Goering v. Lacher

2011 Ohio 5464

• Court: Ohio Court of Appeals
• Decided: October 26, 2011
• Docket: C-110106
• Status: Published

Opinion

[Cite as Goering v. Lacher, 2011-Ohio-5464.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

ROBERT E. GOERING, : APPEAL NO. C-110106 TRIAL NO. A-0905374 Plaintiff, :

and : O P I N I O N.

JOHN KNOX, :

Intervenor-Appellee, :

vs. :

SCOTT R. LACHER, :

Defendant-Appellant, :

and :

JUANITA L. LACHER, :

Defendant. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 26, 2011

Ty L. Foster and Steven K. Shaw, for Intervenor-Appellee,

Robbins, Kelly, Patterson & Tucker and Daniel J. Temming, for Defendant- Appellant.

Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

H ILDEBRANDT , Judge.

{¶1} Defendant-appellant Scott R. Lacher appeals the judgment of the

Hamilton County Court of Common Pleas denying his motion to vacate a default

judgment in a foreclosure action.

{¶2} On June 1, 2009, Hamilton County Treasurer Robert E. Goering

filed an action in foreclosure against Lacher and his wife, Juanita L. Lacher. Goering

sought foreclosure on the Lachers’ residence because of delinquent taxes. Process

was delivered through certified mail where the Lachers resided, and Juanita signed

for the two envelopes.

{¶3} The Lachers did not answer the complaint, and Goering was

granted a default judgment. The property was purchased by intervenor-appellee

John Knox at a sheriff’s sale. The sale to Knox was confirmed on February 17, 2010.

{¶4} On April 28, 2010, Scott Lacher filed a motion to vacate the

judgment or, in the alternative, a motion for relief from the judgment under Civ.R.

60(B).

{¶5} At the hearings on the motions, Lacher testified that he had not

received actual notice of the proceedings. According to Lacher, Juanita had handled

all of the couple’s financial affairs. He adduced evidence that, although she had

accepted service of process, she had not opened the envelopes. Instead, she had

hidden them in a storage facility along with other unopened mail.

{¶6} Lacher testified that Juanita had not informed him of the

foreclosure action until April 14, 2010. On that night, she had told him about the

proceedings during an altercation in which she had stabbed him. He stated that he

had immediately investigated the matter after recovering from his wounds.

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{¶7} The trial court denied Lacher’s motions, and this appeal followed.

{¶8} In his first assignment of error, Lacher argues that the trial court

erred in refusing to vacate the foreclosure judgment. Specifically, he contends that

service of process was not perfected because he had not received actual notice of the

proceedings and that, therefore, the trial court lacked personal jurisdiction over him.

{¶9} Proper service of process is a prerequisite to a court exercising

personal jurisdiction. See, e.g., Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty.

Bd. of Revision (2000), 87 Ohio St.3d 363, 366-367, 721 N.E.2d 40. If service of

process has not been properly accomplished or waived, any judgment rendered is

void ab initio. Id. at 367, 721 N.E.2d 40. A trial court’s authority to vacate a

judgment that is void for lack of service does not derive from Civ.R. 60(B) but rather

from the court’s inherent authority to vacate a void judgment. Cincinnati Ins. Co. v.

Emge (1997), 124 Ohio App.3d 61, 63, 705 N.E.2d 408.

{¶10} Accordingly, we must decide whether service of process was proper

in this case. Civ.R. 4.1 (A) provides for service by certified or express mail and states

that “[e]videnced by return receipt signed by any person, service of process shall be

by certified or express mail unless otherwise permitted by these rules.” (Emphasis

added.)

{¶11} As the Supreme Court of Ohio has emphasized, “certified mail,

under the Rules of Civil Procedure, no longer requires actual service upon the party

receiving the notice, but is effective upon certified delivery.” Castellano v. Kosydar

(1975), 42 Ohio St.2d 107, 110, 326 N.E.2d 686. In rejecting the notion that actual

notice should be required, the court noted that “a need for actual notice would be

contradictory to modern service requirements * * *.” Id. And in defining what due

process requires, the court has held that service need only be “reasonably calculated”

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to give notice of the proceedings to interested parties. Akron-Canton Regional

Airport Auth. v. Swinehart (1980), 62 Ohio St.2d 403, 406, 406 N.E.2d 811.

{¶12} Nonetheless, Lacher cites a number of cases for the proposition

that the presumption of proper service through compliance with the civil rules may

be rebutted by evidence of defective service adduced by the defendant. See, e.g.,

Griffin v. Braswell, 187 Ohio App.3d 281, 2010-Ohio-1597, 931 N.E.2d 1131 and

Jacobs v. Szakal, 9th Dist. No. 22903, 2006-Ohio-1312. But as Knox correctly

observes, the cases relied upon by Lacher involved service at an address where the

defendant did not reside. In those cases, it was arguable that the service was not

reasonably calculated to put the defendant on notice of the proceedings.

{¶13} In the case at bar, though, Lacher has simply failed to adduce any

evidence that service was defective. In this regard, Lacher mistakes proper service

for actual notice. It was undisputed that service in this case was made upon the

proper address through certified mail in accordance with Civ.R. 4.1. The most that

Lacher has been able to establish is that he did not receive actual notice of the

proceedings. But as stated in Castellano and Swinehart, actual notice is not the

touchstone of proper service or the exercise of personal jurisdiction. Accordingly, we

overrule the first assignment of error.

{¶14} In his second assignment of error, Lacher contends that the trial

court erred in overruling his motion for relief from judgment under Civ.R. 60(B).

{¶15} As we have already noted, the power of a court to vacate a void

judgment does not derive from Civ.R. 60(B). Emge, supra. Thus, we need not

address Lacher’s argument on its merits, and we overrule the second assignment of

error.

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{¶16} In his third and final assignment of error, Lacher argues that the

trial court’s denial of his motion to vacate the judgment was against the manifest

weight of the evidence. But as Lacher did not present any evidence that service was

improper, we reject this argument and overrule the third assignment of error.

{¶17} The judgment of the trial court is affirmed.

Judgment affirmed.

DINKELACKER, P.J., and SUNDERMANN, J., concur.

Please Note: The court has recorded its own entry on the date of the release of this opinion.