Mun. Tax Invest., L.L.C v. Pate

[Cite as Mun. Tax Invest., L.L.C v. Pate , 2016-Ohio-7791.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Municipal Tax Investment, LLC, :
Plaintiff-Appellee, :
v. :
No. 16AP-218
Pamela L. Pate et al., : (C.P.C. No. 14CV-0595)
Defendants-Appellees, : (REGULAR CALENDAR)
Patricia L. Tripodi , Trustee :
of the Patricia L. Tripodi Trust
dated March 5, 2009, :
Defendant-Appellant. :
D E C I S I O N
Rendered on November 17, 2016
On brief: Patricia Tripodi-Wademi, pro se.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant Patricia L. Tripodi-Wademi ("appellant"), Trustee of
the Patricia L. Tripodi Trust dated March 5, 2009, appeals from a decision of the Franklin
County Court of Common Pleas denying her motion to vacate judgment pursuant to
Civ.R. 60(B). For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} In January 2014, plaintiff-appellee, Municipal Tax Investment, LLC,
initiated an action seeking to foreclose on tax certificates it purchased from the Franklin
County Treasurer concerning the property located at 8033 Jonson Drive, Reynoldsburg,
Ohio. Appellee named the owners of the property, appellant and her sister, Pamela L.
No. 16AP-218 2
Pate ("Pate"), as two of the defendants. The record indicates that on January 21, 2014, a
summons was issued by certified mail to appellant at the Jonson Drive address. On
February 4, 2014, Barbara Pate, appellant's mother, signed for the certified mail.
{¶ 3} On April 8, 2014, appellant requested mediation and a stay pending
mediation. The next day, the trial court referred the matter to mediation and granted the
defendants 28 additional days after the completion of mediation to respond to the
complaint. A few days later, the trial court denied appellant's motion to stay.
{¶ 4} Apparently concerned that appellant was not properly served with the
complaint at the Jonson Drive address, appellee's counsel, in August 2014, instructed the
clerk to serve the complaint on appellant, via certified mail, at appellant's address in
North Carolina. The clerk issued the summons by certified mail. The certified mail
envelope was returned to the clerk as unclaimed and notice was provided to appellee's
counsel of the failure of service. Appellee's counsel then instructed service on appellant
by ordinary mail at appellant's North Carolina address. On September 9, 2014, the clerk
issued the summons to appellant by ordinary mail. There is no evidence in the record
indicating that the ordinary mail envelope was returned as undeliverable.
{¶ 5} In January 2015, after the parties did not reach a resolution of the matter
through mediation, appellee moved for summary judgment against appellant and Pate.
In February 2015, the trial court granted appellee's motion for summary judgment and
filed a judgment entry and decree of foreclosure. In January 2016, appellant filed a
motion to vacate judgment pursuant to Civ.R. 60(B). In February 2016, the trial court
denied appellant's motion to vacate judgment.
{¶ 6} Appellant timely appeals.
II. Assignments of Error
{¶ 7} Appellant assigns the following errors for our review:
[1.] The trial court erred in finding that Appellant had been
served the Summons and Complaint according to Rule 4.1(C)
of the ORCP.
[2.] The trial court erred in finding that Appellant waived
defect of service by 'appearing' in the action via filed papers
during a mediation proceeding.
No. 16AP-218 3
III. Discussion
{¶ 8} Appellant's first and second assignments of error involve related issues and
we therefore address them together. Appellant's first assignment of error alleges that the
trial court erred in finding that she was properly served with the complaint. Her second
assignment of error challenges the trial court's finding that she waived any defect in
service. Appellant argues that the trial court lacked personal jurisdiction because she was
never properly served. She also argues that she demonstrated a meritorious defense and
excusable neglect, as Civ.R. 60(B) requires, based on the lack of proper service, her health
issues, and the illegality of appellee's acquisition of the tax certificates. Appellant
essentially contends that she has demonstrated her entitlement to relief under both
Civ.R. 60(B) and the inherent power of the trial court to vacate void judgments. Thus,
appellant asserts that the trial court erred in denying her motion to vacate. We disagree.
A. Service of Process – Personal Jurisdiction
{¶ 9} We first address the service of process issue. If a plaintiff fails to perfect
service on a defendant and the defendant has not appeared in the action or waived
service, a trial court lacks the jurisdiction to enter judgment against the defendant.
Bowling v. Grange Mut. Cas. Co., 10th Dist. No. 05AP-51, 2005-Ohio-5924, ¶ 27. A
judgment rendered by a court that has not acquired personal jurisdiction over the
defendant is void, and not merely voidable. Beachler v. Beachler, 12th Dist. No. CA2006-
03-007, 2007-Ohio-1220, ¶ 13. Thus, a motion by a defendant seeking to vacate a
judgment for lack of personal jurisdiction "constitutes a direct attack upon the judgment
and, as such, need not satisfy the requirements of Civ.R. 60(B)." Schnippel Constr., Inc.
v. Kreps, 3d Dist. No. 17-01-16 (Feb. 15, 2002). When a defendant attempts to vacate a
void judgment through a Civ.R. 60(B) motion, courts treat the motion as a common-law
motion to vacate the judgment. See Bendure v. Xpert Auto, Inc., 10th Dist. No. 11AP-144,
2011-Ohio-6058, ¶ 16 (the "authority to vacate a void judgment arises from the inherent
power possessed by Ohio courts, not Civ.R. 60(B)"). Appellate courts review the denial of
a common-law motion to vacate under the abuse of discretion standard. Bendure at ¶ 16.
An abuse of discretion is more than merely an error of judgment; it connotes a decision
that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
No. 16AP-218 4
{¶ 10} Here, the record does not support appellant's argument that she was not
properly served with the complaint. In January 2014, the clerk issued a summons to
appellant at the Jonson Drive address, and, on February 4, 2014, appellant's mother
signed for the certified mail. Appellant argues that she was not properly served on
February 4, 2014 because she did not reside at the Jonson Drive address. Even assuming
this is correct, subsequent events confirm the trial court's jurisdiction over appellant.
{¶ 11} Appellant was served with process in North Carolina via ordinary mail
pursuant to the Rules of Civil Procedure. Appellant suggests that proper service of
process always requires a signature of the recipient. This is incorrect. Civ.R. 4.3(A)
authorizes out-of-state service of process on a defendant to effectuate personal
jurisdiction. Kentucky Oaks Mall Co. v. Mitchell's Formal Wear, Inc., 53 Ohio St.3d 73,
75 (1990). Civ.R. 4.3(B)(1) incorporates the methods of service by the clerk "as provided
in Civ.R. 4.1(A)(1) through Civ.R. 4.1(A)(3)." Under Civ.R. 4.1(A)(1)(a), service of process
by the clerk "shall be by United States certified or express mail unless otherwise permitted
by these rules" and is "[e]videnced by return receipt signed by any person." Thus, while
this rule generally requires service by certified or express mail, it also allows service
"otherwise permitted by these rules." Spotsylvania Mall Co. v. Nobahar, 7th Dist. No. 11
MA 82, 2013-Ohio-1280, ¶ 19, citing Civ.R. 4.1(A)(1)(a). When certified mail is unclaimed
or refused, the Rules of Civil Procedure permit service by ordinary mail, and deem service
complete by ordinary mail when that mail is not returned as undeliverable. Id., citing
Civ.R. 4.6(D); see J. R. Prods., Inc. v. Young, 3 Ohio App.3d 407 (10th Dist.1982) (when
out-of-state service by certified mail is returned as "unclaimed," service by ordinary mail
is permissible). Therefore, if service by certified mail on an out-of-state party is returned
as unclaimed, service may be completed by ordinary mail. See Spotsylvania Mall Co. at
¶ 21.
{¶ 12} In August 2014, appellee's counsel instructed the clerk to serve the
complaint on appellant at her mailing address in North Carolina via certified mail. The
certified mail was sent to appellant's North Carolina address, but it was returned to the
clerk as unclaimed. Upon receiving notice of this failure of service, appellee's counsel
then instructed the clerk to serve appellant by ordinary mail at her North Carolina
address. The ordinary mail that was sent to appellant was not returned as undeliverable.
No. 16AP-218 5
Therefore, pursuant to Civ.R. 4.1, 4.3, and 4.6, service was perfected on appellant, and the
trial court had personal jurisdiction to enter judgment against her. Because we find
appellant was properly served, her arguments regarding waiver of service are moot.
B. Appellant's Request for Relief pursuant to Civ.R. 60(B)
{¶ 13} To prevail on a Civ.R. 60(B) motion for relief from judgment, the movant
must satisfy a three-prong test. The movant must demonstrate (1) she has a meritorious
defense or claim to present if relief is granted; (2) she is entitled to relief under one of the
grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a
reasonable time and, when relying on a ground for relief set forth in Civ.R. 60(B)(1), (2),
or (3), she filed the motion not more than one year after the judgment, order, or
proceeding was entered or taken. GTE Automatic Electric, Inc. v. ARC Industries, Inc.,
47 Ohio St.2d 146 (1976), paragraph two of the syllabus. There will be no relief from
judgment if the movant fails to satisfy any one of the prongs of the GTE test. Strack v.
Pelton, 70 Ohio St.3d 172, 174 (1994). An appellate court reviews a trial court's denial of a
Civ.R. 60(B) motion for an abuse of discretion. Harris v. Anderson, 109 Ohio St.3d 101,
2006-Ohio-1934, ¶ 7; Oberkonz v. Gosha, 10th Dist. No. 02AP-237, 2002-Ohio-5572,
¶ 12.
{¶ 14} Here, the trial court did not abuse its discretion in denying appellant relief
under Civ.R. 60(B). The trial court determined that appellant failed to demonstrate she
has a meritorious defense to present at trial, and she also failed to establish excusable
neglect. As to the meritorious defense issue, the trial court determined that appellant, in
her letter requesting mediation, admitted to owing the underlying taxes on the property.
The trial court also rejected appellant's arguments that appellee illegally obtained the tax
certificates and that one of the tax certificates was expired. The trial court noted that the
allegedly expired tax certificate was valid when appellee filed the foreclosure complaint
and the court entered judgment, and that appellant failed to go beyond mere allegations
and conclusions to establish that appellee illegally obtained the tax certificates.
{¶ 15} Appellant does not dispute the trial court's determination regarding the
purportedly expired tax certificate. Appellant argues, however, that the trial court erred
in not finding that she presented a meritorious defense based on her allegation that
appellee did not have the legal authority to purchase the tax certificates. In support,
No. 16AP-218 6
appellant cites the fact that appellee purchased two of the three tax certificates before
registering in Ohio as a foreign limited liability company on December 17, 2012.
According to appellant, because appellee was not registered as a foreign limited liability
company in Ohio at the time it purchased two of the three tax certificates, those two
certificates were illegally obtained. Appellant's reasoning is flawed.
{¶ 16} Pursuant to R.C. 1705.54(A), before transacting business in Ohio, a foreign
limited liability company must register with the secretary of state. Further, a foreign
limited liability company transacting business in this state may not maintain any action or
proceeding in any court of this state until it has registered in this state in accordance with
sections 1705.53 to 1705.58 of the Revised Code. R.C. 1705.58(A). However, the "failure
of a foreign limited liability company to register in this state in accordance with sections
1705.53 to 1705.58 of the Revised Code does not impair the validity of any contract or act
of the company or prevent it from defending any action or proceeding in any court of this
state." R.C. 1705.58(B); see Columbus Steel Castings Co. v. Transp. & Transit Assocs.,
LLC, 10th Dist. No. 06AP-1247, 2007-Ohio-6640, ¶ 68 ("R.C. 1705.58 is a law that
prescribes the steps for having a right or duty judicially enforced, rather than a law that
defines the specific rights or duties themselves.").
{¶ 17} Thus, appellant's assertion that appellee did not legally purchase the tax
certificates because it had not already registered with the secretary of state as a foreign
limited liability company is not a meritorious defense to the foreclosure action. When
appellee initiated the tax certificate foreclosure action to enforce its rights as a lienholder,
it was registered with the secretary of state. Consequently, we find that the trial court did
not abuse its discretion in determining that appellant failed to demonstrate she has a
meritorious defense to present at trial. Appellant's failure to meet the meritorious defense
requirement of Civ.R. 60(B) precludes relief under that rule. See Strack. Thus, it is
unnecessary to address the excusable neglect issue.
{¶ 18} Because the trial court did not abuse its discretion in denying appellant's
request for relief from judgment, appellant's first and second assignments of error are
overruled.
No. 16AP-218 7
IV. Disposition
{¶ 19} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and HORTON, JJ., concur.