Mammone v. Reynolds , 2021 Ohio 3248 ( 2021 )

[Cite as Mammone v. Reynolds, 2021-Ohio-3248.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
DONALD S. MAMMONE et al.,
Plaintiffs-Appellees,
v.
PATSY L. REYNOLDS et al.,
Defendants-Appellants.
OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0005
Civil Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 13 CV 179
BEFORE:
Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Matthew W. Onest, Atty. Owen J. Rarric, Atty. Terry A. Moore, KRUGLIAK,
WILKINS, GRIFFITHS & DOUGHERTY CO., L.P.A., 4775 Munson Street NW/P.O. Box
36963, Canton, Ohio 44735; Atty. Gregory Watts, P.A.C. Drilling O & G LLC 1037
Lawnridge Street, Bolivar, Ohio 44612 for Plaintiffs-Appellees and
Atty. J. Benjamin Fraifogl, Atty. Jeremy D. Martin, Roetzel & Andress, LPA, 222 South
Main Street, Akron, Ohio 44308, for Defendants-Appellants.
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Dated: September 16, 2021
Robb, J.
{¶1} Appellants (who call themselves the “Huddleston Heirs”) appeal the
decision of the Belmont County Common Pleas Court in Case Number 13 CV 179 denying
their motion to vacate a default judgment, which they filed nearly seven years after the
court quieted title to the oil and gas underlying the property of Plaintiffs-Appellees Donald
Mammone et al. Appellants claim the court lacked personal jurisdiction due to service of
the complaint by publication, rendering the judgment void and subject to vacation at any
time. Specifically, they allege Appellees failed to use reasonable diligence in attempting
to locate addresses for four of the defendants. For the following reasons, the trial court’s
judgment is affirmed.
STATEMENT OF THE CASE
{¶2} Appellees Donald S. Mammone, Russell Fisher, and Jennifer Fisher jointly
owned land in Belmont County, a 53.474-acre parcel and a 6.776-acre parcel. In 1970,
their predecessor in title purchased the property along with one-half of the oil and gas
from Darby L. Jones, Mildred Huddleston, Martha Lee Mitchell, and Verda Strunk. (Deed
to Seaway Coal Co., 3/2/70, Vol. 516, P. 82).1
{¶3} On May 15, 2013, Appellees filed a complaint to obtain the oil and gas rights
(originally retained by those four grantors) through declaratory judgment, quiet title, and
an injunction. Eighteen defendants were named, including John Wayne Huddleston,
Richard Huddleston, Linda Haynes, and Nancy Payne (the defendants at issue). These
and some of the other defendants had been named in the will of their aunt, Martha Lee
Mitchell, probated in 1995 in Texas. (Complaint Ex. E).
{¶4} The complaint disclosed Nancy Payne and Linda Haynes were unable to
be located after reasonable due diligence and service by publication was appropriate
under R.C. 2703.14 and Civ.R. 4.4(A). As for the two Huddleston defendants, service by
1 The deed to Seaway Coal conveyed multiple parcels, including the one at issue in Franks v. Reynolds,
7th Dist. Belmont No. 20 BE 4, where different plaintiffs sued the same defendants at issue herein (after
the judgment in this lawsuit).
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certified mail was attempted at a Texas address for each but returned as undeliverable;
regular mail was also returned as undeliverable.
{¶5} On June 24, 2013, Appellees filed an affidavit for publication wherein their
attorney attested the addresses for John Wayne Huddleston, Richard Huddleston, Linda
Haynes, and Nancy Payne were unknown and could not be ascertained with reasonable
diligence. The attorney averred he unsuccessfully searched “numerous databases
containing public records, including Westlaw’s People Search and Public Records” and
“requested probate searches and records from various probate courts, including Belmont
County, Ohio and Hidalgo and Kleberg County, Texas.” (Three other defendants and the
unknown heirs, successors, and assigns of Margaret and Wayne Huddleston were also
listed.)
{¶6} Notice of the lawsuit was published weekly for six weeks in the Times
Leader, a newspaper published in Belmont County.2 On September 19, 2013, Appellees
filed a motion for default judgment against the defendants named in the affidavit of
publication as they failed to answer within 28 days after the last publication.
{¶7} On September 23, 2013, the trial court granted default judgment, noting the
defendants at issue were served via publication for six consecutive weeks from July 6,
2013 to August 10, 2013 but they failed to answer or appear. The court declared these
defendants held no interest in the real estate or minerals and said a more specific
judgment would be forthcoming.
{¶8} On January 23, 2014, the court entered judgment quieting title against the
defendants at issue (and against other defaulting defendants, including the unknown
heirs, successors, and assigns of Margaret and Wayne C. Huddleston). The court
declared the one-half reservation in the 1970 deed was abandoned. Property
descriptions were attached, and instructions were provided for the auditor and recorder.
The judgment was recorded on February 12, 2014.
2 In the meantime: four defendants filed a joint answer with counterclaim (6/12/13); a pro se defendant filed
an answer with counterclaim (6/13/13); another pro se defendant filed a pleading explaining she inherited
no interest in the property (6/13/13); and a seventh defendant filed an answer (7/11/13). As for defendants
who were served by certified mail but failed to answer, the court entered default judgment. (8/20/13 J.E.s);
(8/23/13 J.E.). After discovery, other defendants signed consent judgments granting the oil and gas interest
to Appellees; the judgments were recorded. (2/19/14 J.E.); (5/1/14 J.E.).
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{¶9} Nearly seven years later, on September 14, 2020, a motion to vacate the
default judgment was filed by the “Huddleston Heirs” who are the five appellants herein:
John Wayne Huddleston; Cynthia Huddleston (who was not a defendant in the lawsuit
but the wife of John, who was still alive); Richard Huddleston; Linda Hanes (whose name
in the complaint was spelled Haynes as this was the spelling in her aunt’s will3); and Billy
G. Payne (the husband of Nancy Payne, who was an heir named as a defendant but who
died after the judgment). The motion said they had no knowledge of the judgment until
January 2020; four affidavits attested they were not served with any item from the court
until January 2020, when they were served with a complaint in a different lawsuit. They
also said they did not see the notification in the Ohio newspaper which “is not available
in Texas.”
{¶10} John Wayne Huddleston’s affidavit disclosed his address in 2013, attesting
he lived there with his wife since 2006. He said he never received mail at the post office
box where the complaint was attempted to be served before publication.
{¶11} Richard Huddleston’s affidavit listed his address in 2013 (without stating
how long he had lived there). He said the address where the complaint was attempted
to be served before publication was an office building where he once worked but said he
did not receive mail there.
{¶12} Linda Hanes attested to the address where she had been residing since
2000. She added, “It is unknown to me how anyone, in using due diligence, did not find
my address * * * when at the time of the filing of the lawsuits, I had lived there for thirteen
(13) years.”
{¶13} Billy G. Payne’s affidavit listed the address where he lived with Nancy
Payne in 2013, disclosing they began residing there in 2010. He expressed, “It is
unknown to me how anyone, using due diligence, did not find our address * * *.”
{¶14} While noting Civ.R. 60(B)(5) allows the court to vacate a judgment for any
reason, Appellants argued the court should use its inherent authority to vacate the default
judgment, claiming it was void for lack of personal jurisdiction due to the failure to perfect
3Below, Linda complained about the spelling of Hanes, but Appellees explained Haynes (with a y) was the
spelling in her aunt’s will which is where they discovered Linda’s identity as an heir. Appellants do not
maintain an argument on appeal as to the spelling used in the search.
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service. They cited case law unrelated to notice by publication and claimed when the
plaintiff follows the Civil Rules governing service of process, there is a rebuttable
presumption of proper service and the defendant can rebut the presumption by merely
swearing he “did not reside at the address to which process was sent” at which point the
burden would shift to the plaintiff to produce evidence “demonstrating that defendant
resided at the address in question.”
{¶15} Appellees responded by emphasizing service by publication does not
require true notice or publication in other states, quoting from Civ.R. 4.4(A) and R.C.
2703.14(A). They explained compliance with the Civil Rules for service by publication
raised a rebuttable presumption of reasonable diligence in the address search. They
urged Appellants failed to rebut the presumption as they did not disclose what was wrong
with the search or state how they could have been located.
{¶16} In addition, Appellees provided evidence in order to alternatively satisfy any
shifting burden to prove their reasonable diligence. Their attorney submitted an affidavit
listing the records searched prior to submitting the affidavit in support of publication:
public records, including probate records in Belmont County, Ohio and in Hildalgo and
Kleberg County, Texas; the records of the Ohio Department of Natural Resources; the
subscription services of Westlaw People Search and idocket.com; and the databases of
Whitepages, Google, Peoplesmart, deathrecord.com, billiongraves.com,
familysearch.org, and zabasearch.com. (Aff. at ¶ 8).
{¶17} The affidavit incorporated various attachments, including a file showing the
law firm’s search efforts from late 2012 through April 2013, while searching for the record
holders and then for the heirs. (Aff. Ex. C). Appellees also attached filings related to
other landowners, claiming it showed two other law firms could not locate Appellants.
(Yet, these items showed the other firms did not identify the defendants at issue, not that
they could not find their addresses). (Aff. Ex. D & E).
{¶18} Appellees alternatively raised waiver and laches, pointing out the court
granted default judgment seven years before the motion to vacate was filed and
Appellants waited eight months from allegedly learning of the judgment to seek vacation.
Appellants replied by pointing out the timeliness of the motion was irrelevant to the motion
as they were not relying on Civ.R. 60(B).
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{¶19} Appellants’ reply also noted the lengthy file attached to the affidavit of
Appellees’ attorney was “inclusive of all the defendants, not just the four (4) individuals
filing to vacate judgment.” They emphasized they did not evade service or move often
but had established addresses.
{¶20} A telephone hearing was conducted on December 14, 2020. At the hearing,
both sides relied on matters already argued in their filings without advancing
supplemental legal or factual material. Appellants noted they were not vagrant or evading
service and some lived at their residences for a substantial period. Appellees pointed out
Appellants failed to inform the court what was lacking in Appellees’ search, such as by
specifying additional locations to search or identifying records reasonably available at the
time of the search that would have generated Appellants’ addresses. (3/1/20 App.R.
9(C)(1) Approved Statement of the Proceedings).
{¶21} On December 23, 2020, the trial court overruled Appellant’s motion to
vacate the judgment and concluded it had personal jurisdiction as service by publication
was properly invoked and accomplished. The court observed it was “neither surprising
nor dispositive” that Appellants did not receive timely or actual notice and the question
was whether Appellees exercised reasonable diligence in their efforts to locate Appellants
before requesting service by publication.
{¶22} The court held Appellants did not sufficiently rebut the presumption of
reasonable diligence by listing their addresses at the relevant time without explaining how
Appellees could have discovered these addresses. The court alternatively held: even
assuming Appellants rebutted the presumption, Appellees proved “their diligence was
more than reasonable.” The court quoted from ¶ 8 of the affidavit of Appellees’ attorney.
The court opined the judgment was neither void nor voidable under these circumstances.
{¶23} Appellants filed a timely notice of appeal, which was amended with leave of
court after they forgot to list Cynthia Huddleston as an appellant.
LAW ON SERVICE BY PUBLICATION
{¶24} “[F]or a court to acquire jurisdiction there must be a proper service of
summons or an entry of appearance, and a judgment rendered without proper service or
entry of appearance is a nullity and void.” Lincoln Tavern Inc. v. Snader, 165 Ohio St. 61,
64, 133 N.E.2d 606 (1956). A void judgment can be directly attacked without complying
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with any legal requirements related to the vacation of a voidable judgment. Id. Therefore,
a party who can show a judgment is void need not meet Civ.R. 60(B) requirements but
can rely on the trial court’s inherent authority to vacate a void judgment. Patton v.
Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph four of the syllabus.
{¶25} More specifically, we have stated if the plaintiff fails to perfect service on a
defendant due to the lack of reasonable diligence before service by publication, then the
trial court lacked jurisdiction to enter default judgment against the defendant and the
judgment is void. American Tax Funding LLC v. Robertson Sandusky Props., 2014-Ohio-
5831, 26 N.E.3d 1202, ¶ 24 (7th Dist.).
{¶26} A statute provides: “Service may be made by publication in * * * an action
for the recovery of real property or of an estate or interest in real property, when the
defendant is not a resident of this state or his place of residence cannot be ascertained *
* *.” R.C. 2703.14(A). Nevertheless, the Rules of Civil Procedure “prescribe the
procedure to be followed in all courts of this state in the exercise of civil jurisdiction.”
Civ.R. 1(A). See also State ex rel. Loyd v. Lovelady, 108 Ohio St.3d 86, 2006-Ohio-161,
840 N.E.2d 1062, ¶ 6 (the constitution vests the Supreme Court with exclusive authority
on rules governing court practice and procedure, and the law shall not conflict with the
rules).
{¶27} Contrary to any veiled suggestion in Appellees’ brief, the statute does not
provide authority to serve by publication without following the rule. And, Appellees did
not make such an argument below but read the statute in conjunction with the rule. The
Supreme Court applies Civ.R. 4.4. notwithstanding the statute permitting publication.
Sizemore v. Smith, 6 Ohio St.3d 330, 331, 453 N.E.2d 632 (1983) (applying a different
statutory division).
{¶28} Pursuant to Civ.R. 4.4(A), “when service of process is required upon a party
whose residence is unknown, service shall be made by publication in actions where such
service is authorized by law.” As Appellees point out, service would be “authorized by
law” here under R.C. 2703.14(A), and Appellants do not argue otherwise.
{¶29} Before service by publication, an affidavit of the party requesting service or
the party's counsel shall be filed with the court, and the affidavit “shall aver that service of
summons cannot be made because the residence of the party to be served is unknown
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to the affiant, all of the efforts made on behalf of the party to ascertain the residence of
the party to be served, and that the residence of the party to be served cannot be
ascertained with reasonable diligence.” Civ.R. 4.4(A). “Upon the filing of the affidavit, the
clerk shall cause service of notice to be made by publication in a newspaper of general
circulation in the county in which the action or proceeding is filed * * * at least once a week
for six successive weeks unless publication for a lesser number of weeks is specifically
provided by law.” Id.{¶30} A sufficient averment in the affidavit for publication filed under Civ.R. 4.4(A)
“gives rise to a rebuttable presumption that reasonable diligence was exercised.”
Sizemore, 6 Ohio St.3d at 331. See also American Tax Funding, 2014-Ohio-5831 at ¶
28. The parties agree Appellants had the initial burden to rebut the presumption of
reasonable diligence.
{¶31} When “challenged” by the defendant, the plaintiff must “support the fact that
he or she used reasonable diligence.” Sizemore, 6 Ohio St.3d at 332 (before the rule
instructed the plaintiff to list the search efforts in the affidavit for publication); American
Tax Funding, 2014-Ohio-5831 at ¶ 28. The parties also agree Appellees would have had
the burden to prove reasonable diligence if Appellants rebutted the presumption.
{¶32} Reasonable diligence is a “fair, proper and due degree of care and activity,
measured with reference to the particular circumstances; such diligence, care, or
attention as might be expected from a man of ordinary prudence and activity.” Sizemore,
6 Ohio St.3d at 332 (using the definition in Black’s Law Dictionary). “[R]easonable
diligence will depend on the facts and circumstances of each particular case.” Id.
{¶33} In Sizemore, the defendant raised insufficient service of process before trial,
and the Court found the efforts to locate his address did not constitute reasonable
diligence where the plaintiff’s counsel merely asked if the address was known by his own
client (whose husband was struck by the defendant’s vehicle) and contacted the post
office (where he learned there was no forwarding address for the defendant who had
moved). The Court noted the post office only saves forwarding addresses for a year,
making the post office of limited value when a defendant moved over a year ago, and
observed:
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Certainly a check of the telephone book or a call to the telephone company
would hold more promise than a contact of one's own client. Other probable
sources for a defendant's address would include the city directory, a credit
bureau, county records such as the auto title department or the board of
elections, or an inquiry of former neighbors.
Sizemore, 6 Ohio St.3d at 332. However: “These examples do not constitute a
mandatory checklist. Rather, they exemplify that reasonable diligence requires counsel
to use common and readily available sources in his search.” Id.
{¶34} The reasonable diligence standard protects due process rights. See In re
Foreclosure of Liens for Delinquent Taxes, 62 Ohio St.2d 333, 336, 405 N.E.2d 1030(1980), citing Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 317, 70 S.Ct.
652, 94 L.Ed. 865 (1950) (“This Court has not hesitated to approve of resort to publication
as a customary substitute in another class of cases where it is not reasonably possible or
practicable to give more adequate warning. Those beneficiaries [whose] whereabouts
could not with due diligence be ascertained come clearly within this category”). “[D]ue
process does not require that an interested party receive actual notice [or] ‘heroic efforts’
to ensure the notice's delivery.” In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238,
875 N.E.2d 582, ¶ 14.
{¶35} As to the allegations necessary to rebut a presumption in general, both
parties cite Evid.R. 301, which states: “In all civil actions and proceedings not otherwise
provided for by statute enacted by the General Assembly or by these rules, a presumption
imposes on the party against whom it is directed the burden of going forward with
evidence to rebut or meet the presumption, but does not shift to such party the burden of
proof in the sense of the risk of non-persuasion, which remains throughout the trial upon
the party on whom it was originally cast.”
{¶36} Appellees urge if a rebuttable presumption could be rebutted by merely
opining the search was not diligent without pointing to why their search was lacking or to
where else they should have searched, then no rebuttable presumption would exist.
Citing Kennedy v. Walcutt, 118 Ohio St. 442, 161 N.E. 336 (1928) (“When a party is not
required to sustain the burden of proof upon some particular issue, a rebuttable
presumption arising out of such issue may be overcome by evidence which
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counterbalances the evidence to sustain the presumption”). Appellants suggest their
affidavits provided circumstantial evidence rebutting the presumption.
{¶37} The Supreme Court has observed: “The defendant is further protected
because she * * * may bring in independent evidence to contradict the reasonable
diligence of the plaintiff's search.” Brooks v. Rollins, 9 Ohio St.3d 8, 11, 457 N.E.2d 1158(1984) (while setting forth the plaintiff’s burden to show reasonable diligence was
exercised prior to service by publication).
{¶38} The Eighth District recently concluded the defendant “failed to present
sufficient independent evidence to contradict the plaintiff's exercise of reasonable
diligence * * *.” Corrao v. Bennett, 2020-Ohio-2822, 154 N.E.3d 558, ¶ 22 (8th Dist.).
They pointed out: “Although appellant claims that additional efforts should have been
made, such as a Google search and a BMV check, the trial court recognized that there
was nothing to indicate that such searches would not have been futile and that it was
appellant's duty to set forth factual material that on its face supported his argument.” Id.{¶39} Regarding our standard of review, the parties recognize this court has ruled
the abuse of discretion standard applies when reviewing a trial court's decision on a
motion to vacate a void judgment for lack of personal jurisdiction where the question is
whether reasonable diligence was exercised before service by publication. American Tax
Funding, 2014-Ohio-5831 at ¶ 17, citing Spotsylvania Mall Co. v. Nobahar, 7th Dist.
Mahoning No. 11 MA 82, 2013-Ohio-1280, ¶ 14. See also Fernwalt v. Our Lady of
Kilgore, 7th Dist. No. 15 CA 0906, 2017-Ohio-1260, 88 N.E.3d 499, ¶ 13 (“The trial court's
decision regarding the validity of service should be upheld absent an abuse of
discretion.”). An abuse of discretion implies that a decision is unreasonable, arbitrary, or
unconscionable; we do not substitute our judgment for that of the trial court. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶40} Various other districts have likewise concluded the appellate court reviews
the question of reasonable diligence for an abuse of discretion notwithstanding the
jurisdictional implications. See, e.g., Flaugher v. Flaugher, 2020-Ohio-299, 143 N.E.3d
623, ¶ 9 (2d Dist.) (abuse of discretion standard of review applies regardless of whether
the motion was granted under Civ.R. 60(B) or pursuant to the trial court's inherent
authority to vacate void judgments); Name Change of Rowe, 2019-Ohio-4666, 135
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N.E.3d 782, ¶ 16 (4th Dist.) (although an appellate court reviews a determination of
personal jurisdiction under a de novo standard of review, a trial court's finding regarding
whether service was proper is not reversed absent an abuse of discretion); Matter of
M.R.J., 4th Dist. Lawrence No. 18CA17, 2019-Ohio-2755, ¶ 24 (as to reasonable
diligence before publication, the “reviewing court will not disturb a trial court's finding
regarding whether service was proper unless the trial court abused its discretion”);
Nationstar Mtge. LLC v. Williams, 5th Dist. Delaware No. 14 CAE 04 0029, 2014-Ohio-
4553, ¶ 34 (“Whether a party exercised reasonable diligence is fact dependent and
conducted at the trial court's discretion.”); Motorists Mut. Ins. Co. v. Roberts, 12th Dist.
Warren No. CA2013-09-089, 2014-Ohio-1893, ¶ 30 (“an Ohio court has the inherent
power to vacate a void judgment” and “reviews the denial of a common law-motion to
vacate under an abuse of discretion standard”). See also Corrao, 2020-Ohio-2822 at ¶
16, 23 (8th Dist.).
{¶41} Appellants do not specifically argue we should reject the abuse of discretion
standard of review set forth in American Tax Funding and apply a de novo standard of
review to some issues. Still, a footnote in their brief sets forth the general holding:
“Personal jurisdiction is a question of law that appellate courts review de novo.” Fraley v.
Estate of Oeding, 138 Ohio St.3d 250, 2014-Ohio-452, 6 N.E.3d 9, ¶ 11 (in the context of
a Civ.R. 12(B)(2) motion to dismiss without an evidentiary hearing where the court must
view the allegations in the light most favorable to the plaintiff and make all reasonable
inferences in the plaintiff's favor). Id.4
{¶42} The footnote in Appellants’ brief also notes the Tenth District recently
applied a de novo standard of review to a motion to vacate which alleged lack of
reasonable diligence in locating the defendant. J.M. v. J.C., 10th Dist. Franklin No. 19AP-
739, 2020-Ohio-4963, ¶ 16-17, 21. Previously, that district addressed reasonable
4 Where a Civ.R. 12(B)(2) motion is denied and the lack of personal jurisdiction defense is maintained, the
plaintiff bears the burden of proving jurisdiction by a preponderance of the evidence at an evidentiary
hearing or trial. Giachetti v. Holmes, 14 Ohio App.3d 306, 307, 471 N.E.2d 165 (8th Dist.1984). Generally,
the review of questions to be proved at trial entails an evaluation of the sufficiency of the evidence to meet
the applicable standard which is a legal question and the weight of the evidence which is generally left to
the fact-finder. See Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 11, 19.
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diligence before publication by stating: “to attack a judgment on the grounds that it is void
due to a lack of personal jurisdiction, a defendant must file a common-law motion to
vacate. * * * Appellate courts review the denial of a common-law motion to vacate under
the abuse of discretion standard.” Third Fed. Savings & Loan Assn. of Cleveland v.
Taylor, 10th Dist. Franklin No. 17AP-254, 2017-Ohio-7620, ¶ 11.
{¶43} A non-majority Supreme Court opinion once opined the reviewing courts
need guidance on the topic and proposed: “when a reviewing court assesses a trial
court's conclusion that service by publication was proper, the reviewing court should apply
the same standards, and should not defer to the trial court's conclusion.” In re Thompkins,
115 Ohio St.3d 409 at ¶ 55 (O’Connor, J. concurring in part and dissenting in part, with
two other justices agreeing) (where the majority addressed a mailing issue without
addressing reasonable diligence before publication as the Court found the parties and the
appellate court did not address the issue).
{¶44} In general, “A court of appeals may review findings of fact for an abuse of
discretion by the trial court.” See generally In re Guardianship of Rudy, 65 Ohio St.3d
394, 396, 604 N.E.2d 736, 738 (1992). The credibility of statements by counsel as to his
search efforts made at a hearing on the motion or in counsel’s affidavit submitted before
the hearing and relied upon at the hearing were questions for the trial court. A mixed
standard of review is commonly employed when there are factual and legal questions,
where we would accept the trial court’s factual findings if supported by competent,
credible evidence but review de novo whether the facts meet the applicable legal test. As
set forth below, applying a mixed or even a de novo standard of review does not assist
Appellants here.
{¶45} Before moving from our review of the law to the assignment of error, we
lastly note Appellants complain about the trial court citing two Seventh District cases
which involved publication of notice of intent to declare a mineral interest abandoned
under the 2006 Dormant Mineral Act and did not involve service of a complaint by
publication. These citations were attached to the court’s observations: service by
publication was authorized (as the term is used in Civ.R. 4.4) and the decision turns on
whether reasonable due diligence was exercised in the efforts to locate Appellants before
publication. Appellants do not contest on appeal that service by publication would be
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authorized by law (under R.C. 2703.14) as required by Civ.R. 4.4 if reasonable diligence
was used and demonstrated. The trial court cited Civ.R. 4.4(A), which specifies the
standard of reasonable diligence, and the court quoted from our American Tax Funding
case, which set forth the law from the Ohio Supreme Court’s Sizemore case, both of
which are relied upon in Appellants’ brief. The question was properly recognized to be
reasonable diligence in the search efforts, regardless of the trial court’s citation to cases
that may not be precisely on point.
ASSIGNMENT OF ERROR
{¶46} Appellants’ assignment of error contends:
“THE TRIAL COURT ERRED BY DENYING APPELLANTS’ MOTION TO
VACATE THE DEFAULT JUDGMENTS ENTERED AGAINST THEM AS THEY WERE
VOID DUE TO LACK OF PERSONAL JURISDICTION.”
{¶47} Appellants do not dispute they were charged with rebutting a presumption
of Appellees’ reasonable diligence in searching for the addresses of the four defendants
at issue.5 Appellants argue they sufficiently rebutted the presumption of reasonable
diligence by showing their correct addresses at the time the lawsuit was filed, by pointing
to the length of time three of the four defendants at issue lived at those addresses, and
by two defendants observing it was “unknown to me how anyone” would not find the
address if they used reasonable diligence.
{¶48} Appellants’ rely on the four affidavits attached to their motion. Richard
Huddleston did not say he lived at his 2013 address prior to that year, while the others
provided the year they moved to the address where they lived when the 2013 lawsuit was
filed. John Wayne Huddleston said he lived at his address with his wife Cynthia since
2006. Linda Hanes said she lived at her address since 2000 and “It is unknown to me
how anyone, in using due diligence, did not find my address * * * when at the time of the
filing of the lawsuits, I had lived there for thirteen (13) years.” Billy G. Payne stated he
lived with Nancy Payne at his 2013 address since 2010 and also expressed, “It is
unknown to me how anyone, using due diligence, did not find our address * * *.”
5 Appellants no longer rely on the law cited in their motion to vacate about a defendant merely having to
show they did not live where they were served which would then require a plaintiff to show the defendant
in fact lived where they were served; this law did not apply to service by publication.
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Appellants conclude this “necessarily means there are ample public records showing their
addresses.”
{¶49} Appellants seem to complain the address where service was originally
attempted for John Wayne Huddleston was a post office box and the address where
service was originally attempted for Richard Huddleston may have been a workplace.
However, they cite nothing which would prohibit such service.
{¶50} Appellants then set forth complaints about the Westlaw search as to these
two defendants, while Appellees note it is an expensive search engine. First, they say
the Westlaw printout suggests the search related to Richard Huddleston was linked to
Mildred Huddleston (a record holder) rather than independently performed under his
name. The document showed Westlaw found two old addresses for Richard Huddleston
(which matched the old addresses of the deceased record holder) plus the more recent
address (listed as his current address) which Appellees used in the attempt to serve him
by certified mail (and which gave no indication it was a business address). Appellants
did not make an argument below about the search result for Richard Huddleston on
Westlaw, and there is no indication the notation listing him as a potential relative of
Mildred meant Westlaw did not provide the information it possessed on him.
{¶51} They also complain certified mail was only attempted on John Wayne
Huddleston at one of the addresses listed by Westlaw (the P.O. Box), and they note it
was not the most recently reported address. However, the address Appellees used for
attempted service was reported by Westlaw as the “Current Address” under the heading
of “Last Known Address Information” (with a “Last Reported” date of 1996). As Appellants
point out, under “Other Address Information” there were two addresses with “Last
Reported” dates of 2001 and 2000. Nevertheless, Westlaw placed these under the
heading “Previous Address.” In any event, none of the addresses matched the address
John Wayne Huddleston listed in his affidavit, and he did not aver he would have received
the certified mailing if those addresses had been used. Furthermore, Appellants did not
argue this below.
{¶52} Next, Appellants claim Appellees should have run credit reports on the four
defendants at issue, noting the will attached to the complaint (and to the affidavit on
search efforts) contained their Social Security numbers. Appellants suggest the situation
Case No. 21 BE 0005
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of having Social Security numbers to go with the names in the file is similar to a case
where this court found the trial court did not abuse its discretion in finding a default
judgment void based in part on information in the plaintiff’s own file. American Tax
Funding, 2014-Ohio-5831 at ¶ 32-37. Yet, the decision to uphold an exercise of discretion
to vacate a judgment in one case does not mean a case with allegedly similar facts must
be reversed where a trial court refused to vacate the judgment. See id. at ¶ 17, 37
(applying abuse of discretion standard of review).
{¶53} Regardless, the situation is not akin to the one existing in American Tax
Funding. In that case, the plaintiff’s own file contained the mailing address of a similarly
named controlling company who paid the principal balance, provided its address to the
plaintiff, and received a receipt at that address from the plaintiff stating interest was still
due. Id. at ¶ 7-8, 34. The plaintiff also had the telephone number of the defendant, who
was a business entity, and it was the plaintiff’s call to this number that prompted the
payment. Id. at ¶ 5. In addition, the defendant presented testimony from the Treasurer’s
Office showing the defendant’s correct address was on file before the plaintiff’s attorney
conducted his search. Although the address was not displayed on the website of the
Treasurer’s Office, the Auditor’s website (which the plaintiff’s attorney claimed he
searched) showed the defendant’s name as the owner and specifically said to call the
Treasurer’s Office for mailing information (due to a negotiated tax lien). Id. at ¶ 32-33.
{¶54} Appellants also rely on the statement of the Supreme Court in Sizemore
listing a credit report as a common source of information. As Appellees point out,
Sizemore did not announce a mandatory checklist. Sizemore, 6 Ohio St.3d at 332;
American Tax Funding, 2014-Ohio-5831 at ¶ 31. Also, Sizemore was before the internet
was available and thus before internet-accessible subscription people-searching
databases were available. See generally Third Fed. Savings & Loan Assn. of Cleveland
v. Taylor, 10th Dist. Franklin No. 17AP-254, 2017-Ohio-7620, ¶ 8-9, 14-16 (where the
plaintiff-bank submitted the affidavit of the vice-president of the company it hired to
conduct an address search wherein it was attested the company used the LexisNexis
Accurint database to locate people; affirming the trial court’s conclusion that this search
constituted a reasonably diligent attempt to locate the defendants' addresses before
Case No. 21 BE 0005
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service by publication). Although use of a subscription search service is not required for
reasonable diligence, it can assist in showing reasonable diligence.
{¶55} As Appellees further point out, there is nothing to show a certain credit
bureau would have returned Appellants’ addresses during the relevant time period.
Appellees also say they utilized the Social Security numbers obtained from the will, which
can be seen in the Westlaw printouts for John Wayne Huddleston and Richard
Huddleston (the two defendants whose names showed prior addresses). They say their
file only contained printouts when information was generated by the database (i.e., if
nothing pertinent was generated, then nothing was printed). We note Westlaw reported
TransUnion was the source of information for the two Huddleston defendants. In any
event, Appellants did not raise these arguments below.
{¶56} Appellants next contend the trial court must not have reviewed the file
attached to the affidavit of Appellees’ attorney or the court would have noticed most pages
involved the search for the location of the record holders and the identity of their heirs
and only a few pages were relevant to the search for the addresses of the four defendants
at issue. They generally noted this to the trial court in their reply in support of their motion
to vacate, stating: “the file was inclusive of all the defendants, not just the four (4)
individual filings to vacate judgment.”
{¶57} Now, Appellants rely on an argument that the file attached to the affidavit of
Appellees’ attorney did not contain evidence of the search for the addresses of Linda
Hanes or Nancy Payne; it just showed how they were discovered (in the will of Martha
Lee Mitchell). Appellees say this was because there were no documents showing
addresses to print. There is no requirement for a party or counsel to maintain evidence
of unsuccessful searches by printing unsuccessful results. (Nor is there a requirement to
print seemingly successful, but ultimately incorrect, search results; Appellees happened
to have saved some search results for many years.)
{¶58} Additionally, this argument was not raised to the trial court. Appellants did
not argue to the trial court the file contained no evidence of the search for the addresses
of Linda Haynes or Nancy Payne or it did not contain print-outs corresponding to each
effort listed in ¶ 8 as to the two Huddleston defendants.
Case No. 21 BE 0005
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{¶59} In any event, the file attached to the affidavit was a separate piece of
evidence from the averment in ¶ 8 of the affidavit. Although Appellees emphasized the
size of the file showing their search efforts, they pointed to other evidence as well,
including the efforts listed in the affidavit of publication which were further explained in ¶
8 of the affidavit attached to the response to the motion to vacate. Contrary to Appellants’
contention, there is no indication the trial court relied on the quantity of pages in the file.
{¶60} As reviewed in our Statement of the Case above, the trial court relied on the
statement in ¶ 8 of the affidavit on the efforts to locate the four defendants at issue. The
court quoted from a list of databases and records searched while looking for these
defendants. The affidavit attested to unsuccessfully searching for the addresses of the
defendants at issue by searching the public records, including the probate records in
Belmont County, Ohio and Hidalgo and Kleberg County, Texas, the records of the Ohio
Department of Natural Resources, the subscription services of Westlaw People Search
and idocket.com, the databases of Whitepages, Google, and Peoplesmart, and additional
websites including deathrecord.com, billiongraves.com, familysearch.org, and
zabasearch.com.
{¶61} Although there was no specific allegation, there was an implied accusation
the search was not conducted in the places listed in ¶ 8 of counsel’s affidavit. Yet, the
trial court could reasonably find the statements therein credible, especially after hearing
from counsel at the hearing on the motion. As the trial court noted, Appellees successfully
found addresses for many other defendants, including out-of-state defendants.
Appellants could have challenged the affiant at the hearing where he represented
Appellees if they believed his statements lacked credibility or sought to clarify whether his
statements applied to Linda and Nancy (due to the lack of printouts regarding their
names).
{¶62} Apparently realizing various arguments they wish to raise on appeal were
not voiced to the trial court, Appellants ask this court to recognize plain error. “[T]he
fundamental rule is that an appellate court will not consider any error which could have
been brought to the trial court's attention.” Schade v. Carnegie Body Co., 70 Ohio St.2d
207, 210, 436 N.E.2d 1001 (1982). The decision on whether to recognize plain error is
left to the discretion of the reviewing court. Paulus v. Beck Energy Corp., 2017-Ohio-
Case No. 21 BE 0005
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5716, 94 N.E.3d 73, ¶ 30 (7th Dist.), citing Risner v. ODNR, 144 Ohio St.3d 278, 2015-
Ohio-3731, 42 N.E.3d 718, ¶ 27. Furthermore, the plain error doctrine in civil cases “is
sharply limited to the extremely rare case involving exceptional circumstances where the
error, left unobjected to at the trial court, rises to the level of challenging the legitimacy of
the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 679
N.E.2d 1099 (1997).
{¶63} Appellants failed to rebut the presumption of reasonable diligence in the
search efforts which arose from the affidavit in support of publication. Many of the
arguments about the evidence presented on the search were waived. The items raised
on appeal that were not pointed out below do not present an obvious error or exceptional
circumstances. As for Appellants’ affidavits, the mere statement that a defendant lived at
an address cannot rebut a presumption of reasonable diligence; everyone lives
somewhere. A further statement providing the length of time a defendant lived at an
address does not rebut the presumption of reasonable diligence, even for the two who
lived at their address for a fairly long time.
{¶64} After the trial court found Appellants failed to rebut the presumption of
reasonable diligence, the trial court alternatively found Appellees would have met any
shifted burden of showing their search effort for the addresses of the four defendants at
issue was reasonably diligent. We agree Appellees proved their efforts to locate
addresses were reasonable. “[S]teps [were taken] which an individual of ordinary
prudence would reasonably expect to be successful in locating a defendant's address.”
See Sizemore, 6 Ohio St.3d at 332. The locations searched were reasonable, and there
was no indication a search in some other common, readily available source would have
located the correct addresses; there was not even a suggestion to the trial court as to
what database Appellees should have added to their search.
{¶65} The evidence of reasonable diligence was legally sufficient, and the trial
court’s decision on the facts was supported by competent, credible evidence and not
unreasonable, arbitrary, or unconscionable. The trial court did not abuse its discretion or
commit a legal error (reviewed de novo) by finding a failure to rebut the presumption or
Case No. 21 BE 0005
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by finding proof of reasonable diligence was presented. Accordingly, Appellants’
assignment of error is overruled.6
{¶66} For the foregoing reasons, the trial court’s judgment is affirmed as the trial
court properly concluded it had personal jurisdiction.
Waite, J., concurs.
D’Apolito, J., concurs.
6Appellees alternatively ask this court to affirm the trial court’s judgment on grounds of waiver and laches,
which they raised in their response to the motion to vacate. The trial court did not address these doctrines.
As these alternative arguments are only presented if this court were to sustain Appellants’ assignment of
error, we need not address them.
Case No. 21 BE 0005
[Cite as Mammone v. Reynolds, 2021-Ohio-3248.]
For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the Court
of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be taxed against the
Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.