Goering v. Lacher , 2011 Ohio 5464 ( 2011 )

[Cite as Goering v. Lacher, 2011-Ohio-5464.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
ROBERT E. GOERING, : APPEAL NO. C-110106
TRIAL NO. A-0905374
Plaintiff, :
and : O P I N I O N.
JOHN KNOX, :
Intervenor-Appellee, :
vs. :
SCOTT R. LACHER, :
Defendant-Appellant, :
and :
JUANITA L. LACHER, :
Defendant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 26, 2011
Ty L. Foster and Steven K. Shaw, for Intervenor-Appellee,
Robbins, Kelly, Patterson & Tucker and Daniel J. Temming, for Defendant-
Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
H ILDEBRANDT , Judge.
{¶1} Defendant-appellant Scott R. Lacher appeals the judgment of the
Hamilton County Court of Common Pleas denying his motion to vacate a default
judgment in a foreclosure action.
{¶2} On June 1, 2009, Hamilton County Treasurer Robert E. Goering
filed an action in foreclosure against Lacher and his wife, Juanita L. Lacher. Goering
sought foreclosure on the Lachers’ residence because of delinquent taxes. Process
was delivered through certified mail where the Lachers resided, and Juanita signed
for the two envelopes.
{¶3} The Lachers did not answer the complaint, and Goering was
granted a default judgment. The property was purchased by intervenor-appellee
John Knox at a sheriff’s sale. The sale to Knox was confirmed on February 17, 2010.
{¶4} On April 28, 2010, Scott Lacher filed a motion to vacate the
judgment or, in the alternative, a motion for relief from the judgment under Civ.R.
60(B).
{¶5} At the hearings on the motions, Lacher testified that he had not
received actual notice of the proceedings. According to Lacher, Juanita had handled
all of the couple’s financial affairs. He adduced evidence that, although she had
accepted service of process, she had not opened the envelopes. Instead, she had
hidden them in a storage facility along with other unopened mail.
{¶6} Lacher testified that Juanita had not informed him of the
foreclosure action until April 14, 2010. On that night, she had told him about the
proceedings during an altercation in which she had stabbed him. He stated that he
had immediately investigated the matter after recovering from his wounds.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} The trial court denied Lacher’s motions, and this appeal followed.
{¶8} In his first assignment of error, Lacher argues that the trial court
erred in refusing to vacate the foreclosure judgment. Specifically, he contends that
service of process was not perfected because he had not received actual notice of the
proceedings and that, therefore, the trial court lacked personal jurisdiction over him.
{¶9} Proper service of process is a prerequisite to a court exercising
personal jurisdiction. See, e.g., Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty.
Bd. of Revision (2000), 87 Ohio St.3d 363, 366-367, 721 N.E.2d 40. If service of
process has not been properly accomplished or waived, any judgment rendered is
void ab initio. Id. at 367, 721 N.E.2d 40. A trial court’s authority to vacate a
judgment that is void for lack of service does not derive from Civ.R. 60(B) but rather
from the court’s inherent authority to vacate a void judgment. Cincinnati Ins. Co. v.
Emge (1997), 124 Ohio App.3d 61, 63, 705 N.E.2d 408.
{¶10} Accordingly, we must decide whether service of process was proper
in this case. Civ.R. 4.1 (A) provides for service by certified or express mail and states
that “[e]videnced by return receipt signed by any person, service of process shall be
by certified or express mail unless otherwise permitted by these rules.” (Emphasis
added.)
{¶11} As the Supreme Court of Ohio has emphasized, “certified mail,
under the Rules of Civil Procedure, no longer requires actual service upon the party
receiving the notice, but is effective upon certified delivery.” Castellano v. Kosydar
(1975), 42 Ohio St.2d 107, 110, 326 N.E.2d 686. In rejecting the notion that actual
notice should be required, the court noted that “a need for actual notice would be
contradictory to modern service requirements * * *.” Id. And in defining what due
process requires, the court has held that service need only be “reasonably calculated”
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OHIO FIRST DISTRICT COURT OF APPEALS
to give notice of the proceedings to interested parties. Akron-Canton Regional
Airport Auth. v. Swinehart (1980), 62 Ohio St.2d 403, 406, 406 N.E.2d 811.
{¶12} Nonetheless, Lacher cites a number of cases for the proposition
that the presumption of proper service through compliance with the civil rules may
be rebutted by evidence of defective service adduced by the defendant. See, e.g.,
Griffin v. Braswell, 187 Ohio App.3d 281, 2010-Ohio-1597, 931 N.E.2d 1131 and
Jacobs v. Szakal, 9th Dist. No. 22903, 2006-Ohio-1312. But as Knox correctly
observes, the cases relied upon by Lacher involved service at an address where the
defendant did not reside. In those cases, it was arguable that the service was not
reasonably calculated to put the defendant on notice of the proceedings.
{¶13} In the case at bar, though, Lacher has simply failed to adduce any
evidence that service was defective. In this regard, Lacher mistakes proper service
for actual notice. It was undisputed that service in this case was made upon the
proper address through certified mail in accordance with Civ.R. 4.1. The most that
Lacher has been able to establish is that he did not receive actual notice of the
proceedings. But as stated in Castellano and Swinehart, actual notice is not the
touchstone of proper service or the exercise of personal jurisdiction. Accordingly, we
overrule the first assignment of error.
{¶14} In his second assignment of error, Lacher contends that the trial
court erred in overruling his motion for relief from judgment under Civ.R. 60(B).
{¶15} As we have already noted, the power of a court to vacate a void
judgment does not derive from Civ.R. 60(B). Emge, supra. Thus, we need not
address Lacher’s argument on its merits, and we overrule the second assignment of
error.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} In his third and final assignment of error, Lacher argues that the
trial court’s denial of his motion to vacate the judgment was against the manifest
weight of the evidence. But as Lacher did not present any evidence that service was
improper, we reject this argument and overrule the third assignment of error.
{¶17} The judgment of the trial court is affirmed.
Judgment affirmed.
DINKELACKER, P.J., and SUNDERMANN, J., concur.
Please Note:
The court has recorded its own entry on the date of the release of this opinion.
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