Nix v. Richter , 2017 Ohio 8431 ( 2017 )

[Cite as Nix v. Richter, 2017-Ohio-8431.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
NANCY E. NIX, TREASURER, BUTLER :
COUNTY, OHIO,
: CASE NO. CA2017-04-043
Plaintiff-Appellee,
: OPINION
11/6/2017
- vs - :
:
ROBERT J. RICHTER, et al.,
:
Defendants-Appellants.
:
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV2015-11-2532
Michael T. Gmoser, Butler County Prosecuting Attorney, Dan L. Ferguson, 315 High Street,
11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
John W. Herr, 400 South Main Street, Middletown, Ohio 45044, for defendant-appellant,
Robert J. Richter
Santokh Bhatti, 8045 Vegas Circle, West Chester, Ohio 45069, defendant, pro se
RINGLAND, J.
{¶ 1} Defendant-appellant, Robert Richter, appeals a decision of the Butler County
Court of Common Pleas denying his motion for relief from judgment. For the reasons
detailed below, we affirm.
Butler CA2017-04-043
{¶ 2} On November 3, 2015, the Butler County Prosecutor filed a delinquent tax
foreclosure complaint against Robert and Rita Richter, any alleged unknown spouses of the
two, and the Mercantile Savings Bank. Appellant was served with the complaint by certified
mail. The certified mail was returned unclaimed on December 7, 2015 and the state then
served appellant by ordinary mail on December 17, 2015.
{¶ 3} Appellant failed to respond or appear for any proceedings and a default
judgment and decree of foreclosure was entered against appellant on June 6, 2016. The trial
court entered a judgment entry confirming the sale of the property on September 15, 2016.
{¶ 4} On February 8, 2017, appellant moved to vacate the judgment and tax sale.
Appellant claimed that the decree of foreclosure and judgment entry confirming the sale of
the property were void because the County failed to complete service of process by
publication in the action. The trial court denied appellant's motion. Appellant now appeals
the decision of the trial court, raising a single assignment of error for review:
{¶ 5} THE TRIAL COURT, BECAUSE OF [sic] IT FAILED TO RECOGNIZE THAT
THE PENDING CAUSE OF ACTION IS ONE IN REM FOR WHICH THE MANDATE FOR
SERVICE OF PROCESS BY PUBLICATION SET FORTH IN R.C. 5721.18(B) IS
APPLICABLE ON THE FACE OF THE COMPLAINT, ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT IN OVERRULING HIS MOTION TO VACATE AS VOID AB
INITIO THE JUDGMENT ENTRY DECREE OF FORECLOSURE AND THE JUDGMENT
ENTRY CONFIRMING SALE.
{¶ 6} In his sole assignment of error, appellant argues that the trial court erred by
overruling his motion to vacate judgment. Appellant's argument is without merit.
{¶ 7} "In order to render a valid judgment, a court must have jurisdiction over the
defendant in the action." Beachler v. Beachler, 12th Dist. Preble No. CA2006-03-007, 2007-
Ohio-1220, ¶ 12. A trial court lacks jurisdiction to enter a default judgment against a
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Butler CA2017-04-043
defendant if a plaintiff fails to perfect service on the defendant and the defendant has not
appeared in the action or waived service. Bendure v. Xpert Auto, Inc., 10th Dist. Franklin No.
11AP-144, 2011-Ohio-6058, ¶ 16.
{¶ 8} A trial court's ability to vacate a void judgment does not arise from Civ.R. 60(B),
but rather, from an inherent power possessed by the courts in this state. Ohio State Aerie
Fraternal Order of Eagles v. Alsip, 12th Dist. Butler No. CA2013-05-079, 2013-Ohio-4866, ¶
10. Thus, when a party claims a trial court lacked personal jurisdiction due to improper
service of process, the appropriate method to challenge such void judgment is through a
common law motion to vacate. Third Fed. S. &. L. Assn. v. Taylor, 10th Dist. Franklin No.
17AP-254, 2017-Ohio-7620, ¶ 11; Chuang Dev. L.L.C. v. Raina, 10th Dist. Franklin Nos.
15AP-1062 and 16AP-500, 2017-Ohio-3000, ¶ 29.
{¶ 9} An appellate court reviews the denial of a motion to vacate under an abuse-of-
discretion standard. Bank of New York Mellon v. Maxfield, 12th Dist. Butler No. CA2016-01-
004, 2016-Ohio-2990, ¶ 9. An abuse of discretion constitutes more than an error of law or
judgment; it requires a finding that the trial court acted unreasonably, arbitrarily or
unconscionably. Alsip at ¶ 10.
{¶ 10} "Service of process is consistent with due process standards where it is
reasonably calculated, under the circumstances, to give interested parties notice of a pending
action and an opportunity to appear." Maxfield at ¶ 10, citing City of Hamilton v. Digonno,
12th Dist. Butler No. CA2005-03-075, 2005-Ohio-6552, ¶ 9. Civ.R. 4.1 sets forth permissible
methods of service for in-state defendants, including certified or express mail service,
personal service, or residence service. In addition, Civ.R. 4.4 sets forth the process of
service by publication if the residence of a defendant is unknown.
{¶ 11} In the present case, the County served appellant by certified mail on
November 5, 2015. The complaint was returned as unclaimed one month later. As a result,
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Butler CA2017-04-043
the County served appellant with the complaint by ordinary mail, as is permitted under Civ.R.
4.6(D). Digonno at ¶ 10.
{¶ 12} On appeal, appellant claims that the County pursued this foreclosure as an
action in rem, as opposed to in personam, and therefore the County was required to serve
him by publication. R.C. 5721.18 details foreclosure proceedings for state liens. Pursuant to
R.C. 5721.18(A) "foreclosure proceedings shall be instituted and prosecuted in the same
manner as is provided by law for the foreclosure of mortgages on land * * *." The relevant
statute continues with "if service by publication is necessary, such publication shall be made
once a week for three consecutive weeks * * *." Id. (Emphasis added.) Further requirements
for obtaining service by publication are addressed in R.C. 5721.18(B).
{¶ 13} Based on his interpretation of the County's complaint, appellant maintains that
the County pursued this action in rem. Relying on the statute above, appellant concludes
that the County was required to serve him with notice of foreclosure by publication. As a
result, appellant maintains that service was faulty and therefore the trial court's foreclosure
and confirmation entries should be vacated even though he does not dispute that he was
served individually by the County.
{¶ 14} We find the trial court did not err by denying appellant's motion to vacate.
Though appellant claims otherwise, jurisdiction in this case was exercised in personam, not
in rem. This determination is readily ascertainable, as the named parties are individuals, not
property. The complaint here named appellant and the remaining interested parties
individually. The complaint does not make any reference to an in rem proceeding, or comply
with the statutory form for filing an action in rem, as detailed in R.C. 5721.181. In short, the
record before this court makes clear that this action was pursued based on in personam
jurisdiction.
{¶ 15} Under R.C. 5721.18, foreclosure proceedings are instituted "in the same
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Butler CA2017-04-043
manner as is provided by law for the foreclosure of mortgages on land." As appellant was a
named party in the action, the County was permitted to obtain service through certified mail.
See Civ.R. 4.1. The provisions related to the rules for obtaining service through publication
apply only "if service by publication is necessary." R.C. 5721.18(A). As the County obtained
service through another, more effective means, the County was not required to attempt
service by publication.
{¶ 16} While it is true that notice by publication plays a legitimate, and necessary, role
in our system of justice, it is more appropriately used as a substitute when other options are
not possible. In re Foreclosure of Liens for Delinquent Taxes, 62 Ohio St. 2d 333, 336-337
(1980). Furthermore, even if this action had been instituted in rem, irregularities in notice
procedures will not invalidate a tax sale under R.C. 5721.19(F)(4) unless the irregularities
abrogate the provision for notice to interested parties. Again, appellant does not dispute that
he was served by certified mail and ordinary mail. Appellant was not prejudiced by the failure
to receive notice by publication when he was served properly by certified mail and ordinary
mail.
{¶ 17} In sum, we find the trial court correctly concluded that appellant had been
properly served. The trial court, therefore, did not err in denying appellant's motion to vacate.
Accordingly, we overrule appellant's sole assignment of error.
{¶ 18} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
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