Kassouf v. Barylak

[Cite as Kassouf v. Barylak, 2023-Ohio-314.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
TIMOTHY D. KASSOUF, :
Plaintiff-Appellee, :
v. : No. 111594
THEODORE BARYLAK, JR., ET AL., :
Defendants. :
[Appeal by Michael Kern] :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: February 2, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-06-597502
Appearances:
The Brunn Law Firm Co. LPA, Thomas L. Brunn, Jr., and
Alison D. Ramsey, for appellee.
Kenneth R. Hurley, for appellant Michael Kern.
SEAN C. GALLAGHER, J.:
Defendant-appellant, Michael Kern (“Kern”), appeals the trial
court’s decision to deny his motion for relief from judgement. For the reasons that
follow, we reverse the decision of the trial court and remand the matter for a
hearing on Kern’s motion.
I. Procedural History
On July 31, 2006, plaintiff-appellee Timothy D. Kassouf (“Kassouf”
or “appellee”) filed a complaint raising claims arising from a motor-vehicle collision
that occurred on or about December 12, 2003. The complaint included a claim of
negligence and a claim for punitive damages against defendant Theodore Barylak,
Jr. (“Barylak”), who was the driver of the other vehicle; a claim of negligent
entrustment against Kern, who allegedly owned the vehicle driven by Barylak and
entrusted it to Barylak; and a claim for uninsured/underinsured motorist coverage
against defendants American Select Insurance Company and Westfield Group
(collectively “the defendant insurers”).
Service of process was sent to each of the defendants. Relative to this
appeal, the record shows that after an attempt to serve Kern by certified mail was
returned “unclaimed” on November 20, 2006, service of the summons and
complaint was sent by ordinary mail to Kern at a Parma, Ohio, address on
December 5, 2006. The ordinary-mail service was not returned. Kern failed to
plead or otherwise defend in the action. Neither did Barylak.
On March 7, 2007, the trial court granted appellee’s application for
default judgment against Barylak and Kern “as to the issue of liability.” The
determination of damages was deferred to the time of trial.
Kassouf settled all claims against the defendant insurers. The trial
court issued a journal entry on March 21, 2007, that states, “Pursuant to telephone
notice from [plaintiff’s] counsel, the claims against [defendants] Westfield and
American Select have been settled.” The journal entry was entered as a partial
dismissal with prejudice.
The case was called for trial on March 20, 2007, and defendants
Barylak and Kern failed to appear. On March 22, 2007, the trial court issued a
judgment entry that rendered judgment “for Plaintiff and against Defendants
Theodore Barylak, Jr. and Michael Kern, jointly, severally, and/or proportionately
in the amount of $33,000.00, together with interest at the statutory rate from the
date of judgment.” The journal entry designated the judgment as “Final.”
Thereafter, a “stipulation for dismissal and judgment entry” was
submitted by Kassouf and the defendant insurers, which followed from the
settlement of the claims against the defendant insurers. The stipulation was signed
by the attorneys for Kassouf and the defendant insurers and provided as follows:
“Now come the attorneys for the respective parties herein and give notice that all
claims are dismissed, with prejudice, costs to defendants.” The stipulation was “so
ordered” by the trial court judge in the judgment entry. The April 16, 2007 journal
entry provides as follows: “Pursuant to the parties’ stipulation for dismissal, the case
is dismissed with prejudice. Final. OSJ.” On May 17, 2007, the court assessed the
costs against defendant Westfield.
On June 11, 2007, the judgment rendered against Barylak and Kern
was transferred to the Parma Municipal Court for execution.
On May 14, 2021, defendant Kern filed a motion for relief from
judgment. Kern asserted that he was never properly served and that he did not
receive actual notice of the filing of the complaint until after the default judgment
was rendered. Kern attached an affidavit to his motion in which he averred that
although he owned the property where service was sent in Parma, he was not
residing there when the notices of the lawsuit were sent. More specifically, he states
he was removed from the property on March 19, 2006, incident to “the issuance of
a civil protection order,” he was “not a resident at that property between March 19,
2006 and late 2007,” and he did not move back “until early 2008.” Kern attached
copies of documents from Parma Municipal Court listing his address in Olmsted
Falls, Ohio, over a period from November 2006 through June 2007. Kern further
averred that he did not know of this case until he “was made aware of a levy, which
was served upon my former girlfriend in the summer of 2007.” Kern also makes
averments regarding his defense to the action.
On May 9, 2022, the trial court summarily denied Kern’s motion for
relief from judgment “as untimely.” Kern timely appealed that decision.
The other defendants are not parties to the appeal. After Kern’s
appeal was filed, this court granted a motion to dismiss American Select Insurance
Company and Westfield Group as parties to the appeal and to correct the docket. It
was recognized that all claims against the defendant insurers were settled in 2007
and that this appeal concerns the denial of Kern’s motion to vacate the default
judgment.
II. Law and Analysis
A. The Default Judgment
As an initial matter, after Kern’s appeal was filed, this court ordered
supplemental briefing on the effect of the April 16, 2007 journal entry on the default
judgment, including whether the default judgment was nullified or whether it
became a final, appealable order pursuant to prior precedent from this court. Upon
closer examination of the entire record and consideration of the supplemental
briefing, it is apparent that the default judgment was not rendered a nullity in this
matter.
The record reflects that Kassouf was granted default judgment on his
claims against Kern and Barylak and damages were awarded against those two
defendants. Kassouf settled and dismissed his remaining claims against the
defendant insurers, with notice thereof provided to the court and reflected by a
partial-dismissal entry. The stipulation that followed, which was entered upon the
settlement reached by Kassouf and the defendant insurers, gave notice that “all
claims are dismissed, with prejudice.” The trial court judge signed the stipulation
for dismissal and judgment entry and issued a journal entry on April 16, 2007, that
dismissed the case with prejudice “pursuant to the parties’ stipulation for
dismissal[.]”
The only reasonable construction is that the stipulation and judgment
entry governed the dismissal of all claims by and against the defendant insurers.
Pursuant to the stipulation for dismissal, the trial court dismissed the case with
prejudice, thereby rendering the default judgment on the claims against Kern and
Barylak a final, appealable order. Compare Denham v. New Carlisle, 86 Ohio St.3d
594, 597, 716 N.E.2d 184 (1999) (“[A] trial court’s decision granting summary
judgment based on immunity for one of several defendants in a civil action becomes
a final appealable order when the plaintiff voluntarily dismisses the remaining
parties to the suit pursuant to Civ.R. 41(A)(1).”); with Beck v. Jones, 8th Dist.
Cuyahoga Nos. 90120 and 91056, 2008-Ohio-5343, ¶ 2, 7, 12 (finding order granting
partial summary judgment to the “sole defendant” was rendered a nullity because
the entire case was subsequently dismissed with prejudice pursuant to the parties’
stipulation to dismiss the case, which stated “all claims by both parties” had been
settled and dismissed with prejudice); and Myers v. State Farm Ins., 8th Dist.
Cuyahoga No. 81162, 2003-Ohio-174, ¶ 12, 15 (finding a judgment that dismissed
the case “as to all parties” with prejudice superseded an interlocutory order granting
partial summary judgment to Nationwide).1
1 We note that the Myers decision did not specifically address the default judgment
entered against the owner of the automobile and a stipulated order dismissing claims
against State Farm Insurance Company with prejudice pursuant to a settlement
agreement. Id. at ¶ 5, 12.
B. Motion for Relief — Lack of Service
On appeal, Kern’s sole assignment of error claims the trial court
abused its discretion in denying his motion for relief from judgment. In his motion,
Kern argued that he had never properly been served, and he provided a supporting
affidavit in which he averred that he did not reside at the address where service was
sent. The trial court denied Kern’s unopposed motion, which was filed 14 years after
the judgment, as untimely.
“An entry denying a motion to vacate or set aside a default judgment
is * * * a final appealable order.” Reliable Auto Fin., Inc. v. Kelly, 10th Dist. Franklin
No. 20AP-518, 2021-Ohio-2851, ¶ 14, citing Deutsche Bank Natl. Trust Co. v.
Pandey, 10th Dist. Franklin No. 10AP-39, 2010-Ohio-3746, ¶ 12. Generally, we
review the denial of a motion to vacate for an abuse of discretion. See Brookville
Ents. v. Clarence J. Kessler Estate HCF Mgt., 2d Dist. Montgomery No. 29314,
2022-Ohio-1420, ¶ 20. However, when the challenge implicates an issue of law, we
review the issue of law de novo. Altman v. Parker, 2018-Ohio-4583, 123 N.E.3d
382, ¶ 6 (1st Dist.), citing Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d 61, 705
N.E.2d 408 (1st Dist.1997).
Kern argues on appeal that in light of his unrefuted affidavit that he
did not receive proper service, the default judgment is void ab initio because the trial
court never acquired personal jurisdiction over him and, therefore, the amount of
time that has passed is irrelevant. Appellee argues that Kern cannot satisfy the
requirements of Civ.R. 60(B), that a Civ.R. 60(B) motion is not a proper vehicle to
challenge a void judgment, and that even if the jurisdictional issue was sufficiently
raised, this court should not consider arguments proffered for the first time on
appeal. Appellee also claims that Kern did not sufficiently rebut the presumption of
proper service.
We do not find the form of the motion was fatal to Kern’s request to
vacate the judgment for a lack of proper service. See State Auto Ins. v. Wilson, 9th
Dist. Summit No. 29678, 2020-Ohio-4456, ¶ 5. Although the appropriate procedure
would have been to file a common law motion to vacate rather than a Civ.R. 60(B)
motion, “‘[t]he authority to vacate a void judgment is not derived from Civ.R. 60(B)
but rather constitutes an inherent power possessed by Ohio courts.’” Brookville
Ents. at ¶ 19, quoting Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988).
Accord King v. Water’s Edge Condominium Unit Owners’ Assoc., 8th Dist.
Cuyahoga No. 109895, 2021-Ohio-1717, ¶ 20.
As the Supreme Court of Ohio has recognized, “It is axiomatic that for
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). Accord State ex rel. Ballard v. O’Donnell, 50 Ohio St.3d
182, 183, 553 N.E.2d 650 (1990); see also Maryhew v. Yova, 11 Ohio St.3d 154, 156-
175, 464 N.E.2d 538 (1984). Moreover, “a trial court lacks personal jurisdiction over
a defendant if effective service of process has not been made on the defendant and
the defendant has not voluntarily appeared in the case or waived service.” Reliable
Auto Fin., 10th Dist. Franklin No. 20AP-518, 2021-Ohio-2851, at ¶ 12, citing Ballard
at paragraph one of the syllabus. Therefore, “[a] person against whom such
judgment and findings are made is entitled to have the judgment vacated.” Ballard
at 184. Furthermore, “[i]naction upon the part of a defendant who is not served with
process, even though he might be aware of the filing of the action, does not dispense
with the necessity of service.” Maryhew at 157.
Because Kern did not need to file a Civ.R. 60(B) motion, he did not
need to establish entitlement to relief under that rule. See Brookville Ents., 2d Dist.
Montgomery No. 29314, 2022-Ohio-1420, at ¶ 19. In particular, it is not necessary
that the motion be timely filed or that a meritorious defense be set forth. Reliable
Auto Fin. at ¶ 13, citing Galbreath v. Martin, 10th Dist. Franklin No. 11AP-348,
2011-Ohio-5852, ¶ 8. As this court has recognized, “trial courts have inherent
authority to vacate a void judgment, and a party asserting lack of jurisdiction due to
lack of service does not need to meet the requirements of Civ.R. 60(B).” Midland
Funding, L.L.C. v. Cherrier, 8th Dist. Cuyahoga No. 108595, 2020-Ohio-3280, ¶ 16,
citing GGNSC Lima, L.L.C. v. LMOP, L.L.C., 8th Dist. Cuyahoga No. 105910, 2018-
Ohio-1298, ¶ 15; see also King at ¶ 20, citing GGNSC Lima, L.L.C. at ¶ 15. Likewise,
the doctrine of laches does not apply. See Altman, 2018-Ohio-4583, 123 N.E.3d 382,
at ¶ 8-9 (1st Dist.). We certainly understand that because Kern’s motion was
presented pursuant to Civ.R. 60(B), the trial court reviewed it for timeliness.
However, because the grounds for Kern’s motion was that he had not been properly
served, the trial court should have considered the issue of whether the default
judgment should be vacated due to a lack of proper service.
“The plaintiff bears the burden of obtaining proper service on a
defendant.” FIA Card Servs. NA v. Adler, 8th Dist. Cuyahoga No. 111087, 2022-
Ohio-4631, ¶ 16, citing Cincinnati Ins. Co., 124 Ohio App.3d at 63, 705 N.E.2d 408.
“Where the plaintiff follows the civil rules governing service of process, courts
presume that service is proper unless the defendant rebuts this presumption with
sufficient evidence of nonservice.” Id., citing Hook v. Collins, 8th Dist. Cuyahoga
No. 104825, 2017-Ohio-976, ¶ 14. Although this court has found that a self-serving
statement on its own is not sufficient to rebut the presumption of proper service, the
presumption of proper service can be rebutted “where a defendant presents
sufficient evidentiary-quality information demonstrating that service was not
accomplished.” Kent State Univ. v. Manley, 8th Dist. Cuyahoga No. 111483, 2022-
Ohio-4512, ¶ 21, citing McWilliams v. Schumacher, 8th Dist. Cuyahoga Nos. 98188,
98288, 98390, and 98423, 2013-Ohio-29, ¶ 28, 51; but see Cincinnati Ins. Co. at 64
(recognizing a self-serving affidavit, even if uncontroverted, may be enough to
warrant an evidentiary hearing).
As this court has previously held:
[T]he rebuttable presumption of proper service may be rebutted by
evidence that the defendant did not reside, nor received mail, at the
address to which such ordinary mail service was addressed. * * *
“Where the defendant files a motion to vacate judgment, and swears
under oath that he or she did not reside at the address to which process
was sent, the presumption is rebutted, and it is incumbent upon the
plaintiff to produce evidence demonstrating that defendant resided at
the address in question.”
Hook at ¶ 15, quoting Watts v. Brown, 8th Dist. Cuyahoga No. 45638, 1983 Ohio
App. LEXIS 15311, 14-15 (Aug. 4, 1983); see also Midland Funding at ¶ 12-15. We
observe that in both Hook and Midland Funding, an evidentiary hearing was
conducted. See Hook at ¶ 16-17; Midland Funding at ¶ 14.
In this matter, the docket reflects that service was sent to Kern at a
Parma address in accordance with Civ.R. 4.1 through 4.6. Kern provided a sworn
affidavit attesting that he was never served with the complaint; that he was not
residing at the Parma address where service was purportedly effected; that although
he owned the home where service was sent, he had been removed from the home
pursuant to the issuance of a civil protection order and was residing at an address in
Olmsted Falls; and that he had no knowledge of the lawsuit until he was made aware
of a levy after the default judgment had been rendered against him. Kern attached
to his affidavit documents sent to him from Parma Municipal Court that list his
address at the Olmsted Falls address during the relevant time. Kern’s sworn
statement was unchallenged by appellee when the trial court denied Kern’s motion.
Although appellee challenges Kern’s claim of lack of service on
appeal, because the trial court summarily denied Kern’s motion as untimely, it never
addressed the issue of whether effective service of process was made. As this court
previously has determined, “[w]here the defendant’s sworn 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.” Capital One Bank (USA) NA v. Smith, 2020-Ohio-
1614, 154 N.E.3d 240, ¶ 18 (8th Dist.), citing Lakhodar v. Madani, 8th Dist.
Cuyahoga No. 91564, 2008-Ohio-6502, ¶ 14. We recognize that a hearing may not
always be required. However, under the circumstances presented in this matter, at
the least, the trial court should have conducted a hearing to determine the validity
of Kern’s statement. See id. at ¶ 18-19 (finding a trial court abused its discretion in
failing to hold a hearing to determine the validity of an uncontested sworn statement
that the defendant did not receive service and was residing at another address);
Reliable Auto Fin., 10th Dist. Franklin No. 20AP-518, 2021-Ohio-2851, at ¶ 15
(finding a trial court erred in denying a similar motion to vacate without conducting
an evidentiary hearing); see also King, 8th Dist. Cuyahoga No. 109895, 2021-Ohio-
1717, at ¶ 30, citing GGNSC Lima, L.L.C., 8th Dist. Cuyahoga No. 105910, 2018-
Ohio-1298, at ¶ 16; Hook, 8th Dist. Cuyahoga No. 104825, 2017-Ohio-976, at ¶ 16-
17; Cincinnati Ins. Co., 124 Ohio App.3d at 65, 705 N.E.2d 408.
Conclusion
While we understand the relief was requested as a Civ.R. 60(B)
motion and seemingly was untimely under that provision, we are compelled to find
the trial court abused its discretion in denying Kern’s motion as untimely. Under
the circumstances presented, we find that an evidentiary hearing is warranted on
the motion. On remand, the trial court is instructed to promptly conduct an
evidentiary hearing in the matter.
Judgment reversed; case remanded.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________
SEAN C. GALLAGHER, JUDGE
ANITA LASTER MAYS, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR