JACQUELINE SHANKLE v. MOLLY ELIZABETH EGNER
Case Nos. 2011 CA 00121 and 2011 CA 00143
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 7, 2012
2012-Ohio-2027
Hon. John W. Wise, P. J.; Hon. Julie A. Edwards, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2011 CV 00408. JUDGMENT: Affirmed.
For Plaintiff-Appellee
ALLEN SCHULMAN SCHULMAN ZIMMERMAN & ASSOC. 236 Third Street, SW Canton, Ohio 44702
For Defendant-Appellant
ADAM E. CARR THE CARR LAW OFFICE 5824 Akron-Cleveland Road, Suite A Hudson, Ohio 44236
{¶1} Defendant-appellant, Molly Egner, appeals from the April 29, 2011, and the June 23, 2011, Judgment Entries of the Stark County Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Molly Egner and appellee Jacqueline Shankle were involved in a motor vehicle accident on or about September 15, 2009. On February 3, 2011, appellee filed a personal injury complaint against appellant in the Stark County Court of Common Pleas, seeking compensatory damages in excess of $25,000.00.
{¶3} The summons and complaint, which had been sent to appellant via certified mail to appellant‘s address at the time of the accident, was returned on March 2, 2011. The endorsement from the United States Postal Service read as follows: “RETURN TO SENDER UNCLAIMED UNABLE TO FORWARD.”
{¶4} On March 4, 2011, appellee‘s counsel filed a Praecipe for Alias Summons, asking that the complaint be served by regular U.S. Mail and requesting a certificate of mailing. The March 4, 2011, docket entry says, “Instructions for service summons and copies complaint sent to Molly Egner by ordinary mail.” On March 7, 2011, the Clerk of Courts filed a certificate of mailing for an unspecified piece of mail to the same address as used previously. The certificate indicated that the type of mail was “Return Receipt for Merchandise.” The court docket indicates that a certificate of mailing for service was filed by the clerk on March 7, 2011, evidencing that service was issued to appellant on March 4, 2011, by the clerk.
{¶5} Appellant, on March 11, 2011, called the office of appellee‘s counsel, indicated that she had received legal documents from the court in the mail, and asked to
{¶6} Thereafter, appellant, on May 31, 2011, filed a Motion to Vacate a Void Judgment; Motion for Relief from Judgment. Appellant, in her motion, alleged that the judgment was void for lack of effective service of process and that she was entitled to relief under
{¶7} “(4) At the time of the accident I was living at 2721 Blackfriars Drive, NW, Canton, Ohio 44708. I moved from that address in December 2010, approximately a week before Christmas. I have not lived at that address since.
{¶8} “(5) None of the mailings from this court was addressed to my current, correct address.”
{¶9} On May 31, 2011, appellant also filed a Notice of Appeal from the trial court‘s April 29, 2011, Judgment Entry. The Notice of Appeal was assigned Case No. 2011CA00121.
{¶10} This Court, pursuant to a Judgment Entry filed in Case No. 2011CA00121 on June 21, 2011, remanded the matter to the trial court to rule on the pending motions. The trial court, via a Judgment Entry filed on June 23, 2011, denied appellant‘s Motion for Relief from Judgment. The trial court, in its Judgment Entry, found that appellant had been appropriately served and had full notice of the litigation. The trial court noted that appellant, after being served, had contacted the office of appellee‘s counsel to discuss the lawsuit and was told to contact her insurance carrier. The court further found that there was no excusable neglect or other reason for relief from judgment.
{¶11} Appellant appealed from the trial court‘s June 23, 2011, Judgment Entry. The Notice of Appeal was assigned Case No. 2011CA00143.
{¶12} The two cases were consolidated by this Court pursuant to an Order filed on July 14, 2011.
{¶13} Appellant now raises the following assignments of error on appeal:
ASSIGNMENTS OF ERROR
{¶14} “I. THE TRIAL COURT ERRED IN ENTERING A DEFAULT JUDGMENT AGAINST A DEFENDANT WHO HAD NOT BEEN SERVED WITH PROCESS.
{¶15} “II. THE TRIAL COURT ERRED IN ENTERING A DEFAULT JUDGMENT WITHOUT THE NOTICE REQUIRED BY CIVIL RULE 55(A).
{¶16} “III. THE TRIAL COURT ERRED IN ENTERING A DEFAULT JUDGMENT IN AN AMOUNT THAT EXCEEDED THE AMOUNT PRAYED FOR IN THE PLAINTIFF‘S DEMAND FOR JUDGMENT.
{¶17} “IV. THE TRIAL COURT ERRED IN FAILING TO VACATE ITS OWN VOID JUDGMENT.
{¶18} “V. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT RELIEF FROM THE JUDGMENT.
{¶19} “VI. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING EXCESSIVE DAMAGES.”
I.
{¶20} Appellant, in her First Assignment of Error, argues that the trial court erred in entering a default judgment against her because she had not been served with process.
{¶21} At issue in this case is whether or not appellant was properly served with the summons and complaint. Appellee maintains that appellant was properly served by ordinary mail after certified mail was returned unclaimed.
{¶22}
{¶23} If the ordinary mail envelope is not returned, there is a rebuttable presumption that proper service has been perfected. Hamilton v. Digonno, 12th Dist. No. CA2005-03-075, 2005-Ohio-6552, ¶ 10. This Court has held: “Courts will presume service to be proper in cases where the civil rules are followed unless the defendant rebuts the presumption by sufficient evidence.” State ex rel. Fairfield County CSEA v. Landis, 5th Dist. No. 2002 CA 00014, 2002-Ohio-5432, ¶ 17 citing Bank One Cincinnati, N.A. v. Wells, 1st Dist. No. C-950279, 1996 WL 526702 (Sept. 18, 1996), citing In re Estate of Popp, 94 Ohio App.3d 640, 650, 641 N.E.2d 739, (8th Dist. 1994).
{¶24} 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. 1998). If service is defective a subsequent default judgment is void. State ex rel Ballard v. O‘Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650 (1990).
{¶25} Appellee contends that because ordinary mail was sent to appellant and was never returned with an endorsement showing failure of delivery, the presumption is that ordinary mail service was obtained. Appellee further contends that appellant never denied receiving the summons and complaint and notes that appellant called the office
{¶26} Upon review, we find, pursuant to
{¶27}
{¶28} “... If the attorney, or serving party, after notification by the clerk, files with the clerk a written request for ordinary mail service, the 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.”
{¶29} While we find that the document in this case purporting to be a “certificate of mailing” is not the usual type of document, we do not find such to be detrimental in this case as
{¶30} Further, we find that there is evidence in this case that appellant did in fact receive the summons and complaint as she telephoned the office of counsel for the appellee upon receipt of such.
{¶31} Based on the foregoing, we find that service of the summons and complaint were proper in this matter
{¶32} Appellant‘s First Assignment of Error is overruled.
II.
{¶33} In her Second Assignment of Error, appellant claims that the trial court erred in entering default without notice required by
{¶34} With respect to entry of default judgment,
{¶35} “If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application.”
{¶36} By its plain language,
{¶37} Applicability of the
{¶38} Here, appellant argues that her telephone call to appellee‘s counsel constituted an entry of appearance and an intention to defend the lawsuit. However, upon review, we find that appellant only asked appellee‘s counsel what she should do and was advised that she should contact her insurance carrier. There is no evidence that appellant made any indication during such telephone call that she intended to defend the lawsuit. We do not find that appellant entered an appearance requiring notice pursuant to
{¶39} Appellant‘s Second Assignment of Error is overruled.
III., VI.
{¶40} In her Third and Sixth Assignments of Error, appellant claims that the trial court erred in awarding judgment in an amount that exceeded the amount prayed for in the demand for judgment.
{¶41} Here, appellee‘s prayer for relief sought an amount “in excess of Twenty-five thousand dollars in compensatory damages and, in addition, interest, costs, attorney fees and such other further relief to which Plaintiff may be entitled.”
{¶42}
{¶43} “A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded the relief in the pleadings.”
{¶44} Additionally,
{¶45} “(A) Claims for relief
{¶46} “A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the party is entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled. If the party seeks more than twenty-five thousand dollars, the party shall so state in the pleading but shall not specify in the demand for judgment the amount of recovery sought, unless the claim is based upon an instrument required to be attached pursuant to
{¶47} Further, courts are not limited to only grant the relief requested in a complaint.
{¶48} Upon review, we find that appellant‘s prayer complied with the mandates of
{¶49} Appellant also argues that the award in this case was excessive “in the context of all the other facts of this case” claiming such award was the result of passion or prejudice. However, appellant fails to advance this argument with any further explanation or support.
{¶50} We therefore find no abuse of discretion in the trial court‘s award of damages in this matter.
{¶51} Appellant‘s Third and Sixth Assignments of Error are overruled.
IV.
{¶52} In her Fourth Assignment of Error, appellant argues that the trial court erred in failing to vacate its own void judgment.
{¶53} In this assignment or error, appellant again argues that the trial court‘s failure to give Appellant notice pursuant to
{¶54} Based on our disposition of Assignment of Error II, we find Appellant‘s argument not well-taken.
{¶55} Appellant‘s Fourth Assignment of Error is overruled.
V.
{¶56} In her Fifth Assignment of Error, appellant argues that the trial court abused its discretion in failing to grant her motion or relief for judgment.
{¶57}
{¶58} “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a
{¶59} In GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 150-151, 351 N.E.2d 113, the Ohio Supreme Court set forth the factors necessary to recover under
{¶60} Where any one of the foregoing requirements is not satisfied,
{¶61} “A motion for relief from judgment under
{¶62} In the instant case, appellant based its
{¶63} Initially, we note there is no bright-line test for excusable neglect. Such a decision must be made from the facts and circumstances of each case. The Supreme Court of Ohio has defined “excusable neglect” in the negative, stating “that the inaction of a defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for the judicial system.’ ” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20 (1996), quoting GTE Automatic Elec., Inc. at 153. The inquiry into whether a moving party‘s inaction constitutes excusable neglect must take into consideration all the individual facts and circumstances in each case. Colley v. Bazell, 64 Ohio St.2d 243, 249 (1980).
{¶64} Upon review, under the circumstances of the instant case, we find that Appellant‘s failure to file an answer did not constitute excusable neglect under
{¶65} Further, appellant‘s legal inexperience does not equate to excusable neglect. This Court has previously held that failure to plead and/or seek legal advice after admittedly receiving complaint is not excusable neglect under
{¶66} Applying the above law to the facts contained herein, we find the trial court properly considered all of the surrounding facts and circumstances, and did not abuse its discretion in determining that based on such facts and circumstance, appellant failed to establish that she is entitled to relief under one of the grounds stated in
{¶67} Appellant‘s Fifth Assignment of Error is overruled.
{¶68} For the foregoing reasons, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
By: Wise, P. J.
Delaney, J., concurs.
Edwards, J., dissents.
JUDGES
JWW/d 0418
{¶69} I respectfully disagree with the majority‘s analysis and disposition of appellant‘s first assignment of error.
{¶70} At issue in this case is whether or not appellant was properly served with the summons and complaint. Appellee maintains that appellant was properly served by ordinary mail after certified mail was returned unclaimed.
{¶71}
{¶72} If the ordinary mail envelope is not returned, there is a rebuttable presumption that proper service has been perfected. Hamilton v. Digonno at ¶ 10. This Court has held: “Courts will presume service to be proper in cases where the civil rules are followed unless the defendant rebuts the presumption by sufficient evidence.” State ex rel. Fairfield County CSEA v. Landis at ¶ 17 citing Bank One Cincinnati, N.A. v. Wells, citing In re Estate of Popp, 94 Ohio App.3d at 650.
{¶73} 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 at 62. If service is defective a subsequent default judgment is void. State ex rel Ballard v. O‘Donnell, 50 Ohio St.3d 182.
{¶74} Appellee contends that because ordinary mail was sent to appellant and was never returned with an endorsement showing failure of delivery, the presumption is that ordinary mail service was obtained. However, there is no document in the file indicating that ordinary mail service was ever sent to appellant. As is stated above, after certified mail came back “RETURN TO SENDER UNCLAIMED UNABLE TO FORWARD,” appellee‘s counsel filed a Praecipe for Alias Summons, asking that the complaint be served by ordinary U.S. Mail and requesting a certificate of mailing. On March 4, 2011, the docket entry indicates the complaint was sent to Molly Egner by ordinary mail. On March 7, 2011, the Clerk of Courts filed a certificate of mailing for an
{¶75} Appellee further contends that appellant never denied receiving the summons and complaint and notes that appellant called the office of appellee‘s counsel on March 11, 2011 and stated that she had received legal documents from the court in the mail. However, as noted by the court in Fay v. Blair, 7th Dist. No. 00 CA 166, 2001 WL 1647281, “Finally, we disagree with appellees [sic] contention that actual notice renders insufficient service irrelevant. In Jefferson Place Condo. Assn. v. Naples (1998), 125 Ohio App.3d 394, 399, this court held that the trial court erred in finding that dismissal was unwarranted merely because the defendant received service and had actual notice. This court noted that the defendant had been served in contravention of the rules regarding residential and/or personal service as the process server left an unstamped envelope in her mailbox. Id. We concluded that the mere fact that summons was received is not decisive. Id., citing Hayes v. Kentucky Bank (1932), 125 Ohio St. 359.” Id at 2.
{¶76} The mailing in this case, if there was a mailing, was not evidenced by a certificate of mailing. The actual certificate of mailing indicates the mail was “Return Receipt for Merchandise.” The docket may indicate that the complaint was mailed and that a certificate is in the file evidencing such but the documents do not support that. I would find that this is not service in compliance with the rule. Because service on
{¶77} On such basis, I would sustain appellant‘s first assignment of error and find the remaining assignments of error moot.
Judge Julie A. Edwards
JACQUELINE SHANKLE Plaintiff-Appellee -vs- MOLLY ELIZABETH EGNER Defendant-Appellant
JUDGMENT ENTRY
Case Nos. 2011 CA 00121 and 2011 CA 00143
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to appellant.
JUDGES