Trilogy Health Servs., L.L.C. v. Frenzley

[Cite as Trilogy Health Servs., L.L.C. v. Frenzley, 2018-Ohio-1790.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TRILOGY HEALTH SERVICES, LLC : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
EDITH FRENZLEY, ET AL. : Case No. CT2017-0070
:
Defendants - Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CH2017-0276
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 30, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
MARC S. BLUBAUGH MARK W. STUBBINS
Benesch, Friedlander, Coplan & GRANT J. STUBBINS
Aronoff, LLP Stubbins, Watson, Bryan &
41 S. High Street Witucky Co., L.P.A.
Suite 2600 59 North Fourth Street
Columbus, Ohio 43215 P.O. Box 488
Zanesville, Ohio 43702-0488
ELIZABETH R. EMANUEL
Benesch, Friedlander, Coplan &
Aronoff LLP
200 Public Square, Suite 2300
Cleveland, Ohio 44114
Muskingum County, Case No. CT2017-0070 2
Baldwin, J.
{¶1} Defendants-appellants Edith Frenzley and John Frenzley appeal from the
September 18, 2017 Final Judgment Entry of the Muskingum County Court of Common
Pleas granting the Motion for Default Judgment filed by plaintiff-appellee Trilogy Health
Services, LLC. and entering judgment against defendants-appellants.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 8, 2017, appellee Trilogy Health Services LLC filed a complaint
against appellants Edith and John Frenzley. Appellee, in its complaint, alleged that it had
provided room, board, nursing and personal care and other services to appellants and
that appellants had failed to pay for such services. Appellee set forth claims alleging
breach of contract, quantum meruit, payment of spousal necessaries and fraudulent
transfers. A copy of the summons and complaint were sent by certified mail on August 8,
2017 to appellants at their residence at 3305 Fairway Lane, Zanesville, Ohio 43701 and
to appellants at their real estate tax mailing address at 4504 Stratford Cir. W., Zanesville,
Ohio 43701.
{¶3} The summons and complaint sent to appellants’ residence was returned
unclaimed. The summons and complaint sent to appellants’ tax mailing address was
signed for on August 9, 2017 by Jessie or Jessica Prouty.
{¶4} Appellee, on September 13, 2017, filed a Motion for Default Judgment
against appellants. The trial court, as memorialized in a Final Judgment Entry dated
September 18, 2017, granted the motion and entered judgment in favor of appellee and
against appellant Edith Frenzley in the amount of $6,999.00 and against appellant John
Frenzley in the amount of $9,181.10.
Muskingum County, Case No. CT2017-0070 3
{¶5} Appellants now raise the following assignment of error on appeal:
{¶6} I. THE TRIAL COURT ERRED IN GRANTING DEFAULT JUDGMENT IN
FAVOR OF APPELLEE.
I
{¶7} Appellants, in their sole assignment of error, argue that the trial court erred
in granting default judgment in favor of appellee because the trial court did not have
personal jurisdiction over appellants because they were never served with the summons
and complaint.
{¶8} Absent proper service of process, a trial court lacks jurisdiction to enter a
judgment, and if it nevertheless renders a judgment, that judgment is a nullity and void ab
initio. Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61, 64, 133 N.E.2d 606 (1956).
However, we note that a question of personal jurisdiction may not be raised for the first
time on appeal. In re Bailey Children, 5th Dist. Stark No.2004CA00386, 2005–Ohio–2981.
See also Nationstar Mortgage LLC v. Williams, 5th Dist. Delaware No. 14 CAE 0029,
2014–Ohio–4553. A party may challenge the entry of default judgment against them by
filing either a Rule 60(B) motion for relief from judgment or a motion to vacate the
judgment on grounds that it is void ab initio for lack of personal jurisdiction. Linquist v.
Drossel, 5th Dist. Stark No.2006 CA 00119, 2006–Ohio–5712. In the case sub judice,
appellants failed to challenge the default judgment against them by filing a motion to
vacate based on a claim of insufficiency of service and thus cannot raise this issue for the
first time on appeal.
{¶9} Appellants’ sole assignment of error is, therefore, overruled.
Muskingum County, Case No. CT2017-0070 4
{¶10} Accordingly, the judgment of the Muskingum County Court of Common
Pleas is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.