Turnmire v. Ostrowski

2013 Ohio 5154

• Court: Ohio Court of Appeals
• Decided: November 18, 2013
• Docket: 2013CA00042, 2013CA00099
• Status: Published

Opinion

[Cite as Turnmire v. Ostrowski, 2013-Ohio-5154.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JOHN TURNMIRE : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : AMELIA OSTROWSKI, AKA : Case Nos. 2013CA00042 AMELIA DIGIANTONIA : 2013CA00099 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Family Court Division, Case No. 2011JCV01658

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: November 18, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ARNOLD F. GLANTZ CRAIG T. CONLEY 4883 Dressler Road, NW 604 Huntington Plaza Canton, OH 44718 220 Market Avenue, South Canton, OH 44702 Stark County, Case Nos. 2013CA00042 & 2012CA00099 2

Farmer, P.J.

{¶1} Appellant, Amelia Ostrowski aka Amelia Digiantonia, and appellee, John

Turnmire, had a child together on September 23, 2003. On December 13, 2011,

appellee filed a complaint for visitation. On June 11, 2012, appellant filed an amended

answer setting forth affirmative defenses including insufficiency of process and lack of

personal jurisdiction. On November 16, 2012, appellant was personally served the

complaint, but allegedly not the summons.

{¶2} By judgment entry filed February 1, 2013, the trial court found visitation

with appellee was not in the child's best interest "at this time," and ordered appellant to

arrange for the child to undergo a psychological evaluation and follow all relative

recommendations relative to the child's care.

{¶3} On March 4, 2013, appellant filed a motion to vacate the February 1, 2013

judgment entry for lack of personal jurisdiction and motion to dismiss the complaint for

insufficient process. By judgment entry filed May 3, 2013, the trial court denied the

motions.

{¶4} Appellant filed two appeals and this matter is now before this court for

consideration. Assignments of error are identical in both cases and are as follows:

I

{¶5} "THE TRIAL COURT ERRED IN EXERCISING PERSONAL

JURISDICTION OVER DEFENDANT/APPELLANT."

II

{¶6} "THE TRIAL COURT ERRED IN DENYING

DEFENDANT'S/APPELLANT'S MOTION TO VACATE AND MOTION TO DISMISS." Stark County, Case Nos. 2013CA00042 & 2012CA00099 3

I, II

{¶7} Appellant claims the trial court erred in exercising personal jurisdiction

over her and in denying her motion to vacate and motion to dismiss.

{¶8} Appellant's motions to vacate/dismiss centered upon whether the process

server served her with a summons as required by Civ.R. 4(A): "Upon the filing of the

complaint the clerk shall forthwith issue a summons for service upon each defendant

listed in the caption. Upon request of the plaintiff separate or additional summons shall

issue at any time against any defendant." Civ.R. 4(E) states the following:

If a service of the summons and complaint is not made upon a

defendant within six months after the filing of the complaint and the party

on whose behalf such service was required cannot show good cause why

such service was not made within that period, the action shall be

dismissed as to that defendant without prejudice upon the court's own

initiative with notice to such party or upon motion.***

{¶9} In her affidavit filed March 4, 2013, appellant averred "[t]he Praecipe listing

of papers to be served upon me did not include Summons and no Summons was in the

subject envelope; and I have not otherwise ever been served Summons attendant to

Plaintiff's Complaint."

{¶10} In response, Jeffrey Smith, the appointed process server in the case,

averred in his affidavit filed April 29, 2013 the following: Stark County, Case Nos. 2013CA00042 & 2012CA00099 4

On or about November 16, 2012, all documents were personally

served, by me upon the Defendant Amelia Digiantonia which included the

summons, complaint of visitation, affidavit working for kids working

seminar notice, working for kids educational seminar packet, Plaintiff's

Motion to appoint Guardian, the Order appointing Guardian and the

Plaintiff's UCCJEA affidavit as well as his financial statement.

{¶11} Thereafter, Mary Saylor, an employee of appellant's counsel, filed her

affidavit, attached to appellant's reply memorandum filed May 1, 2013, and averred a

search of the trial court's docket established a summons was not included: "I was able

to obtain a copy of the aforesaid November 16, 2012 Return of Service filing (a true

copy of which filing is attached hereto), but the counter employee, whose name I

believe is Jen, advised she could not provide me a copy of the aforesaid Summons, as

her office does not maintain copies of same."

{¶12} The praecipe filed June 5, 2012 requested the following:

TO THE CLERK:

Please serve a copy of the Complaint for Visitation, Affidavit,

Motion to Appoint Guardian Ad Litem, Order Appointing Guardian Litem,

Working Together for Kids Educational Seminar, Financial Affidavit,

UCCJEA, and the Judgment Entries from January 11, 2012, January 26,

2012, April 18, 2012 and May 21, 2012, filed in the above-captioned

matter by Private Process Server, Mindy Richmond, upon the Stark County, Case Nos. 2013CA00042 & 2012CA00099 5

Defendant, AMELIA DIGIANTONIA NKA OSTROWSKI, at the following

address:

AMELIA DIGIANTONIA NKA OSTROWSKI C/O WALSH UNIVERSITY 2020 EAST MAPLE STREET NORTH CANTON OH 44720-3396

{¶13} In her June 11, 2012 amended answer, appellant properly raised as her

"Fifth Defense" "insufficiency of process and/or for insufficiency of service of process."

In her "Ninth Defense," she contested "personal jurisdiction."

{¶14} We note the trial court denied appellant's motions without holding a

hearing. Because of the factual issue raised by the competing affidavits and the

wording of the praecipe, we reverse the trial court's decisions and remand the matter to

the trial court to hold an evidentiary hearing on the issues of sufficiency of process and

personal jurisdiction. Cogswell v. Cardio Clinic of Stark County, Inc., 5th Dist. Stark No.

CA-8553, 1991 WL 242070 (Oct. 21, 1991).

{¶15} Assignments of Error I and II are granted. Stark County, Case Nos. 2013CA00042 & 2012CA00099 6

{¶16} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby reversed and remanded for an evidentiary hearing on the issues of sufficiency of

process and personal jurisdiction.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.

_______________________________ Hon. Sheila G. Farmer

_______________________________ Hon. John W. Wise

_______________________________ Hon. Craig R. Baldwin

SGF/sg 115 [Cite as Turnmire v. Ostrowski, 2013-Ohio-5154.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JOHN TURNMIRE : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : AMELIA OSTROWSKI, AKA : AMELIA DIGIANTONIA : : CASE NOS. 2013CA00042 Defendant-Appellant : 2013CA00099

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is reversed and the

matter is remanded to said court for an evidentiary hearing on the issues of sufficiency

of process and personal jurisdiction. Costs to appellee.