Beaver v. Beaver , 2018 Ohio 4460 ( 2018 )

[Cite as Beaver v. Beaver, 2018-Ohio-4460.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STEVEN C. BEAVER, :
: Case No. 18CA5
Plaintiff-Appellant, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
KELLIE M. BEAVER, :
:
Defendant-Appellee. : Released: 10/29/18
_____________________________________________________________
APPEARANCES:
Stephen S. Gussler, Margulis, Gussler & Hall, Circleville, Ohio, for
Appellant.
Anthony W. Greco and Aaron E. Kenter, The Law Office of Anthony Greco,
LPA, Columbus, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Steven C. Beaver appeals the Decision and Judgment Entry of
the Pickaway County Common Pleas Court, entered March 23, 2018, which
found that service of process was not perfected upon Kellie M. Beaver.
Upon review, we find the trial court did not abuse its discretion in its
decision. Accordingly, we overrule the sole assignment of error and affirm
the judgment of the trial court.
Pickaway App. No. 18CA5 2
FACTS
{¶2} Appellant filed a Complaint for divorce in the Pickaway County
Common Pleas Court on November 15, 2017. In the complaint, Appellant
alleged the parties were married in 1993, were residents of Ohio, and have
three adult children. Appellant also alleged the parties own substantial
rental properties in Pickaway, Franklin, and Marion counties.1
{¶3} On December 1, 2017, Appellee filed a Motion to Dismiss
pursuant to Ohio Civ.R. 12(B)(5), requesting the court to dismiss
Appellant’s divorce action for insufficient service of process. In the
Memorandum in Support, Appellee argued that she had commenced an
action for divorce in Franklin County Common Pleas Court and that service
had been perfected upon Appellant in the Franklin County case. Our review
of the Franklin County Common Pleas Court docket indicates the parties are
subject of a divorce action pending in Franklin County.2 Also on December
1, 2017, Appellant filed a Memorandum Contra Defendant’s Motion to
Dismiss.
{¶4} On January 18, 2018, the Magistrate held a Status Hearing on
other pending motions including the Motion to Dismiss. The parties
1
Along with the complaint for divorce, Appellant filed a Motion for Temporary Restraining Order,
requesting Appellee be restrained from collecting and diverting marital income from rental properties. That
same day, the Magistrate of the Pickaway County Common Pleas Court granted a Temporary Restraining
Order.
2
We take judicial notice of Case Number 17DR004204 located on the Franklin County Clerk of Courts
website. See Varney v. Allen, 4th Dist. Ross No. 16CA3543, 2017-Ohio-1409, ¶ 16.
Pickaway App. No. 18CA5 3
testified along with the Pickaway County process server involved in the
matter, Billy R. Huffman, Jr. Mr. Huffman, a retired Pickaway County
Sheriff’s Deputy, testified as to his experience serving legal papers on an
almost daily basis during his 30 years of employment with the sheriff’s
department and for attorneys in the Circleville area. Mr. Huffman testified
that he rendered personal service of process to Appellee.
{¶5} On February 14, 2018, the Magistrate’s Decision was issued.
The decision set forth in pertinent part:
“Civ.R. 4.1(C) provides that the process server ‘shall locate the
person to be served and shall tender a copy of the process and
accompanying documents to the person to be served.’ Personal
service was not effected on Defendant as the process was not
tendered. In addition, residence service was not accomplished
pursuant to Civ.R. 41(C) as the complaint and summons was
not left with any person at the residence but placed in the front
storm door. While this Court was unable to find any Ohio cases
directly on point, the Civ.R. 41 Staff notes refer to personal
service as ‘in hand’ service.”
{¶6} The Magistrate recommended that Appellee’s Motion to Dismiss
be granted and that the divorce continue as filed in Franklin County, where
service was perfected. On February 22, 2018, Appellant filed Objections to
Magistrate’s Decision. Appellant argued that no definition of “tender” is
contained in Civ.R. 4.1(B). Appellant argued that Appellee was properly
notified, “tendered” the documents, and should not be allowed to object to
Pickaway App. No. 18CA5 4
service by “running away” from the process server. Appellee filed a reply to
Appellant’s objections.
{¶7} On March 23, 2018, the trial court issued its Decision and Entry,
which agreed with the Magistrate’s Decision that Appellee was never
personally served with process. Appellee’s Motion to Dismiss was granted.
This timely appeal followed. The witnesses’ testimony is set forth in
pertinent part below.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN FINDING THAT THERE
WAS A FAILURE OF PERSONAL SERVICE PURSUANT
TO RULE 4.1(b), OHIO RULES OF CIVIL PROCEDURE,
IMPOSING REQUIREMENTS OF ACCEPTANCE BY THE
PERSON BEING SERVED OR PHYSICAL TOUCHING BY
THE PROCESS SERVER, WHEN NO SUCH STANDARD IS
SET FORTH IN THE RULES OR EVEN NECESSARY TO
COMPLY WITH THE INTENT OF SERVICE.”
STANDARD OF REVIEW
{¶8} A reviewing court will not disturb a trial court's finding
regarding whether service was proper unless the trial court abused its
discretion. E.g., Huntington Natl. Bank v. Payson, 2nd Dist. Montgomery
No. 26396, 2015-Ohio-1976, at ¶ 32; Ramirez v. Shagawat, 8th Dist.
Cuyahoga No. 85148, 2005-Ohio-3159, at ¶ 11.
Pickaway App. No. 18CA5 5
LEGAL ANALYSIS
{¶9} Service of process must be made in a manner reasonably
calculated to apprise interested parties of the action and to afford them an
opportunity to respond. Price v. Combs, 2nd Dist. Darke No. 2015-CA17,
2016-Ohio-429, at ¶ 19; Akron–Canton Regional Airport Auth. v. Swinehart,
62 Ohio St.2d 403, 406, 406 N .E.2d 811 (1980), citing Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652 (1950). 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).
{¶10} “A [rebuttable] presumption of proper service arises when the
record reflects that a party has followed the Civil Rules pertaining to service
of process.” Henrickson v. Grider, 2016-Ohio-8474, 70 N.E.3d 604 (4th
Dist.), at ¶ 32, quoting Poorman v. Ohio Adult Parole Authority, 4th Dist.
Pickaway No. 01CA16, 2002 WL 398721, *2, citing Potter v. Troy, 78 Ohio
App.3d 372, 377, 604 N.E.2d 828 (2nd Dist.1992); accord Bader v. Ferri,
3rd Dist. Allen No. 1–13–01, 2013-Ohio-3074, 2013 WL 3776546, ¶ 20;
Rafalski v. Oates, 17 Ohio App.3d 65, 66, 477 N.E.2d 1212 (8th Dist.1984).
“In order to rebut the presumption of proper service, the other party must
produce evidentiary-quality information demonstrating that he or she did not
Pickaway App. No. 18CA5 6
receive service.” Henrickson, supra, quoting McWilliams v. Schumacher, 8th
Dist. Cuyahoga Nos. 98188, 98288, 98390, 98423, 2013-Ohio-29, 2013 WL
118918, ¶ 51, citing Thompson v. Bayer, 5th Dist. Fairfield No. 2011–CA–
00007, 2011-Ohio-5897, at ¶ 23.
{¶11} Appellant argues the trial court erred in finding that the process
server, Mr. Huffman, failed to personally serve Appellee. The methods for
service of process are governed by Civ.R. 4.1, which provides for service by
certified mail, personal service, or residence service. Torres v. Torres, 8th
Dist. Cuyahoga Nos. 88582, 88680, 2007-Ohio-4443, at ¶ 29. “Personal
service” is controlled by Civ.R. 4.1(B), which states in pertinent part:
“When the plaintiff files a written request with the clerk for
personal service, service of process shall be made by that
method.
***
“The person serving process shall locate the person to be served
and shall tender a copy of the process and accompanying
documents to the person to be served. When the copy of the
process has been served, the person serving process shall
endorse that fact on the process and return it to the clerk who
shall make the appropriate entry on the appearance docket.”
{¶12} In this case, Appellant argues that the language “shall tender a
copy of the process and accompanying documents to the person to be
served” does not require the process server to hand the paperwork to the
person being served, touch the person to be served, or to have any physical
contact with the person to be served. Appellant also argues the rule does not
Pickaway App. No. 18CA5 7
require that the person acquiesce by accepting service. Under the fact
pattern of this case, Appellant argues Mr. Huffman did tender process to
Appellee.
{¶13} We begin with the presumption of proper service inasmuch as
at the motion hearing, Mr. Huffman identified Plaintiff’s Exhibit 3, which
was a return of service which he executed. The “Return of Service”
indicates personal service as the word “personal” is circled. However,
Appellee argues she did not receive personal service. Therefore, we must
review the facts presented and see if Appellee produced “evidentiary quality
information” that she did not receive service.
{¶14} The Magistrate heard the following evidence at the motion
hearing. Mr. Huffman testified he had been employed to serve Appellee,
and he had been supplied with a photograph of her. Mr. Huffman identified
the photograph, Plaintiff’s Exhibit 1, and identified Appellee in the
courtroom. He testified he was given a residence address for Mrs. Beaver as
“2298 Spring Cress Avenue, Grove City, Ohio 43213” and went to that
address three different times. Mr. Huffman also identified Plaintiff’s Exhibit
2, a photograph of vehicles sitting in the driveway at the Grove City address.
{¶15} Mr. Huffman testified to two prior unsuccessful attempts to
serve Appellee. His third attempt occurred on November 20th at 12:54 a.m.
Pickaway App. No. 18CA5 8
It was dark, but the house had a front porch light, a yard light, and a street
light which provided light in the area. Mr. Huffman testified:
“Well, I was actually there earlier, but I sat in my car. I had
been there twice in my truck, and I thought that the door was
not answered because of avoiding service. So this time I took
my car so no one would know. You know, what I was in there.
I sat there and I waited and I saw Mrs. Beaver come out the
door.”
{¶16} Mr. Huffman testified he was able to see Appellee clearly, to
see her face, and to identify her. He continued:
“She started down the sidewalk, I have (sic.) her time to get
down towards the truck, I was told that she would be going to
work at that time. I got out of my vehicle and started across the
street into the yard, and I said, ‘Mrs. Beaver,’ and she turned
and looked at me, and started to run. And I said, ‘Mrs. Beaver,
there’s no sense running,’ I said ‘you’ve been served.’ And she
said, ‘No, I haven’t been served mother fucker.’”
Huffman testified Appellee ran back to the house, went into the door and
locked it behind her.
{¶17} On cross-examination, Mr. Huffman admitted he never got
closer than approximately 30 feet to Appellee before she ran into the house.
He left the paperwork between the storm door and house door and closed the
storm door. He testified he marked his return as “personal service.” Mr.
Huffman admitted he did not touch Appellee with the papers or throw them
at her. He did not say anything to Appellee until he got into her yard.
Pickaway App. No. 18CA5 9
{¶18} Appellee was first examined as on cross-examination. She
testified that on November 20, 2017, she was living at the Spring Cress
Avenue address. She knew she had been sued and a process server was
looking for her. She did not know a process server had been to her house
prior to that date. She became aware of Mr. Huffman on November 20th, at
approximately 1:00 a.m. when she was leaving for work. She testified as
follows:
“I called my mom and I asked her to pick me up, I was getting
rides everywhere so I wasn’t driving my vehicles. And my
mom came to pick me up, and as she went around the corner
she called me, she was in a big red truck, she called me and
said, ‘Kellie, I’m on my way, I will be there.’ I began to walk
out of the house, and I probably went out five feet, kept my
door open, my lights were off just in case my mom wasn’t there
because I’m not used to living in the city, I’m used to living in
the country and I get scared at night. I don’t like the dark. I
walked out of the house, began to walk out, and then all of a
sudden I saw a dome light in a truck catty-cornered three doors
down, a guy jumped out of the truck, started running across my
yard, it scared me and I jumped back in the house.”
{¶19} Appellee further testified that she did not know if Mr. Huffman
was the man who ran towards the house because it was so dark. She
emphasized that the individual “jumped” out of the truck and “ran.”
Appellee testified her mother, who was sitting in her truck with the windows
rolled up, witnessed everything. Appellee specifically denied calling Mr.
Huffman the offensive name. Appellee testified she has never picked up the
Pickaway App. No. 18CA5 10
paperwork left in the door. The next day, she opened the door, it fell onto
the ground, and she left it there.
{¶20} On direct examination, Appellee reiterated that Mr. Huffman
never touched her with the papers, didn’t throw them at her. He was
screaming. He was probably more than 30 feet from her. She did nothing to
acknowledge service. Once she went inside, she locked the door, called her
work, and told her mother to leave. Someone banged on the door a couple
of minutes, but she did not respond.
{¶21} The trial court’s decision found:
“ ‘Tender’ is defined by Merriam Webster as the action of
presenting an object for acceptance. In the case sub judice, the
Court agrees that defendant was never personally served with
process. Had Mr. Huffman physically touched defendant with
the process, then the outcome may have been different.
However, based upon the testimony presented, the Court agrees
with Magistrate Peters that service was never made on
defendant.”
{¶22} We begin with the Supreme Court of Ohio’s decision in Sears
v. Weimer 143 Ohio St. 312, 55 N.E.2d 413 (1944), Paragraph 3 of the
syllabus, where prior to the adoption of the present rules, it was held:
“Personal service is to be made by delivering a copy of the summons, with
the endorsement thereon, to the defendant personally.” See also Smith v.
Riedy, 3rd Dist. No. 13-78-11, 1978 WL 215751 (Sept. 14, 1978), *4. Yet,
the term “personal service” can be somewhat ambiguous. According to
Pickaway App. No. 18CA5 11
Merriam Webster’s Online Dictionary, “personally” may be defined as
“carried on between individuals directly.” See https://Merriam-
Webster.com/dictionary.
{¶23} In City of Oregon v. Fox, 6th Dist. Lucas No. L-82-317, 1983
WL 13815 (Jan. 21, 1983), the appellate court concluded Fox, an inmate,
was not personally served with citations that were not personally served
upon him, but were placed in a property bin at the jail. The Fox court
observed *1:
“As stated in Sears v. Weimer (1944), 143 Ohio St. 312, 314-
315: ‘The term ‘personal service’ has a fixed and definite
meaning in law. It is service by delivery of summons to
defendant personally. [citations omitted] * * *.’ ”
{¶24} Thus, the definition of “personal service” includes an aspect of
“delivery.” In New Cooperative Co. v. Liquor Control Comm., 10th Dist.
Franklin No. 01AP-1124, 2002-Ohio-2244, the issue was whether certified
mail service had been perfected. In the appellate decision at ¶ 12, citing
Sears at 315, the court stated: “[p]ersonal service requires actual delivery to
the person to whom it is directed or to someone who is authorized to receive
service.”
{¶25} In Smith v. Riedy, 3rd Dist. Seneca No. 13-78-11, 1978 WL
215751, the issue again was whether certified mail service was
Pickaway App. No. 18CA5 12
accomplished by handing Riedy a summons. In concluding that it was not,
however, the Riedy court noted somewhat more definitively at *4:
“In Wests Ohio Practice: Rules of Civil Procedure Annotated at
page 214 under Committee Comment for Rule 4.1(2) it is said:
‘The procedure for effecting personal service by ‘in hand’
service is much as it always had been: the sheriff goes forth and
hands the process to the person to be served.’
{¶26} Smith also cited the above language of Sears and observed that
“[t]he current civil rule does not change this concept.” Id. at *4.
{¶27} In Girard v. AFSCME Ohio Council 8, Local Union 3356, 11th
Dist. Trumbull No. 2003-T-98, 2004 WL 3090189, the precise question was
when is an arbitration award sent via ordinary mail deemed to be
“delivered” under Revised Code Chapter 2711 governing arbitration. In its
discussion, the appellate court observed at ¶ 13:
“The term ‘delivered’ is not defined by the statute. Thus, it
must be given its plain and ordinary meaning. A review of the
definition of ‘delivery’ in Black's Law Dictionary reveals the
term is used in several different contexts, including: actual
delivery, constructive delivery, absolute delivery, and
conditional delivery. However, the general definition of
‘delivery’ is: “[t]he act by which the res or substance thereof is
placed within the actual or constructive possession or control of
another. * * * What constitutes delivery depends largely on the
intent of the parties.”
{¶28} Our review of the case law indicates that while courts may have
endeavored to make the interpretation of “personal service” clear, many
times it is not. And, the outcomes, in cases where personal service of
Pickaway App. No. 18CA5 13
process is at issue, are driven by the facts. One solid principle is that
“[p]ersonal service results in notice.” Hayes v. Kentucky Bank, 125 Ohio St.
359, 364, 181 N.E. 542, 544 (1932). Yet, Kentucky Bank also observed:
“Service by leaving may or may not result in notice.” Id. As previously set
forth in this case, Mr. Huffman testified he effected personal service on
Appellee and he also left the documents in the storm door of the house she
ran into.
{¶29} When applying the abuse of discretion standard of review, we
are not free to merely substitute our judgment for that of the trial court.
Windland v. Windland, 4th Dist. Washington No. 17CA1, 2017-Ohio- 9039,
at ¶ 26, citing Berk v. Matthews, 53 Ohio St.3d 161, 559 N.E.2d 1301(1990)
(Internal citations omitted.). Furthermore, factual findings supported by
some competent, credible evidence will not be reversed. Sec. Pacific Natl.
Bank v. Roulette, 24 Ohio St.3d 17, 20, 492 N.E.2d 438 (1986); C.E. Morris
Constr. Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578(1978). Here, we are mindful that the trial court is in the best position to
judge credibility of testimony because it is in the best position to observe the
witness's gestures and voice inflections. Seasons Coal Co. v. Cleveland, 10
Ohio St.3d 77, 461 N.E.2d 1273 (1984).
Pickaway App. No. 18CA5 14
{¶30} Appellee essentially admitted who she was and acknowledged
that she knew Mr. Huffman’s purpose if his testimony that she turned to him
and said “No I haven’t been served” is to be believed. Yet, Appellee
testified that it was dark, she did not know if Mr. Huffman was the man who
approached her, and that she did not call him an offensive name. Appellee
also testified the papers he left are on the ground outside her storm door.
The magistrate evidently found Appellee’s testimony to be competent and
credible.
{¶31} Our review of the case law demonstrates there is no rule. Hand
delivery, as mentioned above, would seem to be the ideal. The case law
does not indicate hand delivery is required in every instance.
{¶32} We are inclined to agree with Appellant that “tender” may have
occurred. Yet, the evidence is not clear that “delivery * * * to defendant
personally” occurred. “A judgment by the trial court which is correct, but
for a different reason, will be affirmed on appeal as there is no prejudice to
the appellant.” State ex rel. Sommers v. Perkins Local School Board of
Education, 2017-Ohio-7991, 98 N.E.3d 1117, 6th Dist.), at ¶ 5, quoting
Bonner v. Bonner, 3rd Dist. Union No. 14-05-26, 2005-Ohio-6173, ¶ 18.
{¶33} For the foregoing reasons, we find the trial court did not abuse
its discretion in finding that based upon the testimony presented, personal
Pickaway App. No. 18CA5 15
service was not made upon Appellee. Accordingly, we overrule the sole
assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Pickaway App. No. 18CA5 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Pickaway County 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.
Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: __________________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.