Rice v. Kyte , 2012 Ohio 841 ( 2012 )

[Cite as Rice v. Kyte, 2012-Ohio-841.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
CAROLYN RICE, AS TREASURER :
OF MONTGOMERY COUNTY, OHIO
Plaintiff-Appellee : C.A. CASE NO. 24607
v. : T.C. NO. 10CV1650
STEVEN KYTE, et al. : (Civil appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 2nd day of March , 2012.
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GEORGE B. PATRICOFF, Atty. Reg. No. 0024506, Montgomery County Prosecutor’s
Office, 301 W. Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
STEVEN KYTE, 1389 Central Park Avenue, Dayton, Ohio 45409
Defendant-Appellant
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FROELICH, J.
{¶ 1} Steven Kyte appeals from a default judgment in favor of Montgomery
County Treasurer Carolyn Rice on the county’s tax foreclosure action.
{¶ 2} In February 2010, Rice, in her official capacity as county treasurer, filed a
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“Complaint for Foreclosure of Delinquent Real Estate Taxes” against Kyte, alleging that the
property located at 1517 Ingomar Avenue in Dayton (permanent parcel number R72 09008
0022) had delinquent taxes in the amount of $6,171.41, which constituted a first and best
lien on the property.1 The fair market value of the property was allegedly $16,990. The
complaint indicated that Ktye might have an interest in the property due to a recorded
warranty deed executed in 2000. The county treasurer sought foreclosure and the sale of the
property.
{¶ 3} Several attempts were made to serve Kyte with the complaint and summons.
Service was initially attempted by certified mail to an address on Cardington Road in
Dayton; that attempt was unsuccessful. Service was next attempted at an address in
Arlington, Texas. That service was returned as “not deliverable as address, unable to
forward.” In May 2010, service was attempted again at the Cardington Road address. The
envelope was returned with a handwritten notation, “Return to Sender. No Longer @ this
Address.” In June 2010, service was sent by certified mail to a different address in
Arlington, Texas; this envelope was also returned as undeliverable as addressed. Next,
service by certified mail was attempted at 1389 Central Park Avenue in Dayton. Notices
were reportedly left at that address on July 10 and 23, but the envelope was returned on July
27 with the notation “no such number.”
{¶ 4} In November 2010, the prosecuting attorney, as counsel for the county
treasurer, filed an affidavit for service by publication, indicating that Kyte’s last known
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The complaint also named Associates Financial Services Company, the alleged mortgagee of the property. That
company is not a party to this appeal.
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address was 1389 Central Park, but his current address could not be ascertained with
reasonable diligence. The trial court authorized service by publication. In February 2011,
the county treasurer filed proof that a legal notice of the action had been published once each
week for three consecutive weeks in the Daily Court Reporter.
{¶ 5} Ktye did not answer the complaint. On March 21, the trial court issued a
notice to the parties that the defendants were in default; this notice was sent to Ktye at the
Central Park address. Several days later, the county treasurer filed a motion for default
judgment; there is no indication in the record that Kyte was served with the motion. On
March 31, 2011, the trial court entered a default judgment and decree of foreclosure, and it
ordered the sale of the property. The judgment included an instruction to the clerk to notify
all parties of the judgment. Kyte filed a notice of appeal on April 26, 2011.
{¶ 6} Kyte’s brief does not set forth any assignments of error, as required by App.
R. 16(A)(3). Although he does not state any assignments of error, we infer his argument to
be that he was not properly notified of the action, requiring reversal or vacation of the
default judgment. Kyte indicates that he has been repairing the home that he purchased
after his return to Ohio from Texas, he removed the house numbers from the exterior of the
house, the numbers were stolen from his porch, and as a result, he did not receive some mail.
Kyte’s brief indicates that his current mailing address is 1389 Central Park, which was his
last known address.
{¶ 7} In order to render a valid judgment, a court must have personal jurisdiction
over the defendant. Abuhilwa v. O’Brien, 2d Dist. Montgomery No. 21603,
2007-Ohio-4328, ¶ 14. “Personal jurisdiction may only be acquired by service of process
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upon the defendant, the voluntary appearance and submission of the defendant or his legal
representative, or by an appearance that waives * * * certain affirmative defenses, including
jurisdiction over the person under the Rules of Civil Procedure.” Id., citing Maryhew v.
Yova, 11 Ohio St.3d 154, 464 N.E.2d 538 (1984). “If service of process has not been
properly accomplished or waived, any judgment rendered is void ab initio.” Goering v.
Lacher, 1st Dist. Hamilton No. C-110106, 2011-Ohio-5464, ¶ 9, citing Cincinnati School
Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 87 Ohio St.3d 363, 366-367, 721 N.E.2d
40 (2000).
{¶ 8} “[S]ervice 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.”
Money Tree Loan Co. v. Williams, 169 Ohio App.3d 336, 341, 2006-Ohio-5568, 862 N.E.2d
885, ¶ 9 (8th Dist.). The plaintiff bears the burden of properly serving the defendant. Id. at
¶ 10.
{¶ 9} R.C. 323.25, which governs the enforcement of county tax liens, provides
that foreclosures based on liens for past due taxes proceed “in the same way mortgage liens
are enforced.” Civ.R. 4.1 sets forth the general methods of service of the summons and
complaint upon a defendant in Ohio; Civ.R. 4.3 and 4.5 address service on defendants who
live out-of-state and in a foreign country, respectively. When the address is known, the
plaintiff should effectuate service under those rules. If service cannot be effectuated under
those rules, service by publication is permitted by Civ.R. 4.4.
{¶ 10} Of relevance to this case, Civ.R. 4.4(A) authorizes service by publication
where the residence of the defendant is unknown. That rule provides:
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(1) Except in an action governed by division (A)(2) of this rule, 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 shall 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, all of
the efforts made on behalf of the party to ascertain the residence of the
defendant, and that the residence of the defendant cannot be ascertained with
reasonable diligence.
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 complaint is filed. * * * The publication shall contain the name
and address of the court, the case number, the name of the first party on each
side, and the name and last known address, if any, of the person or persons
whose residence is unknown. The publication also shall contain a summary
statement of the object of the complaint and demand for relief, and shall
notify the person to be served that he or she is required to answer within
twenty-eight days after the publication. The publication shall be published at
least once a week for six successive weeks unless publication for a lesser
number of weeks is specifically provided by law. Service shall be complete
at the date of the last publication.
After the last publication, the publisher or its agent shall file with the
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court an affidavit showing the fact of publication together with a copy of the
notice of publication. The affidavit and copy of the notice shall constitute
proof of service.
{¶ 11} When the action is brought by county treasurer to enforce the payment of
taxes and service by publication is necessary, the publication need only occur for three
consecutive weeks. R.C. 323.25
{¶ 12} According to the record, Rice attempted to serve Kyte with the summons
and the complaint, by certified mail, at a Cardington Road address (twice), and two different
addresses in Arlington, Texas, before trying to serve him at the Central Park Avenue
address. Each of the those attempts at service resulted in notifications that the certified mail
was undeliverable. When service was attempted at the Central Park address, notices were
left on July 10 and 23. Apparently, subsequently delivery could not be made due to an
inability to locate the address, and the mail was returned on July 27. The prosecuting
attorney’s affidavit for service by publication stated that Kyte’s last known address was the
Central Park address and that his current address “cannot, with searching the Accruint
national search system, with reasonable diligence be ascertained.” Given the multiple
unsuccessful attempts at service at various addresses and counsel’s statement in the affidavit,
the trial court properly permitted service upon Kyte by publication.
{¶ 13} As required by Civ.R. 4.4(A) and R.C. 323.25, an affividat was filed by an
employee of the Daily Court Reporter, indicating that a legal notice had been published once
each week for three consecutive weeks, beginning on February 1, 2011. A copy of the legal
notice was attached to the affidavit. The notice included such information as Kyte’s name
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and last known address, the plaintiff’s name, the case number, the court in which the action
was filed, the date the complaint was filed, a summary of the complaint, the deadline for
Kyte to file an answer, and the dates on which the legal notice was published.
{¶ 14} The service by publication was performed in a manner reasonably calculated
to apprise Kyte of the action and to afford him an opportunity to respond. After Ktye failed
to respond to the complaint, the trial court was permitted to enter a default judgment against
him. Accordingly, the assignment of error is overruled.
{¶ 15} The trial court’s judgment will be affirmed.
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GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
George B. Patricoff
Steven Kyte
Hon. Steven K. Dankof