Franks v. Reynolds

[Cite as Franks v. Reynolds, 2021-Ohio-3247.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
JOHN K. FRANKS et al.,
Plaintiffs-Appellees,
v.
PATSY L. REYNOLDS et al.,
Defendants-Appellants.
OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0004
Civil Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 14 CV 81
BEFORE:
Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Matthew W. Onest, Atty. Owen J. Rarric, Atty. Terry A. Moore, KRUGLIAK,
WILKINS, GRIFFITHS & DOUGHERTY CO., L.P.A., 4775 Munson Street NW/P.O. Box
36963, Canton, Ohio 44735; Atty. Gregory Watts, P.A.C. Drilling O & G LLC, 1037
Lawnridge Street, Bolivar, Ohio 44612 for Plaintiffs-Appellees and
Atty. J. Benjamin Fraifogl, Atty. Jeremy D. Martin, Roetzel & Andress, LPA, 222 South
Main Street, Akron, Ohio 44308, for Defendants-Appellants.
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Dated: September 16, 2021
Robb, J.
{¶1} Appellants (who call themselves the “Huddleston Heirs”) appeal the
decision of the Belmont County Common Pleas Court in Case Number 14 CV 81 denying
their motion to vacate a default judgment, which they filed six years after the court quieted
title to the oil and gas underlying the property of Plaintiffs-Appellees John and Gerald
Franks. Appellants claim the trial court lacked personal jurisdiction due to service of the
complaint by publication, rendering the judgment void and subject to vacation at any time.
Specifically, they allege Appellees failed to use reasonable diligence in attempting to
locate addresses for four of the defendants. For the following reasons, the trial court’s
judgment is affirmed.
STATEMENT OF THE CASE
{¶2} Appellees John K. Franks and Gerald L. Franks owned 69.079 acres in
Belmont County. Their predecessor in title purchased the property along with one-half of
the oil and gas in 1970 from Darby L. Jones, Mildred Huddleston, Martha Lee Mitchell,
and Verda Strunk. (Deed to Seaway Coal Company, 3/2/70, Vol. 516, P. 82).1
{¶3} On March 11, 2014, Appellees filed a complaint to obtain title to the oil and
gas rights (originally retained by those four grantors) through declaratory judgment, quiet
title, and an injunction. Nineteen defendants (plus John Does) were named, including
John Wayne Huddleston, Richard Huddleston, Linda Haynes, and Nancy Payne (the four
defendants at issue). These and many other defendants had been named in the will of
their aunt, Martha Lee Mitchell, which was probated in 1995 in Texas. (Complaint Ex. F).
{¶4} The complaint stated the four defendants at issue could not be located with
reasonable diligence and service by publication was appropriate under R.C. 2703.14 and
Civ.R. 4.4(A). Appellees thereafter filed an affidavit for publication stating the addresses
for the four defendants at issue (and for three other defendants) were unknown and could
1The deed conveyed multiple parcels to Seaway Coal, including those at issue in Mammone v. Reynolds,
7th Dist. Belmont No. 21 BE 5, where different plaintiffs previously recovered title against the same
defendants at issue herein.
Case No. 21 BE 0004
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not be ascertained with reasonable diligence. Counsel attested to searching numerous
databases containing public records, including Westlaw’s People Search and Public
Records, and requesting probate searches and records from probate courts in Belmont
County, Ohio and Hidalgo and Kleberg Counties in Texas. (4/16/14 Aff.); (5/12/2014
Amd. Aff.).2
{¶5} Notice of the lawsuit was published weekly for six weeks in the Times
Leader, a newspaper published in Belmont County. On July 25, 2014, Appellees filed a
motion for default against the four defendants at issue as their answers were due July 22,
2014 (28 days after the last publication) and they did not file answers.
{¶6} On July 29, 2014, the court granted the motion for default judgment, noting
the defendants failed to answer or appear after being served via publication for six
consecutive weeks. The court quieted title in favor of Appellees. The judgment was
recorded on August 15, 2014.
{¶7} Six years later, on September 15, 2020, a motion to vacate the default
judgment was filed by the “Huddleston Heirs” who are the five appellants herein: John
Wayne Huddleston; Cynthia Huddleston (she was not a defendant in the lawsuit but the
wife of John, who was still alive); Richard Huddleston; Linda Hanes (whose name in the
complaint was spelled Haynes as this was the spelling in her aunt’s will3); and Billy G.
Payne (the husband of Nancy Payne; she was an heir named as a defendant but died
after the default judgment).
{¶8} The motion said they did not see the notification in the Ohio newspaper as
it “is not available in Texas” and they had no knowledge of the judgment until January
2020. Four affidavits were attached stating the affiants were not served with any item
from the court until January 2020, when they were served with a complaint in a different
lawsuit.
2In the meantime, a consent judgment was signed by six defendants releasing any oil and gas rights to
Appellees. (5/1/14 J.E.). The court granted default judgment against six defendants who were served by
certified mail, and the judgments quieting title were recorded. (5/7/14 J.E., 6/2/14 J.E.).
3 Below, Linda complained about the spelling of Hanes, but Appellees explained Haynes (with a y) was the
spelling in her aunt’s will which is where they discovered her identity as an heir. Appellants do no maintain
an argument on appeal as to the spelling used in the search.
Case No. 21 BE 0004
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{¶9} John Wayne Huddleston’s affidavit disclosed his address in 2013, attesting
he lived there with his wife since 2006. He said he never received mail at the post office
box where the complaint was attempted to be served before publication.
{¶10} Richard Huddleston’s affidavit listed his address at the time of the 2014
complaint and said he lived there in 2013 as well. He said the address where the
complaint was attempted to be served (before publication) was an office building where
he once worked but said he did not receive mail there.
{¶11} Linda Hanes attested to the address where she had been residing since
2000. She added, “It is unknown to me how anyone, in using due diligence, did not find
my address * * * when at the time of the filing of the lawsuits, I had lived there for thirteen
(13) years.”
{¶12} Billy G. Payne’s affidavit listed the address where he lived with Nancy
Payne in 2013, disclosing they began residing there in 2010. He too expressed, “It is
unknown to me how anyone, using due diligence, did not find our address * * *.”
{¶13} While noting Civ.R. 60(B)(5) allows the court to vacate a judgment for any
reason, Appellants asked the court to use its inherent authority to vacate the default
judgment, claiming it was void for lack of personal jurisdiction due to the failure to perfect
service. However, they cited case law unrelated to service by publication stating: when
the plaintiff follows the Civil Rules governing service of process, there is a rebuttable
presumption of actual service; the defendant can rebut the presumption by merely
swearing he “did not reside at the address to which process was sent”; and the burden
then shifts to the plaintiff to produce evidence “demonstrating that defendant resided at
the address is question.”
{¶14} Appellees responded by emphasizing proper service by publication does
not require actual notice or publication in other states, quoting from Civ.R. 4.4(A) and
R.C. 2703.14(A). They explained compliance with the Civil Rules for service by
publication raised a rebuttable presumption of reasonable diligence in the address
search. They urged Appellants failed to rebut the presumption as they failed to disclose
what was wrong with the search or state how they could have been located.
{¶15} Additionally, Appellees provided evidence in order to alternatively satisfy
any shifting burden to prove their reasonable diligence. Their attorney submitted an
Case No. 21 BE 0004
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affidavit listing the records searched prior to submitting the affidavit in support of
publication: public records, probate records in Belmont County, probate records in
Hildalgo and Kleberg County, Texas, the records of the Ohio Department of Natural
Resources, the subscription services of Westlaw People Search and idocket.com, and
the databases of Whitepages, Google, Peoplesmart, deathrecord.com,
billiongraves.com, familysearch.org, and zabasearch.com.
{¶16} Appellees noted their attorney represented other plaintiffs in other lawsuits
which were filed in 2013 against the same defendants regarding other property, citing
Mammone v. Reynolds, 13 CV 179 and Hein Brothers LLC v. Reynolds, 13 CV 180.
Appellees said these suits were important to the service issue in this case “because the
due diligence prior to publication was identical.” The attorney attached to his affidavit the
complaints and proof of failure of service on the two Huddleston defendants in those suits.
(Aff. Ex. A & B).
{¶17} The affidavit of Appellees’ attorney incorporated a file showing some of the
search efforts through early 2013, during the original search for the record holders and
heirs. (Aff. Ex. C). He also attached items related to other landowners, claiming they
showed two other law firms could not locate Appellants; yet, these items showed the other
firms did not identify the four defendants at issue, not that they could not find their
addresses. (Aff. Ex. D & E).
{¶18} Appellees alternatively raised waiver and laches, pointing out the court
entered the judgment six years before the motion to vacate and Appellants waited eight
months from allegedly learning of the judgment to seek vacation. Appellants replied by
pointing out the timeliness of the motion was irrelevant as they were not relying on Civ.R.
60(B).
{¶19} Appellants’ reply also noted the lengthy file attached to the affidavit of
Appellees’ attorney was “inclusive of all the defendants, not just the four (4) individuals
filing to vacate judgment.” They emphasized they did not evade service or move often
but had established addresses.
{¶20} A telephone hearing was conducted on December 14, 2020. At the hearing,
both sides relied on matters already argued in their filings without advancing
supplemental legal or factual material. Appellants noted they were not vagrant or evading
Case No. 21 BE 0004
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service and some lived at their residences for a substantial period of time. Appellees
pointed out Appellants failed to inform the court what was lacking in Appellees’ search,
such as by specifying additional locations to search or identifying records reasonably
available at the time of the search that would have generated Appellants’ addresses.
(3/1/20 App.R. 9(C)(1) Approved Statement of the Proceedings).
{¶21} On December 21, 2020, the trial court denied the motion to vacate the
judgment and concluded it had personal jurisdiction as service by publication was
properly invoked and accomplished. The court observed it was “neither surprising nor
dispositive” that Appellants did not receive timely or actual notice and the question was
whether Appellees exercised reasonable diligence in their efforts to locate Appellants
before requesting service by publication.
{¶22} The court opined Appellants did not sufficiently rebut the presumption of
reasonable diligence by listing their addresses at the relevant time without explaining how
Appellees could have discovered these addresses. The court alternatively held: even
assuming Appellants rebutted the presumption, Appellees proved “their diligence was
more than reasonable.” The court then quoted from ¶ 8 of the affidavit of Appellees’
attorney listing the records searched. The court opined the judgment was neither void
nor voidable under these circumstances.
{¶23} Appellants filed a timely notice of appeal, which was amended with leave of
court after they forgot to list Cynthia Huddleston as an appellant.
LAW ON SERVICE BY PUBLICATION
{¶24} “[F]or a court to acquire jurisdiction there must be a proper 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 void judgment can be directly attacked without complying
with any legal requirements related to the vacation of a voidable judgment. Id. Therefore,
a party who can show a judgment is void need not meet Civ.R. 60(B) requirements but
can rely on the trial court’s inherent authority to vacate a void judgment. Patton v.
Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph four of the syllabus.
{¶25} More specifically, we have stated if the plaintiff fails to perfect service on a
defendant due to the lack of reasonable diligence before service by publication, then the
Case No. 21 BE 0004
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trial court lacked jurisdiction to enter default judgment against the defendant and the
judgment is void. American Tax Funding L.L.C. v. Robertson Sandusky Properties, 2014-
Ohio-5831, 26 N.E.3d 1202, ¶ 24 (7th Dist.).
{¶26} A statute provides: “Service may be made by publication in * * * an action
for the recovery of real property or of an estate or interest in real property, when the
defendant is not a resident of this state or his place of residence cannot be ascertained *
* *.” R.C. 2703.14(A). Nevertheless, the Rules of Civil Procedure “prescribe the
procedure to be followed in all courts of this state in the exercise of civil jurisdiction.”
Civ.R. 1(A). See also State ex rel. Loyd v. Lovelady, 108 Ohio St.3d 86, 2006-Ohio-161,
840 N.E.2d 1062, ¶ 6 (the constitution vests the Supreme Court with exclusive authority
on rules governing court practice and procedure, and the law shall not conflict with the
rules).
{¶27} Contrary to any veiled suggestion in Appellees’ brief, the statute does not
provide authority to serve by publication without following the rule. And, Appellees did
not make such an argument below but read the statute in conjunction with the rule. The
Supreme Court applies Civ.R. 4.4. notwithstanding the statute permitting publication.
Sizemore v. Smith, 6 Ohio St.3d 330, 331, 453 N.E.2d 632 (1983) (applying a different
statutory division).
{¶28} Pursuant to Civ.R. 4.4(A), “when service of process is required upon a party
whose residence is unknown, service shall be made by publication in actions where such
service is authorized by law.” As Appellees point out, service would be “authorized by
law” here under R.C. 2703.14(A), and Appellants do not argue otherwise.
{¶29} Before service by publication, an affidavit of the party requesting service or
the party's counsel shall be filed with the court, and the affidavit “shall aver that service of
summons cannot be made because the residence of the party to be served is unknown
to the affiant, all of the efforts made on behalf of the party to ascertain the residence of
the party to be served, and that the residence of the party to be served cannot be
ascertained with reasonable diligence.” Civ.R. 4.4(A). “Upon the filing of the affidavit, the
clerk shall cause service of notice to be made by publication in a newspaper of general
circulation in the county in which the action or proceeding is filed * * * at least once a week
Case No. 21 BE 0004
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for six successive weeks unless publication for a lesser number of weeks is specifically
provided by law.” Id.{¶30} A sufficient averment in the affidavit for publication filed under Civ.R. 4.4(A)
“gives rise to a rebuttable presumption that reasonable diligence was exercised.”
Sizemore, 6 Ohio St.3d at 331. See also American Tax Funding, 2014-Ohio-5831 at ¶
28. The parties agree Appellants had the initial burden to rebut the presumption of
reasonable diligence.
{¶31} When “challenged” by the defendant, the plaintiff must “support the fact that
he or she used reasonable diligence.” Sizemore, 6 Ohio St.3d at 332 (before the rule
instructed the plaintiff to list efforts in the affidavit for publication); American Tax Funding,
2014-Ohio-5831 at ¶ 28. The parties also agree Appellees would have had the burden
to prove reasonable diligence if Appellants rebutted the presumption.
{¶32} Reasonable diligence is a “fair, proper and due degree of care and activity,
measured with reference to the particular circumstances; such diligence, care, or
attention as might be expected from a man of ordinary prudence and activity.” Sizemore,
6 Ohio St.3d at 332 (using the definition in Black’s Law Dictionary). “[R]easonable
diligence will depend on the facts and circumstances of each particular case.” Id.
{¶33} In Sizemore, the defendant raised insufficient service of process before trial,
and the Court found the efforts to locate his address did not constitute reasonable
diligence where the plaintiff’s counsel merely asked if the address was known by his own
client (whose husband was struck by the defendant’s vehicle) and contacted the post
office (where he learned there was no forwarding address for the defendant who had
moved). The Court noted the post office only saves forwarding addresses for a year,
making the post office of limited value when a defendant moved more than a year ago,
and observed:
Certainly a check of the telephone book or a call to the telephone company
would hold more promise than a contact of one's own client. Other probable
sources for a defendant's address would include the city directory, a credit
bureau, county records such as the auto title department or the board of
elections, or an inquiry of former neighbors.
Case No. 21 BE 0004
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Sizemore, 6 Ohio St.3d at 332. However: “These examples do not constitute a
mandatory checklist. Rather, they exemplify that reasonable diligence requires counsel
to use common and readily available sources in his search.” Id.
{¶34} The reasonable diligence standard protects due process rights. See In re
Foreclosure of Liens for Delinquent Taxes, 62 Ohio St.2d 333, 336, 405 N.E.2d 1030(1980), citing Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 317, 70 S.Ct.
652, 94 L.Ed. 865 (1950) (“This Court has not hesitated to approve of resort to publication
as a customary substitute in another class of cases where it is not reasonably possible or
practicable to give more adequate warning. Those beneficiaries [whose] whereabouts
could not with due diligence be ascertained come clearly within this category”). “[D]ue
process does not require that an interested party receive actual notice [or] ‘heroic efforts’
to ensure the notice's delivery.” In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238,
875 N.E.2d 582, ¶ 14.
{¶35} As to the allegations necessary to rebut a presumption in general, both
parties cite Evid.R. 301, which states: “In all civil actions and proceedings not otherwise
provided for by statute enacted by the General Assembly or by these rules, a presumption
imposes on the party against whom it is directed the burden of going forward with
evidence to rebut or meet the presumption, but does not shift to such party the burden of
proof in the sense of the risk of non-persuasion, which remains throughout the trial upon
the party on whom it was originally cast.”
{¶36} Appellees urge if a rebuttable presumption could be rebutted by merely
opining the search was not diligent without pointing to why their search was lacking or to
where else they should have searched, then no rebuttable presumption would exist.
Citing Kennedy v. Walcutt, 118 Ohio St. 442, 161 N.E. 336 (1928) (“When a party is not
required to sustain the burden of proof upon some particular issue, a rebuttable
presumption arising out of such issue may be overcome by evidence which
counterbalances the evidence to sustain the presumption”). Appellants suggest their
affidavits provided circumstantial evidence rebutting the presumption.
{¶37} The Supreme Court has observed: “The defendant is further protected
because she * * * may bring in independent evidence to contradict the reasonable
diligence of the plaintiff's search.” Brooks v. Rollins, 9 Ohio St.3d 8, 11, 457 N.E.2d 1158Case No. 21 BE 0004
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(1984) (after setting forth the plaintiff’s burden to show reasonable diligence had been
exercised prior to service by publication).
{¶38} The Eighth District recently concluded the defendant “failed to present
sufficient independent evidence to contradict the plaintiff's exercise of reasonable
diligence * * *.” Corrao v. Bennett, 2020-Ohio-2822, 154 N.E.3d 558, ¶ 22 (8th Dist.).
They pointed out: “Although appellant claims that additional efforts should have been
made, such as a Google search and a BMV check, the trial court recognized that there
was nothing to indicate that such searches would not have been futile and that it was
appellant's duty to set forth factual material that on its face supported his argument.” Id.{¶39} Regarding our standard of review, the parties recognize this court has ruled
the abuse of discretion standard applies when reviewing a trial court's decision on a
motion to vacate a void judgment for lack of personal jurisdiction where the question is
whether reasonable diligence was exercised before service by publication. American Tax
Funding, 2014-Ohio-5831 at ¶ 17, citing Spotsylvania Mall Co. v. Nobahar, 7th Dist.
Mahoning No. 11 MA 82, 2013-Ohio-1280, ¶ 14. See also Fernwalt v. Our Lady of
Kilgore, 7th Dist. No. 15 CA 0906, 2017-Ohio-1260, 88 N.E.3d 499, ¶ 13 (“The trial court's
decision regarding the validity of service should be upheld absent an abuse of
discretion.”). An abuse of discretion implies that a decision is unreasonable, arbitrary, or
unconscionable; we do not substitute our judgment for that of the trial court. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶40} Various other districts have likewise concluded the appellate court reviews
the question of reasonable diligence for an abuse of discretion notwithstanding its
jurisdictional implications. See, e.g., Flaugher v. Flaugher, 2020-Ohio-299, 143 N.E.3d
623, ¶ 9 (2d Dist.) (abuse of discretion standard of review applies regardless of whether
the motion was granted under Civ.R. 60(B) or pursuant to the trial court's inherent
authority to vacate void judgments); Name Change of Rowe, 2019-Ohio-4666, 135
N.E.3d 782, ¶ 16 (4th Dist.) (although an appellate court reviews a determination of
personal jurisdiction under a de novo standard of review, a trial court's finding regarding
whether service was proper is not reversed absent an abuse of discretion); Matter of
M.R.J., 4th Dist. Lawrence No. 18CA17, 2019-Ohio-2755, ¶ 24 (on reasonable diligence
before publication, the “reviewing court will not disturb a trial court's finding regarding
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whether service was proper unless the trial court abused its discretion”); Nationstar Mtge.
LLC v. Williams, 5th Dist. Delaware No. 14 CAE 04 0029, 2014-Ohio-4553, ¶ 34
(“Whether a party exercised reasonable diligence is fact dependent and conducted at the
trial court's discretion”); Motorists Mut. Ins. Co. v. Roberts, 12th Dist. Warren No. CA2013-
09-089, 2014-Ohio-1893, ¶ 30 (“an Ohio court has the inherent power to vacate a void
judgment” and “reviews the denial of a common law-motion to vacate under an abuse of
discretion standard”). See also Corrao, 2020-Ohio-2822 at ¶ 16, 23 (8th Dist.).
{¶41} Appellants do not specifically argue we should reject the abuse of discretion
standard of review set forth in American Tax Funding and apply a de novo standard of
review to some issues. Still, a footnote in Appellants’ brief sets forth the general holding:
“Personal jurisdiction is a question of law that appellate courts review de novo.” Fraley v.
Estate of Oeding, 138 Ohio St.3d 250, 2014-Ohio-452, 6 N.E.3d 9, ¶ 11 (in the context of
a Civ.R. 12(B)(2) motion to dismiss without an evidentiary hearing where the trial court
must view the allegations in the light most favorable to the plaintiff and make all
reasonable inferences in the plaintiff's favor). Id.4
{¶42} The footnote in Appellants’ brief also states the Tenth District applied a de
novo standard of review to a motion to vacate which alleged lack of reasonable diligence
in locating the defendant. J.M. v. J.C., 10th Dist. Franklin No. 19AP-739, 2020-Ohio-
4963, ¶ 16-17, 21. That district previously addressed reasonable diligence before
publication by stating: “to attack a judgment on the grounds that it is void due to a lack of
personal jurisdiction, a defendant must file a common-law motion to vacate. * * * Appellate
courts review the denial of a common-law motion to vacate under the abuse of discretion
standard.” Third Fed. Savings & Loan Assn. of Cleveland v. Taylor, 10th Dist. Franklin
No. 17AP-254, 2017-Ohio-7620, ¶ 11.
4 Where a Civ.R. 12(B)(2) motion is denied and the defense of lack of personal jurisdiction is maintained,
the plaintiff bears the burden of proving jurisdiction by a preponderance of the evidence at the evidentiary
hearing or the trial. Giachetti v. Holmes, 14 Ohio App.3d 306, 307, 471 N.E.2d 165 (8th Dist.1984).
Generally, the review after trial entails an evaluation of the sufficiency of the evidence to meet the applicable
standard which is a legal question and the weight of the evidence which is generally left to the fact-finder.
See Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 11, 19.
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{¶43} A non-majority Supreme Court opinion once opined the reviewing courts
need guidance on the standard of review and proposed: “when a reviewing court
assesses a trial court's conclusion that service by publication was proper, the reviewing
court should apply the same standards, and should not defer to the trial court's
conclusion.” In re Thompkins, 115 Ohio St.3d 409 at ¶ 55 (O’Connor, J. concurring in
part and dissenting in part, with two other justices agreeing) (where the majority
addressed a mailing issue without addressing reasonable diligence before publication as
the Court found the parties and the appellate court did not address the issue).
{¶44} In general, “A court of appeals may review findings of fact for an abuse of
discretion by the trial court.” See generally In re Guardianship of Rudy, 65 Ohio St.3d
394, 396, 604 N.E.2d 736, 738 (1992). The credibility of statements by counsel as to his
search efforts made at a hearing on the motion or in counsel’s affidavit relied upon at the
hearing were questions for the trial court. A mixed standard of review is commonly
employed when there are factual and legal questions, where we would accept the trial
court’s factual findings if supported by competent, credible evidence but review de novo
whether the facts meet the applicable legal test. As set forth below, applying a mixed or
even a de novo standard of review would not assist Appellants here.
{¶45} Before moving from our review of the law to the assignment of error, we
lastly note Appellants complain about the trial court citing two Seventh District cases
which involved publication of a notice of intent to declare a mineral interest abandoned
under the 2006 Dormant Mineral Act and did not involve service of a complaint by
publication. These citations were attached to the court’s observation: service by
publication was authorized (as the term is used in Civ.R. 4.4) and the decision turns on
whether reasonable due diligence was exercised in the efforts to locate Appellants before
publication. Appellants do not contest on appeal that service by publication would be
authorized by law (under R.C. 2703.14) as required by Civ.R. 4.4 if the use of reasonable
diligence was demonstrated. The trial court cited Civ.R. 4.4(A), which specifies the
standard of reasonable diligence, and the court quoted from our American Tax Funding
case, which set forth the law from the Ohio Supreme Court’s Sizemore case, both of
which are relied upon in Appellants’ brief. The question was properly recognized to be
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reasonable diligence in the search efforts, regardless of the trial court’s citation to cases
that may not be precisely on point.
ASSIGNMENT OF ERROR
{¶46} Appellants’ assignment of error contends:
“THE TRIAL COURT ERRED BY DENYING APPELLANTS’ MOTION TO
VACATE THE DEFAULT JUDGMENTS ENTERED AGAINST THEM AS THEY WERE
VOID DUE TO LACK OF PERSONAL JURISDICTION.”
{¶47} Appellants do not dispute they were charged with rebutting the presumption
of Appellees’ reasonable diligence in searching for the addresses of the four defendants
at issue.5 Appellants argue they sufficiently rebutted the presumption of reasonable
diligence by showing their correct addresses at the time the lawsuit was filed, by pointing
to the length of time the defendants at issue lived at those addresses, and by two
defendants observing it was “unknown to me how anyone” would not find the address if
they used reasonable diligence.
{¶48} Appellants rely on the four affidavits attached to their motion. Richard
Huddleston disclosed his address in 2014 and said he also lived there in 2013. John
Wayne Huddleston said he lived at his address with his wife Cynthia since 2006. Linda
Hanes said she lived at her address since 2000 and “It is unknown to me how anyone, in
using due diligence, did not find my address * * * when at the time of the filing of the
lawsuits, I had lived there for thirteen (13) years.” Billy G. Payne stated he lived with
Nancy Payne at his 2013 address since 2010 and also expressed, “It is unknown to me
how anyone, using due diligence, did not find our address * * *.” Appellants conclude this
“necessarily means there are ample public records showing their addresses.”
{¶49} Appellants note there was no certified mail attempted on any of the four
defendants at issue in this case as Appellees relied on the failure of service on the two
Huddleston defendants in Mammone to avoid using the addresses attempted in that case.
As for Appellees’ reliance on their attorney’s prior search in Mammone, Appellants initially
set forth the same arguments as presented in their brief in that case. See Mammone v.
5 Appellants no longer rely on the law cited in their motion to vacate about a defendant merely having to
show they did not live where they were served which would then require a plaintiff to show the defendant
in fact lived where they were served; this law did not apply to service by publication.
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Reynolds, 7th Dist. No. 20 BE 4, 2021-Ohio-___ (consolidated for purposes of oral
argument). They also set forth an additional argument on the staleness of the search
applicable only to the case at bar.
{¶50} As to the attempted service by certified mail in that case, Appellants seem
to complain the address where service was originally attempted for John Wayne
Huddleston was a post office box and the address where service was originally attempted
for Richard Huddleston may have been a workplace. However, they cite nothing which
would prohibit such service.
{¶51} Appellants then set forth complaints about the Westlaw search related to
these two defendants, while Appellees note it is an expensive search engine. First, they
say the Westlaw printout suggests the search related to Richard Huddleston was linked
to Mildred Huddleston (a record holder) rather than independently performed under his
name. The document showed Westlaw found two old addresses for Richard Huddleston
(which matched the old addresses of the deceased record holder) plus the more recent
address (listed as his current address) which Appellees used in the attempt to serve him
by certified mail (and which gave no indication it was a business address). Appellants
did not make an argument below about the search result for Richard Huddleston on
Westlaw, and there is no indication the notation listing him as a potential relative of
Mildred meant Westlaw did not provide the information it possessed on him.
{¶52} They also complain certified mail was only attempted on John Wayne
Huddleston at only one of the addresses listed by Westlaw (the P.O. Box) and it was not
the most recently reported address. However, the address Appellees used for attempted
service was reported by Westlaw as the “Current Address” under the heading of “Last
Known Address Information” (with a “Last Reported” date of 1996). As Appellants point
out, under “Other Address Information” there were two addresses with “Last Reported”
dates of 2001 and 2000. Nevertheless, Westlaw placed these under the heading
“Previous Address.” In any event, none of the addresses matched the address John
Wayne Huddleston listed in his affidavit, and he did not aver he would have received the
certified mailing if those addresses had been used. Furthermore, Appellants did not
argue this below.
Case No. 21 BE 0004
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{¶53} Next, Appellants claim Appellees should have run credit reports on the four
defendants at issue, noting the will attached to the complaint (and to the affidavit on
search efforts) contained their Social Security numbers. Appellants suggest the situation
of having Social Security numbers to go with the names in the file is similar to a case
where this court found the trial court did not abuse its discretion in finding a default
judgment void based in part on information in the plaintiff’s own file. American Tax
Funding, 2014-Ohio-5831 at ¶ 32-37. Yet, the decision to uphold an exercise of discretion
to vacate a judgment in one case does not mean a case with allegedly similar facts must
be reversed where a trial court refused to vacate the judgment. See id. at ¶ 17, 37
(applying abuse of discretion standard of review).
{¶54} Regardless, the situation is not akin to the one existing in American Tax
Funding. In that case, the plaintiff’s own file contained the mailing address of a similarly
named controlling company who paid the principal balance, provided its address to the
plaintiff, and received a receipt at that address from the plaintiff stating interest was still
due. Id. at ¶ 7-8, 34. The plaintiff also had the telephone number of the defendant, who
was a business entity, and it was the plaintiff’s call to this number that prompted the
payment. Id. at ¶ 5. In addition, the defendant presented testimony from the Treasurer’s
Office showing the defendant’s correct address was on file before the plaintiff’s attorney
conducted his search. Although the address was not displayed on the website of the
Treasurer’s Office, the Auditor’s website (which was the one plaintiff’s attorney claimed
he searched) showed the defendant’s name as the owner and specifically said to call the
Treasurer’s Office for mailing information (due to a negotiated tax lien). Id. at ¶ 32-33.
{¶55} Appellants also rely on the statement of the Supreme Court in Sizemore
listing a credit report as a common source of information. As Appellees point out,
Sizemore did not announce a mandatory checklist. Sizemore, 6 Ohio St.3d at 332;
American Tax Funding, 2014-Ohio-5831 at ¶ 31. Also, Sizemore was before the internet
was available and thus before internet-accessible subscription people-searching
databases were available. See generally Third Fed. Savings & Loan v. Taylor, 10th Dist.
Franklin No. 17AP-254, 2017-Ohio-7620, ¶ 8-9, 14-16 (where the plaintiff-bank submitted
an affidavit of the vice-president of the company it hired to conduct an address search
wherein it was attested the company used the LexisNexis Accurint database to locate
Case No. 21 BE 0004
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people; affirming the trial court’s conclusion that this search constituted a reasonably
diligent attempt to locate the defendants' addresses before service by publication).
Although use of a subscription search service is not required for reasonable diligence, it
can assist in showing reasonable diligence.
{¶56} As Appellees further point out, there is nothing to show a certain credit
bureau would have returned Appellants’ addresses in 2013. Appellees also say they
utilized the Social Security numbers obtained from the will, which can be seen in the
Westlaw printouts for the two defendants whose names showed addresses (John Wayne
Huddleston and Richard Huddleston), noting their file only contained printouts when
information was generated by the database (i.e., if nothing pertinent was generated, then
nothing was printed). We note Westlaw reported TransUnion was the source of
information for the two Huddleston defendants. In any event, Appellants did not raise
these arguments below.
{¶57} Appellants next contend the trial court must not have reviewed the file
attached to the affidavit of Appellees’ attorney or the court would have noticed most pages
involved the search for the location of the record holders and the identity of their heirs
and only a few pages were relevant to the search for the addresses of the four defendants
at issue. They generally noted this to the trial court in their reply in support of their motion
to vacate, stating: “the file was inclusive of all the defendants, not just the four (4)
individual filing to vacate judgment.”
{¶58} Now, Appellants rely on an argument that the file attached to the affidavit
of Appellees’ attorney did not contain evidence of the search for the addresses of Linda
Hanes or Nancy Payne (but just showed they were discovered through the will of Martha
Lee Mitchell). Appellees say this was because there were no documents showing
addresses to print. There is no requirement for a party or counsel to maintain evidence
of unsuccessful searches by printing unsuccessful results. (Nor is there a requirement to
print seemingly successful, but ultimately incorrect, results; Appellees happened to have
saved some search results for many years.)
{¶59} Additionally, this argument was not raised to the trial court. Appellants did
not argue to the trial court the file contained no evidence of the search for the addresses
Case No. 21 BE 0004
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of Linda Haynes or Nancy Payne or it did not contain print-outs corresponding to each
effort listed in ¶ 8 as to the two Huddleston defendants.
{¶60} In any event, the file attached to the affidavit was a separate piece of
evidence from the averment in ¶ 8 of the affidavit. Although Appellees emphasized the
size of the file showing their search efforts, they pointed to other evidence as well,
including the efforts listed in the affidavit of publication which were further explained in ¶
8 of the affidavit attached to the response to the motion to vacate. Contrary to Appellants’
contention, there is no indication the trial court relied on the quantity of pages in the file.
{¶61} As reviewed in our Statement of the Case above, the trial court relied on the
statement in ¶ 8 of the affidavit on the efforts to locate the defendants at issue. The court
quoted from a list of databases and records searched while looking for the defendants
who were moving to vacate. The affidavit attested to unsuccessfully searching for the
addresses of the defendants at issue by searching the public records, including the
probate records in Belmont County, Ohio and Hidalgo and Kleberg County, Texas, the
records of the Ohio Department of Natural Resources, the subscription services of
Westlaw People Search and idocket.com, the databases of Whitepages, Google, and
Peoplesmart, and additional websites including deathrecord.com, billiongraves.com,
familysearch.org, and zabasearch.com.
{¶62} Although there was no specific allegation, there was an implied accusation
the search was not conducted in the places listed in ¶ 8 of counsel’s affidavit. Yet, the
trial court could reasonably find the statements therein credible, especially after hearing
from counsel at the hearing on the motion. As the trial court noted, Appellees successfully
found addresses for many other defendants, including out-of-state defendants.
Appellants could have challenged the affiant at the hearing where he represented
Appellees if they believed his statements lacked credibility or sought to clarify whether his
statements applied to Linda and Nancy (due to the lack of printouts regarding their
names).
{¶63} Finally, Appellants raise an additional argument in this case distinct from
the arguments in their brief in Mammone. On appeal, Appellants say it appears
Appellees’ attorney relied on his 2013 search efforts (prior to the May 2013 Mammone
lawsuit) in seeking service by publication of the March 2014 complaint initiating the lawsuit
Case No. 21 BE 0004
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in the case at bar. They complain there is no evidence showing an updated search was
conducted, essentially arguing the search was stale.
{¶64} Appellants’ motion to vacate and Appellees’ response filed in this case were
similar to those filed in Mammone, and the trial court held a joint hearing on the motions.
Statements in Appellees’ response may suggest the search was not re-conducted when
serving by publication in this case. However, Appellants did not argue to the trial court
that Appellees’ improperly relied on their attorney’s search from the May 2013 lawsuit
without re-conducting the search for the March 2014 lawsuit. Apparently realizing various
arguments they wish to raise on appeal were not voiced to the trial court, Appellants ask
this court to recognize plain error.
{¶65} “[T]he fundamental rule is that an appellate court will not consider any error
which could have been brought to the trial court's attention.” Schade v. Carnegie Body
Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001 (1982). The decision on whether to
recognize plain error is left to the discretion of the reviewing court. Paulus v. Beck Energy
Corp., 2017-Ohio-5716, 94 N.E.3d 73, ¶ 30 (7th Dist.), citing Risner v. ODNR, 144 Ohio
St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 27. Furthermore the plain error doctrine in
civil cases “is sharply limited to the extremely rare case involving exceptional
circumstances where the error, left unobjected to at the trial court, rises to the level of
challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson,
79 Ohio St.3d 116, 122, 679 N.E.2d 1099 (1997).
{¶66} Many of the arguments about the evidence of the search were waived. The
items raised on appeal that were not pointed out below do not present an obvious error
or exceptional circumstances. Where the party moving to vacate fails to raise a staleness
of diligence argument, the trial court loses the chance to question the affiant/counsel at
the hearing and the affiant loses the chance to show the search result would have been
the same in 2014 (or even that the same search was re-conducted in 2014). As Appellees
emphasize, Appellants failed to show their addresses could have been located in 2013
or in 2014. We conclude Appellants failed to rebut the presumption of reasonable
diligence in the search efforts which arose from the affidavit in support of publication. The
mere statement that a defendant lived at an address cannot rebut a presumption of
reasonable diligence; everyone lives somewhere. A further statement providing the
Case No. 21 BE 0004
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length of time a defendant lived at an address does not rebut the presumption of
reasonable diligence, even for the two who lived at their address for a fairly long time.
{¶67} After the trial court found Appellants failed to rebut the presumption of
reasonable diligence, the trial court alternatively found Appellees would have met any
shifted burden of showing their search effort for the addresses of the four defendants at
issue was reasonably diligent. We agree Appellees proved the search conducted was
reasonable. “[S]teps [were taken] which an individual of ordinary prudence would
reasonably expect to be successful in locating a defendant's address.” See Sizemore, 6
Ohio St.3d at 332. There was no indication a search in some other common, readily
available source would have located the correct addresses or even a suggestion to the
trial court as to what database Appellees should have added to their search.
{¶68} Considering the arguments raised to the trial court below, the evidence of
reasonable diligence was legally sufficient, and the trial court’s decision on the facts was
supported by competent, credible evidence and not unreasonable, arbitrary, or
unconscionable. The trial court did not abuse its discretion or commit a legal error
(reviewed de novo) by finding a failure to rebut the presumption or by finding proof of
reasonable diligence was presented under the totality of the circumstances herein.
Accordingly, Appellants’ assignment of error is overruled.6
{¶69} For the foregoing reasons, the trial court’s judgment is affirmed as the trial
court properly concluded it had personal jurisdiction.
Waite, J., concurs.
D’Apolito, J., concurs.
6Appellees alternatively ask this court to affirm the trial court’s judgment on grounds of waiver and laches
which they raised in their response to the motion to vacate. The trial court did not address these doctrines.
As these alternative arguments are only presented if this court were to sustain Appellants’ assignment of
error, we need not address them.
Case No. 21 BE 0004
[Cite as Franks v. Reynolds, 2021-Ohio-3247.]
For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the Court
of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be taxed against the
Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.