Ostendorf v. Darling

[Cite as Ostendorf v. Darling, 2021-Ohio-2781.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Megan Ostendorf, :
Plaintiff-Appellee, : No. 20AP-454
(M.C. No. 2019CVI-39951)
v. :
(REGULAR CALENDAR)
Stephen Darling, :
Defendant-Appellant. :
D E C I S I O N
Rendered on August 12, 2021
On brief: Stephen Darling, pro se.
On brief: Megan Ostendorf, pro se. Argued: Megan
Ostendorf.
APPEAL from the Franklin County Municipal Court
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, Stephen Darling, appeals from a judgment of the
Franklin County Municipal Court, granting default judgment in favor of plaintiff-appellee,
Megan Ostendorf. For the following reasons, we reverse and remand.
I. Facts and Procedural History
{¶ 2} On October 9, 2019, appellee filed her complaint against appellant alleging
breach of an oral agreement1 that appellant would reimburse appellee for charges made on
1According to the complaint, at the time the oral agreement was entered, appellant was the boyfriend of
appellee. (Compl. at 1.)
No. 20AP-454 2
a certain credit card of appellee upon which appellant was an authorized user. (Compl. at
2.) Appellee seeks $5,999.99 in damages consisting of $5,598.00 in charges plus $401.99
in accrued interest on the credit card. Id. at 1. The docket indicates the trial court issued
certified mail service of the "Notice and Summons in Action for Money Only" on October 15,
2019 to the address2 listed on appellee's complaint, setting a hearing for November 14, 2019
before Magistrate Waddy. According to the USPS Tracking information made part of the
record, a delivery attempt was made on October 17, 2019 but the delivery was unsuccessful
due to "No Authorized Recipient Available." (See USPS Tracking at 1.) The docket does not
reflect a return of service.3
{¶ 3} On November 4, 2019 , appellant filed a motion to quash, requesting that "the
return of service (if applicable), the summons, [and] any other document attempted to be
served on [appellant] should be quashed and the hearing scheduled for November 14
should be vacated" due to appellee's failure to perfect proper service on appellant. (Mot. to
Quash at 2.) Appellant further asserted that "because of the failure of service, this Court
has not acquired jurisdiction over [appellant]." Id. The record does not indicate any ruling
by the court on the motion to quash.
{¶ 4} On November 18, 2019, Magistrate Waddy issued a decision granting default
judgment in favor of appellee based on the failure of appellant to appear at the
November 14, 2019 hearing. (Nov. 18, 2019 Mag.'s Decision.) The magistrate's decision
was adopted by the trial court the same day, and judgment was entered for $5,999.99, plus
court costs, and interest at the rate of 5 percent per annum from the date of the entry. (Nov.
18, 2019 Jgmt. Entry.)
{¶ 5} On November 19, 2019, appellant filed an objection to the magistrate's
decision wherein he again asserted that service had not been perfected upon him and that
the trial court had not acquired jurisdiction over him. (Nov. 19, 2019 Def.'s Obj. to Mag.'s
Decision at 1.) On December 16, 2019, the trial court issued an entry granting appellant's
2 The address listed on the complaint is 1184 City Park Ave., Columbus, Ohio, 43206.
3Notably, next to Question No. 3 on the form complaint, i.e., "Do you want to waive notice of failed service if
certified mail is selected?", appellee entered "Yes."
No. 20AP-454 3
objection and referring the matter back to the small claims division for further proceedings.
(Dec. 16, 2019 Entry Referring Case Back to Small Claims Division.) In the entry, the trial
court found that "it appears that [appellant] is correct about him not being served with the
Complaint. It appears that there was an improperly filed document that caused the Court
to believe service was complete." Id. The record does not show that appellee made any
further attempt to serve appellant.
{¶ 6} After the matter was referred back to the small claims division, the trial court
issued several continuances of hearing on the matter.4 Eventually, the trial court set the
matter for an August 6, 2020 hearing date.
{¶ 7} On August 6, 2020, Magistrate Waddy again issued a decision granting
default judgment in favor of appellee, this time based on the failure of appellant to appear
at the August 6, 2020 hearing. (Aug. 6, 2020 Mag.'s Decision.) The magistrate's decision
was adopted by the trial court the same day, and judgment was entered for $5,999.00, plus
court costs, and interest at the rate of 4 percent per annum from the date of the entry.
(Aug. 6, 2020 Jgmt. Entry.)
{¶ 8} On August 17, 2020, appellant filed an objection to the magistrate's decision
wherein he again asserted that service had not been perfected upon him and that the trial
court had not acquired jurisdiction over him; in the alternative, appellant moved to set
aside judgment pursuant to Civ.R. 60(B). (Aug. 17, 2020 Def.'s Obj. to Mag.'s Decision at
1.) On September 9, 2020, the trial court issued an entry overruling appellant's objection.
(Sep. 9, 2020 Entry.) In the entry, the trial court stated that "in reviewing the record and
the case history, the Court does not find the [appellant's] objection well taken and hereby
OVERRULES the same. The decision of the magistrate shall stand." Id.
{¶ 9} Appellant now appeals from the September 9, 2020 judgment of the Franklin
County Municipal Court, asserting the following as his sole assignment of error:
The Trial Court erred in entering a judgment as service was not
conducted in the manner required by Civ. R. 4.1, and that Court
did not obtain jurisdiction over Appellant, rendering any
Judgment null and void.
4 It appears that one continuance was at the request of appellant (see Feb. 27, 2020 Mag.'s Order), and the
others were due to the restrictions arising out of the COVID-19 pandemic.
No. 20AP-454 4
II. Standard of Review
{¶ 10} In order to render a valid judgment, a trial court must have personal
jurisdiction over the defendant. Maryhew v. Yova, 11 Ohio St.3d 154, 156 (1984). If a trial
court renders a judgment without first obtaining personal jurisdiction over the defendant,
that judgment is void ab initio. Third Fed. S. & L. Assn. v. Taylor, 10th Dist. No. 17AP-254,
2017-Ohio-7620, ¶ 11; Young v. Locke, 10th Dist. No. 13AP-608, 2014-Ohio-2500, ¶ 21.
Whether a trial court has acquired personal jurisdiction over a defendant is a question of
law that an appellate court reviews de novo. Kauffman Racing Equip., L.L.C. v. Roberts,
126 Ohio St.3d 81, 2010-Ohio-2551, ¶ 27.
III. Discussion and Legal Analysis
{¶ 11} The question raised by appellant's sole assignment of error is whether the
trial court erred by entering judgment against him without first obtaining personal
jurisdiction over him. 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. State ex rel. Ballard v. O'Donnell, 50
Ohio St.3d 182 (1990), paragraph one of the syllabus; Bowling v. Grange Mut. Cas. Co.,
10th Dist. No. 05AP-51, 2005-Ohio-5924, ¶ 27. The Supreme Court of Ohio has
previously held that "[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, 11 Ohio St.3d at 157. Under the Civil Rules, "[t]he
obligation is upon plaintiffs to perfect service of process; defendants have no duty to assist
them in fulfilling this obligation." Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio
St.3d 141, 2007-Ohio-3762, ¶ 16, citing Maryhew at 159. Indeed, even active participation
in a civil case does not constitute a waiver of the affirmative defense of insufficient service
of the complaint when a defendant has properly raised and preserved the defense.
Gliozzo, 2007-Ohio-3762, at ¶ 18.
{¶ 12} In this case, there is no doubt that service of the summons and complaint was
not properly made on defendant pursuant to Civ.R. 4. The record shows that certified mail
was issued to 1184 City Park Ave., Columbus, Ohio, 43206, the address listed on the
No. 20AP-454 5
complaint, but service was unsuccessful due to "No Authorized Recipient Available." (See
USPS Tracking at 1.) Furthermore, the docket does not reflect a return of service.
Therefore, unless appellant has otherwise waived the affirmative defense of insufficiency of
process, the trial court lacked personal jurisdiction over him, rendering any judgment
against him void ab initio.
{¶ 13} Civ.R. 12(B) addresses how defenses are to be asserted as follows:
Every defense * * * shall be asserted in the responsive pleading
thereto if one is required, except that the following defenses
may at the option of the pleader be made by motion: * * * (4)
insufficiency of process.
{¶ 14} Civ.R. 12 (G) provides that:
A party who makes a motion under this rule must join with it
the other motions herein provided for and then available to
him. If a party makes a motion under this rule and does not
include therein all defenses and objections then available to
him which this rule permits to be raised by motion, he shall not
thereafter assert by motion or responsive pleading, any of the
defenses or objections so omitted, except as provided in
subdivision (H) of this rule.
{¶ 15} Under Civ.R. 12(H)(1):
A defense of * * * insufficiency of service of process is waived
(a) if omitted from a motion in the circumstances described in
subdivision (G), or (b) if it is neither made by motion under this
rule nor included in a responsive pleading or an amendment
thereof permitted by Rule 15(A) to be made as a matter of
course.
{¶ 16} Therefore, the defense of insufficiency of service of process can be waived in
one of two ways: (1) if a motion is made raising other Civ.R. 12(B) defenses and it is not
included in that motion or, (2) if there is no such motion, if it is not raised by separate
motion or included in the responsive pleading. Gliozzo, 2007-Ohio-3762, at ¶ 9.
{¶ 17} Here, appellant first responded to the complaint on November 4, 2019 when
he filed his motion to quash. In it he clearly asserted that he had not been served with the
complaint. Thus, appellant raised the defense of insufficiency of service of process by his
No. 20AP-454 6
November 4, 2019 motion. Although the trial court proceeded to a hearing on November 14,
2019 without ruling on defendant's motion, the fact remains that defendant asserted the
defense in a motion as required by Civ.R. 12. Appellant subsequently re-asserted the
defense in his November 19, 2019 objection to the magistrate's decision issued on
November 18, 2019 wherein default judgment was granted in favor of appellee. And,
appellant again re-asserted the defense in his August 17, 2020 objection to the magistrate's
decision issued on August 6, 2020. Based on the foregoing, we find that appellant was not
properly served with the complaint; that he consistently and continuously asserted the
affirmative defense of insufficiency of service of process; and that he never waived the
defense.
{¶ 18} Appellee contends, in essence, that appellant waived the defense due his
participation in the matter. She points out, for example, that appellant was aware of the
complaint being filed; he contacted the court about the case on several occasions; and he
participated in a mediation meeting in an attempt to settle the matter. We interpret
appellee's argument to be that appellant voluntarily submitted himself to the jurisdiction
of the court by his knowledge of and participation in the litigation. We do not agree.
{¶ 19} As noted previously, the Supreme Court has held "[w]hen the affirmative
defense of insufficiency of service of process is properly raised and properly preserved, a
party's active participation in the litigation of a case does not constitute waiver of that
defense." Gliozzo, 2007-Ohio-3762, at ¶ 18. This is true even though the case has been tried
to conclusion without a determination of whether service was properly perfected. Blount
v. Schindler Elevator Corp., 10th Dist. No. 02AP-688, 2003-Ohio-2053, ¶ 27, citing Bell v.
Midwestern Educational Serv., Inc., 89 Ohio App.3d 193, 203-04 (2d Dist.1993). 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 Third Fed. S. & L. Assn, 2017-Ohio-7620, at ¶ 11; Young, 2014-Ohio-
2500, at ¶ 21. We are cognizant of the fact that appellant was well aware of the litigation.
Indeed, we agree with appellee that appellant actively participated in the litigation, as is
No. 20AP-454 7
readily evinced by the record. Yet, despite the apparent inequity of the circumstances, we
are nonetheless constrained by the authority set forth in Gliozzo.
{¶ 20} Here, the record is clear that appellant properly raised and preserved the
affirmative defense of insufficiency of process on multiple occasions. Therefore, despite
appellant's participation in the litigation he did not waive the defense of insufficiency of
service of process, and appellee's failure to perfect service upon appellant deprived the trial
court of jurisdiction over appellant and prevented a valid judgment in favor of appellee.
Appellant's sole assignment of error is sustained.
IV. Conclusion
{¶ 21} Having sustained appellant's sole assignment of error, we reverse the
judgment of the Franklin County Municipal Court and remand this matter for further
proceedings consistent with this decision.
Judgment reversed;
cause remanded for further proceedings.
BROWN and MENTEL, JJ., concur.