MIDLAND FUNDING, L.L.C. v. NATHAN CHERRIER
No. 108595
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
June 11, 2020
2020-Ohio-3280
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-08-679103
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: June 11, 2020
Appearances:
Law Office of J. Michael Goldberg, L.L.C., and J. Michael Goldberg, for appellant.
EILEEN T. GALLAGHER, A.J.:
{¶ 1} Defendant-appellant, Nathan Cherrier (“Cherrier“), appeals the denial of his motions to vacate a default judgment and to dismiss the complaint. He claims three errors:
- The trial court erred as a matter of law in denying defendant-appellant‘s motion to vacate the void default judgment.
The trial court abused its discretion by disregarding unrefuted sworn testimony that defendant did not reside at the address where service of process was attempted. - The trial court erred as a matter of law in denying defendant-appellant‘s motion to dismiss the complaint.
{¶ 2} We find merit to the appeal, reverse the trial court‘s judgment, and remand the case to the trial court to vacate the default judgment.
I. Facts and Procedural History
{¶ 3} Plaintiff-appellee, Midland Funding L.L.C. (“Midland“), filed a complaint to recover a debt on December 22, 2008. The clerk of the Cuyahoga County Common Pleas Court sent service of the complaint by certified mail to 3365 Tullamore Road, in Cleveland Heights, Ohio (the “Tullamore address“). The mailing was returned to the clerk as “unclaimed.” The clerk subsequently sent service of the complaint to the Tullamore address by ordinary mail on February 4, 2009. This mailing was not returned to the clerk, and no answer to the complaint was filed. Consequently, in May 2009, the court entered a default judgment against Cherrier in the amount of $1,785.46, plus costs and statutory interest from the date of judgment.
{¶ 4} Nine and half years later, on October 8, 2018, Midland filed a postjudgment motion to revive the default judgment, which had become dormant. Once again, Midland filed instructions with the clerk of courts to serve the motion and summons by certified mail to Cherrier at the Tullamore address. The mailing was returned “unclaimed” on November 4, 2018. Per Midland‘s request, the clerk
{¶ 5} The trial court held a hearing on Midland‘s motion to revive a dormant judgment and on Cherrier‘s motions to quash service of summons and to dismiss the complaint. Cherrier testified that he was not living at the Tullamore address in December 2008, when the complaint was filed and service was attempted. (Tr. 12-13.) Cherrier lived temporarily with his mother at that address from sometime in 2007 until July 2008, when he moved to Willoughby, Ohio. (Tr. 13.) Cherrier explained that he moved out of his mother‘s house because he had a “contentious” relationship with her and they rarely spoke to each other. (Tr. 14.) Cherrier had his mail forwarded from the Tullamore address in July 2008, but did not remember how long the mail was forwarded to his new address. Cherrier testified that he had no knowledge that he had been sued until his mother contacted him when she received Midland‘s motion to revive a dormant judgment in January 2019. (Tr. 15.)
{¶ 6} Following the hearing, the court denied Midland‘s motion to revive the dormant judgment and denied Cherrier‘s motion to quash the service of process relating to Midland‘s motion to revive a dormant judgment as moot. The court converted Cherrier‘s motion to dismiss the complaint into a motion for relief from
II. Law and Analysis
A. Motion to Vacate
{¶ 7} In the first assignment of error, Cherrier argues the trial court erroneously failed to vacate the default judgment. He contends the default judgment is void because Midland failed to perfect service on him and, therefore, the trial court lacked personal jurisdiction to render a judgment against him. Cherrier also contends the court erred in converting his motion to vacate the default judgment into a motion for relief from judgment under
{¶ 8} In the second assignment of error, Cherrier argues the trial court abused its discretion by failing to consider the unrefuted sworn testimony that (1) Cherrier did not reside at the Tullamore address where service was attempted in December 2008 and February 2009, and (2) Cherrier did not receive notice of the lawsuit until Midland attempted to revive the default judgment, almost ten years after Midland attempted to serve him with the complaint and summons. We discuss these assigned errors together because they are closely related.
{¶ 10} A court does not acquire personal jurisdiction over a defendant unless and until the defendant is properly served with the complaint and summons or the defendant makes an appearance in the case. State ex rel. Ballard v. O‘Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650 (1990), syllabus. Since it is undisputed that Cherrier never made an appearance in the case, and Midland never obtained service by certified mail, the issue in this case is whether Cherrier was properly served by ordinary mail.
{¶ 11} Service of process, which is governed by
{¶ 12} 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 nonservice. Hook v. Collins, 8th Dist. Cuyahoga No. 104825, 2017-Ohio-976, ¶ 14, citing Carter-Jones Lumber Co. v. Meyers, 2d Dist. Clark No. 2005 CA 97, 2006-Ohio-5380, ¶ 11. “Where the defendant files a motion to vacate judgment, and swears under oath that he or she did not reside at the address to which process was sent, the presumption is rebutted, and it is incumbent upon the plaintiff to produce evidence demonstrating that defendant resided at the address in question.” Id., quoting Watts v. Brown, 8th Dist. Cuyahoga No. 45638, 1983 Ohio App. LEXIS 15311, 14-15 (Aug. 4, 1983).
{¶ 13} We review the trial court‘s judgment regarding the validity of service for an abuse of discretion. GGNSC Lima, L.L.C., 8th Dist. Cuyahoga No. 105910, 2018-Ohio-1298, at ¶ 15. A trial court abuses its discretion when, among other things, it “applies the wrong legal standard, misapplies the correct legal standard, or
{¶ 14} Cherrier testified under oath at the hearing that he moved away from the Tullamore address in July 2008, because his relationship with his mother was “contentious.” (Tr. 13-14.) Since service was not attempted at that address until December 2008, Cherrier moved away from the Tullamore address at least five months before service was attempted. Cherrier testified that he never received the complaint or summons and had no knowledge that he had been sued until January 2019, when his mother received the motion to revive a dormant judgment. (Tr. 14-15.) Cherrier testified that his mother never contacted him to inform him that she received mail in his name from the Cuyahoga County Clerk of Courts in December 2008 or early 2009.
{¶ 15} Midland elicited no testimony and presented no evidence to refute Cherrier‘s testimony that he did not live at the Tullamore address when process was attempted there. Moreover, the trial court never indicated that it found Cherrier‘s testimony incredible. Indeed, there is no evidence that the trial court considered Cherrier‘s testimony at all. The trial court‘s judgment entry states, in relevant part:
Upon review of the docket[,] the certified mail receipt came back unclaimed on 1/12/2009 from the Tullamore address. Pursuant to
OH Civ. Rule 4.6(D) , ordinary mail was then sent to the Tullamore address on 2/2/2009. Service was obtained by mailing it to the last known address by United States mail and was complete upon mailing.OH Civ. Rule 5(B)(2)(c) . As such, upon review of the docket, the court finds thatdefendant Nathan Cherrier was properly served the initial complaint in this matter.
Thus, the trial court concluded there was valid service simply because Midland mailed the complaint to the Tullamore address by regular mail and the Tullamore address was his last known address. This is not the correct standard. As previously stated, when a defendant testifies under oath that he did not reside at the address where process was sent and that he never received service, the presumption of service is rebutted, and the plaintiff must produce evidence demonstrating that the defendant lived at the address in question. Hook, 8th Dist. Cuyahoga No. 104825, 2017-Ohio-976, ¶ 15. The plaintiff, Midland, offered no evidence to refute Cherrier‘s testimony. Therefore, the presumption of service was rebutted. In the absence of proper service, the trial court lacked personal jurisdiction to render the default judgment against Cherrier and the default judgment is void.
{¶ 16} Trial courts have inherent authority to vacate a void judgment, and a party asserting lack of jurisdiction due to lack of service does not need to meet the requirements of
{¶ 17} The first and second assignments of error are sustained.
B. Dismissal
{¶ 18} In the third assignment of error, Cherrier argues the trial court erred in denying his motion to dismiss the complaint. He contends the complaint should have been dismissed since the action was not “commenced” within one year of filing.
{¶ 19}
If a service of the summons and complaint is not made upon a defendant within six months after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court‘s own initiative with notice to such party or upon motion.
{¶ 20} Cherrier provided undisputed evidence that Midland failed to properly serve him within one year of filing the complaint and moved to dismiss the complaint. Moreover, Cherrier argued in the trial court that the complaint should be dismissed due to insufficiency of process, insufficiency of service of process, and lack of personal jurisdiction pursuant to
{¶ 21} Lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process are affirmative defenses that may be raised in a motion to dismiss. See
{¶ 22} However,
{¶ 23} Judgment reversed. We remand the case to the trial court to vacate the default judgment and dismiss the complaint without prejudice.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR