Sullivan v. N. Eighteenth St. Energy Efficient Homeownership Project Ltd. PartnershipSullivan v. N. Eighteenth St. Energy Efficient Homeownership Project Ltd. Partnership
DECISION
Rendered on May 3, 2022
On brief: G. Gary Tyack, Prosecuting Attorney, and Martin O. Ginnan, for appellee Franklin County Treasurer. Argued: Martin O. Ginnan.
On brief: Moses Law Office, and Ambrose Moses III, for appellant. Argued: Ambrose Moses III.
On brief: Thelma Thomas Price, for appellee The Neighborhood House. Argued: Thelma Thomas Price.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} The Franklin County Court of Common Pleas denied a motion to vacate a default judgment issued against North Eighteenth Street Energy Efficient Homeownership
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Plaintiff-appellee, Franklin County Treasurer (“Treasurer“), filed a foreclosure complaint against North Eighteenth on January 15, 2019, seeking delinquent lаnd taxes, assessments, and penalties related to two parcels of land owned by North Eighteenth. Service of the complaint on North Eighteenth was attempted by certified mail at three addresses in Columbus, Ohio: 969 Mount Vernon Avenue, 273 Mount Vernon Avenue, and 240 North Champion Avenue, Suite 115. Certified mail service at each of those addresses failed and was returned unclaimed and unable to forward. Service of the complaint was then issued by ordinary mail to 969 Mount Vernon Avenue. The ordinary mail service was not returned.
{¶ 3} The Treasurer moved for default judgment on June 4, 2019, alleging North Eighteenth failed to answer, plead, or otherwise defend the foreclosure complаint. The common pleas court granted the motion for default judgment on July 18, 2019. An order of sale was issued on October 2, 2019, directing the Franklin County Sheriff to sell the two parcels that were the subject of the default judgment. The sale of the parcels was completed on November 22, 2019; the parcels sold for a total price of $61,000.00. The common pleas court issued an entry confirming the sale on January 12, 2020 and ordered the distribution of the sale proceeds. After payment of the taxes owed, costs of the foreclosure action, and sheriff‘s fees, a balance of $56,648.34 remained to be held by the Franklin County Clerk of Courts.
{¶ 4} On August 14, 2020, Attorney Thelma Thomas Price filed a notice of appearance in the common pleas court, asserting she represented North Eighteenth. Attorney Price subsequently filed a notice of appearance indicating she also represented The Neighborhood House, Inc. (“NHI“), which she asserted “is or was the Limited Partner in the partnership, the North Eighteеnth Street Energy Efficient Homeownership Project Limited Partnership.” (Oct. 23, 2020 Notice of Appearance.) For purposes of clarity, we will refer to the entities represented by Attorney Price as “North Eighteenth/NHI.” North Eighteenth/NHI moved for a supplemental order of distribution of the funds remaining
{¶ 5} On October 9, 2020, Attorney Ambrose Moses filed a notice of appearance asserting he represented North Eighteenth and its general partner, Neighborhood House Community Housing Development Organization, Inc., now known as East Columbus Development Company (“ECDC“). We will refer to the entities represented by Attorney Moses as “North Eighteenth/ECDC.” On February 15, 2021, North Eighteenth/ECDC filed a demand for payment of the excess funds remaining from the sheriff‘s sale. Then, on May 6, 2021, North Eighteenth/ECDC moved to vacate the default judgment order. North Eighteenth/ECDC supported its motion with two affidavits from Rosita Booker, averring that she was the exеcutive director of ECDC and that North Eighteenth/ECDC never received service of the foreclosure complaint.
{¶ 6} The Treasurer opposed the motion to vacate, asserting North Eighteenth had been properly served by ordinary mail. North Eighteenth/NHI also filed a response to the motion to vacate, asserting the сourt should not consider the motion to vacate but instead conduct a hearing to identify which party was the proper representative of North Eighteenth.
{¶ 7} The common pleas court denied the motion to vacate without conducting a hearing. The court concluded there was a rebuttable presumption of рroper service on North Eighteenth because service by ordinary mail sent to the 969 Mount Vernon Avenue address was not returned as undeliverable. The court was unpersuaded by North Eighteenth/ECDC‘s claim that it did not actually receive service of the complaint.
{¶ 8} North Eighteenth/ECDC timely appealed the common pleas court‘s judgment.
II. ASSIGNMENT OF ERROR
{¶ 9} North Eighteenth/ECDC assigns the following as trial court error:
The trial court erred both when it 1) entered a default judgment against and 2) subsequently denied a motion to vacate a void judgment filed by North Eighteenth Street Energy Efficient Homeownership Project Limited Partnership.
{¶ 10} “[W]hen a party claims a trial court lacked personal jurisdiction ovеr them due to improper service of process, the appropriate method to challenge such void judgment is through a common law motion to vacate.” Chuang Dev., LLC v. Raina, 10th Dist. No. 15AP-1062, 2017-Ohio-3000, ¶ 29. See also James v. Top of the Hill Renovations, 10th Dist. No. 15AP-888, 2016-Ohio-1190, ¶ 9 (“A common law motion to vacate is utilized to set aside a judgment rendered by a court that has not acquired personal jurisdiction over the defendant.“). “A trial court‘s decision to deny a motion to vacate judgment is reviewed on appeal for an abuse of discretion whether that motion is made pursuant to
IV. LEGAL ANALYSIS
{¶ 11} We begin by noting there is a dispute regarding whether North Eighteenth/ECDC or North Eighteenth/NHI is the proper representative of North Eighteenth. North Eighteenth/NHI asserted it was the proper party to represent North Eighteenth and alleged North Eighteenth/ECDC failed to provide proof that it was accepted into the partnership or was a proper party to represent North Eighteenth. In its response to North Eighteenth/ECDC‘s motion to vacate, North Eighteenth/NHI asserted the trial court should conduct a hearing to determine which party was the proper representative of North Eighteenth. The trial court did not resolve the issue before North Eighteenth/ECDC filed the present appeal, and we will not determine in the first instance which entity or entities are the proper parties.1 For the purpose of this appeal, we assume without deciding that North Eighteenth/ECDC is a proper party to challenge the default judgment.
{¶ 12} North Eighteenth/ECDC asserts the trial court erred by denying its motion to vacate because the default judgment was void due to lack of personal jurisdiction. ” ‘[A] judgment rendered without personal jurisdiction over the defendant is void, and Ohio courts have inherent power to vacate a void judgment.’ ” Columbus, Div. of Income Tax v. Yockey, 10th Dist. No. 19AP-559, 2020-Ohio-3290, ¶ 13, quoting Green v. Huntley, 10th Dist. No. 09AP-652, 2010-Ohio-1024, ¶ 11.2 “There are three methods for a court to acquire personal jurisdiction over a defendant: (1) proper service of process, (2) the defendant‘s
{¶ 13} Under
{¶ 14} A rebuttable presumption of proper serviсe arises when a plaintiff complies with the civil rules governing service. Erin Capital Mgt., LLC v. Fournier, 10th Dist. No. 11AP-483, 2012-Ohio-939, ¶ 18. In this case, the Treasurer complied with
{¶ 15} “A defendant can rebut the presumption of proper service with sufficient evidence that service was not accomplished.” Id. at ¶ 19. Failure of service despite compliance with the civil rules occurs in two scenarios. Id. “First, service is not accomplished if the plaintiff fails to direct the summons and complaint to the defendant‘s residence or to an address where the plaintiff could reasonably expect that the summons and complaint would be delivered to the defendant.” Id. “Second, service fails where the defendant does not receive the summons and complaint, even though the plaintiff complied with the civil rules and service was made at an address where the plaintiff could reasonably anticipate that the defendant would receive it.” Id. This case implicates the latter scenario because North Eighteenth/ECDC asserts North Eighteenth never received service оf the foreclosure complaint.
{¶ 16} Booker averred in her first affidavit that she was the executive director of ECDC, which was the general partner of North Eighteenth. Booker averred she “routinely
{¶ 17} We have held that “a trial court is not required to give preclusive effect to a movant‘s sworn statement that she did not receive service of process” if there is no other indication in the record that service was ineffective. TCC Mgt. v. Clapp, 10th Dist. No. 05AP-42, 2005-Ohio-4357, ¶ 15. “Howеver, such a sworn statement at least warrants the trial court conducting a hearing to determine the validity of the movant‘s statement.” Id. Therefore, “a trial court errs in summarily overruling a defendant‘s motion to set aside a judgment for lack of service when the defendant submits a sworn statement that she did not receive service of prоcess, without affording the defendant a hearing.” Id. See also Gupta v. Edgecombe, 10th Dist. No. 03AP-807, 2004-Ohio-3227, ¶ 15 (“[W]ithout an evidentiary hearing the trial court cannot assess the credibility of the defendant or the persuasiveness of the defendant‘s evidence, and thus the court would be hindered, in the absence of an evidentiary hearing, from determining whether the defendant was truthful in claiming not to have received service.“). In this case, the common pleas court failed to conduct a hearing on North Eighteenth/ECDC‘s motion to vacate. Assuming without deciding that North Eighteenth/ECDC is a proper party to challenge the default judgment, the trial court abused its discretion by denying the motion to vacate without holding a hearing because Nоrth Eighteenth/ECDC presented sworn statements attesting it did not receive service of process.
V. CONCLUSION
{¶ 19} For the foregoing reasons, we sustain North Eighteenth/ECDC‘s sole assignment of error and reverse the judgment of the Franklin County Court of Common Pleas. We remand this matter to that court for further proceedings consistent with law and this decision.
Judgment reversed; cause remanded with instructions.
LUPER SCHUSTER, P.J., and DORRIAN, J., concur.
LUPER SCHUSTER, P.J., concurring.
{¶ 20} I agree with the majority‘s conclusion that North Eighteenth/ECDC submitted sufficient evidentiary material to warrant a hearing on the motion to vacate and therefore join the majority‘s decision sustaining North Eighteenth/ECDC‘s sole assignment of error. I write separately, however, to emphasize the importance of determining the proper representative of North Eighteenth. Though I recognize North Eighteenth/NHI did not file a notice of cross-appeal here, I would nonetheless urge the trial court to prioritize, on remand, the determination of which entity is the proper representative for further proceedings before the trial court.
Notes
In its brief on appeal, North Eighteenth/NHI attempts to assert the following additional assignment of error:
Did the lower court err when it failed to consider whether the party represented by Counsel Moses, the East Columbus Develоpment Company, Inc., is the proper party to challenge the jurisdiction of the Franklin County Court of Common Pleas in Case No. 19 CV 000391, when it had not established at a hearing before that Court that it was the proper representative of the Limited Partnership where another party, The Neighborhood House, had asserted that it was thе proper representative of the Limited Partnership.
North Eighteenth/NHI did not file a notice of cross-appeal under
The foreclosure action in this case was filed under