Fifth Third Bank v. Ricci ( 2021 )

[Cite as Fifth Third Bank v. Ricci, 2021-Ohio-1648.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
FIFTH THIRD BANK, : APPEAL NOS. C-200222
C-200237
Plaintiff-Appellee, : TRIAL NO. A-1103438
vs. :
O P I N I O N.
JOSEPH A. RICCI, :
Defendant-Appellant. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded in C-200222; Appeal
Dismissed in C-200237
Date of Judgment Entry on Appeal: May 12, 2021
Brock & Scott, PLLC, and Mark N. Dierks, for Plaintiff-Appellee,
Luftman, Heck & Associates, LLB, and Gregory S. Zuchowski, for Defendant-
Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Defendant-appellant Joseph A. Ricci appeals the judgment of the trial
court denying his motion to vacate a default judgment. Because Ricci filed two
appeals from the same judgment, we dismiss the appeal in the case numbered C-
200237 as duplicative. For the reasons set forth below, we reverse the trial court’s
judgment.
{¶2} In April 2011, plaintiff-appellee Fifth Third Bank filed a complaint
against Ricci and attempted service by certified mail, which was subsequently
returned unclaimed in August 2011. In June 2011, Fifth Third requested service by a
private process server. In July 2011, Fifth Third filed a return of service indicating
that Ricci had been personally served. After Ricci failed to respond to the complaint,
Fifth Third obtained a default judgment against him in October 2011.
{¶3} Eight years later, Ricci filed a motion to vacate the default judgment.
He attached to his motion an affidavit asserting that he had not been personally
served by the process server at the time or location indicated on the return of service,
that he was not present at the location at that time, and that it would have been
impossible for him to have been present at that location at that time. Fifth Third
filed a motion for a hearing to assess the credibility of Ricci’s assertions, but the trial
court denied Ricci’s motion to vacate without a hearing.
{¶4} In his first and second assignments of error, Ricci argues that the trial
court erred by denying his motion to vacate the default judgment and that its
decision was against the manifest weight of the evidence. We consider these
assignments of error together.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Proper service of process is a prerequisite to a court exercising
personal jurisdiction. Goering v. Lacher, 1st Dist. Hamilton No. C-110106, 2011-
Ohio-5464, ¶ 9. A default judgment rendered without proper service is void.
Cincinnati Ins. v. Emge, 124 Ohio App.3d 61, 63, 705 N.E.2d 408 (1st Dist.1997). A
trial court has inherent power to vacate a void judgment. Id.{¶6} Service of process must be made in a manner reasonably calculated to
notify interested parties of an action and afford them an opportunity to respond. Id.The plaintiff bears the burden of ensuring proper service. Id. Where the plaintiff
follows the civil rules governing the service of process, the service is presumed to be
proper unless the defendant rebuts the presumption by sufficient evidence of
nonservice. Id.{¶7} The civil rules permit service of process outside the state to be made by
personal service. See Civ.R. 4.3(B)(2). In this case, Fifth Third completed out-of-
state personal service as contemplated by the rule, which created the presumption
that service was properly made. See Emge at 64.
{¶8} Ricci argues, however, that his affidavit accompanying his motion to
vacate the default judgment asserted operative facts that, if true, demonstrated that
he was not served with the lawsuit. He argues that the trial court erred by overruling
his motion without first holding an evidentiary hearing to assess the credibility of his
assertion of nonservice.
{¶9} “[I]n recognition that a defendant may easily make a self-serving claim
that he did not receive service, we have held that a trial court ‘is entitled to make a
credibility assessment and disbelieve the defendant’s claim, particularly where the
circumstantial evidence of receipt is compelling.’ ” Altman v. Parker, 2018-Ohio-
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OHIO FIRST DISTRICT COURT OF APPEALS
4583, 123 N.E.3d 382, ¶ 14 (1st Dist.), quoting Infinity Broadcasting, Inc. v. Brewer,
1st Dist. Hamilton No. C-020329, 2003-Ohio-1022, ¶ 8. “But ‘as a corollary of the
additional latitude we have given the trial court,’ we have held that the trial court
must afford the defendant a hearing at which the court may ‘assess the credibility of
the defendant’s assertion.’ ” Id., quoting Brewer at ¶ 8. If after an evidentiary
hearing the trial court determines that it does not believe the defendant’s testimony
that service was not received, a self-serving affidavit does not rebut the presumption
of proper service. Emge, 124 Ohio App.3d at 64, 705 N.E.2d 408.
{¶10} “Without a hearing, the trial court could not have appropriately
assessed [Ricci’s] credibility or the persuasiveness of [Ricci’s] evidence and could not
have determined whether [Ricci] was truthful in alleging that he did not receive
proper service of process.” See id. at 64. The trial court should have held a hearing
on the issue of whether Ricci did in fact receive service. Id. at 65. An evidentiary
hearing is additionally warranted because Fifth Third specifically requested one to
require Ricci to testify before the court. See Altman at ¶ 15.
{¶11} We hold that the trial court erred by overruling Ricci’s motion to
vacate the default judgment without holding an evidentiary hearing. We sustain the
assignments of error. We reverse the trial court’s judgment and remand this matter
to the trial court for further proceedings consistent with law in the appeal numbered
C-200222. The appeal numbered C-200237 is dismissed.
Judgment accordingly.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry this date.
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