Khatib v. Peters , 2015 Ohio 5144 ( 2015 )


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  • [Cite as Khatib v. Peters, 2015-Ohio-5144.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 102663
    MARIA KHATIB, ET AL.
    PLAINTIFFS-APPELLEES
    vs.
    SHAMELL PETERS
    DEFENDANT-APPELLANT
    JUDGMENT:
    REVERSED AND REMANDED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-14-823475
    BEFORE:          Blackmon, J., E.T. Gallagher, P.J., and Stewart, J.
    RELEASED AND JOURNALIZED: December 10, 2015
    ATTORNEYS FOR APPELLANT
    David B. Henderson
    Celeste M. Manway
    Henderson, Schmidlin & McGarry Co.
    840 Brainard Road
    Highland Heights, Ohio 44143
    ATTORNEY FOR APPELLEES
    Christina Brueck
    Brueck Law Firm
    333 Babbitt Road
    Suite 301
    Euclid, Ohio 44123
    PATRICIA ANN BLACKMON, J.:
    {¶1}    Appellant Shamell Peters (“Peters”) appeals the denial of her motion to vacate and
    assigns the following two errors for our review:
    I. The trial court erred in failing to vacate the default judgment and quash service
    by publication in a tort action where the requirements of R.C. 2307.14 were not
    met, the defendant was never validly served and the judgment was void ab initio.
    II. The trial court erred in failing to grant defendant-appellant’s Civ.R. 60(B)(5)
    motion for relief from judgment where the requisites for relief were satisfied.
    {¶2}    Having reviewed the record and relevant law, we reverse the trial court’s
    judgment and remand for an evidentiary hearing. The apposite facts follow.
    {¶3}    On February 19, 2013, the appellees Maria Khatib and Jibril Khatib (“the
    Khatibs”) filed a complaint against Peters alleging damages arising out of an automobile accident
    that occurred on December 20, 2011. The Khatibs attempted to serve Peters the complaint at an
    address located on East 260th Street in Euclid, Ohio. This was the address listed by Peters in
    the accident report. The Khatibs attempted unsuccessfully to serve Peters by ordinary and
    certified mail at this address. On August 21, 2013, the trial court dismissed the complaint for
    want of prosecution because the Khatibs had failed to obtain service on Peters.
    {¶4} On March 12, 2014, the Khatibs refiled their complaint against Peters. The Khatibs
    attempted to serve Peters with the complaint via certified mail at an address located on
    Northfield Avenue in Cleveland, Ohio. The complaint was returned and marked “unclaimed.”
    They also attempted to serve Peters by ordinary mail, but it was returned.
    {¶5}    Also included as a party to the refiled complaint was Peters’s car insurance
    carrier, First Acceptance Insurance Company (“First Acceptance”). Attorney David Henderson,
    on behalf of First Acceptance, filed an answer and also filed a motion to dismiss or in the
    alternative a motion for summary judgment. First Acceptance argued that because the Khatibs
    had failed to obtain a final judgment against Peters, their action against First Acceptance was
    premature and in contravention of Ohio law. The trial court granted First Acceptance’s motion.
    {¶6}    On June 5, 2014, due to the inability to locate a valid address for Peters, the
    Khatibs’ counsel filed an affidavit for service by publication. In their affidavit, the Khatibs
    stated the following efforts were made to locate Peters:
    Used/wrote to defendant at last known address on police report related to this case
    (13-CV-8016740). Inquired of her insurance company who denied knowing her
    address; googled her; retained Cleveland Service Agency to perform a ‘skip-trace’
    search (which resulted in the last known address noted above).
    The address referred to was the Northfield Avenue address.
    {¶7}    Beneath the above paragraph, the Khatibs added:
    The plaintiff has exercised reasonable diligence to ascertain the residence of the
    defendant[s] and that residence of defendant[s] is, other than that listed in the
    pleadings, unknown, and cannot with reasonable diligence be ascertained; that this
    case is one of those mentioned in Section 2703.14 and/or 3105.06 of the Revised
    Code of Ohio.
    {¶8}    The Khatibs sent a letter to Henderson advising him of their intent to obtain
    service on Peters by publication.
    {¶9}    Proof of publication by the Daily Legal News was filed on August 21, 2014. On
    September 8, 2014, the Khatibs filed a “Notice of Publication” with the trial court.         On
    September 9, 2014, the trial court concluded service upon Peters had been effected and ordered
    the Khatibs to file a motion for default judgment within three weeks.
    {¶10} On September 26, 2014, the Khatibs filed a motion for default judgment against
    Peters. On October 9, 2014, the trial court conducted a default judgment hearing. Thereafter, it
    granted the Khatibs’ motion for default judgment in part and awarded medical expenses and
    property damage in the amount of $10,762.32. On November 13, 2014, the trial court awarded
    the Khatibs an additional $5,000 for pain and suffering.
    {¶11} On December 21, 2014, attorney Henderson, the same attorney that had represented
    First Acceptance, filed a notice of appearance on behalf of Peters and filed a “motion to vacate
    default judgment and quash service by publication, and alternatively, a Civ.R. 60(B) motion for
    relief from judgment.” Henderson argued that Civ.R. 4.4 does not provide for service by
    publication for contract or tort claims against Ohio residents unless the defendant conceals his or
    her whereabouts, and Peters was not concealing her whereabouts. He also argued that he
    retained a private investigator after receiving the letter from the Khatibs in June 2014 advising
    him of their intent to obtain service by publication. Because the private investigator was able to
    locate Peters within one day, Henderson argued that the Khatibs failed to exercise reasonable
    diligence in attempting to locate Peters. Attached to his motion was an affidavit by Henderson
    stating the above. He also attached an affidavit by Peters in which she stated she was not
    concealing her location and detailed where she had been living for the past several years.
    {¶12} The Khatibs opposed the motion to vacate contending that Peters did purposely
    conceal her whereabouts.      They also argued that attorney Henderson participated in the
    concealment by not informing them that he had found Peters’s current address. The trial court
    denied Peters’s motion without opinion.
    Motion to Vacate
    {¶13} Peters argues that the trial court abused its discretion by failing to vacate the
    default judgment because the Khatibs never perfected service. She argues that the Khatibs did
    not engage in reasonable diligence in their attempts to locate her address and that publication by
    notice was not proper because there was no evidence she lived outside the state or was
    concealing her location.
    {¶14} Trial courts have inherent authority to vacate a void judgment; thus a party who
    asserts a lack of jurisdiction by improper service does not need to meet the requirements of
    Civ.R. 60(B). Patton v. Diemer, 
    35 Ohio St. 3d 68
    , 
    518 N.E.2d 941
    (1988), paragraph four of
    the syllabus; Deutsche Bank Trust Co. Ams. v. Pearlman, 
    162 Ohio App. 3d 164
    ,
    2005-Ohio-3545, 
    832 N.E.2d 1253
    , ¶ 14 (9th Dist.). The party is only required to show that
    service was invalid. 
    Id. A default
    judgment rendered by a court without obtaining service over
    the defendant is void, and the party is entitled to vacation of the judgment. State ex rel. Ballard
    v. O’Donnell, 
    50 Ohio St. 3d 182
    , 
    553 N.E.2d 650
    (1990), syllabus. The trial court’s decision
    regarding the validity of service should be upheld absent an abuse of discretion. 
    Id. {¶15} Peters
    claims that the Khatibs failed to comply with Civ.R. 4.4 concerning service
    by publication. Civ.R. 4.4. provides in pertinent part:
    (A) Residence unknown * * * if the residence of a defendant is unknown, service
    shall be made by publication in actions where such service is authorized by law.
    Before service by publication can be made, an affidavit of a party or his counsel
    must be filed with the court. The affidavit shall aver that service of summons
    cannot be made because the residence of the defendant is unknown to the affiant
    and cannot be ascertained with reasonable diligence. (Emphasis added.)
    {¶16} R.C. 2703.14 sets forth those categories of cases where service by publication is
    authorized by law. The instant case is based upon subsection (L), which provides that service
    may be made by publication:
    In any action where the defendant, being a resident of this state, has departed from
    the county of his residence with intent to delay or defraud his creditors or to avoid
    the service of a summons, or keeps himself concealed with like intent. (Emphasis
    added.)
    {¶17} Considering these provisions together, it is clear that two requirements must be met
    before service of process is considered to have been effected by publication.
    {¶18} First, a party or their counsel must exercise reasonable diligence in attempting to
    locate a defendant. The Ohio Supreme Court interpreted what constitutes “reasonable
    diligence” in Sizemore v. Smith, 
    6 Ohio St. 3d 330
    , 332, 
    453 N.E.2d 632
    (1983), as follows:
    [r]easonable diligence requires taking steps which an individual of ordinary
    prudence would reasonably expect to be successful in locating a defendant’s
    address. Certainly a check of the telephone book or a call to the telephone
    company * * * [or checking] the city directory, a credit bureau, county records
    such as auto title department or board of elections, or an inquiry of former
    neighbors [constitute probable sources to check].
    {¶19} The court recognized that what constitutes reasonable diligence will depend on the
    facts and circumstances of each case. 
    Id. It specifically
    indicated that the examples provided in
    the opinion of what reasonable diligence is does not constitute a mandatory checklist. 
    Id. Rather, those
    examples exemplify that reasonable diligence requires counsel to use common and
    readily available sources in the search of the defendant’s address. 
    Id. {¶20} In
    the instant case, the Khatibs attempted to serve Peters by ordinary and certified
    mail at the address Peters provided in the police report; both were returned as undeliverable.
    The Khatibs also asked Peters’s insurance company for her address, googled her, and hired an
    agency to run a skip-trace1 in order to find her address. The only addresses that were found as a
    result of these searches were the original addresses supplied by Peters in the police report and the
    A skip-trace search is the process of locating a person’s whereabouts by
    1
    using various online databases.
    Northfield Avenue address at which the Khatibs tried to obtain service on the second refiled
    complaint.
    {¶21} Peters contends these efforts did not constitute reasonable diligence because the
    private investigator hired by Henderson was able to locate her address after one day of searching.
    There is no indication what efforts the private investigator used to successfully locate Peters.
    However, just because the investigator was able to locate Peters does not necessarily make the
    Khatibs’ efforts not “reasonably diligent.” According to Sizemore, reasonable diligence requires
    “taking steps which an individual of ordinary prudence would reasonably expect to be successful
    in locating a defendant’s address.” The hiring of a private investigator is an extreme step.
    Computer technology allows for searches never contemplated by the court at the time Sizemore
    was decided. Today, an individual of ordinary prudence would reasonably be expected to
    engage in a computer search to locate a defendant’s address. Based on the abuse of discretion
    standard we are required to apply, we conclude the trial court did not abuse its discretion by
    concluding that the Khatibs engaged in reasonable diligence in attempting to locate Peters by
    hiring a company to search for Peters on the computer, looking to the police report for an
    address, and asking her insurance carrier for her current address.
    {¶22} However, this does not end the analysis. Next, it must be determined whether
    Peters concealed her location to avoid service. In Brooks v. Rollins, 
    9 Ohio St. 3d 8
    , 
    457 N.E.2d 1158
    (1984), the court considered the relation between use of reasonable diligence and the
    allegation that the defendant was concealing his whereabouts. The court held that the use of
    reasonable diligence creates a rebuttable presumption that the defendant was concealing his or
    her location. The court explained as follows:
    Therefore, this court concludes that “concealment” of a defendant, as that term is
    used in R.C. 2703.14(L), may reasonably be inferred from plaintiff’s inability to
    locate that defendant after the exercise of “reasonable diligence,” as that term is
    used in Civ.R. 4.4(A).       This inference is sufficient to support service by
    publication if the defendant, when challenging the sufficiency of such service,
    does not present evidence contradicting the inference. See Sizemore v. 
    Smith, supra, at 333
    . Once the inference of concealment is raised, the burden is placed
    on the defendant to overcome its effect either by producing herself or by
    producing other independent evidence.        A defendant who stands pat risks a
    finding of concealment sufficient to satisfy the requirements of R.C. 2703.14(L)
    and support service of process by publication. See Wilson v. Sinsabaugh (1978),
    
    61 Ohio App. 2d 224
    [15 O.O.3d 365].             This result does not render R.C.
    2703.14(L) meaningless as a separate provision because, once defendant has come
    forward and overcome the inference of concealment, the plaintiff must
    independently prove that the statutory requirements have been satisfied.
    The approach adopted today not only takes into account the practical difficulties
    under which the party seeking service must operate but also affords protection to
    the interests of both parties. Initially, the defendant’s right to reasonable notice is
    protected because the plaintiff must prove that reasonable diligence has been
    exercised to locate the address of the defendant.          The defendant is further
    protected because she has the opportunity to challenge the sufficiency of service
    by a motion to quash service and may bring in independent evidence to contradict
    the reasonable diligence of the plaintiff’s search or to rebut the inference of
    concealment. Such an appearance would then afford the plaintiff an opportunity to
    examine the defendant on his or her conduct.
    
    Id. at 10-11.
    {¶23} In the instant case, Peters filed a motion to quash service and attached an affidavit
    in which she stated she was not concealing her location and listed the various addresses she had
    lived for the last several years. She stated that at the time of the accident, she lived on East
    260th Street in Euclid, Ohio. In February 2013, she moved to the address on Northfield Avenue
    in Cleveland, Ohio.    Approximately one year later, she moved to Lakeshore Boulevard in
    Euclid, Ohio. The Khatibs had tried to serve her at the first two addresses, but obviously missed
    the times that she had lived there. They had never tried to serve her at her last and current
    address.
    {¶24} The Khatibs presented nothing to rebut Peters’s affidavit.    Instead, they argue that
    Peters’s attorney, attorney Henderson, concealed Peters’s address.        Henderson represented
    Peters’s insurance carrier prior to summary judgment being granted in the insurance company’s
    favor. Henderson stated in his affidavit, which was attached to the motion to vacate, that at the
    time that the Khatibs asked for Peters’s address, he did not know it. When he received the letter
    in June 2014 from the Khatibs informing the insurance carrier that they were pursuing service by
    publication, he retained a private investigator to locate a current address for Peters. However, at
    this time he had no duty to inform the Khatibs that he had located Peters because he did not
    represent her. There is no indication that he advised Peters to conceal her address. In fact, he
    contends he did not communicate with Peters until after the default judgment was entered.
    Thus, because he did not represent Peters prior to service being obtained, he did not have a duty
    to reveal her address to the Khatibs. In fact, doing so, may have violated the duty he owed to the
    insurance company to protect its interest.
    {¶25} 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. Adomeit v. Baltimore,
    
    39 Ohio App. 2d 97
    , 105, 
    316 N.E.2d 469
    (8th Dist.1974).
    The Khatibs claim that Peters’s affidavit is merely self-serving. Although it may be self-serving,
    Peters’s affidavit contains operative facts that would warrant relief from judgment. Without a
    hearing, the trial court could not determine Peters’s credibility, and its denial of Peters’s motion
    to vacate without first conducting a hearing constituted an abuse of discretion. Money Tree
    Loan Co. v. Williams, 
    169 Ohio App. 3d 336
    , 2006-Ohio-5568, 
    862 N.E.2d 885
    , ¶ 16 (8th
    Dist.)(“trial court errs in summarily overruling a defendant’s motion to set aside a judgment for
    lack of service, when the defendant submits a sworn statement that she did not receive service of
    process, without affording the defendant a hearing.”).2
    {¶26} Peters’s first assigned error is sustained. We reverse the trial court’s denial of
    Peters’s motion to vacate and remand for the trial court to conduct an evidentiary hearing.
    {¶27} Based on our disposition of Peters’s first assigned error, her second assigned error
    is moot and need not be addressed. See App.R. 12(A)(1)(c).
    {¶28} Judgment reversed and remanded for an evidentiary hearing.
    It is ordered that appellant recover from appellee her costs herein taxed.
    Appellee relies heavily on this court’s decision in E. Ohio Gas Co. v. Walker,
    2
    
    59 Ohio App. 2d 216
    , 
    394 N.E.2d 348
    (8th Dist.1978), for the proposition that the
    movant must submit evidentiary materials that meet the criteria set forth in Civ.R.
    56 in order for the judgment to be vacated. However, that case dealt with Civ.R.
    60(B). As we stated above, a party moving to vacate for lack of service is not
    required to meet the requirements of Civ.R. 60(B).
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate be sent to the Cuyahoga County 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.
    PATRICIA ANN BLACKMON, JUDGE
    EILEEN T. GALLAGHER, P.J., and
    MELODY J. STEWART, J., CONCUR