Adams v. McElroy , 2018 Ohio 89 ( 2018 )

[Cite as Adams v. McElroy, 2018-Ohio-89.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105399
JOHNNY ISAAC ADAMS
PLAINTIFF-APPELLEE
vs.
PATRICIA JONES MCELROY,
ADMINISTRATOR, ETC., ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-12-783248
BEFORE: Celebrezze, J., Keough, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: January 11, 2018
ATTORNEYS FOR APPELLANT
Amy E. Asseff
David A. Freeburg
Freeburg Law Firm, L.P.A.
6690 Beta Drive, Suite 320
Mayfield Village, Ohio 44143
FOR APPELLEE
Johnny Isaac Adams, pro se
7279 Rocker Avenue
Chagrin Falls, Ohio 44023
Also Listed
Antonio Jones, pro se
Kelly Hill, pro se
10917 Notre Dame
Cleveland, Ohio 44104
Marva Edwards, pro se
Linda Wiley, pro se
1325 East 84th Street
Cleveland, Ohio 44103
Key Bank National Association
127 Public Square
Cleveland, Ohio 44144
Key Bank National Association
4910 Tiedeman Road, Suite C
Brooklyn, Ohio 44114
Home Sales Inc.
c/o Corp. Trust Co. Statutory Agent
1209 Orange Street
Wilmington, Delaware 19801
IL Forza, LLC
2230 W. Chapman Avenue
Orange, California 92868
For Dondi S. Jones, Patricia Jones McElroy, and George Jones, III
Virgil T. Morant
2130 Lakeland Avenue
Lakewood, Ohio 44107
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Tanisha Jones (“appellant”), appeals the trial court’s
judgment denying her motion to vacate judgment and for relief from judgment in a
declaratory judgment action. Specifically, appellant argues that the trial court abused its
discretion in denying her motion after she presented unchallenged evidence that service
upon her was not perfected, and by failing to hold an evidentiary hearing on her motion.
After a thorough review of the record and law, this court reverses and remands for further
proceedings consistent with this opinion.
I. Factual and Procedural History
{¶2} On May 23, 2012, in Cuyahoga C.P. No. CV-12-783248, plaintiff-appellee,
Johnny Isaac Adams (“Adams”), filed a complaint for declaratory judgment. Adams is
the surviving spouse of Minnie Jones Adams (“decedent”), who died on January 19,
2012.
{¶3} Adams’s declaratory judgment involved a dispute regarding the parcels of
land that decedent owned at the time of her death and whether she conveyed title to any
parcels of land during her lifetime. In his complaint, Adams alleged that he did not
release his dower interest in the parcels that decedent conveyed, and as a result, he sought
payment of his dower interest. Adams filed an amended complaint on May 25, 2012.
{¶4} Appellant was the title holder of record of one of the parcels at issue, located
at 3596 East 131st Street, Cleveland, Ohio 44120. Appellant acquired title to the
property from her husband, George Jones, IV, in 2011. Adams named appellant as a
defendant in both the original and the amended complaints.
{¶5} The record reflects that the clerk mailed the summons and both complaints by
certified mail to appellant at 16115 Arcade Avenue, Cleveland, Ohio 44110. The
certified mail receipt from the original complaint was returned as “mail received at
address 05/31/2012 signed by other.” 1 The certified mail receipt from the amended
complaint was returned as “unclaimed notice mailed to [appellant’s] attorney.”2 A copy
of the summons and the amended complaint was then sent to appellant at the Arcade
Avenue address by regular mail. There is nothing in the record indicating that this
envelope was returned as undeliverable.
{¶6} Appellant did not respond to Adams’s complaints. On August 23, 2012,
Adams filed a motion for default judgment against all defendants who failed to file an
answer or a responsive pleading. Notice of the default judgment hearing was sent to
appellant at the Arcade Avenue address. The trial court held a hearing on Adams’s
default judgment motion on September 4, 2012. The trial court granted Adams’s motion
for default judgment against all “non-answering parties” including appellant.3
See docket entry on June 5, 2012.
1
See docket entry on June 26, 2012.
2
The non-answering parties were Antonio Jones, appellant, Dondi Jones, Linda Wiley, Marva
3
Edwards, Key Bank National Association, Home Sales Inc., Kelly Hill, and IL Forza, LLC.
{¶7} Adams reached an agreement with the remaining defendants that filed a
responsive pleading or appeared in the trial court.4 Under this agreement, decedent’s
conveyances of various properties — including the East 131st Street property — were set
aside and titles to the properties were returned to decedent’s estate. The trial court
journalized the parties’ agreed judgment entry on May 28, 2013.
{¶8} On December 2, 2016, appellant filed a motion to vacate the default judgment
entered against her or, in the alternative, for relief from judgment pursuant to Civ.R.
60(B)(5). Therein, appellant argued that she had never been served with the complaint
or the amended complaint in this matter, and thus, service was never perfected upon her.
Appellant submitted an affidavit in support of her motion.
{¶9} Adams did not respond to or oppose appellant’s motion. On December 9,
2016, defendants Patricia Jones McElroy, George Jones, III, and Dondi S. Jones filed a
memorandum in opposition to appellant’s motion.
{¶10} On December 31, 2016, the trial court denied appellant’s motion to vacate
without holding an evidentiary hearing. It is from this judgment that appellant filed the
instant appeal. Appellant assigns two errors for review:
I. Because [appellant] produced unrefuted evidentiary-quality information
demonstrating that she did not receive service, the trial court abused its
discretion in denying her motion to vacate the default judgment entered
against her.
Patricia Jones, Patrice Jones, George Jones, III, and William Jones.
4
II. Because [appellant] alleged operative facts that would warrant relief, the
trial court abused its discretion in failing to hold an evidentiary hearing to
take evidence and verify facts before ruling on her motion to vacate.
II. Law and Analysis
{¶11} Both of appellant’s assignments of error pertain to the trial court’s denial of
her motion to vacate default judgment. In her first assignment of error, appellant argues
that the trial court abused its discretion by denying her motion to vacate default judgment.
{¶12} This court reviews a trial court’s decision regarding a motion to vacate a
purportedly void judgment for an abuse of discretion. Hook v. Collins, 8th Dist.
Cuyahoga No. 104825, 2017-Ohio-976, ¶ 10, citing Miley v. STS Sys., 153 Ohio App.3d
752, 2003-Ohio-4409, 795 N.E.2d 1254, ¶ 7 (10th Dist.), and Hoffman v. New Life
Fitness Ctrs., 116 Ohio App.3d 737, 739, 689 N.E.2d 84 (3d Dist.1996). An abuse of
discretion implies that a trial court’s decision is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶13} In the instant matter, appellant moved to vacate the default judgment based
on lack of personal jurisdiction asserting that she was not served with the complaint, the
amended complaint, or notice of the default judgment hearing.
{¶14} Trial courts have inherent authority to vacate a void judgment. Hook at ¶
12, citing Newark Orthopedics, Inc. v. Brock, 92 Ohio App.3d 117, 123, 634 N.E.2d 278(10th Dist.1994). Accordingly, a defendant may raise the issue of insufficient service of
process in a Civ.R. 60(B) motion, however, the defendant need not meet the requirements
of establishing a meritorious defense or that the motion was timely filed under Civ.R.
60(B). Hook at ¶ 12, citing CompuServe, Inc. v. Trionfo, 91 Ohio App.3d 157, 161, 631
N.E.2d 1120 (10th Dist.1993). When a trial court renders default judgment without
obtaining service over the defendant, the default judgment is void and the defendant is
entitled to have the judgment vacated. Broadvox, L.L.C. v. Oreste, 8th Dist. Cuyahoga
No. 92064, 2009-Ohio-3466, ¶ 12.
{¶15} In order for service to be consistent with standards of due process, it must be
made “in a manner reasonably calculated to apprise interested parties of the action and to
afford them an opportunity to respond.” Hook, 8th Dist. Cuyahoga No. 104825,
2017-Ohio-976, at ¶ 13, citing Akron-Canton Regional Airport Auth. v. Swinehart, 62
Ohio St.2d 403, 406, 406 N.E.2d 811 (1980). Civ.R. 4.1 provides three permissible
methods of service: certified or express mail service, personal service, or residence
service. In Ohio, certified mail is the preferred method for serving a party, and service
is evidenced by a signed return receipt. Hook at ¶ 13. Pursuant to Civ.R. 4.1(A),
individuals must be served at their “usual place of residence,” and any person residing at
that address who is of “suitable age and discretion” may receive such service.
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). Where the plaintiff follows the civil rules governing service of
process, courts presume that service is proper unless the defendant rebuts
this presumption with sufficient evidence of non-service. Carter-Jones
Lumber Co. v. Meyers, 2d Dist. Clark No. 2005 CA 97, 2006-Ohio-5380, ¶
11. In order to rebut the presumption of proper service, the other party
must produce evidentiary-quality information demonstrating that he or she
did not receive service. McWilliams v. Schumacher, 8th Dist. Cuyahoga
Nos. 98188, 98288, 98390, and 98423, 2013-Ohio-29, ¶ 51, citing
Thompson v. Bayer, 5th Dist. Fairfield No. 2011-CA-00007,
2011-Ohio-5897, ¶ 23.
Relevant to the circumstances presented in this case, the rebuttable
presumption of proper service may be rebutted by evidence that the
defendant did not reside, nor received mail, at the address to which such
ordinary mail service was addressed. Schumacher at ¶ 49, citing Cent.
Ohio Sheet Metal, Inc. v. Walker, 10th Dist. Franklin No. 03AP-951,
2004-Ohio-2816, ¶ 10. “Where the defendant files a motion to vacate
judgment, and swears under oath that he or she did not reside at the
address to which process was sent, the presumption is rebutted, and it is
incumbent upon the plaintiff to produce evidence demonstrating that
defendant resided at the address in question.” Watts v. Brown, 8th Dist.
Cuyahoga No. 45638, 1983 Ohio App. LEXIS 15311, 14-15 (Aug. 4, 1983).
(Emphasis added.) Hook at ¶ 14-15.
{¶16} In the instant matter, Adams attempted to serve appellant with both the
original complaint and amended complaint at 16115 Arcade Avenue, Cleveland, Ohio
44110. According to appellant, defendant George Jones, III, resides at the Arcade
Avenue address.5 The record reflects that the summons and both complaints were
mailed to George Jones, III, at 16115 Arcade Avenue, Down, Cleveland, Ohio 44110.
In her motion to vacate, appellant asserted that she lived in Portage County at 925
Creekview Drive, Aurora, Ohio 44202 prior to and throughout the pendency of the trial
court’s proceedings.
{¶17} Appellant submitted an affidavit along with her motion to vacate in which
she averred, in relevant part:
Appellant is married to George Jones, IV.
5
6. At the time [CV-12-783248] was filed, I was residing at 925 Creekview
Drive, Aurora, OH 44202, in Portage County.
7. At all times during the pendency of the [l]awsuit, I resided at 925
Creekview Drive, Aurora, OH 44202.
8. I never received service of the [c]omplaint or [a]mended [c]omplaint
filed in the [l]awsuit at my residence.
9. The [l]awsuit docket listed my address as 16115 Arcade Avenue,
Cleveland, OH 44110. I did not reside at that address at any time during
the [l]awsuit and I have never resided at that address.
10. 16115 Arcade Avenue was the home of my father-in-law, George Jones
III, also a [d]efendant in the [l]awsuit.
11. I was not physically present at 16115 Arcade Avenue on a regular basis
and I never received mail at that address.
12. All correspondence addressed to me concerning the [l]awsuit was sent
to 16115 Arcade Avenue, Cleveland, OH 44110. I never received any
correspondence.
13. The [l]awsuit docket showed my attorney as Sam Thomas III. I was
never represented by Sam Thomas III or any other attorney in the [l]awsuit.
14. I never filed an answer to the [c]omplaint and never made any
appearance in the [l]awsuit.
15. Pursuant to the [l]awsuit [d]ocket [e]ntry dated August 22, 2012, I never
received written notification of the pending [d]efault [h]earing.
16. I never received notification of the [d]efault [j]udgment entered against
me on September 4, 2012.
17. The [l]awsuit [d]ocket [e]ntry dated January 4, 2013, stating that a
[r]esponse to [Adams] [m]otion for [s]ummary [j]udgment was filed on my
behalf was incorrect. I was never represented by the filing attorney, Sam
Thomas III.
18. I did not learn that the [c]ourt had ordered the [East 131st Street
property] transferred back to the [decedent’s estate], pursuant to a
settlement agreement entered into by the remaining parties to the [l]awsuit,
until I was contacted by the court-appointed [f]iduciary for the [e]state,
Michael Stinn.
{¶18} As noted above, Adams did not oppose appellant’s motion. However,
Patricia Jones McElroy, Dondi Jones, and George Jones, III (“defendants”), filed a
memorandum in opposition to appellant’s motion to vacate. Therein, defendants
requested that appellant’s motion to vacate be denied or, in the alternative, that the trial
court hold a full hearing on appellant’s motion. Defendants argued that the trial court
should not strictly rely on appellant’s motion and the memorandum in opposition in
determining whether service on appellant was improper. Defendants asserted that they
had a right to contest and controvert appellant’s claim that she never received service by
submitting further evidence or cross-examining appellant. Defendants stated that it
would be improper to deny them “an opportunity for a hearing to prove that service was
received [by appellant].” Defendants explained that “further factual and legal
examination through a hearing is crucial in determining whether service was nevertheless
sufficient.” Defendants emphasized that a hearing on appellant’s motion was crucial
based on the case’s “history of complications” including: (1) both the common pleas court
and the probate court had been involved in the matter, (2) defendant William Anthony
Jones died during the pendency of the case, (3) defendant George Jones, III, moved
during the pendency of the case and “had to be searched out by [c]ounsel,” and (4)
Adams’s counsel withdrew from representation and, thus, his ability to respond to
appellant’s motion to vacate in a timely manner was compromised.
{¶19} After reviewing the record, we find that appellant sufficiently rebutted the
presumption of proper service. See Hook, 8th Dist. Cuyahoga No. 104825,
2017-Ohio-976, at ¶ 15, citing Watts, 8th Dist. Cuyahoga No. 45638, 1983 Ohio App.
LEXIS 15311, at 14-15. Appellant’s affidavit indicated that (1) she never resided at the
Arcade Avenue address, (2) she was not served with the complaint, the amended
complaint, or notice of the default judgment hearing prior to the trial court granting
default judgment in Adams’s favor, and (3) she only became aware of the default
judgment and settlement agreement when she was contacted by the court-appointed
fiduciary for decedent’s estate.
{¶20} Although appellant rebutted the presumption of proper service, Adams did
not respond to appellant’s motion to vacate and, thus, he failed to demonstrate that
appellant resided at the Arcade Avenue address. The responding defendants’
memorandum in opposition to appellant’s motion to vacate also failed to demonstrate that
appellant resided at the Arcade Avenue address. Defendants simply requested that the
trial court hold a hearing to provide them with an opportunity to contest and controvert —
through “further evidence or cross-examination” — appellant’s assertion that she never
received service. However, defendants failed to produce any such further evidence in
support of their memorandum.
{¶21} Accordingly, the record reflects that appellant sufficiently rebutted the
presumption of valid service by demonstrating that she did not reside or otherwise receive
mail at the Arcade Avenue address to which the complaint, amended complaint, and
notice of the default judgment hearing were addressed. Furthermore, there is nothing in
the record indicating that appellant appeared or waived service prior to the September 4,
2012 default judgment.
{¶22} The record contains a January 4, 2013 docket entry titled “defendant (s)
Patricia Jones McElroy (D1), George Jones (D2), William Anthony Jones (D3), Antonio
Jones (D4), Tanisha Jones (D5), Patrice N. Jones (D6) and Dondi S. Jones (D7) response
to [Adams’s] motion for summary judgment. Sam Thomas 0067848.” In her motion to
vacate, appellant argued that she was erroneously listed in the docket entry, and that she
was never represented by the attorney, Sam Thomas, that filed the response to Adams’s
summary judgment motion. Furthermore, in her affidavit, appellant averred that she was
never represented by attorney Thomas.
{¶23} After reviewing the record, it is evident that the January 4, 2013 docket
entry erroneously indicated that the response to Adams’s motion for summary judgment
was filed by or on behalf of appellant. The trial court’s July 2, 2012 docket entry
provides that attorney Thomas filed a notice of appearance of counsel for defendants
Patricia Jones McElroy and Patrice Jones only. 6 There is nothing in the record
indicating that attorney Thomas was representing or acting on behalf of appellant.
{¶24} Based on the foregoing analysis, we find that the trial court abused its
discretion by denying appellant’s motion to vacate the default judgment. Appellant’s
first assignment of error is sustained. We further find that the trial court’s denial of
See July 2, 2012 docket entry.
6
appellant’s motion without holding an evidentiary hearing constituted an abuse of
discretion. “When the movant’s motion to vacate contains allegations of operative facts
that would warrant relief, the trial court should grant a hearing on such motion.” Khatib
v. Peters, 8th Dist. Cuyahoga No. 102663, 2015-Ohio-5144, ¶ 25, citing Adomeit v.
Baltimore, 39 Ohio App.2d 97, 105, 316 N.E.2d 469 (8th Dist.1974). In Khatib, the
movant’s motion to vacate contained operative facts that would warrant relief from
judgment. The movant attached an affidavit to her motion to vacate in which she
averred that she had not concealed her location from plaintiffs-appellees to avoid service;
she also provided the various address at which she had lived for the last several years.
Plaintiffs-appellees failed to produce any evidence rebutting the movant’s affidavit, they
merely argued that the affidavit was self-serving. This court held that the trial court
abused its discretion by denying the motion to vacate without a hearing, explaining that
“[w]ithout a hearing, the trial court could not determine [the movant’s] credibility[.]”
Id. at ¶ 25, citing Money Tree Loan Co. v. Williams, 169 Ohio App.3d 336,
2006-Ohio-5568, 862 N.E.2d 885, ¶ 16 (8th Dist.) (“trial court errs in summarily
overruling a defendant’s motion to aside a judgment for lack of service, when the
defendant submits a sworn statement that she did not receive service of process, without
affording the defendant a hearing.”).
{¶25} In the instant matter, like Khatib, appellant’s motion to vacate and
supporting affidavit contained operative facts that would warrant relief from judgment,
and Adams neither responded nor presented any evidence to rebut appellant’s affidavit.
Furthermore, the defendants that filed the memorandum in opposition did not present any
evidence to rebut appellant’s affidavit or challenge the credibility of appellant’s sworn
statement. As noted above, these defendants requested that a hearing be held on
appellant’s motion to vacate.
{¶26} Based on the foregoing analysis, we find that the trial court abused its
discretion by denying appellant’s motion to vacate without holding a hearing.
Appellant’s second assignment of error is sustained.
III. Conclusion
{¶27} A review of the record reflects that appellant’s motion to vacate and her
supporting affidavit contained operative facts that would warrant relief from judgment.
These operative facts were not rebutted by Adams or by the other defendants in their
memorandum in opposition. Accordingly, we find that the trial court abused its
discretion by denying appellant’s motion to vacate default judgment without holding a
hearing.
{¶28} The trial court’s judgment denying appellant’s motion to vacate is reversed
and the matter is remanded for the trial court to conduct an evidentiary hearing on the
motion to vacate.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
FRANK D. CELEBREZZE, JR., JUDGE
KATHLEEN ANN KEOUGH, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR