SPP PROPERTIES, L.L.C. v. BRIANNA JONES
No. 114740
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 18, 2025
[Cite as SPP Properties, L.L.C. v. Jones, 2025-Ohio-4375.]
EMANUELLA D. GROVES, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: REVERSED AND REMANDED; Civil Appeal from Parma Municipal Court, Case No. 22CVG05098
Powers Friedman Linn, P.L.L., and Rachel E. Cohen, for appellee.
The Legal Aid Society of Cleveland, Morgan R. Mackay, and Maria A. Smith, for appellant.
EMANUELLA D. GROVES, J.:
{¶ 1} This appeal stems from a forcible entry and detainer action with a claim for money damages. Defendant-appellant Brianna Jones (“Jones“) appeals various issues and rulings related to plaintiff-appellee SPP Properties, LLC‘s (“SPP Properties“) money-damages claim, including its denial of her motion to quash
I. Facts and Procedural History
{¶ 2} The following facts and procedural history are limited to those relevant to the determination of this appeal. On December 27, 2022, SPP Properties filed a two-count complaint against Jones. Count 1 set forth a claim for forcible entry and detainer while Count 2 set forth a claim for money damages. The complaint asserted that SPP Properties was the landlord of an apartment complex located in Parma. Jones entered a written lease agreement with SPP Properties and was a tenant. The complaint alleged that Jones failed to pay rent and other contractual charges, was served with a three-day notice under
{¶ 3} A hearing on SPP Properties’ forcible entry and detainer claim was set for January 23, 2023. A deputy bailiff served the complaint, notice of hearing, and
{¶ 4} After the January 23, 2023 hearing, a magistrate‘s decision was issued finding the allegations of the forcible entry and detainer claim to be true and recommending that judgment be rendered in SPP Properties’ favor. A writ of restitution was to be issued, and Jones was to vacate the premises on or before February 26, 2023. A notice of appearance of counsel was subsequently filed by Jones’ attorney.
{¶ 5} On January 24, 2023, the certified mail service issued by the clerk to Jones was returned unclaimed. That same day a journal entry was issued accepting, approving, and adopting the magistrate‘s decision. The journal entry stated, “Second cause of action is passed for service and/or answer due date.”
{¶ 6} On January 31, 2023, a notice of failure of service was sent to SPP Properties by the clerk along with a request for service to be signed and returned to the court. Nearly one year later, on January 2, 2024, instructions for certified-mail service were filed by SPP Properties directing the clerk to serve Jones at a residential address in Cleveland, Ohio 44126. However, the summons generated from the instructions for service listed Jones’ attorney and the attorney‘s address. A docket entry on January 4, 2024 indicated that service via certified mail was issued to Jones and included a receipt number. On January 18, 2024, a docket entry stated that the certified-mail service issued to Jones was perfected. The docket entries did not
{¶ 7} In response, Jones filed a motion to quash service of process and dismiss SPP Properties’ complaint. Jones argued that the Ohio Rules of Civil Procedure do not allow service of a summons and complaint upon a party through their attorney. Jones further argued that the request for service was made well beyond the six-month deadline for service prescribed by
{¶ 8} SPP Properties opposed the motion, countering that it did not request for service to be issued to Jones’ attorney, and it was unknown why copies of the summons and complaint were delivered to a post office box in Cleveland, Ohio 44101 or to Jones’ counsel. SPP Properties further countered that it could establish good cause as to why service was not perfected within six months, as required by
{¶ 9} Jones filed a motion to set aside this ruling arguing, in relevant part, that service on SPP Properties’ second-cause of action for money damages had not been perfected. Jones asserted that SPP Properties’ attempted service in January 2024 failed to comply with
{¶ 10} Jones subsequently filed an answer to the complaint and counterclaims for violations of
{¶ 11} A pretrial was held and a litigation schedule was set, establishing a discovery-cutoff date, a dispositive-motion deadline, and bench-trial date. Based on this schedule, SPP Properties filed a motion for summary judgment. Jones filed a brief in opposition to the motion asserting, amongst other arguments, that SPP Properties was not entitled to judgment because she was not properly served. SPP Properties filed a reply in support. The trial court subsequently issued a journal entry granting SPP Properties’ motion for summary judgment in part and requesting that the parties brief three remaining issues.
{¶ 12} After reviewing the parties’ supplemental briefs, the trial court issued a journal entry concluding that no genuine issues of material fact remained, SPP Properties was entitled to judgment as a matter of law, and reasonable minds could come but to one conclusion adverse to Jones. The trial court denied Jones’ counterclaims and entered judgments for SPP Properties, including damages in the amount of $3,404.22, plus interest and costs.
{¶ 13} Jones appeals, raising five assignments of error for review.
Assignment of Error No. 1
The trial court erred when it denied [Jones‘] motion to quash service of the complaint and dismiss the complaint.
The trial court erred when it denied [Jones‘] motion to set aside.
Assignment of Error No. 3
The trial court violated Ohio Const. art. IV, § 6(B) and R.C. 1901.12 when the “Acting Judge” and “Magistrate” were the same person ruling on [Jones‘] motion to quash service of the summons and complaint.
Assignment of Error No. 4
The trial court erred in granting summary judgment in favor of SPP Properties when there were genuine issues of material fact relative to [Jones‘] affirmative defenses and counterclaims.
Assignment of Error No. 5
The trial court committed reversible error when it denied [Jones‘] motion to extend the discovery period because SPP Properties had failed to produce invoices related to mice extermination in response to Jones’ request for production of documents.
Because we find that the service issues raised in Jones’ first assignment of error determine the outcome of this appeal, we need not consider the other four.
II. Law and Analysis
{¶ 14} In her first assignment of error, Jones argues that the trial court erred when it denied her motion to quash service and dismiss the complaint. Jones concedes that SPP Properties perfected service on its forcible entry and detainer claim under
{¶ 15} We begin our analysis by determining the applicable standard of review, noting the distinction between abuse of discretion and misapplication of law. Courts do not have discretion to misapply the law. Johnson v. Abdullah, 2021-Ohio-3304, ¶ 38. The Ohio Supreme Court explained, “A court has discretion to settle factual disputes or to manage its docket, for example, but it does not have discretion to apply the law incorrectly.” Id. Thus, “courts lack the discretion to make errors of law, particularly when the trial court‘s decision goes against the plain language of a statute or rule.” Id. at ¶ 39.
{¶ 16} Next, we emphasize that that the duty to perfect service lies with the serving party and not the party being served. This principle is codified in
{¶ 18} We now turn to the applicable rules and procedural requirements controlling service in this case. While
{¶ 19}
“deliver a copy of documents to be served to the United States Postal Service [(“USPS“)] for mailing at the address set forth in the caption or at the address set forth in the written instructions furnished to the clerk as certified . . . mail return receipt requested, with instructions to the delivering postal employee to show to whom delivered and the delivery date and address.”
{¶ 20} Alternatively, personal and residence service must be made by a civil process server, e.g., a municipal court‘s bailiff.
{¶ 21}
{¶ 22} Finally, we discuss service deadlines and the potential repercussions of noncompliance.
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.
The rule “is intended to apply to those situations where there is no service and where the plaintiff has been dilatory in attempting to obtain service on a defendant.” C.L.A. v. D.P.M., 2024-Ohio-836 (8th Dist.) ¶ 61, quoting Briggs v. Glenbeigh Health Servs., 2000 Ohio App. LEXIS 5587, *11 (8th Dist. Nov. 30, 2000). For example, “‘[i]n most instances, the rule would be applied when a plaintiff has
{¶ 23} Our review of the record reveals that service was not perfected pursuant to
{¶ 24} Certified-mail service was subsequently returned unclaimed in January 2023, and a notice of failure of service was sent to SPP Properties along with a request for service to be signed and returned to the court. Despite this notice and receipt of pre-filled instructions for subsequent service, SPP Properties neglected to reissue service until January 2024, over one year after the complaint‘s filing. While SPP Properties claimed that they were unable to locate a new address for Jones, the record is devoid of any evidence of those efforts or other attempts to perfect service. Instead, the record reveals that SPP Properties made no efforts to comply with
{¶ 25} Even after SPP Properties reissued service beyond those deadlines in January 2024, service does not appear to be sufficient under
{¶ 26} In its appellate brief, SPP Properties argues that Jones waived service when she appeared with counsel at the forcible entry and detainer hearing. In so arguing, SPP Properties ignores the January 2023 journal entry stating that the “[s]econd cause of action [was] passed for service and/or answer due date“; its untimely attempt to reissue service in January 2024, seemingly acknowledging that service was not waived; and caselaw establishing the contrary. Indeed, the Ohio Supreme Court recently reaffirmed its holding that “when the affirmative defense of insufficiency of service of process is properly raised and properly preserved, party‘s active participation in litigation of a case does not constitute waiver of that defense.” Ackman, 2024-Ohio-3159, at ¶ 11, quoting Gliozzo, 2007-Ohio-3762, at 11. Moreover, in Banyan Living Ohio, LLC, 2025-Ohio-2362 (8th Dist.), this court addressed a similar fact pattern and found that a defendant‘s appearance at a forcible entry and detainer hearing did not constitute a waiver of service on the plaintiff‘s money-damages claim.
{¶ 27} Our review of the record reveals that Jones challenged SPP Properties’ failure to perfect service on its money-damages claim throughout the course of litigation, beginning with her initial motion to quash service of process and dismiss the complaint and continuing in her motion to set aside, answer, and brief in opposition to motion for summary judgment. Therefore, Jones properly raised and preserved her insufficiency-of-service-of-process defense. Jones’ appearance at the forcible entry and detainer hearing and active participation in litigation thereafter did not constitute a waiver of that defense.
{¶ 28} SPP Properties also argues that Jones’ motion to quash service and dismiss the complaint was improper. SPP Properties contends that the motion was “lacking in procedural regularity” but it does not establish that the civil rules preclude its consideration. On the contrary, caselaw reflects that similar motions have been filed, permitted, and considered. See, e.g., Tellis v. Morgan, 2000 Ohio App. LEXIS 3952, *7 (8th Dist. Aug. 31, 2000) (“A motion to quash service has been held to be a motion to dismiss pursuant to
{¶ 30} Judgment reversed. The matter is remanded with instructions for the municipal court to vacate the judgments granted against Jones and dismiss SPP Properties’ money-damages claim.
It is ordered that appellant recover from appellee costs herein taxed.
It is ordered that a special mandate issue out of this court directing Parma Municipal 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.
EMANUELLA D. GROVES, JUDGE
EILEEN T. GALLAGHER, P.J., and DEENA R. CALABRESE, J., CONCUR