‘s motion, arguing that service was presumed and Mt. Airy was not entitled to relief from judgment under
{¶ 9} On November 8, 2018, the trial court denied Mt. Airy‘s motion “for the reasons articulated in [the treasurer‘s] memorandum in opposition * * *.”
{¶ 10} Mt. Airy now appeals, raising two assignments of error:
I. The court below erred when it failed to grant Appellant‘s motion for relief from judgment without a hearing. The facts of the case regarding service of the summons and complaint do not show that service was complete so as to invoke the jurisdiction of the court below and, as a consequence, the judgment rendered by the court below was void ab initio. (Italics sic.)
II. The court below abused its discretion by failing to grant Appellant‘s Motion for Relief from Judgment pursuant to
Civ. R. 60(B) without a hearing. Appellant demonstrated excusable neglect and a meritorious defense in the form of the exercise of its right to redeem, and demonstrated other cause underCiv. R. 60(B)(5) with regard to the issue of service of the summons and complaint.
II. Law and Analysis
A. The foreclosure adjudication was not void.
{¶ 11} In its first assignment of error, Mt. Airy argues that the trial court should have granted its motion for relief based on failure of service. It contends that, due to an
{¶ 12} It is axiomatic that a court must have jurisdiction over the parties and the subject matter of a case to issue a valid judgment. Mantho v. Bd. of Liquor Control, 162 Ohio St. 37, 40, 120 N.E.2d 730 (1954). One of the ways a court obtains personal jurisdiction over a party is by proper service of process. Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). When service is not properly made under
{¶ 13} 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). When the defendant is a limited liability company, service is properly made on the company‘s appointed statutory agent.
{¶ 14} One of the permissible methods of service is service by the clerk of courts using certified U.S. mail with a return receipt requested.
{¶ 15} If 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 nonservice. Clevenger at ¶ 10. Before finding that an underlying
{¶ 16} The evidence before the trial court showed that, after certified mail to Robinson—Mt. Airy‘s statutory agent—was returned as unclaimed, the clerk of courts issued service to Robinson, as Mt. Airy‘s statutory agent, by ordinary mail. The mail was not returned as undeliverable. Thus, a presumption of proper service arose.
{¶ 17} In an effort to rebut this presumption, Robinson submitted an affidavit stating that he “never had a summons to deliver” to Kamal or Aldabel. Mt. Airy also argues that “it is apparent from the record that an envelope containing a summons and a copy of a complaint was sent by ordinary mail to [Mt. Airy‘s] statutory agent. However, there is no way of knowing which complaint was actually sent.” (Emphasis sic.)
{¶ 18} We find that Mt. Airy fails to rebut the presumption of proper service. Although the presence of an unrelated complaint on the case docket is arguably an irregularity in the proceedings, it is not a “procedural flaw in the service” (i.e., use of the wrong address, an improper person receiving the summons, or delayed mailing or receipt
{¶ 19} We therefore find that Mt. Airy does not rebut the presumption of proper service. The adjudication of foreclosure is not void, and the trial court did not err by denying Mt. Airy‘s motion to vacate. Mt. Airy‘s first assignment of error is not well-taken.
B. Mt. Airy is not entitled to relief under Civ.R. 60(B) .
{¶ 20} In its second assignment of error, Mt. Airy argues that the trial court abused its discretion by denying Mt. Airy‘s motion for relief from judgment because it sufficiently alleged facts that would warrant relief from judgment (thus necessitating a hearing on the motion). The treasurer and the land bank each respond that Mt. Airy
{¶ 21} We review a trial court‘s decision on a motion for relief from judgment for an abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). Abuse of discretion means that the trial court‘s decision was unreasonable, arbitrary, or unconscionable. State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610, 665 N.E.2d 200 (1996).
{¶ 22} As pertinent here, under
{¶ 23} To prevail on a motion for relief from judgment, the moving party must demonstrate that: “(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in
{¶ 25} In the trial court, Mt. Airy moved for relief based on the excusable neglect provision of
{¶ 26} Excusable neglect under
{¶ 27} Here, Mt. Airy did not allege operative facts that, if believed, showed that its failure to respond to the tax foreclosure action was excusable. Mt. Airy bases its excusable neglect argument on Robinson‘s failure to transmit the summons and complaint to either Kamal or Aldabel. But, as this court has previously held, an agent‘s failure to appropriately forward a complaint does not automatically constitute excusable neglect. See T.S. Expediting Servs., Inc. v. Mexican Industries, Inc., 6th Dist. Wood No. WD-01-060, 2002-Ohio-2268, ¶ 18. Moreover, in the cases Mt. Airy cites there was some evidence of the agent mishandling a complaint or filing. See, e.g., Kay, 76 Ohio St.3d 18, 665 N.E.2d 1102 (excusable neglect found where attorney‘s secretary mistakenly put an answer in the case file instead of filing it with the clerk of courts); Perry v. Gen. Motors Corp., 113 Ohio App.3d 318, 680 N.E.2d 1069 (10th Dist.1996) (excusable neglect found when employee who received summons and complaint did not open envelope and forwarded it to payroll department instead of corporate counsel); Sycamore Messenger, Inc. v. Cattle Barons, Inc., 31 Ohio App.3d 196, 509 N.E.2d 977 (1st Dist.1986) (excusable neglect found when defendant‘s bookkeeper failed to forward the complaint to the appropriate person and bookkeeper was subsequently fired).
{¶ 29} Because Mt. Airy has not shown that it was entitled to relief under
III. Conclusion
{¶ 30} Based on the foregoing, the November 8, 2018 judgment of the Lucas County Court of Common Pleas is affirmed. Mt. Airy is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
Arlene Singer, J. _______________________________ JUDGE
Christine E. Mayle, P.J. _______________________________ JUDGE
Gene A. Zmuda, J. CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.