ShiftMed, L.L.C. v. Westchester Parkway Consulting, L.L.C.

2025 Ohio 1554

• Court: Ohio Court of Appeals
• Decided: May 1, 2025
• Docket: 114351
• Status: Published

Opinion

[Cite as ShiftMed, L.L.C. v. Westchester Parkway Consulting, L.L.C., 2025-Ohio-1554.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

SHIFTMED, LLC, :

Plaintiff-Appellee, : No. 114351 v. :

WESTCHESTER PARKWAY : CONSULTING, LLC, ET AL., : Defendants. : [Appeal by Samuel Goldner, : Defendant-Appellant.]

_______________________________________

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: May 1, 2025 _________________________________________

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-978544 _________________________________________

Appearances:

Schulze, Cox & Will, and Jesse Mosser, for appellee.

Weyles Peters + Chuparkoff, LLC, and Timothy J. Weyls, Jr., for appellant. MICHELLE J. SHEEHAN, J.:

Defendant-appellant, Samuel Goldner (“Goldner”), appeals the trial

court’s denial of his Civ.R. 60(B) motion for relief from judgment. Goldner claims

that he was never served with the summons and complaint in this matter and,

therefore, the default judgment entered against him is void. Goldner asserts the

following assignments of error for review:

(1) The trial court erred in not vacating the default judgment against Mr. Goldner because without having service on Mr. Goldner, the court did not have jurisdiction over him, rendering the default judgment void ab initio.

(2) The trial court erred in granting ShiftMed, LLC a default judgment against Mr. Goldner on an equitable claim that arose from the same facts and had the same damages alleged by ShiftMed, LLC on its breach of contract claim against other parties, and upon which ShiftMed, LLC had already obtained judgment.

(3) The trial court erred by granting ShiftMed, LLC a default judgment against Mr. Goldner on an equitable claim when it previously granted ShiftMed, LLC default judgment on its breach of contract claims against contracting parties for the exact same damages.

(4) The trial court abused its discretion in finding that Goldner failed to satisfy the requirements of Ohio Civil Rule 60(B).

Based on the record in this case, service of process was not

established, the trial court lacks personal jurisdiction, and the default judgment is

void. Therefore, the trial court’s order denying relief from judgment is reversed. I. Substantive Facts and Procedural History

A. Factual Background Plaintiff-appellee, ShiftMed, L.L.C. (“ShiftMed”), is a professional

healthcare staffing agency based in Virginia that provides nurses and nursing

assistants to long-term care facilities across the country. Defendant Goldner Capital

Management, L.L.C. (“Goldner Capital”), is a Delaware limited liability company

that invests in and operates long-term care facilities across the United States.

Goldner is a resident of New York and the managing member of Goldner Capital.

In its complaint, ShiftMed alleges that representatives of Goldner

Capital contacted it about providing nursing services at its long-term care facilities.

Subsequently, ShiftMed executed individual contracts with three long-term care

facilities located in Northeast Ohio: Westchester Parkway Consulting, L.L.C.

(“Westchester”); Strat Op, L.L.C. (“Strat Op”); and Westlake Acres Nursing &

Rehabilitation Center, L.L.C. (“Westlake Acres”) (collectively “defendant facilities”).

Goldner, Goldner Capital, and other nonparty investors own the defendant facilities.

In May 2022, ShiftMed issued invoices for payment to the defendant

facilities through Quality Healthcare Resources, L.L.C. (“Quality”). Quality is a

revenue cycle management and financial services company for skilled-nursing

facilities and is the company responsible for processing billing invoices for the

defendant facilities. Quality is not a party to this litigation.

Quality issued checks to ShiftMed for these invoices, but

subsequently, the checks bounced. ShiftMed alleges that Goldner Capital or Goldner instructed Quality to stop payment on these checks. According to ShiftMed,

defendants owed it a total of $487,929.09 plus prejudgment interest at the rate of

1.5 percent per month for past-due invoices. At some point during 2023, the

defendant facilities ceased operations.

B. Procedural History

ShiftMed filed a complaint against the defendant facilities, Goldner

Capital, and Goldner in April 2023, alleging breach of contract against the defendant

facilities and unjust enrichment against Goldner Capital and Goldner individually.

1. Default judgment against the defendant facilities and Goldner Capital

ShiftMed obtained service on Goldner Capital, Westchester,

Westlake Acres, and Strat Op. Westlake Acres filed an answer but was voluntarily

dismissed from the case with prejudice. Goldner Capital, Westchester, and Strat Op

failed to plead or otherwise respond to the complaint, and thus, ShiftMed moved for

default judgment against them, which the trial court granted. Goldner Capital,

Westchester, and Strat Op have not sought to vacate the default judgments against

them and are not parties to this appeal.

2. Default judgment against Goldner On April 26, 2023, ShiftMed initially attempted service of the

complaint by certified mail to Goldner at an address on 46th Street, Brooklyn, New

York. This attempt was unsuccessful. Subsequently, on June 21, 2023, ShiftMed

attempted service of the complaint to Goldner by certified mail at an address in Lawrence, New York (hereinafter “Lawrence Address”). ShiftMed believed this

address to be Goldner’s personal residence. The returned certified mail receipt

indicates that the summons and complaint were delivered on June 23, 2023, and

contains an unidentified signature.

When Goldner failed to answer or otherwise plead, ShiftMed filed for

default judgment against him. The trial court entered a default judgment in the

amount of $482,252.60 against Goldner in September 2023.

3. Goldner’s efforts to vacate the default judgment against him

Goldner alleges that he first learned about this action when ShiftMed

instituted a collection action against him in New York in January 2024. Goldner

obtained legal counsel in Ohio and, in late January 2024, filed a combined motion

to vacate the default judgment, motion for relief from judgment, and motion to

reconsider seeking relief from the default judgment.

With his motion, Goldner submitted a sworn affidavit averring that

he had not resided at the Lawrence Address since October 2021 — almost two years

prior to attempted service in this matter. He also attested that he never owned the

Lawrence Address residence. Goldner further attested that he did not receive the

summons and complaint in this matter and that he first learned of this action in

January 2024 when a collection action was filed by ShiftMed in New York. Goldner

further averred that he did not receive copies of the summons and complaints

directed to the defendant facilities. The trial court held an evidentiary hearing on Goldner’s motion in

July 2024. Goldner testified that he had lived in Brooklyn, New York, since May

2022. Prior to that time, he lived in Far Rockaway, New York from October 2021 to

May 2022. Goldner testified that he lived at the Lawrence Address prior to October

2021. He testified that the Lawrence Address is owned by his mother and is

occupied by her and his sister. ShiftMed introduced no evidence contradicting these

statements.

Goldner also testified that his mother would give him documents sent

to the Lawrence Address “if she got them” and “thought to give them to me.”

Goldner testified, however, that he never received the complaint in this matter from

his mother or anyone else including the statutory agents for defendant facilities and

Goldner Capital. Goldner confirmed that the certified mail receipt indicates that the

summons and complaint were sent to the Lawrence Address but testified that he was

unaware of who signed for them and repeated that he never received them.

Also, at the hearing, ShiftMed introduced numerous documents

demonstrating Goldner’s past use of the Lawrence Address as a business address for

long-term care facilities across the country as well as contact information for his

legal counsel on previous lawsuits. ShiftMed also introduced documents

demonstrating past efforts of Goldner to evade service in other lawsuits as well as

Goldner’s past “abandonment” of lawsuits and subsequent motions by his legal

counsel to withdraw from these lawsuits. Goldner explained that the Lawrence

Address was used prior to his move or in error by counsel. On August 27, 2024, the trial court issued an order indicating that it

considered Goldner’s “Motion to Set Aside Default Judgment filed 01/30/24” as well

as the evidence presented at the hearing and motions filed by the parties but only

denied Goldner’s motion for relief from judgment. The court held, “[T]he court finds

that Defendant has not satisfied the requirements of Civ.R. 60(B). As such, the court

denies Defendant’s Motion for Relief from Judgment pursuant to Civ.R. 60(B).” The

trial court did not make a specific ruling on Goldner’s motion to vacate. This appeal

follows.

II. Law and Analysis

In his first assignment of error, Goldner asserts that the trial court

erred in not vacating the default judgment entered against him because he was never

effectively served with the summons and complaint in this matter. Thus, the default

judgment is void for lack of personal jurisdiction and should be set aside by the

court. We will first address the proper procedure for challenging a judgment on the

grounds that it is void due to lack of service. Then we will address whether ShiftMed

effectively served Goldner with the summons and complaint in this matter.

A. Motion to Vacate Versus Civ.R. 60(B) Motion for Relief From Judgment

On its face, the final appealable order in this matter arises from the

lower court’s denial of Goldner’s Civ.R. 60(B) motion for relief from judgment.

Goldner, however, also filed a motion to vacate the default judgment on the grounds

that it was void. An appellate court reviews the denial of either a Civ.R. 60(B) motion or a motion to vacate a void judgment for an abuse of discretion. Univ.

Heights v. Allen, 2019-Ohio-2908, ¶ 12 (8th Dist.). An abuse of discretion occurs

when a court “‘“applies the wrong legal standard, misapplies the correct legal

standard, or relies on clearly erroneous findings of fact.”’” Margiman v. Dowdell,

2025-Ohio-377, ¶ 11 (8th Dist.), quoting Thomas v. Cleveland, 2008-Ohio-1720,

¶ 15 (8th Dist.), quoting Berger v. Mayfield, 265 F.3d 399 (6th Cir. 2001). Courts

do not have discretion to erroneously apply the law. Johnson v. Abdullah, 2021-

Ohio-3304, ¶ 39.

This court follows the well-established precedent that “‘[a court’s]

authority to vacate a void judgment is not derived from Civ.R. 60(B) but, rather,

constitutes an inherent power possessed by Ohio courts.’” King v. Water’s Edge

Condo. Unit Owners’ Assoc., 2021-Ohio-1717, ¶ 20 (8th Dist.), quoting Patton v.

Diemer, 35 Ohio St.3d 68 (1988), paragraph four of the syllabus. The proper

procedure to challenge a void judgment is a common law motion to vacate. Kassouf

v. Barylak, 2023-Ohio-314, ¶ 18 (8th Dist.). Thus, the requirements of Civ.R. 60(B)

are not applicable and do not need to be satisfied by a defendant seeking to set aside

a default judgment because the trial court lacks jurisdiction due to improper service

of process. King at ¶ 20, citing GGNSC Lima, L.L.C. v. LMOP, L.L.C., 2018-Ohio-

1298, ¶ 15 (8th Dist.), citing Patton at id. Instead, a defendant only needs to

establish lack of proper service. Id.

Accordingly, while the final appealable order in this matter arises

from the trial court’s denial of Goldner’s Civ.R. 60(B) motion for relief from judgment, this court will treat it as a denial of Goldner’s motion to vacate and we

will not address the requirements of Civ.R. 60(B). Further, to the extent the lower

court’s denial to vacate the default judgment entered against Goldner was based

upon a perceived failure by him to satisfy the requirements of Civ.R. 60(B), we find

that the lower court abused its discretion by applying the wrong legal standard. We

now turn to the crux of Goldner’s appeal and address whether he was properly

served in this matter based upon our review of the record.

B. Service of Process Upon Goldner

“Service 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, ¶ 25 (10th Dist.), quoting Omni Capital Internatl., Ltd. v. Rudolf

Wolff & Co., Ltd., 484 U.S. 97, 104 (1987), quoting Mississippi Publishing Corp. v.

Murphree, 326 U.S. 438, 444-445 (1946). “In the absence of service of the 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.” Id., citing Murphy Bros., Inc. v.

Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). A default judgment

rendered without effective service of process is a nullity and void for lack of personal

jurisdiction. Kassouf at ¶ 19; King at ¶ 18-19. “Therefore, ‘[a] person against whom

such judgment and findings are made is entitled to have the judgment vacated.’”

Kassouf at ¶ 19, quoting State ex rel. Ballard v. O’Donnell, 50 Ohio St.3d 182, 184

(1990). A court acquires jurisdiction over a party in one of three ways:

(1) proper and effective service of process; (2) voluntary appearance by the party; or

(3) limited acts by the party of his counsel that involuntarily submit the party to the

court’s jurisdiction. Id. at ¶ 19. Therefore, “where the plaintiff has not perfected

service on a defendant and the defendant has not appeared in the case or otherwise

waived service, the court lacks jurisdiction to render a default judgment against the

defendant.” Id., citing Professional Bank Servs. v. Abboud, 2015-Ohio-1651, ¶ 12

(8th Dist.), citing Rite Rug Co., Inc. v. Wilson, 106 Ohio App.3d 59, 62 (10th Dist.

1995). A trial court’s judgment regarding the validity of service is reviewed for an

abuse of discretion. Margiman, 2025-Ohio-377, at ¶ 11 (8th Dist.), citing Midland

Funding, L.L.C. v. Cherrier, 2020-Ohio-3280, ¶ 13 (8th Dist.).

1. ShiftMed’s initial burden and the presumption of proper service

A plaintiff bears the burden of obtaining proper service on a

defendant. Margiman at ¶ 9. “To be effective, service of process must comport with

the requirements of due process.” King, 2021-Ohio-1717, at ¶ 22 (8th Dist.), citing

Akron-Canton Regional Airport Auth. v. Swinehart, 62 Ohio St.2d 403 (1980),

syllabus. “‘“Service of process is consistent with due process standards where it is

reasonably calculated, under the circumstances, to give interested parties notice of

a pending action and an opportunity to appear.”’” Id., quoting Lauver v. Ohio Valley

Selective Harvesting, L.L.C., 2017-Ohio-5777, ¶ 17 (8th Dist.), quoting Motorists

Mut. Ins. Co. v. Roberts, 2014-Ohio-1893, ¶ 32 (12th Dist.). “Where the plaintiff follows the civil rules governing service of process, courts presume that service is

proper . . . .” Hook v. Collins, 2017-Ohio-976, ¶ 14 (8th Dist.).

Service upon an individual must be made at their “usual place of

residence.” Broadvox L.L.C. v. Oreste, 2024-Ohio-340, ¶ 13 (8th Dist.);

Professional Bank Servs. v. Abboud, 2019-Ohio-2921, ¶ 12 (8th Dist.). Civ.R. 4.1(A)

generally provides that service may be made by certified or express mail, personal

service, or residential service. Civ.R. 4.3, which governs service upon an out-of-state

defendant, allows for service of process to be served in the same manner as provided

for in Civ.R. 4.1.

In this matter, service of the summons and complaint was made by

certified mail to the Lawrence Address pursuant to Civ.R. 4.1(A) and 4.3. ShiftMed

believed that this was Goldner’s personal residence. The certified mail receipt was

returned and marked as delivered on June 23, 2023. Accordingly, ShiftMed

complied with the civil rules governing service of process and is entitled to a

presumption of proper service.

2. Goldner’s rebuttal of the presumption of proper service

While we presume that service was proper at this juncture, Goldner

is entitled to attempt to rebut this presumption with sufficient evidence of

nonservice. Cherrier, 2020-Ohio-3280, at ¶ 12 (8th Dist.), citing Hook, 2017-Ohio-

976, at ¶ 14 (8th Dist.). Indeed, “‘[a] failure of service, may * * * occur where “the

defendant does not receive the summons and complaint, even though the plaintiff

complied with the civil rules and service was made at an address where the plaintiff could reasonably anticipate that the defendant would receive it.”’” King, 2021-Ohio-

1717, at ¶ 26, quoting Chuang Dev. L.L.C. v. Raina, 2017-Ohio-3000, ¶ 32 (10th

Dist.), quoting Erin Capital Mgmt. v. Fournier, 2012-Ohio-939, ¶ 19 (10th Dist.);

see also Rafalski v. Oates, 17 Ohio App.3d 65, ¶ 67 (8th Dist.) (holding because

defendant never received the summons and complaint, she was entitled to have the

judgment against her vacated even where the plaintiff complied with the civil rules

and service was made at an address where the plaintiff could reasonably anticipated

that the defendant would receive it). “‘[T]o rebut the presumption of proper service,

the [defendant] must produce evidentiary-quality information demonstrating that

he or she did not receive service.’” Margiman, 2025-Ohio-377, at ¶ 10 (8th Dist.),

qu0ting McWilliams v. Schumacher, 2013-Ohio-29, ¶ 51 (8th Dist.). “The

‘presumption of proper service may be rebutted by evidence that the defendant did

not reside, nor received mail, at the address to which ordinary mail service was

addressed.’” Id. at ¶ 10, quoting Hook at ¶ 15, citing McWilliams at ¶ 49, citing Cent.

Ohio Sheet Metal, Inc. v. Walker, 2004-Ohio-2816, ¶ 10 (10th Dist.). Further,

“‘“[w]here 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.”’” Abboud, 2019-Ohio-2921, at ¶ 10 (8th Dist.), quoting

Hook at ¶ 15, quoting Watts v. Brown, 1983 Ohio App. LEXIS 15311, *14-15 (8th

Dist.). “When the movant’s motion to vacate contains allegations of operative facts

that would warrant relief, the trial court should grant a hearing on such motion.” Id.

at ¶ 10. In the lower court, Goldner submitted a sworn affidavit stating that

he did not reside at the Lawrence Address when service of process was delivered by

certified mail. He had not resided there since 2021 — approximately two years prior

to the institution of this matter. Goldner also averred that he did not receive the

summons and complaint in this matter prior to the filing of ShiftMed’s collection

action in New York. On these facts, Goldner successfully rebutted the presumption

of proper service and has shifted the burden back to ShiftMed to demonstrate that

he had, in fact, been properly served.

3. Restoration of ShiftMed’s original burden to demonstrate proper service

If a defendant rebuts the presumption, “‘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, 1983 Ohio App. LEXIS 15311,

*14-15 (8th Dist.); accord Tomcho v. ATL, Inc., 2018-Ohio-4613, ¶ 20 (8th Dist.);

Cherrier, 2020-Ohio-3280, at ¶12 (8th Dist.). Additionally, “actual knowledge of

the lawsuit is irrelevant in determining the sufficiency of service of process.” State

ex rel. Strothers v. Madden, 1998 Ohio App. LEXIS 5006, *4 (8th Dist.), citing Bell

v. Midwestern Educational Services, Inc., 89 Ohio App.3d 193, 203 (2d Dist. 1993).

As stated by the Ohio Supreme Court, “[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 v. Yova, 11 Ohio St.3d

154, 157 (1984); see also Haley v. Haley, 93 Ohio St. 49, 52 (1915); see, e.g., Potts v. Simpkins, 2010-Ohio-1437, ¶ 12-13 (8th Dist.) (reversing trial court’s denial of a

motion for relief from judgment because while defendant was likely aware of the

lawsuit, he was never effectively served).

While the testimony elicited by ShiftMed during the evidentiary

hearing below indicates that Goldner may have known of the existence of this

lawsuit, it does not establish that Goldner resided at the Lawrence Address at the

time service was attempted or did in fact receive service of the complaint. ShiftMed

failed to introduce any evidence that refuted Goldner’s testimony that he did not

reside at the Lawrence Address at the time of attempted service in this matter or

received service of the complaint. Therefore, ShiftMed failed to satisfy its burden to

establish that proper service was made on Goldner. See Cherrier, 2020-Ohio-3280,

at ¶ 15 (8th Dist.) (plaintiff elicited no testimony and presented no evidence to refute

defendant’s testimony that he did not live at the address in question; thus, it was

proper to vacate default judgment); Hathaway Brown School v. Cummings, 2023-

Ohio-374, ¶ 11-17 (8th Dist.) (plaintiff’s failure to produce any evidence to rebut

defendant’s testimony that he did not live at the address in question entitled

defendant to have judgment set aside).

ShiftMed argues that the judgment below should be affirmed because

the trial court was in the best position to judge the credibility of Goldner’s testimony

at the evidentiary hearing. In other words, ShiftMed contends the trial court did not

believe that Goldner did not receive service of the complaint. However, we are

unable to conclude that Goldner’s credibility (or lack of) resolves this issue. In addition to improperly applying the Civ.R. 60(B) legal standards to this matter, the

trial court provided no explanation for its denial of Goldner’s motion to vacate the

default judgment. Thus, we have no factual basis to objectively determine whether

the trial court abused its discretion regarding the validity of service in this case.

Thus, based upon the testimony and record, ShiftMed did not satisfy its burden in

establishing proper service on Goldner.

Accordingly, on the facts of this case, we find that the default

judgment was void for lack of service and the trial court abused its discretion in

failing to grant Goldner’s motion to vacate the default judgment entered against

him.

Based on the court’s resolution of assignment of error No. 1, Goldner’s

remaining assignments of error are moot.

For all these reasons, we find merit to the appeal, reverse the trial

court’s judgment, and remand the case to the trial court to vacate the default

judgment against Goldner.

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.

________________________ MICHELLE J. SHEEHAN, JUDGE

EILEEN A. GALLAGHER, A.J., and MARY J. BOYLE, J., CONCUR