Smith v. White

2024 Ohio 737, 237 N.E.3d 351

• Court: Ohio Court of Appeals
• Decided: February 29, 2024
• Docket: 112896
• Status: Published

Opinion

[Cite as Smith v. White, 2024-Ohio-737.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

LOUISE SMITH, ET AL., :

Plaintiffs-Appellees, : No. 112896 v. :

RONALD WHITE, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED AND REMANDED RELEASED AND JOURNALIZED: February 29, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-22-963046

Appearances:

N.P. Weiss Law, Nicholas P. Weiss, and Kelly A. Rochotte, for appellees.

Michael Westerhaus, for appellant.

EILEEN T. GALLAGHER, P.J.:

Defendant-appellant, Laron White (“Laron”), appeals an order from the

Cuyahoga County Court of Common Pleas denying his motion for relief from default

judgment. He claims the following error:

The trial court erred by failing to grant appellant’s motion for relief from judgment. For the reasons that follow, we vacate the default judgment and remand the case to

the trial court for a hearing to determine if Laron was properly served by the special

process server.

I. Facts and Procedural History

Plaintiffs-appellees, Maequay McKinley (“McKinley”) and Louise

Smith (“Smith”) (collectively “plaintiffs”), are sisters. For over 20 years, they were

the co-owners and landlords of a residential property on East 93rd Street in

Cleveland (“Property 1”). In 2018, plaintiffs decided to sell the property, and Laron’s

father, defendant Ronald White (“Ronald”), expressed a desire to purchase the

property for $20,000. According to the complaint, plaintiffs believed the property

was worth more than $20,000, and no purchase agreement was ever drafted.

Ronald nevertheless induced McKinley, who is legally blind and suffers from

dementia, to sign a general warranty deed transferring the property to Laron. The

complaint further alleges that Ronald also fraudulently induced Smith to sign the

document. Thereafter, Dannetta Darden (“Darden”), a notary public, notarized

plaintiffs’ signatures even though she had never met either of the plaintiffs.

Before the general warranty deed was filed, Ronald informed the tenant

of Property 1 that he was the new landlord. He began collecting the rent and not

disbursing it to plaintiffs. When plaintiffs demanded that Ronald disburse the rents,

he claimed he is the sole owner of the property and that he owes them nothing.

Plaintiffs also allege that Ronald and his associate, Stanley Jones

(“Jones”), attempted to steal McKinley’s residence, located at 939 Chelston Road in South Euclid, Ohio (“Property 2”). According to the complaint, Ronald and Jones

came to McKinley’s Chelston Road home and asserted that they were the rightful

owners of it. McKinley objected, but Ronald and Jones changed the locks on the

house to keep McKinley out. Smith called the police on McKinley’s behalf, and

plaintiffs had the locks changed back, but Ronald and Jones again sabotaged the

locks on Property 2. Fearful of Ronald and Jones, McKinley moved out of Property

2 and now lives with Smith.

Plaintiffs filed a complaint against Laron and the other defendants,

alleging that the defendants defrauded them, stole Property 1, and attempted to steal

Property 2. Plaintiffs voluntarily dismissed the complaint when it became clear that

McKinley was not of sound mind, required guardianship, and could not participate

in the proceedings. After a guardianship was obtained, plaintiffs refiled the

complaint against Laron and the other defendants, seeking a declaratory judgment,

declaring that Property 1 belongs to plaintiffs, and to quiet title to Property 1. The

complaint also asserted claims for fraud, breach of contract, unjust enrichment,

notary fraud, conspiracy, trespass, conversion, and a claim to quiet title to Property

2.

In May 2022, plaintiffs attempted to serve Laron via certified mail at an

address on Strathavon Road in Shaker Heights, but service was returned as

“refused.” Plaintiffs again attempted to serve Laron by certified mail at the

Strathavon Road address on June 13, 2022, but the docket indicates that service was

not returned after 60 days. In the meanwhile, on June 16, 2022, and July 11, 2022, plaintiffs again attempted to serve Laron at the Strathavon address by regular mail,

but services was returned as “unclaimed” and “undeliverable.” Finally, plaintiffs

attempted to serve Laron via a special process server at a residence located on

Argonne Road in South Euclid, Ohio, on July 20, 2022. A docket entry dated August

10, 2022, indicates that a special process server served Laron with the summons and

complaint at the Argonne Road address.

Counsel for Ronald filed a motion to strike service on Laron, and the

court granted the motion as unopposed on January 8, 2023. However, the court

reconsidered its prior order and, in a journal entry dated February 3, 2023, the court

reinstated service on Laron on grounds that Ronald’s attorney did not represent

Laron and, therefore, could not file a motion to strike service on his behalf.

On February 1, 2023, six months after service was originally perfected

on Laron and two days before the court reinstated service on Laron, the trial court,

sua sponte, scheduled a default hearing for February 23, 2023. (See Feb. 1, 2023

journal entry.) On February 2, 2023, plaintiffs filed a motion for default. Ronald’s

attorney, who filed a timely answer to the complaint on Ronald’s behalf, would have

received electronic notices of these filings because he was counsel of record. And,

one week before the default hearing, Ronald, through counsel, filed a motion to

reconsider the denial of his request to strike service on Laron, and the court denied

the motion. On February 20, 2023, Ronald’s lawyer filed a notice of appearance on

behalf of Laron and filed another motion to strike service, but the motion to strike

was again denied. (See Feb. 22, 2023 journal entry.) Plaintiffs issued electronic notice of the default hearing to defense

counsel through the court’s electronic docket on February 22, 2023, the day before

the scheduled default hearing. As an attorney of record, Ronald’s attorney would

have received notice of the default hearing on February 1, 2023, when it was

scheduled on the court’s docket. Nevertheless, neither Laron, Ronald, nor their

attorney appeared for the default hearing. By judgment entry dated March 1, 2023,

the trial court granted plaintiffs’ motion for default judgment against Laron as

unopposed, but it did not identify the relief granted. In a supplemental judgment

entry, the court voided the deed transferring title of Property 1 to Laron, but no other

relief was granted. (Mar. 1, 2023 journal entry.) After obtaining the default

judgment, plaintiffs voluntarily dismissed defendants Ronald and Darden without

prejudice on March 22, 2023, leaving no pending claims.

Laron did not appeal the default judgment. Instead, he filed a Civ.R.

60(B) motion for relief from judgment two months after the default judgment was

granted, arguing the trial court lacked personal jurisdiction to render judgment

against him because he was never served with the complaint, that he did not receive

seven days advance notice of the default hearing, and that the complaint failed to

allege facts stating a claim against Laron on which relief could be granted. Plaintiffs

opposed the motion, arguing that Laron was properly served with the complaint and

that he had notice of the default hearing. The trial court denied the motion for relief

from judgment. Laron now appeals the trial court’s judgment. II. Law and Analysis

In the sole assignment of error, Laron argues the trial court erred in

denying his motion for relief from judgment. He argues the court should have

granted his motion for relief from judgment because (1) the trial court lacked

personal jurisdiction over him because he was never served with the complaint, (2)

the court did not provide Laron with a seven-day notice of the default hearing, (3)

the court granted the default judgment without a factual basis for doing so, (4) the

court granted relief not requested in the complaint, (5) the complaint fails to state a

claim upon which relief could be granted, and (6) the court improperly attempted to

void a properly recorded deed.

To prevail on a motion for relief from judgment pursuant to Civ.R.

60(B), the moving party must demonstrate (1) a meritorious defense or claim to

present if relief is granted, (2) entitlement to relief under one of the grounds stated

in Civ.R. 60(B)(1) through (B)(5), and (3) the timeliness of the motion. GTE

Automatic Elec. Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 150-151, 351 N.E.2d 113

(1976). These requirements are independent and written in the conjunctive;

therefore, all three must be clearly established in order to be entitled to relief. See

Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).

However, a party cannot use Civ.R. 60(B) relief as a substitute for a

timely appeal. Kolick & Kondzer v. Baumanis, 8th Dist. Cuyahoga No. 93679, 2010-

Ohio-2354, ¶ 23; Blasco v. Mislik, 69 Ohio St.2d 684, 686, 433 N.E.2d 612 (1982).

In Blasco, the Ohio Supreme Court held that where the movant’s “contentions merely challenge the correctness of the court’s decision on the merits and could have

been raised on appeal,” they may not be asserted in a motion for relief from

judgment. Id. Relief sought pursuant to Civ.R. 60(B), on the other hand, may only

be provided if the movant demonstrates he or she is entitled to relief under one of

the grounds stated in Civ.R. 60(B)(1) through (5), which allow relief for reasons

other than challenging the propriety of the court’s judgment. GTE Automatic Elec.,

at paragraph two of the syllabus.

The court granted the default judgment on March 1, 2023, and

plaintiffs voluntarily dismissed the remaining claims against the remaining

defendants on March 22, 2023. Nevertheless, Laron did not file a timely appeal

from the default judgment. Instead, he filed a motion for relief from judgment

pursuant to Civ.R. 60(B). Therefore, Laron was barred from presenting any

arguments in the motion for relief from judgment that could have been made in a

direct appeal, including his claims that the court granted relief not requested in the

complaint, the complaint fails to state a claim against Laron upon which relief could

be granted, and that the court improperly voided a properly recorded deed.

Laron’s argument concerning personal jurisdiction differs from his

other arguments because it challenges the court’s authority to render judgment

against him. Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538 (1984) (A

court must have personal jurisdiction over the defendant in order to render a valid

judgment against him.). A judgment rendered without personal jurisdiction over

the defendant is void. Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph three of the syllabus. Although Laron sought to vacate the default

judgment pursuant to Civ.R. 60(B), “[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.” Id. at paragraph four of the syllabus. Therefore, a defendant is entitled

to have a default judgment vacated if the court rendered the default judgment in the

absence of service on the defendant. Broadvox, L.L.C. v. Oreste, 8th Dist. Cuyahoga

No. 92064, 2009-Ohio-3466, ¶ 12. We must, therefore, determine whether the

court had personal jurisdiction over Laron.

A court acquires personal jurisdiction over the defendant “‘by service

of process upon the defendant, the voluntary appearance and submission of the

defendant or his legal representative, or by certain acts of the defendant or his legal

representative which constitute an involuntary submission to the jurisdiction of the

court.’” Maryhew at 156. Unlike subject-matter jurisdiction, which involves the

court’s power to hear a case and can never be waived, personal jurisdiction or

jurisdiction over the person is waivable by the defendant’s voluntary submission to

the court’s jurisdiction. State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951

N.E.2d 1025, ¶ 10; State ex rel. Lawrence Dev. Co. v. Weir, 11 Ohio App.3d 96, 463

N.E.2d 398 (10th Dist.1983), paragraphs one and two of the syllabus.

Whether the trial court had personal jurisdiction over the defendant is

a question of law subject to de novo review. Fraley v. Estate of Oeding, 138 Ohio

St.3d 250, 2014-Ohio-452, 6 N.E.3d 9. In a de novo review, we review the merits of the case independently, without any deference to the trial court. Sosic v. Stephen

Hovancsek & Assocs., Inc., 8th Dist. Cuyahoga No. 109993, 2021-Ohio-2592, ¶ 21.

Where the plaintiff follows the civil rules governing service of process,

courts presume that service is proper. Belovich v. Crowley, 8th Dist. Cuyahoga No.

109523, 2021-Ohio-2039, ¶ 31. However, the presumption of proper service can be

rebutted if the defendant presents sufficient evidentiary-quality information

demonstrating that service was not accomplished. McWilliams v. Schumacher, 8th

Dist. Cuyahoga Nos. 98188, 98288, 98390 and 98423, 2013-Ohio-29, ¶ 51, citing

Thompson v. Bayer, 5th Dist. Fairfield No. 2011-CA-00007, 2011-Ohio-5897, ¶ 23.

Civ.R. 4.1 governs the methods of service, including certified mail,

personal service, and residence service. Plaintiffs attempted to serve Laron by

certified mail and regular mail as provided in Civ.R. 4.1 and 4.6, but the certified

mail was refused and the regular mail was unclaimed. With leave of court, plaintiffs

employed a special process servicer to serve Laron at the Argonne Road address in

South Euclid, Ohio on July 20, 2022, as provided in Civ.R. 4.1(B)(2)(a).

Civ.R. 4.1(B)(2) outlines the procedure for personal service and states,

in relevant part:

The person serving process shall locate the person to be served and shall tender a copy of the process and accompanying documents to the person to be served. When the copy of the process has been served, the person serving process shall endorse that fact on the process and return it to the clerk, who shall make the appropriate entry on the appearance docket. Civ.R. 4.1(B)(2)(a). A journal entry, dated August 10, 2022, states, “I served the

within named White/Laron by serving a true and certified copy thereof with all the

endorsements thereon. S.P.S.”

The August 10, 2022 journal entry from the special process servicer

suggests the process server delivered the summons and complaint to Laron himself.

However, Laron filed two affidavits in support of his motion for relief from

judgment, attempting to rebut the presumption of service. In the first affidavit, filed

on May 10, 2023, and marked as Affidavit-Exhibit A, the affiant, Melaum Valentine

(“Valentine”), states that she was served with legal papers intended for Laron at her

residence on Argonne Road in South Euclid, Ohio. She further avers that she

attempted to return the papers but she does not know if she was successful. She,

therefore, concludes that “to the best of her knowledge, Laron White was not served

with the papers she received.”

In the second affidavit, marked as Affidavit-Exhibit B, Laron, himself,

avers that he never received a copy of the complaint and has never seen a copy of the

complaint. He further avers that he does not live on Argonne Road in South Euclid.

“‘[A] party’s self-serving statement that he did not receive service is

generally insufficient to rebut the presumption of service.’” Foster v. Benson, 8th

Dist. Cuyahoga No. 107366, 2019-Ohio-1528, ¶ 30, quoting Castanias v. Castanias,

12th Dist. Warren No. CA2009-11-152, 2010-Ohio-4300, ¶ 11. See also Kent State

Univ. v. Manley, 2022-Ohio-4512, 204 N.E.3d 115, ¶ 22 (8th Dist.); Alcorso v. Correll, 8th Dist. Cuyahoga No. 110218, 2021-Ohio-3351, ¶ 29 (same). Therefore,

Laron’s self-serving affidavit is not sufficient to rebut the presumption of service.

Valentine, however, is not a party to the case, and we have no way to

assess her credibility from the face of an affidavit. Although the August 10, 2022

journal entry suggests that the special process server “served” Laron at the Argonne

Road address in South Euclid, it is not clear whether the word “served” means the

process server delivered the summons and complaint to Laron, himself, or whether

the process server delivered it to what he or she believed to be his address. In In re

Alexander-Segar, 2d Dist. Montgomery No. 22080, 2008-Ohio-1580, the court

held that personal service at the intended-recipient’s address was insufficient where

it was later established that the intended-recipient had moved from the address one

month prior to the attempted service.

Plaintiffs argue the “return on service writ” (“writ”) indicates that

Valentine was the named individual served. According to plaintiffs, the writ

“explicitly states that Ms. Valentine is the co-resident of Appellant’s home.”

Therefore, plaintiffs argue, the process server’s writ “is the exact contradictory

evidence necessary to quash the Appellant’s Affidavit denying service.” (Appellees’

brief p. 12.)

Valentine’s affidavit is suspicious given the history of this case.

However, “service requirements are rooted in a defending party’s constitutional due

process right to notice and an opportunity to be heard.” In re Alexander-Segar at

¶ 13. Without additional information, it is impossible to assess the credibility of Valentine’s affidavit vis-à-vis the special process server’s return service of writ. We

are, therefore, constrained to find that the trial court erred in denying Laron’s

motion for relief from judgment without holding a hearing to assess the credibility

of these competing statements.

The sole assignment of error is sustained. The default judgment is

hereby vacated, and the case is remanded to the trial court to hold a hearing to

determine if personal service was perfected on Laron.

It is ordered that appellant recover from appellees 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.

EILEEN T. GALLAGHER, PRESIDING JUDGE

MICHAEL JOHN RYAN, J., and ANITA LASTER MAYS, J., CONCUR