CUC Properties VI, L.L.C. v. Smartlink Ventures, Inc.

[Cite as CUC Properties VI, L.L.C. v. Smartlink Ventures, Inc., 2021-Ohio-3428.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CUC PROPERTIES VI, LLC, : APPEAL NO. C-210003
TRIAL NO. A-2002292
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
SMARTLINK VENTURES, INC., :
Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed in Part, Vacated in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: September 29, 2021
Finney Law Firm, Chris Finney and Julie Gugino for Plaintiff-Appellee,
Thomas Law Offices and Louis C. Schneider for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Neither snow nor rain nor gloom of night can stop our trusted mail
carriers from completing their rounds. Unfortunately, however, Covid-19 prevented
them from getting close enough during those deliveries to obtain signatures on
certified mail. When plaintiff-appellee CUC Properties attempted to serve
defendant-appellant Smartlink Ventures with a summons and complaint via certified
mail during the pandemic, the mail carrier failed to obtain a signature from the
recipient. Instead, the postal employee jotted down “Covid 19” and “C19” on the
return receipt. At issue is whether such a notation constitutes a valid signature to
effectuate certified mail service under Civ.R. 4.1. We conclude that it does not on the
record before us. Because we find deficiency in service of process, we vacate the trial
court’s entry of default judgment for a lack of personal jurisdiction.
I.
{¶2} The relevant facts in this case are straightforward and largely
undisputed. Smartlink leased office space from CUC Properties, but vacated the
property during the midst of the Covid-19 pandemic. With no rent checks coming in,
CUC sued Smartlink, electing to have the clerk of courts serve the summons and
complaint via certified mail consistent with Civ.R. 4.1(A)(1)(a). The clerk dutifully
sent the summons and complaint to Smartlink’s registered agent and to its principal
place of business, but no person at either location ever signed for the certified mail.
Rather, the mail carriers handwrote “Covid 19” and “C19” on the respective signature
lines, in contravention of the United States Postal Service (“USPS”) guidelines put in
place for the exigent circumstances created by the Covid-19 pandemic.
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{¶3} To reduce health risks during the pandemic, the postal service
modified mail procedures for services that normally required carriers to venture in
close proximity to customers. United States Postal Service, Covid-19 Continuity of
Operations Update (Mar. 20, 2021), https://about.usps.com/newsroom/service-
alerts/pdf/usps-continuity-of-operations-03-20-2020.pdf (accessed Sep. 16, 2021).
In lieu of face-to-face signatures, USPS instructed its carriers to maintain a safe
distance, ask the recipient for their first initial and last name, enter that information
on the return receipt, and then have the customer step back while the employee
placed the mail in an appropriate place. CUC alleges the postal employee followed
this practice at Smartlink’s principal place of business by signing the receipt “C19”
and “Covid 19.”
{¶4} Smartlink did not respond to the lawsuit until a few months later—the
very day that the trial court granted a default judgment in CUC’s favor. Smartlink
now appeals that default judgment with a single assignment of error, arguing the
trial court lacked jurisdiction to enter the default judgment due to improper service.
II.
{¶5} This case requires us to tour several foundational principles of civil
procedure. “Under Civ.R. 55, when a party defending a claim has ‘failed to plead or
otherwise defend,’ the court may, upon motion, enter a default judgment on behalf of
the party asserting the claim.” Ohio Valley Radiology Assoc., Inc. v. Ohio Valley
Hosp. Assn., 28 Ohio St.3d 118, 120, 502 N.E.2d 599 (1986), quoting Civ.R. 55(A).
But to possess power to issue a valid judgment, it is well settled that the trial court
must have jurisdiction over the parties. See MB W. Chester, L.L.C. v. Butler Cty. Bd.
of Revision, 126 Ohio St.3d 430, 2010-Ohio-3781, 934 N.E.2d 928, ¶ 29 (“[A] ‘trial
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court is without jurisdiction to render judgment or to make findings against a person
who was not served summons, did not appear, and was not a party in the court
proceedings.’ ”), quoting State ex rel. Ballard v. O’Donnell, 50 Ohio St.3d 182, 553
N.E.2d 650 (1990), paragraph one of the syllabus. Moreover, “[s]ervice of the
summons and complaint ‘ “is the procedure by which a court having venue and
jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the
party served.” ’ ” During v. Quoico, 2012-Ohio-2990, 973 N.E.2d 838, ¶ 25 (10th
Dist.), quoting Omni Capital Internatl., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97,
104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987), quoting Mississippi Publishing Corp. v.
Murphree, 326 U.S. 438, 444–445, 66 S.Ct. 242, 90 L.Ed. 185 (1946). Thus, “[i]n the
absence of service of process or the waiver of service by the defendant, a court
ordinarily may not exercise power over a party the complaint names as a defendant.”
Williams v. Gray Guy Group, L.L.C., 2016-Ohio-8499, 79 N.E.3d 1146, ¶ 18 (10th
Dist.), citing Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119
S.Ct. 1322, 143 L.Ed.2d 448 (1999). See Goering v. Lacher, 1st Dist. Hamilton No. C-
110106, 2011-Ohio-5464, ¶ 9 (“Proper service of process is a prerequisite to a court
exercising personal jurisdiction.”).
{¶6} Moreover, service of process in Ohio cannot be proper unless it
complies with the Ohio Rules of Civil Procedure (along with due process concerns).
“When service is not properly made under Civ.R. 4 to 4.6, the trial court lacks
jurisdiction over the defendant who was not properly served; consequently, any
judgment issued against that defendant is void.” Treasurer of Lucas Cty. v. Mt. Airy
Investments Ltd., 6th Dist. Lucas No. L-18-1254, 2019-Ohio-3932, ¶ 12. See In re
X.Q., 8th Dist. Cuyahoga No. 107851, 2019-Ohio-1782, ¶ 12 (“A valid court judgment
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requires both proper service under the applicable Ohio rules and adequate notice
under the Due Process Clause.”); Portfolio Recovery Assoc., L.L.C. v. Thacker, 2d
Dist. Clark No. 2008 CA 119, 2009-Ohio-4406, ¶ 22 (“Where service of process is not
made in accordance with the Rules of Civil Procedure, the trial court lacks
jurisdiction to consider the complaint, and any judgment on that complaint is void
ab initio.”); see also Hubiak v. Ohio Family Practice Ctr., 2014-Ohio-3116, 15 N.E.3d
1238, ¶ 11 (9th Dist.) (holding that service via Federal Express would be improper
when it had not yet been authorized by the civil rules in spite of a standing order by
the court permitting service by commercial carrier).
{¶7} The issue before this court is a narrow one: does a mail carrier’s “Covid
19” or “C19” mark on the certified mail receipt constitute a valid signature under
Civ.R. 4.1(A)(1)(a), thereby granting the trial court personal jurisdiction over the
defendant? Because this question is purely a legal one, we review that determination
de novo. See Name Change of Rowe, 2019-Ohio-4666, 135 N.E.3d 782, ¶ 16 (4th
Dist.); Fraley v. Estate of Oeding, 138 Ohio St.3d 250, 2014-Ohio-452, 6 N.E.3d 9,
¶ 11 (“Personal jurisdiction is a question of law that appellate courts review de
novo.”); compare In re Guardianship of Swartz, 196 Ohio App.3d 348, 2011-Ohio-
4179, 963 N.E.2d 835, ¶ 15 (3d Dist.) (“The issue of whether service was properly
perfected pursuant to R.C. 2111.04 involves the probate court’s proper application of
law. Thus, our standard of review is de novo.”).
{¶8} “Civ.R. 4.1 outlines the methods for obtaining service of process within
this state, including service via certified mail.” TCC Mgt., Inc. v. Clapp, 10th Dist.
Franklin No. 05AP-42, 2005-Ohio-4357, ¶ 11. Pursuant to Civ.R. 4.1(A), service by
certified mail must be “[e]videnced by return receipt signed by any person[.]” Civ.R.
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4.1(A)(1)(a). The entire purpose of certified mail service (and commercial carrier
service under Civ. R. 4.1(A)(1)(b)) is to ensure that proof exists that someone actually
received the service, which explains why both subsection (1)(a) and (1)(b) emphasize
the signature requirement.
{¶9} The “any person” language in Civ.R. 4.1 is not limited to the defendant
or its agents, but is a flexible concept construed broadly. See Finnell v. Eppens,
S.D.Ohio No. 1:20-CV-337, 2021 WL 2280656, *5 (June 4, 2021) (“Ohio case law
confirms that ‘any person’ should be understood broadly.”); Jardine v. Jardine, 2d
Dist. Montgomery No. 27845, 2018-Ohio-3196, ¶ 8 (“Valid service of process is
presumed when the envelope is received by any person . . . [and] the recipient need
not be the defendant or an agent of the defendant.”) (Internal quotations omitted.);
Starr v. Ohio Dept. of Commerce Div. of Real Estate & Professional Licensing, 10th
Dist. Franklin No. 20AP-47, 2021-Ohio-2243, ¶ 24 (same); see also Brownfield v.
Krupman, 10th Dist. Franklin No. 14AP-294, 2015-Ohio-1966, ¶ 16 (“Notably, Civ.R.
4.1(A) does not require that delivery is restricted to the defendant or to a person
authorized to receive service of process on the defendant’s behalf.”).
{¶10} That said, whether Ohio law is broad enough to allow a mail carrier to
notate in a manner that provides no indication of who (if anyone) received the
delivery is another matter. CUC maintains that USPS delivery persons were
authorized during the pandemic to sign on behalf of the recipient with the “Covid 19”
or “C19” notation. Yet CUC points to nothing in Civ.R. 4 that would permit imputing
this type of apparent agency to postal employees. In fact, Civ.R. 4.1(A)(1)(a) directs
the clerk of courts to deliver the summons and complaint “with instructions to the
delivering postal employee to show to whom delivered, date of delivery, and address
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where delivered.” (Emphasis added.) When the carriers in this case marked “Covid
19” or “C19” on the return receipt, they assumed the role of both the deliverer and the
recipient. By extension, the mail carrier is the only person we can say with certainty
knew the certified mail even existed. But Civ.R. 4 directs the postal employee to
identify the person at the address who received the certified mail—not the one who
delivered it. In any event, we cannot see how “Covid 19” or “C19” constitutes a
“signature” or a receipt “signed” by a person. Black’s Law Dictionary defines the verb
“sign” as “[t]o identify (a record) by means of a signature, mark, or other symbol with
the intent to authenticate it as an act or agreement of the person identifying it,” and
“signature” as “[a] person’s name or mark written by that person or at the person’s
direction[.]” Black’s Law Dictionary (11th Ed. 2019). No matter how creatively we
construe “Covid 19” or “C19,” those notations do not comport with any common
understanding of “signed” or “signature.”
{¶11} Although not binding, we are mindful that federal authority appears
consistent with our interpretation of Rule 4’s signature requirement. In Finnell v.
Eppens, the district court disagreed with the magistrate’s determination that “Covid
19” satisfied service because it was unconvinced that Ohio law permitted the change
to the signature requirement at issue here (although it stopped short of definitely
deciding the question). See Finnell at *6 (“The Court is unable to locate any specific
Ohio law implementing a modification to the signature requirement based on
COVID-19. Thus, while ‘any person’ may be broad, the Court cannot be confident
that it would extend to a mail carrier’s signature.”). While “any person” represents a
broad concept, the Finnell court explained that “it may be that this broad scope
extends only to others residing (or working) at the indicated address, and not
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necessarily to mail carriers who deliver the materials to the address—COVID-19
pandemic notwithstanding.” Id. at *5, citing Indian Creek Condominium Property
Owners Assn. v. Team Equity, 2d Dist. Montgomery No. 28369, 2019-Ohio-4876,
¶ 27 (“Valid service of process is presumed when the envelope is received by any
person at the defendant’s residence; the recipient need not be the defendant or an
agent of the defendant.”) (Internal quotations omitted.); see also Dumphord v.
Gabriel, E.D.Ky No. 5:20-461-DCR, 2021 WL 3572658, * 2 (Aug. 12, 2021)
(“[Plaintiff] has offered no argument or evidence that a certified mail return receipt
that simply states ‘Covid-19’ constitutes proper service. * * * Without more, the Court
cannot rely on the certified mail return receipt to conclude that [defendant] was
properly served via certified mail.”). Allowing the mail carrier to unilaterally
substitute himself as an agent of the intended recipient frustrates the very purpose of
Civ.R. 4.1’s accepted methods of service. The reason the signature provision exists is
to substantiate that someone actually received the summons and complaint—and the
notations in this case fail to offer that assurance.
{¶12} Nor can CUC look to the USPS decree in order to salvage service here.
Compliance with USPS instructions called for the mail carrier to write the recipient’s
first initial and last name on the receipt. CUC insists the mail carrier followed USPS
procedures because the return receipt “notes the initials of the individual that
received delivery.” But this is inaccurate because the only notations appearing on the
return receipts were “Covid 19” and “C19” (both referencing the pandemic, rather
than a person), and the cryptic reference “Rt 12”—which might reference a carrier’s
route but not anyone’s name. We are not faced with a circumstance where the postal
employee adhered to USPS instructions, and thus we have no occasion to consider
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how such facts might impact our analysis. In this scenario, the return receipt lacked
the requisite first initial and last name dictated by the USPS internal memorandum.
As a result, that guidance has no bearing on our analysis.
{¶13} Nonetheless, CUC insists that administrative action taken by the Ohio
Supreme Court validated the service at issue here. Specifically, CUC claims the
administrative action gave lower courts, including the Hamilton County Court of
Common Pleas, the power to waive any rule requiring in-person service of process.
See In re Tolling of Time Requirements Imposed by Rules Promulgated by the
Supreme Court & Use of Technology, 158 Ohio St.3d 1447, 1448, 2020-Ohio-1166,
141 N.E.3d 974 (“Any requirement in a rule of the Court that a party appear in person
or requiring in-person service may be waived by the Court, local court, hearing panel,
board, or commission, as applicable.”). Based on that order, some courts in the state
promulgated a variety of rules to accommodate alternative certified mail signatures.
The Cuyahoga County Court of Common Pleas, Probate Division, for instance,
decreed that the “delivery shall be treated as successful” where the mail carrier
obtained a first initial and last name instead of a signature as confirmation of
delivery (echoing USPS guidance discussed above). In contrast, the Knox County
Court of Common Pleas ordered that the “Covid-19” signature “shall be deemed to be
perfected service” if the party served later makes an appearance in the case or other
evidence shows the party indeed resides at the location. See Finnell, S.D. Ohio No.
1:20-CV-337, 2021 WL 2280656, at *6 (describing the United States District Court
for the Southern District of Ohio’s General Order 20-39, which is to similar effect).
{¶14} But we have no occasion to address these scenarios either because
Hamilton County issued no such order. While the Ohio Supreme Court granted
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power to local courts to waive the in-person service of process, nothing in the record
suggests the trial court exercised that power or even analyzed whether service was
proper in light of USPS changes or the Supreme Court’s administrative action.
Despite CUC’s contention otherwise, the trial court’s granting of a default judgment
cannot be read as a waiver of the in-person service of process.1
{¶15} The Covid-19 pandemic certainly demanded innovation and flexibility,
and courts around the state (and country) admirably exhibited great creativity in
keeping the courthouse doors open while also ensuring public safety. The
challenging nature of the pandemic aside, we cannot simply dispense with the rules
and due process protections. This is particularly so when the record contains no
indication that service was otherwise validly achieved. On this record, therefore, we
hold that a notation of “Covid 19” or “C19” does not constitute a valid signature
under Civ.R. 4.1(A).
* * *
{¶16} In light of the foregoing analysis, we sustain Smartlink’s assignment of
error. The judgment of the trial court granting CUC’s motion for default judgment is
reversed, the default judgment is vacated, and the cause is remanded for further
proceedings consistent with this opinion.
Judgment accordingly.
ZAYAS, P. J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion
1Such a theory would also raise serious due process concerns, which is presumably the reason
various courts promulgated rules or orders to give parties notice of the modification to the service
procedure.
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