Quick v. Jenkins , 2013 Ohio 4371 ( 2013 )

[Cite as Quick v. Jenkins, 2013-Ohio-4371.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JANICE LEE QUICK, et al., )
) CASE NO. 13 CO 4PLAINTIFFS-APPELLEES, )
)
VS. ) OPINION
)
L.D. JENKINS, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 12CV251.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiffs-Appellees: Attorney David Tobin
Attorney Charles Payne
617 St. Clair Avenue
P.O. Box 114
East Liverpool, Ohio 43920
For Defendant-Appellant: L.D. Jenkins, Pro se
P.O. Box 51
Cashion, Oklahoma 73016
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: September 30, 2013
[Cite as Quick v. Jenkins, 2013-Ohio-4371.]
VUKOVICH, J.
{¶1} Defendant-appellant L.D. Jenkins appeals the decision of the
Columbiana County Common Pleas Court denying his motion to vacate a default
judgment that was entered against him. The basis of the motion to vacate was the
failure to serve appellant. For the reasons expressed below, given our standard of
review, we find that the trial court did not abuse its discretion in failing to vacate the
default judgment. Therefore, the trial court’s decision is hereby affirmed.
Statement of Case
{¶2} Plaintiffs-appellees Janice Lee Quick, JoAnne Ciaverella and Maria
McNicol own land located in Columbiana County, Ohio. This property had been in
their family since 1931. Unknown to appellees, the mineral interests were severed
from the property prior to their family acquiring the property. Allegedly, it was not
until after they signed an oil and gas lease with Chesapeake Appalachia LLC, that
they discovered the cloud on their mineral interest title.
{¶3} Appellees then attempted to have the mineral interests reattached to
the surface under the Ohio Dormant Mineral Act, R.C. 5301.56. Appellees notified
the holders of the mineral interests of this intent by publishing a notice in a local
newspaper. This notice allegedly complied with R.C. 5301.56(E). After publication,
the holders had 60 days to respond pursuant to R.C. 5301.56(H).
{¶4} On July 18, 2011, within the 60 day time period, William Parr filed an
affidavit with the Columbiana County Recorder’s Office in an attempt to preserve the
mineral rights for the alleged listed holders in that affidavit. In addition to others, he
listed the parties as Willow Point Corporation, Remora LLC and appellant. The
affidavit indicated that all three of these parties were located at 1200 Belford Avenue,
Oklahoma City, Oklahoma.
{¶5} Approximately nine months later, appellees filed an action in
Columbiana County Common Pleas Court seeking to quiet title to the mineral
interests. 04/17/12 Complaint. Appellees contended that the Parr affidavit is void
and does not preserve any mineral interests. If that argument was accepted, then
the mineral interests would reattach to the surface and appellees would be
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determined to be the owners of interests. All parties named in the Parr affidavit were
listed as defendants in the quiet title action, which included appellant, Willow Point
Corporation, and Remora LLC. The address identified in that affidavit is where
appellees attempted to serve those defendants. Thus, summons to appellant was
sent by certified mail to the 1200 Belford Avenue address.
{¶6} The summons sent to appellant was accepted and signed for by
Penney LaZaroff. However, appellant failed to appear or answer. Thus, appellees
moved for default judgment, which the trial court granted. 06/07/12 Motion for
Default Judgment; 06/12/12 J.E.
{¶7} Roughly four months later, appellant filed a motion to vacate default
judgment. 10/09/12 Motion. The basis of the motion was that he was not properly
served. Attached to the motion were three affidavits – one from appellant, one from
Parr on behalf of Willow Point Corporation, and one from LaZaroff. All three affidavits
indicate that neither LaZaroff nor Willow Point Corporation have been authorized to
accept service of process on appellant’s behalf. They also indicate that appellant
does not reside or work at 1200 Belford Avenue and that appellant has no ownership
or affiliation, including employment, with Willow Point Corporation.
{¶8} Appellees filed a motion in opposition to the motion to vacate. 10/29/12
Motion. The basis of the motion was that appellant was served at the address listed
in the Parr affidavit and that appellant had been served at this address in other cases
that are pending in Columbiana and Belmont Counties. Appellant filed a reply to the
opposition motion. 11/15/12 Motion. After reviewing all motions, the trial court
denied appellant’s motion to vacate. 12/18/12 J.E.
{¶9} Appellant appeals from that order.
Standard of Review
{¶10} We review a trial court's decision to grant or deny a motion to vacate for
an abuse of discretion. Nationwide Mut. Fire Ins. Co. v. Barrett, 7th Dist. No.
08MA130, 2008–Ohio–6588, ¶ 11. An abuse of discretion implies that a decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St .3d
217, 219, 450 N.E.2d 1140 (1983). An abuse of discretion cannot be found merely
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because the reviewing court would have decided it differently. Summit at St.
Andrews Home Owners Assn. v. Kollar, 7th Dist. No. 11MA49, 2012-Ohio-1696, ¶
12.
Arguments on Appeal
{¶11} Two distinct arguments as to why the default judgment should be
vacated are raised in appellant’s pro se brief. First, he contends that since he was
not properly served with the summons and complaint the trial court lacked personal
jurisdiction over him and therefore, the judgment must be vacated. Second, he
contends that if this court finds he was properly served, the judgment should still be
vacated on the basis of excusable neglect as espoused in Civ.R. 60(B). Each
argument will be addressed in turn.
1. Service
{¶12} As aforementioned, the basis for the motion to vacate was lack of
personal jurisdiction, or more specifically that appellant was not properly served.
{¶13} It has been explained that in general a “trial court is without jurisdiction
to render judgment or to make findings against a person who was not served
summons, did not appear, and was not a party in the court proceedings.” State ex rel.
Ballard v. O'Donnell (1990), 50 Ohio St.3d 182, 553 N.E.2d 650, paragraph one of
the syllabus. See also Draghin v. Issa, 8th Dist. No. 98890, 2013-Ohio-1898, ¶ 19 (a
trial court lacks jurisdiction to render a judgment against a defendant if service of
process is improper and the defendant has not appeared or waived service). If a
court renders judgment when it does not have jurisdiction over the parties, the
judgment is a nullity and is void ab initio. Lincoln Tavern, Inc. v. Snader, 165 Ohio St.
61, 64, 133 N.E.2d 606 (1956); Tuckosh v. Cummings, 7th Dist. No. 07HA9, 2008–
Ohio–5819, ¶ 17. It is within a trial court’s inherent authority to vacate a void
judgment; a party need not seek relief under Civ.R. 60(B) in order to have the
judgment vacated. Patton v. Diemer, 35 Ohio St.3d 68, 70, 518 N.E.2d 941 (1988);
see also, Ross v. Olsavsky, 7th Dist. No. 09 MA 95, 2010–Ohio–1310, ¶ 11.
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{¶14} There is no dispute that appellant did not take any actions to defend or
appear in the quiet title action. Therefore, service is the only other means to acquire
personal jurisdiction over appellant.
{¶15} Service of process must comply with Civ.R. 4.1 through 4.6. The
plaintiff in a case bears the burden of achieving proper service on a defendant.
Draghin, 2013-Ohio-1898, at ¶ 21, citing Cincinnati Ins. Co. v. Emge, 124 Ohio
App.3d 61, 63, 705 N.E.2d 408 (1st Dist.1997). There is a rebuttable presumption of
proper service when the civil rules governing service are followed. Id., citing Money
Tree Loan Co. at ¶ 10. Thus, even when the rules are complied with, a party is
entitled to have the judgment vacated if nonservice is shown. Id. See also Ross, 7th
Dist. No. 09MA95, 2010–Ohio–1310, at ¶ 14.
{¶16} Courts have stated that service of process must be made in a manner
reasonably calculated to apprise interested parties of the action and to afford them
an opportunity to respond. Draghin, 2013-Ohio-1898, at ¶ 20 citing Akron–Canton
Regional Airport Auth. v. Swinehart, 62 Ohio St.2d 403, 406, 406 N .E.2d 811 (1980).
Attempting service at a place other than the party’s residence involves inherently
greater risks that the party will not receive the notice. Draghin, 2013-Ohio-1898, at ¶
20. Each case must be examined on its particular facts to determine whether service
of process was reasonably calculated to reach the interested party. Id. at 407.
{¶17} Here, the summons and complaint were sent to “L.D. Jenkins, c/o
Willow Point Corp., 1200 Belford Ave., Oklahoma City, Oklahoma.” It was signed for
by a Penney LaZaroff. Considering that the certified mail was signed for, there is a
presumption that service was proper.
{¶18} Despite that, appellant contends that he did not receive notice of the
complaint. Attached to his motion to vacate default judgment, he attached three
affidavits.
{¶19} The first affidavit is his personal affidavit. In it he states that his
residential address is 18477 W. Triplett Road, P.O. Box 51, Cashion, Oklahoma; he
does not reside at 1200 Belford Ave., Oklahoma City. He further states that he is not
employed by, affiliated with, or has any ownership interest in Willow Point
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Corporation. He adds that Penney LaZaroff is not related to him and does not reside
with him. Also, he avows that he has never employed Willow Point Corporation or
Penney LaZaroff.
{¶20} The second affidavit is from William Parr, president of Willow Point
Corporation. Parr indicates appellant is not his employee, that he is not an employee
of appellant, and that appellant is not affiliated with and has no ownership interest in
Willow Point Corporation. He further adds that Willow Point Corporation, William
Parr, and Penney LaZaroff have never been authorized by appellant to accept
service of process on his behalf.
{¶21} The third affidavit is from Penney LaZaroff. She indicates that she has
never been employed by appellant and has not been authorized to accept service of
process on his behalf. She further adds that she is not related to appellant.
{¶22} In response to the motion and affidavits, appellees filed their own
motion asserting that in recent cases in Columbiana County and in Belmont County,
appellant has been served at the 1200 Belford Avenue address, has appeared and
defended those actions, and has not argued improper service. Attached to those
motions are certified judgments from the Columbiana County and Belmont County
cases.
{¶23} The other cases from Columbiana and Belmont counties do show that
appellant was served at the 1200 Belford Avenue address, he defended those
actions and he did not argue improper service. Those cases, like the one before us,
are based on mineral interests in Ohio. Furthermore, William Parr, the president of
Willow Point Corporation is the one who named appellant in the affidavit and
attempted to preserve appellant’s interest in this case.
{¶24} Given the unique facts of this case and the standard of review, we
cannot find that the trial court abused its discretion in denying the motion to vacate.
Admittedly, personal jurisdiction can be waived. Preferred Capital, Inc. v. Power
Eng'g Grp., Inc., 112 Ohio St. 3d 429, 2007-Ohio-257, 860 N.E.2d 741, ¶ 6. There is
no rule that for purposes of service, waiver of personal jurisdiction in one case is
waiving personal jurisdiction in another case. However, as explained earlier, the
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complaint sent by certified mail was signed for creating the presumption that service
was proper. Furthermore, each case is fact specific to determine whether service of
process was reasonably calculated to reach the interested party. Here, appellant in
numerous other mineral interest cases has appeared and defended actions when the
complaint was sent to the 1200 Belford Avenue address. Thus, given the past
conduct, we cannot conclude that the trial court abused its discretion in finding that
service was completed, i.e. that service of process was reasonably calculated to
reach appellant. That said, we could have possibly reached a different conclusion
when reviewing the facts and the affidavits; however, that is not enough to conclude
that the trial court abused its discretion. Summit at St. Andrews Home Owners Assn,
7th Dist. No. 11 MA 49, 2012-Ohio-1696, ¶ 12. The argument that service was not
completed lacks merit.
2. Excusable Neglect
{¶25} Civ.R. 60(B)(1) permits a trial court to relieve parties from a final
judgment when there is a “mistake, inadvertence, surprise or excusable neglect.”
{¶26} In the appellate brief, appellant asserts that if this court finds that
service was accomplished, we should still vacate the default judgment on the basis of
excusable neglect. Little argument is provided as to why and how excusable neglect
under Civ.R. 60(B)(1) is applicable in this situation.
{¶27} That deficiency alone provides a basis for not reviewing the argument.
App.R. 16(A). However, even if we disregard that deficiency, we still cannot consider
the argument because it was not raised to the trial court; the motion seeking vacation
did not raise excusable neglect as a basis to vacate the default judgment. Issues
that could have been raised and resolved in the trial court cannot be raised for the
first time on appeal; issues not raised to trial court are deemed waived on appeal.
Litva v. Richmond, 172 Ohio App.3d 349, 2007–Ohio–3499, 874 N.E.2d 1243, ¶ 18
(7th Dist.). See also Gilchrist v. Saxon Mtge. Servs., 10th Dist. No. 12AP–556, 2013–
Ohio–949, ¶ 22 (an issue not raised in the trial court is waived for purposes of
appeal); Ratcliff v. Darby, 4th Dist. No. 02CA2832, 2002–Ohio–6626, ¶ 18 (issues
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raised for the first time on appeal will not be considered). On that basis any
argument based on excusable neglect lacks merit.
Conclusion
{¶28} In conclusion, the sole assignment of error lacks merit. The trial court
did not abuse its discretion in denying the motion to vacate. Therefore, the judgment
of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.