Monogram Credit Card Bank of GA v. Yoakum , 2023 Ohio 546 ( 2023 )

[Cite as Monogram Credit Card Bank of GA v. Yoakum, 2023-Ohio-546.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
MONOGRAM CREDIT CARD BANK :
OF GEORGIA :
: C.A. No. 29533
Appellee :
: Trial Court Case No. 99CVF677
v. :
: (Civil Appeal from Municipal Court)
CHRIS YOAKUM :
:
Appellant :
...........
OPINION
Rendered on February 24, 2023
...........
ERIC S. PETERSON, Attorney for Appellee
JOHN A. FISCHER, Attorney for Appellant
.............
LEWIS, J.
{¶ 1} Defendant-Appellant Chris Yoakum, now known as Kayleigh Fischer, 1
appeals from the trial court’s order reviving a 1999 judgment of Plaintiff-Appellee
1 For purposes of consistency with the trial court record, we will refer to Kayleigh Fischer
in this opinion by her former name, Chris Yoakum.
-2-
Monogram Credit Card Bank of Georgia (“Monogram”). For the reasons that follow, we
reverse the judgment of the trial court and remand the matter for an evidentiary hearing.
I. Facts and Course of Proceedings
{¶ 2} On January 21, 1999, Monogram filed a Complaint for Money in the Dayton
Municipal Court against Chris Yoakum seeking payment on an account. Monogram
listed Yoakum’s address as 231 Lookout Avenue, Dayton, OH 45417-1934. The
domestic return receipt from the United States Postal Service showed that a copy of the
complaint had been delivered to that address on January 23, 1999, and signed for by
“June Roberts.” On March 12, 1999, Monogram filed a motion for default judgment,
which was granted that same day by the trial court.
{¶ 3} On March 15, 2022, Monogram filed a motion to revive judgment against
Yoakum. On June 13, 2022, after hiring legal counsel, Yoakum filed a motion to vacate
the 1999 default judgment. Attached to the motion was an affidavit signed by Yoakum.
According to the affidavit, Yoakum had legally changed her name to Kayleigh Fischer in
1993, well before the filing of the complaint by Monogram in 1999. Further, Yoakum
stated that she had never lived at the address to which Monogram sent a copy of the
complaint in 1999. Yoakum explained that her address in 1999 was 118 Lower Hillside
Drive, Bellbrook, OH 45305. She also stated that prior to April 2022, she had never
received notice of the 1999 complaint filed against her and had never received notice of
the default judgment that was granted. She did receive notice in April 2022 of
Monogram’s motion to revive a default judgment and immediately contacted an attorney
-3-
to represent her.
{¶ 4} On June 23, 2022, the trial court granted Monogram’s motion to revive the
1999 judgment. According to the trial court, “the Judgment Debtor has been duly served
with notice of the revivor herein before made and has failed to show sufficient cause why
the said judgment should not be revived.” The trial court did not mention Yoakum’s
motion to vacate the 1999 default judgment. Yoakum filed a timely notice of appeal from
the trial court’s order.
II. The Trial Court Should Have Held A Hearing To Determine Whether Yoakum
Had Received Proper Service of Process in 1999
{¶ 5} Yoakum raises the following two assignments of error:
THE TRIAL COURT ERRED BY FAILING TO VACATE THE
DEFAULT JUDGMENT ENTERED AGAINST MS. FISCHER
THE TRIAL COURT ERRED BY FAILING TO HOLD A HEARING,
TAKE TESTIMONY, AND RECEIVE EVIDENCE REGARDING WHETHER
MS. FISCHER RECEIVED NOTICE OF THE LAWSUIT.
{¶ 6} Yoakum contends that “[b]ecause [she] was never properly served, the trial
court never obtained jurisdiction over her person and, consequently, the default judgment
entered by the trial court was void as a matter of law.” Appellant’s Brief, p. 1. She relies
on the affidavit in support of her motion to vacate the 1999 judgment to establish that she
never received service.
{¶ 7} “It is axiomatic that for a court to acquire jurisdiction there must be a proper
-4-
service of summons or an entry of appearance, and a judgment rendered without proper
service or entry of appearance is a nullity and void.” Lincoln Tavern, Inc. v. Snader, 165
Ohio St. 61, 64, 133 N.E.2d 606 (1956). “A party who can show a judgment is void need
not meet the requirements for vacating a voidable judgment in Civ.R. 60(B) and can rely
on the trial court’s inherent authority to vacate a void judgment.” Blon v. Royal Flush,
Inc., 2022-Ohio-1958, 191 N.E.3d 505, ¶ 15 (7th Dist.), citing Patton v. Diemer, 35 Ohio
St.3d 68, 518 N.E.2d 941 (1988), paragraph four of the syllabus.
{¶ 8} “The plaintiff bears the burden of ensuring proper service.” Cincinnati Ins.
Co. v. Emge, 124 Ohio App.3d 61, 63, 705 N.E.2d 408 (1st Dist.1997), citing Maryhew v.
Yova, 11 Ohio St.3d 154, 464 N.E.2d 538 (1984). “Without evidence to the contrary, the
defendant’s address used by the plaintiff in the complaint will be assumed to be a place
where the defendant will receive service of process.” Emge at 63, citing Bank One
Cincinnati, N.A. v. Wells, 1st Dist. Hamilton No. C-950279, 1996 WL 526702 (Sept. 18,
1996). “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 with
sufficient evidence of nonservice.” (Citations omitted.) Capital One Bank (USA) NA v.
Smith, 2020-Ohio-1614, 154 N.E.3d 240, ¶ 14 (8th Dist.).
{¶ 9} In Capital One Bank, the Eighth District noted that a defendant may rebut the
presumption by swearing under oath that she did not reside at the address to which
process was sent. If the trial court finds that testimony credible, it then is incumbent upon
the plaintiff to produce evidence demonstrating that defendant resided at the address in
question. Id. at ¶ 17. According to the Eighth District, “[w]here the defendant’s sworn
-5-
statement that he or she never received the complaint is uncontested by the plaintiff, it is
reversible error for the trial court to disregard it.” (Citations omitted.) Id. at ¶ 18.
{¶ 10} In a situation like the one before us where the defendant submits a sworn
statement that she did not receive service of the complaint, the trial court should not have
summarily denied or ignored Yoakum’s motion claiming a lack of jurisdiction without
holding a hearing to accept evidence on the validity of her sworn statement. Bailey v.
Toopes, 2d Dist. Miami No. 1994-CA-13, 1994 WL 527825, *2 (Sept. 30, 1994); Capital
One Bank at ¶ 18. Our decision comports with the basic tenet in Ohio law that whenever
possible, cases should be decided on their merits.
{¶ 11} The second assignment of error is sustained. Yoakum is entitled to a
hearing at which the trial court will accept evidence to help determine whether there was
proper service of process in 1999. Until both parties have had an opportunity to present
evidence at the hearing and the trial court has had an opportunity to assess the credibility
of any witnesses at the hearing, it would be inappropriate for us to analyze whether the
trial court should have vacated the 1999 judgment. Therefore, the first assignment of
error is overruled.
III. Conclusion
{¶ 12} Having sustained the second assignment of error, the judgment is reversed,
and the matter is remanded for further proceedings consistent with this opinion.
.............
-6-
WELBAUM, P.J. and EPLEY, J., concur.