TM Three Advertising, L.L.C. v. Rodriguez ( 2021 )

[Cite as TM Three Advertising, L.L.C. v. Rodriguez, 2021-Ohio-2759.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TM THREE ADVERTISING LLC, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, J.
-vs- :
:
ALEX RODRIGUEZ, : Case No. 21 CAE 01 0001
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Case No.
19CVH110635
JUDGMENT: Vacated and Remanded
DATE OF JUDGMENT: August 11, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ZACHARY M. SWISHER LINDA J. LAWRENCE
Sybert Rhoad Lackey and Swisher Lawrence Law Firm
153 S. Liberty St. 24 West William Street
Powell, Ohio 43065 Delaware, Ohio 43015
Delaware County, Case No. 21 CAE 01 0001 2
Baldwin, J.
{¶1} Appellant, Alex Rodriguez, appeals the decision of the Delaware County
Court of Common Pleas finding that he had been “served by a process server” and that
appellee was entitled to default judgment Appellee is TM Three Advertising, LLC.
STATEMENT OF FACTS AND THE CASE
{¶2} Rodriquez's appeal focuses upon the trial court’s jurisdiction to issue default
judgment. Rodriguez claims that appellee did not serve him with a copy of the summons
and complaint in this case and that, therefore, the trial court had no jurisdiction to issue
default judgment against him.
{¶3} Appellee, TM Three Advertising, LLC, filed a complaint against Rodriguez
alleging that he "made a promissory note in favor of Plaintiff as payee in the amount of
$25,344.00, interest at the rate of 2.99% per annum, with payments of $352.00 to be
made the first of every month beginning January 1, 2017." (Complaint, p.2, ¶ 5). TM
Three claims that Rodriguez made no payments despite repeated demands and sought
recovery under three different theories: breach of contract, anticipatory breach of contract
and unjust enrichment.
{¶4} TM Three alleged that Rodriguez was residing in Florida, but claimed that
"the note at issue in this Complaint was signed in Delaware County, Ohio, and much of
the conduct related to the Complaint occurred in Delaware County, Ohio" implying that
these allegations provided the trial court with personal and subject-matter jurisdiction.
{¶5} TM Three requested that the clerk issue certified mail service to Rodriguez
at an address in Clearwater, Florida. The record shows that the clerk issued the summons
and complaint on November 7, 2019 and that the service was marked “undeliverable as
Delaware County, Case No. 21 CAE 01 0001 3
addressed” and returned on November 21, 2019. The clerk delivered notice of failure of
service to TM Three on the same date.
{¶6} Approximately nine months later, the trial court issued a judgment entry
ordering TM Three to "advise the Court by October 23, 2020 of its efforts to serve the
Defendant" or risk administrative dismissal of the complaint. (Judgment Entry, Sept. 10,
2020).
{¶7} On October 16, 2020 TM Three filed a response to the trial court's order,
informing the court that Rodriquez had been personally served as described in an
accompanying affidavit. That affidavit, executed in Florida by Nicolas Sandberg,
contained the following:
Affidavit of Service
IN THE COURT OF COMON(SIC) PLEAS
DELARWARE(SIC) COUNTY, OHIO
For:
Alex Rodriguez
801 Delmar Way, Apt 105
Delray Beach, FL 33483
Received by Nicolas Sandberg certified process server (Florida) on the
14TH day of October 2020 at 2:52 pm (sic) to be served on Alex Rodriguez
801 Delmar Way, Apt 105 Delray Beach, FL 33483. I, Nicolas Sandberg,
being duly sworn, depose and say that on the 15TH day of October 2020,
at 7:55 Am (sic), I Personally/Individually: served by delivering a true copy
of the COMPLAINT to Alex Rodriguez 801 Delmar Way, Apt 105 Delray
Beach, FL 33483: with the date and hour of service endorsed thereon by
Delaware County, Case No. 21 CAE 01 0001 4
me, and informed said person of the contents therein, after the provisions
as set forth with Ohio Statues have been met.
I am over the age of 18 and have no interest in the above action. (Emphasis
sic.)
{¶8} The following language appears at the bottom of the affidavit, below the
signature of Sandberg and the notary verification: “Notes: Alex Rodriguez opened the
door and claimed to be said person in listed action and freely accepted the papers.”
{¶9} TM Three moved for default judgment on November 19, 2020, noting that
Rodriguez did not answer or respond to the complaint. The trial court granted the motion
on December 2, 2020, finding that "[t]he Defendant was served by a process server on
October 15, 2020, but failed to file an answer or otherwise appear in the case." (Default
Judgment, Dec. 2, 2020, p. 1).
{¶10} Rodriguez filed a notice of appeal on January 4, 2021 and submitted eight
assignments of error:
{¶11} “I. THE COURT ERRED WHEN IT GRANTED DEFAULT JUDGMENT
FOR PLAINTIFF AND AGAINST DEFENDANT WITHOUT REQUIRING PLAINTIFF TO
PERFECT SERVICE OF PLAINTIFF'S COMPLAINT ON DEFENDANT PURSUANT TO
THE OHIO RULES OF CIVIL PROCEDURE.”
{¶12} “II. THE COURT ERRED WHEN IT GRANTED DEFAULT JUDGMENT
FOR PLAINTIFF AND AGAINST DEFENDANT WHEN THE COURT LACKED
PERSONAL JURISDICTION OVER DEFENDANT.”
Delaware County, Case No. 21 CAE 01 0001 5
{¶13} “III. THE COURT ERRED WHEN IT FAILED TO REQUIRE PLAINTIFF TO
REQUEST A PROCESS SERVER PURSUANT TO THE OHIO RULES OF CIVIL
PROCEDURE.”
{¶14} “IV. THE COURT ERRED WHEN IT FAILED TO DESIGNATE A
PROCESS SERVER BY ORDER PURSUANT TO THE OHIO RULES OF CIVIL
PROCEDURE.”
{¶15} “V. THE COURT ERRED WHEN IT FAILED TO ISSUE PROCESS TO A
DESIGNATED PROCESS SERVER PURSUANT TO THE OHIO RULES OF CIVIL
PROCEDURE.”
{¶16} “VI. THE COURT ERRED WHEN IT FAILED TO REQUIRE PLAINTIFF'S
PROCESS SERVER TO SERVE PLAINTIFF WITH A SUMMONS AND WITH A
COMPLAINT DELIVERED BY THE CLERK OF COURTS.”
{¶17} “VII. THE COURT ERRED WHEN IT FAILED TO REQUIRE PLAINTIFFS
ENDORSEMENT OF SERVICE ON PROCESS PURSUANT TO THE OHIO RULES OF
CIVIL PROCEDURE.”
{¶18} “VIII. THE COURT VIOLATED DEFENDANT'S DUE PROCESS RIGHTS
BY NOT REQUIRING THAT PLAINTIFF COMPLY WITH THE OHIO RULE OF CIVIL
PROCEDURE TO PERFECT SERVICE UPON DEFENDANT PRIOR TO THE COURT
ISSUING A DEFAULT JUDGMENT AGAINST DEFENDANT.”
{¶19} The parties have included description of facts regarding the background of
the litigation and contentions regarding whether appellant was served with the correct
complaint. These facts and contentions are not part of the record and therefore cannot
be included in our analysis.
Delaware County, Case No. 21 CAE 01 0001 6
STANDARD OF REVIEW
{¶20} Rodriguez lists eight separate assignments of error, but all share the
common element of attacking the trial court's exercise of personal jurisdiction in the
absence of proper service.
{¶21} It is rudimentary that in order to render a valid personal judgment, a court
must have personal jurisdiction over the defendant. Maryhew v. Yova (1984), 11 Ohio
St.3d 154, 156, 11 OBR 471, 464 N.E.2d 538. The court may obtain personal jurisdiction
by service of process, voluntary appearance or waiver. Id. The record contains no
evidence of waiver or voluntary appearance, so we review the record for proper service.
Failure of proper service deprives the court of personal jurisdiction and renders any
judgment void ab initio. Pippin v. Hauser (1996), 111 Ohio App.3d 557, 565 and that
judgment "may be collaterally attacked at any time." Deutsche Bank Nat'l Trust Co. v.
Boswell, 192 Ohio App.3d 374, 2011–Ohio–673, 949 N.E.2d 96 (1st Dist.) as quoted in
U.S. Bank, N.A. v. Dowd, 5th Dist. Stark No. 2013CA00071, 2013-Ohio-3835, ¶ 15.
{¶22} “The trial court's determination of whether service was completed will not
be disturbed absent an abuse of discretion.” (Citations omitted.) Ramirez v. Shagawat,
8th Dist. Cuyahoga No. 85148, 2005-Ohio-3159, ¶ 11. To find an abuse of discretion, we
must conclude that the trial court's decision was arbitrary, unconscionable, or
unreasonable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
ANALYSIS
{¶23} We will limit our review in this matter to Rodriguez's second assignment of
error, that the trial court erred by granting default judgment when it lacked personal
jurisdiction over defendant. We interpret the remaining seven assignments as variations
Delaware County, Case No. 21 CAE 01 0001 7
of Rodriguez's assertion that the trial court lacked personal jurisdiction because service
was not perfected, and a resolution of the second assignment of error will resolve this
appeal.
{¶24} Personal jurisdiction over Rodriguez could be acquired by "by service of
process upon the defendant, the voluntary appearance and submission of the defendant
or his legal representative, or by certain acts of the defendant or his legal representative
which constitute an involuntary submission to the jurisdiction of the court." Maryhew,
supra at p. 156. In the case before us, TM Three contends that the court has personal
jurisdiction as a result of service of process on Rodriguez. 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) and showing that proper service was made.”
Chuang Dev. LLC v. Raina, 10th Dist. No. 15AP-1062, 2017-Ohio-3000, 91 N.E.3d 230,
¶ 33; King v. Enron Capital & Trade Res. Corp.10th Dist. No 00AP-761 2001 WL 3275762002-Ohio-1620 *7.
{¶25} "In those instances where the plaintiff follows the Ohio Civil Rules governing
service of process, courts presume that service is proper unless the defendant rebuts this
presumption with sufficient evidence of nonservice. Rafalski v. Oates (1984), 17 Ohio
App.3d 65, 66, 477 N.E.2d 1212 as quoted in Thompson v. Bayer, 5th Dist. Fairfield
No. 2011-CA-00007, 2011-Ohio-5897, ¶ 23. We first review the record to determine
whether appellee followed the Civil Rules governing service of process.
{¶26} The proper service of process begins with the issuance of the summons as
described in Civ.R. 4 (A) and (B). When plaintiff files a complaint, the clerk of courts is
Delaware County, Case No. 21 CAE 01 0001 8
obligated to issue a summons upon each defendant. Civil Rule 4(B) contains express
requirements for the content of the summons:
The summons shall be signed by the clerk, contain the name and
address of the court and the names and addresses of the parties, be
directed to the defendant, state the name and address of the plaintiff's
attorney, if any, otherwise the plaintiff's address, and the times within which
these rules or any statutory provision require the defendant to appear and
defend, and shall notify the defendant that in case of failure to do so,
judgment by default will be rendered against the defendant for the relief
demanded in the complaint.
{¶27} Civil Rule 4.1 describes the required methods for service of process within
the state and refers to Civ.R. 4.3 for service out-of-state, but within the United States.
Because TM Three alleged Rodriguez was a resident in Florida at the time of the filing of
the complaint, we will focus upon the methods of service described by Civ.R. 4.3.
{¶28} Civil Rule 4.3(B)(1) authorizes the clerk to make service outside the state in
the same manner as provided in Civ.R. 4.1(A)(1) through Civ.R. 4.1(A)(3). Those Rules
sanction service via certified mail or "by a commercial carrier service utilizing any form of
delivery requiring a signed receipt." The clerk fulfilled this requirement by delivering
process via certified mail to Rodriguez at the address described in the caption of the
complaint, an address in Clearwater, Florida. That service was marked "undeliverable as
addressed" and returned to the clerk. The clerk promptly notified TM Three of failure of
delivery at the Clearwater address as required by Civ.R. 4.2.
Delaware County, Case No. 21 CAE 01 0001 9
{¶29} The Civil Rules provided TM Three with two options to complete service of
process after the first attempt failed. First, counsel for TM Three could provide written
instructions to the clerk of courts to serve process at a different address via certified mail
or commercial carrier service. (Civ.R. 4.3(B)(1); 4.1 (A)(1)(a) and (b)). In the alternative,
TM Three could seek an order from the court directing that Rodriguez be served with the
summons and complaint personally by a person who has been designated by order of the
court to make personal service. Civ.R. 4.3(B)(2).
{¶30} Because TM Three did not use either alternative sanctioned by the Civil
Rules we find that it is not entitled to a presumption of proper service.
{¶31} Proper service may be presumed only where the civil rules regarding
service are followed. Eisel v. Austin, 9th Dist. No. 09CA009653, 2010–Ohio–3458, at
¶ 11; In re Lane (Oct 5, 2000), 8th Dist. No. 74565, at *3. Here, those rules were not
followed, and there can, therefore, be no presumption of proper service. “As stated by the
Lane court, ‘Court rules and statutes are designed to obtain proof of constructive, if not
actual, notice of proceedings. Where these provisions have been ignored, there is no
record of service on which to base a presumption.’” Id. as quoted in In re S.S., 9th Dist.
Wayne No. 10CA0010, 2010-Ohio-6374, ¶ 45 See Also Rafalski v. Oates* (1984), 17
Ohio App.3d 65, 66, 477 N.E.2d 1212, 1214 (Receipt of notice is rebuttably presumed
only when applicable service provisions have been followed).
{¶32} Without the presumption of valid service, TM Three has the burden of
establishing proper service of process on Rodriguez to provide the trial court personal
jurisdiction over Rodriguez. King v. Enron Capital & Trade Res. Corp.10th Dist. No 00AP-
761 2001 WL 327576, 2002-Ohio-1620 *7. Proper service of process is an essential
Delaware County, Case No. 21 CAE 01 0001 10
component in the acquisition of personal jurisdiction over a party, Chaffin v. Shrontz, 5th
Dist. Guernsey No. 13 CA 25, 2014-Ohio-1495, ¶¶ 19-21, so the next step in our analysis
is a review of the record for evidence supporting a conclusion that service of process was
completed.
{¶33} The standard against which the propriety of service must be measured
under Civil Rule 4.1 is whether the service comports with the requirements of due
process. Call Detroit Diesel Allison, Inc. v. C. & D. Oil Co., 5th Dist. Tuscarawas
No. 85A05-038, 1985 WL 7304, *1. Due process requires, at a minimum, that deprivation
of life, liberty or property by adjudication be preceded by notice and opportunity for
hearing appropriate to the nature of the case. Armstrong v. Manzo (1965), 380 U.S. 545,
550, 85 S.Ct. 1187, 1190, 14 L.Ed.2d 62 as quoted in State ex rel. Ballard v. O'Donnell,
50 Ohio St.3d 182, 183, 553 N.E.2d 650, 652 (1990). “An elementary and fundamental
requirement of due process in any proceeding which is to be accorded finality is notice
reasonably calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.”
Samson Sales, Inc. v. Honeywell, Inc., 66 Ohio St.2d 290, 293, 421 N.E.2d 522, 524
(1981).
{¶34} TM Three offered as proof of notice the affidavit of Nicolas Sandberg who
claims he served Rodriguez with a copy of the complaint at a Delray Beach, Florida,
address. Sandberg does not identify the complaint served as the complaint filed in this
case, nor is a copy of what was served attached to the affidavit. Sandberg does not
disclose how he obtained the complaint, nor does he state that he served a summons
with the complaint as required by the Civil Rules. Sandberg made service at an address
Delaware County, Case No. 21 CAE 01 0001 11
that differs from the address on the complaint, but provided no explanation for his
conclusion that Rodriguez was at that address. Further Sandberg does not explain how
he concluded that the person served with the complaint was Rodriguez. A note at the
bottom of the affidavit states: "Notes: Alex Rodriguez opened the door and claimed to be
said person in listed action and freely accepted the papers" but that note is not included
in Sandberg's averments. No new date or notary seal appears, and the document bears
no indicia the note was added by or in the presence of an individual authorized to
administer oaths. Therefor this note is not acceptable evidence. State v. Quinn, 2nd Dist.
Clark No. 2017-CA-102, 2018-Ohio-5279, ¶ 40.
{¶35} TM Three had the burden to establish proper service, and we find that it did
not provided sufficient evidence from which the trial court could conclude that proper
service was accomplished. The record contains no evidence from which the trial court
could conclude that a summons was served with the complaint, no evidence to verify the
identity of the person who received the complaint and no evidence to verify the correct
complaint was served. Further, this court has held that service of a defective summons
fatal to proper service, so we are constrained by that ruling to find that the failure to serve
a summons cannot comprise good service. Furniture Sales Specialists, Inc. v. Thomas,
82 Ohio App.3d 759, 762, 613 N.E.2d 259, 261 (5th Dist.1993).
{¶36} The trial court concluded that the complaint was served by a process server
and, presumably concluded that it had personal jurisdiction as a result. We find that
conclusion unsupported by the record and abuse of discretion as the record shows
Rodriguez was not served summons, and did not appear before the court. A trial court is
without jurisdiction to render a judgment or to make findings against a person who was
Delaware County, Case No. 21 CAE 01 0001 12
not served summons, did not appear, and was not a party in the court proceedings. State
ex rel. Ballard v. O'Donnell, 50 Ohio St.3d 182, 184, 553 N.E.2d 650, 652 (1990).
{¶37} Rodriguez's second assignment of error is granted and we vacate the
default judgment and remand this matter to the trial court for further proceedings
consistent with our decision. We find the remaining assignments of error moot as a result
of our holding.
By: Baldwin, P.J.
Hoffman, J. and
Wise, Earle, J. concur.