Brookville Ents., Inc. v. Kessler Estate HCF Mgt., Inc. , 2022 Ohio 1420 ( 2022 )

[Cite as Brookville Ents., Inc. v. Kessler Estate HCF Mgt., Inc., 2022-Ohio-1420.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
BROOKVILLE ENTERPRISES INC. :
:
Plaintiff-Appellee : Appellate Case No. 29314
:
v. : Trial Court Case No. 2020-CV-4171
:
CLARENCE J. KESSLER ESTATE : (Civil Appeal from
HCF MANAGEMENT INC. : Common Pleas Court)
ADMINISTRATOR, et al. :
:
Defendant-Appellant
...........
OPINION
Rendered on the 29th day of April, 2022.
...........
ALEXANDER W. CLOONAN, Atty. Reg. No. 0095690, 2625 Commons Boulevard,
Beavercreek, Ohio 45431
Attorney for Plaintiff-Appellee
R.C. WIESENMAYER, Atty. Reg. No. 0007207, 15 Willipie Street, Suite 300, P.O. Box
299, Wapakoneta, Ohio 45895
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-Appellant, Bruce Kessler, appeals from an order overruling his
motion for relief from a default judgment entered in favor of Plaintiff-Appellee, Brookville
Enterprises, Inc., dba Brookhaven Nursing & Rehabilitation Center (“Brookhaven”). In
support of his appeal, Kessler contends that the trial court erred in concluding that
Brookhaven had perfected service of process on him. In addition, Kessler argues that
the trial court erred in failing to hold an evidentiary hearing before ruling on the motion for
relief from judgment. Alternatively, Kessler contends that the trial court erred in denying
his motion under Civ.R. 60(B)(1) and (5).
{¶ 2} We conclude that the trial court abused its discretion in overruling Kessler’s
motion for relief from the default judgment, which was based on Kessler’s claim that he
had not been properly served with the complaint. The court incorrectly analyzed the
motion by referring to Civ.R. 60(B). However, courts have inherent jurisdiction to vacate
judgments based on lack of personal jurisdiction, which renders a judgment void.
Movants, therefore, do not have to establish entitlement to relief under Civ.R. 60(B).
Furthermore, there were deficiencies and inconsistencies relating to service that
warranted a hearing on Kessler’s motion for relief. In view of these holdings, we need
not address Kessler’s alternative argument regarding Civ.R. 60(B)(1) and (5).
{¶ 3} Accordingly, the judgment of the trial court will be reversed, and this cause
will be remanded for further proceedings.
I. Facts and Course of Proceedings
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{¶ 4} On October 28, 2020, Brookville filed a complaint against Bruce Kessler and
HFC Management (“HFC”), which was the administrator of the estate of Clarence Kessler.
Brookhaven operates a licensed skilled nursing facility in Brookville, Ohio, where
Kessler’s father, Clarence, resided from June 22, 2019, until Clarence’s death on March
29, 2020. According to the complaint, Brookhaven was entitled to $38,825.92 in unpaid
charges that Clarence incurred during his residency. However, Bruce Kessler allegedly
used a power of attorney to withdraw money from Clarence’s bank accounts for his own
benefit and also fraudulently transferred a remaining balance of $27,188.43 to himself in
violation of R.C. 1336.04(A)(2)(b), rendering Clarence’s estate insolvent. The complaint
asked the trial court to hold Bruce Kessler personally responsible for payment of
$27,188.43, plus interest.
{¶ 5} The address listed in the complaint for Bruce Kessler was 903 Avery Lane,
Englewood, Ohio, 45322. On October 28, 2020, Brookhaven asked the sheriff to deliver
personal service of the complaint to Kessler at that address. A summons for personal
service, with tracking number CVPS000000000048715, was issued on October 29, 2020.
{¶ 6} On October 31, 2020, HFC filed an answer admitting that the estate was
insolvent.1 On November 20, 2020, the sheriff filed a return of service, indicating that he
had received the summons on November 2, 2020, and had made three attempts to serve
it, on November 15, November 16, and November 17, 2020. The door was never
answered, nor did the sheriff receive a call back.
{¶ 7} On December 1, 2020, Brookhaven instructed the clerk to issue service to
1 The same attorney represented both Brookhaven, the plaintiff, and HFC, the defendant.
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Kessler by certified mail at the Avery Lane address. The clerk issued service by certified
mail the same day, with tracking number 9414726699042175108098.
{¶ 8} On December 14, 2020, the clerk sent Brookhaven a notification of a failure
of service for tracking number CVPS000000000048715. The reason for the failure was
“never got an answer at door or a call back.”
{¶ 9} On December 28, 2020, Brookhaven asked the clerk to issue service by
ordinary mail to Kessler at the Avery Lane address. As a result, the clerk issued service
by ordinary mail to Kessler the same day. Kessler did not thereafter file an answer in the
action. The ordinary mail was also not returned to the court.
{¶ 10} On January 28, 2021, the trial court filed a default notice, stating that a
review of the file indicated that service had been perfected and that Kessler was in default
for failure to answer. The court instructed Brookhaven to review its file and ascertain if
default proceedings were in order. In addition, the court noted that a failure to file a
response to the order within 14 days could result in administrative dismissal of the action.
The court electronically notified Brookhaven and HFC and sent a copy of the default
notice to Kessler by ordinary mail at the Avery Lane address.
{¶ 11} On February 2, 2021, Brookhaven filed a motion for default judgment,
asking the court to grant judgment against Kessler in the amount of $27,188.43, based
on his failure to timely file an answer. Brookhaven also attached affidavits to its motion
regarding the matters alleged in the complaint and the fact that Kessler was not in the
military service. The same day, the court filed a default judgment against Kessler and
awarded Brookhaven $27,188.43, plus interest at the statutory rate and costs. The
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judgment also included a Civ.R. 54(B) certification. On February 2, 2021, the clerk sent
the parties a Civ.R. 58(B) notice that a final appealable order had been filed.
Brookhaven then filed a praecipe for a certificate of judgment with the clerk on February
9, 2021. No appeal was taken from the default judgment.
{¶ 12} Nothing further occurred until June 9, 2021, when the clerk filed a copy of
the certified mail envelope that was returned to the court. The envelope was marked
with written notations, including “Unclaimed,” and “LN PM 12/3/20.” Further, a printed
label stated “Return to Sender,” “Attempted – Not Known,” and “Unable to Forward.”
{¶ 13} On June 30, 2021, Kessler filed a motion for relief from judgment under
Civ.R. 60(B)(1) and (5). In the motion, Kessler alleged that he had repeatedly been out
of town during December 2020 and January 2021, and had asked two friends to monitor
his mail. He further said that these friends had not informed him that he had received
mail from the court, that he had not had any knowledge that a complaint had been filed
until he met with his lawyer on June 24, 2021, and that Brookhaven had never made any
demands for payment from him. Motion for Relief from Judgment (June 30, 2021), p. 2.
Kessler also alleged that he had a meritorious defense to the action. Id. at p. 2-3.
Kessler’s affidavit was attached to the motion, outlining various facts supporting his claims
about service and his request for relief.
{¶ 14} On July 1, 2021, the clerk sent Brookhaven a failure of service notification
concerning tracking number 9414726699042175108098, indicating that service had not
been perfected due to “Civil Unsuccessful Service.” The comment was: “Attempted Not
Known.”
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{¶ 15} Brookhaven filed a response to Kessler’s motion on July 15, 2021. The
trial court then overruled the motion for relief from judgment on October 25, 2021. This
timely appeal followed.
I. Perfection of Service
{¶ 16} Kessler’s first assignment of error states that:
The Trial Court Committed an Error of Law and/or Abused Its
Discretion When It Found That Service Had Been Perfected on Appellant
Bruce Kessler.
{¶ 17} Under this assignment of error, Kessler argues that the trial court erred in
rejecting his motion because he was never properly served with the complaint.
Specifically, Brookhaven’s request for service by ordinary mail preceded the
determination that certified mail had failed, in violation of Civ.R. 4.6(D). In response to
this argument, Brookhaven argues that there is no evidence that it failed to accomplish
service in a manner reasonably calculated to inform Kessler of the action.
{¶ 18} The trial court’s decision was quite brief and did not discuss all the factors
relevant to relief from judgment under Civ.R. 60(B). Instead, the court simply stated that:
Specifically, the Court notes that successful service was perfected on
Defendant Kessler at his home via regular mail on December 29, 2020.
Although Defendant Kessler claims he was frequently out of town and had
others checking his mail, the Court finds this does not arise to the level of
excusable neglect and further notes that the service of the Complaint to
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Defendant Kessler’s home address was reasonably calculated to apprise
him of the pendency of this action.
Decision, Order, and Entry Overruling Motion to Set Aside Judgment (Oct. 25, 2021)
(“Decision”), p. 2.
{¶ 19} As a preliminary point, Kessler did not need to file a Civ.R. 60(B) motion,
nor did he have to establish entitlement to relief under that rule. “It is axiomatic that for
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). Accord Knickerbocker Properties, Inc. XLII v. Delaware Cty. Bd. of Revision, 119
Ohio St.3d 233, 2008-Ohio-3192, 893 N.E.2d 457, ¶ 20. “The authority to vacate a void
judgment is not derived from Civ.R. 60(B) but rather constitutes an inherent power
possessed by Ohio courts.” Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941(1988),
paragraph four of the syllabus. See also Midland Funding, L.L.C. v. Dixon, 2d Dist.
Greene No. 2013-CA-27, 2013-Ohio-5052, ¶ 7.
{¶ 20} Despite the fact that the appropriate procedure was a common law motion
to vacate rather than a Civ.R. 60(B) motion, the applicable review standard is whether the
trial court abused its discretion. This is the same standard used to evaluation decisions
on Civ.R. 60(B) motions. E.g., Flaugher v. Flaugher, 2020-Ohio-299, 143 N.E.3d 623,
¶ 9 (2d Dist.); Teeters v. Jeffries, 12th Dist. Clermont No. CA2021-02-007, 2021-Ohio-
2985, ¶ 16; Erin Capital Mgt., L.L.C. v. Fournier, 10th Dist. Franklin No. 11AP-483, 2012-
Ohio-939, ¶ 16.
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{¶ 21} “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,
arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “It is to be
expected that most instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary.” Id. “A
decision is unreasonable if there is no sound reasoning process that would support” it.
Id.2
{¶ 22} The issue here is whether Kessler was properly served. If not, the default
judgment would have been void. “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.” Carter-Jones Lumber Co. v. Meyers, 2d Dist. Clark No. 2005-
CA-97, 2006-Ohio-5380, ¶ 11, citing Akron-Canton Regional Airport Auth. v. Swinehart,
62 Ohio St.2d 403, 406, 406 N.E.2d 811 (1980). “The plaintiff bears the burden of
obtaining proper service on a defendant.” Id., citing Cincinnati Ins. Co. v. Emge, 124
Ohio App.3d 61, 63, 705 N.E.2d 408 (1st Dist.1997). “In those instances where the
plaintiff follows the Civil Rules governing service of process, courts presume that service
is proper unless the defendant rebuts this presumption with sufficient evidence of non-
service.” Id.{¶ 23} The threshold issue, then, is whether Brookhaven followed the rules
2
In its brief, Brookhaven has cited authority indicating that an abuse of discretion
“connotes more than an error of law or judgment.” Brookhaven Brief at p. 12. The
Supreme Court of Ohio has recently rejected this formulation, stressing that “a court does
not have discretion to misapply the law.” Johnson v. Abdullah, Ohio Slip Opinion No.
2021-Ohio-3304, __ N.E.3d __, ¶ 38.
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governing service of process. Civ.R. 4.1 allows service to be made in various ways,
including certified mail, personal service, or residence service. See Civ.R. 4.1(A)(1)(a),
(B), and (C). Where certified mail is involved, Civ.R. 4.1(A)(2) provides: “If the return
shows failure of delivery, the clerk shall forthwith notify the attorney of record or, if there
is no attorney of record, the party at whose instance process was issued and enter the
fact and method of notification on the appearance docket. The clerk shall file the return
receipt or returned envelope in the records of the action.” Likewise, where personal
service fails, Civ.R. 4.1(B) instructs the clerk to follow the notification procedures in Civ.R.
4.1(A)(2).
{¶ 24} In the case before us, the clerk did follow the notification procedures for
failure of personal service by notifying Brookhaven’s attorney on December 14, 2020, of
a failure of service for tracking number CVPS000000000048715. This was the tracking
number assigned to the personal service request.
{¶ 25} However, for reasons that are unclear from the record, the clerk did not
follow the notification procedures for the failure of certified mail service. Instead, the
clerk failed to file the returned certified mail envelope until June 9, 2021, which was
months after service was issued and after the default judgment was granted.
{¶ 26} What appears to have happened (at least based on the record before us) is
that Brookhaven’s attorney mistakenly assumed that the December 14, 2020 failure of
service notification related to the certified mail service, which had been issued on
December 1, 2020. However, the tracking number for the certified mail service was
9414726699042175108098. This was quite different than the tracking number used for
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the personal service. In addition, the comment on the failure of service notification stated
that the reason for failure was “never got an answer at door or a call back.” This remark
clearly did not relate to certified mail service.
{¶ 27} In situations where certified mail is unclaimed, Civ.R. 4.6(D) allows service
by ordinary mail. As pertinent here, Civ.R. 4.6(D) provides that:
If a United States certified or express mail envelope attempting
service within or outside the state is returned with an endorsement stating
that the envelope was unclaimed, the clerk shall forthwith notify the attorney
of record * * * and enter the fact and method of notification on the
appearance docket. If the attorney, * * * after notification by the clerk, files
with the clerk a written request for ordinary mail service, the clerk shall send
by United States ordinary mail a copy of the summons and complaint or
other document to be served to the defendant at the address set forth in the
caption, or at the address set forth in written instructions furnished to the
clerk. The mailing shall be evidenced by a certificate of mailing which shall
be completed and filed by the clerk. Answer day shall be twenty-eight days
after the date of mailing as evidenced by the certificate of mailing. The
clerk shall endorse this answer date upon the summons which is sent by
ordinary mail. Service shall be deemed complete when the fact of mailing
is entered of record, provided that the ordinary mail envelope is not returned
by the postal authorities with an endorsement showing failure of delivery.
If the ordinary mail envelope is returned undelivered, the clerk shall forthwith
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notify the attorney, or serving party.
(Emphasis added.)
{¶ 28} This rule allows an attorney to ask the clerk to issue service by ordinary mail
after the clerk notifies the attorney that certified mail service has failed. However, since
the clerk had not yet notified Brookhaven’s attorney that certified mail service had failed,
ordinary mail service was not appropriate when Brookhaven filed its request. Again,
what appears to have happened is that Brookhaven’s attorney believed the December
14, 2020 notice of failure of service applied to the certified mail service rather than to the
previously-failed personal service.
{¶ 29} As indicated in the statement of facts, Brookhaven requested ordinary mail
service on December 28, 2020. One month later, the trial court sent a default notification
because service “had been perfected” on Kessler and he had not answered or appeared
in the action. This notice was erroneous since service had not been perfected at that
point.
{¶ 30} Notably, Civ.R. 4.6(E) places responsibility on attorneys for verifying
service. In this regard, the rule states that: “The attorney of record or the serving party
shall be responsible for determining if service has been made and shall timely file written
instructions with the clerk regarding completion of service notwithstanding the provisions
in Civ.R. 4.1 through 4.6 which instruct a clerk to notify the attorney of record or the
serving party of failure of service of process.” Thus, when the trial court sent a default
notice on January 28, 2021, Brookhaven’s attorney was responsible for verifying that
service had been made. The trial court’s entry also stressed this point by admonishing
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Brookhaven to review its file “to ascertain whether or not default proceedings pursuant to
Civil Rule 55 are in order at this time.” Notice (Default) (Jan. 28, 2021), p. 1.
{¶ 31} Rather than following these instructions, Brookhaven filed a motion for
default judgment on February 2, 2021, and the default judgment was granted the same
day. Had the file been reviewed at that time, it would have indicated that the clerk had
not filed a return regarding certified mail service.
{¶ 32} In responding to Kessler’s argument, Brookhaven argues that service was
perfected because it was “reasonably calculated” to inform Kessler of the action.
Brookhaven relies on the fact that a copy of the motion for default judgment was mailed
to Kessler at the address listed in the complaint. Brookhaven further contends that even
if it “jumped the gun” by prematurely using ordinary mail service, service was sent to an
address where there was a reasonable expectation that Kessler would receive it
(Kessler’s home address). Since the ordinary mail was not returned to the court,
Brookhaven argues there was a “reasonable expectation” that it would have been
delivered to Kessler.
{¶ 33} Brookhaven does not provide specific authority for these contentions but
does point to one case in which we discussed the fact that a party had “jumped the gun”
by sending ordinary mail at the same time certified mail was sent. Brookhaven Brief at
p. 18, discussing In re S.A., 2d Dist. Montgomery No. 25532, 2013-Ohio-3047. This was
in response to Kessler’s use of S.A. as authority. Id. However, S.A. and the case on
which it relied differed in important ways from the current situation.
{¶ 34} S.A. involved change of custody proceedings in which the clerk sent the
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mother a summons by both certified mail and ordinary mail on April 30, 2012, for a custody
hearing that was to take place on July 16, 2012. The clerk then filed a notice on July 25,
2012, indicating that the certified mail was unclaimed. The ordinary mail was also never
returned. Id. at ¶ 3 and 11. Relying on another case in which the serving party had
“jumped the gun,” we concluded that a presumption of service arose because the ordinary
mail service had not been returned and that it was “reasonable to conclude” that service
had been perfected by ordinary mail on the mother. Id. at ¶ 12-13, discussing Cheatham
v. Cheatham, 2d Dist. Greene No. 92-CA-0057, 1992 WL 371846 (Dec. 18, 1992).
{¶ 35} Notably, however, we relied on the fact that the mother was not prejudiced
by the contemporaneous filings. In this regard, we stressed that “[s]ignificantly, Mother
provided the trial court with no evidentiary materials to support her claim that she did not
receive service of the summons at that address, and she appeared by seeking and
obtaining a continuance of the initial hearing date of July 16, 2012.” Id. at ¶ 13.
{¶ 36} Certainly, by appearing in the action, the mother could be said to have
waived defects in service. There is no question that parties may waive personal
jurisdiction by appearing and failing to properly raise the issue. E.g., Lundeen v. Turner,
164 Ohio St.3d 159, 2021-Ohio-1533, 172 N.E.3d 150, ¶ 19; State ex rel. Skyway Invest.
Corp. v. Ashtabula Cty. Court of Common Pleas, 130 Ohio St.3d 220, 2011-Ohio-5452,
957 N.E.2d 24, ¶ 16. This is not true in the case before us, since Kessler did not appear
in the action before default judgment was granted. In addition, unlike the mother in S.A.,
Kessler provided evidentiary materials to support his claim of lack of service.
{¶ 37} Cheatham involved two proceedings: a request to enforce a foreign support
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order and a subsequent motion to determine support. The initial request was served by
certified mail, which was unclaimed. Cheatham, 2d Dist. Greene No. 92-CA-0057, 1992
WL 371846, at *1. Subsequently, the clerk served the defendant with copies of the
registration of the foreign support order; the defendant then moved to vacate the order
based on lack of subject matter jurisdiction and lack of service under R.C. 3115.32(F).3
The trial court rejected both claims, finding that it had both subject matter and personal
jurisdiction, and it registered the order. Id. The prosecuting attorney subsequently filed
to establish the current child support and alimony arrearage, and certified mail and
ordinary mail were issued at the same time. As before, the certified mail was returned
as “unclaimed,” and the ordinary mail service was not returned. Id.{¶ 38} On appeal, we rejected the defendant’s contention that he was not properly
served with notice of the May 1992 hearing on the support arrearage. We noted that
due to the defendant’s previous failure to claim certified mail service, there was little
likelihood that he would claim certified service, and ordinary service would be needed.
Id. More importantly, we failed to see any prejudice, because the defendant “did not
dispute that he received regular mail notice of the May 19, 1992 hearing in time to defend
the motion.” Id. at *3. Again, this was not the situation in the case before us.
3 R.C. 3115.32 was part of the Uniform Reciprocal Enforcement of Support Act,
(“URESA”) and was repealed when new provisions relating to enforcement of support
orders were enacted. See H.B. 352, 1997 Ohio Laws 79. Under URESA, a foreign
support order was first registered and confirmed, and a prosecuting attorney would then
proceed to enforce the order. See Lambright v. Pullen, 6th Dist. Lucas No. L-87-279,
1988 WL 57506, *4 (June 3, 1988) (discussing R.C. 3115.32(F)). “The law was changed
in January 1998, so that R.C. Chapter 3115, which contained URESA, was repealed and
replaced by the Uniform Interstate Family Support Act.” Walker v. Amos, 140 Ohio
App.3d 32, 37, 746 N.E.2d 642 (1st Dist.2000).
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{¶ 39} Furthermore, unlike both S.A. and Cheatham, there is a dispute here about
whether the certified mail was returned as “unclaimed.” While that word appears in
handwriting on the certified mail envelope, there was no indication of the identity of the
individual who made this comment. Moreover, the label apparently affixed by the Post
Office stated “Return to Sender,” “Attempted – Not Known,” and “Unable to Forward.”
Failure of Service Notification (July 1, 2021), p. 2. Although the certified mail envelope
was filed after the default judgment was granted, this evidence was in the record before
the trial court ruled on the motion for relief from default judgment.
{¶ 40} The Supreme Court of Ohio has previously distinguished between
“Unclaimed” mail and mail that is marked “Attempted – Not Known.” Specifically, the
court remarked that “the endorsement ‘Unclaimed’ means that the reason for nondelivery
was that the ‘[a]ddressee abandoned or failed to call for mail,’ while the endorsement
‘Attempted – Not Known’ means ‘[d]elivery attempted, addressee not known at place of
address.’ ” In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582,
¶ 22, quoting The United States Postal Service, Domestic Mail Manual, Section 507,
Exhibit 1.4.1, available at http://pe.usps.gov/text/dmm300/507.htm.4
{¶ 41} The court further noted in Thompkins that:
When a postal return reads “Attempted Not Known,” no purpose
would be served by a follow-up ordinary mail letter sent to the same
address. The “Unclaimed” designation implies that the person may in fact
4 This definition has remained the same. See United States Postal Service, Domestic
Mail Manual, Section 507, Exhibit 1.4.1, http://pe.usps.gov/text/dmm300/507.htm
(accessed Mar. 21, 2022).
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reside or receive mail at the designated address but for whatever reason
has chosen not to sign for the certified mail. In that situation, a follow-up
communication by ordinary mail is reasonably calculated to provide the
interested party with notice and an opportunity to be heard. Such a
communication, not returned, bears a strong inference that the intended
recipient received the letter. This is not so, however, with ordinary mail
following the return of a certified letter with the endorsement “Attempted Not
Known.” The inference then is that the intended recipient does not reside
or receive mail at the designated address and is not known to the residents
there. A follow-up letter in these circumstances would not permit a similar
inference of receipt.
Id. at ¶ 23.
{¶ 42} Due to the inconsistency in the certified mail envelope filed with the clerk of
courts, we cannot conclude that a presumption of service attached. The most that can
be said is that a dispute existed, given that contradictory descriptions appeared.
{¶ 43} The only further evidence before the court in the context of the motion to
vacate was Kessler’s affidavit, in which Kessler said that he did not have notice of the
complaint against him until he received it during a visit with his attorney on June 24, 2021.
Kessler further explained that he was out of town during relevant periods of time and had
asked two separate friends to collect his mail and to preserve anything important.
According to Kessler, these individuals did not inform him that he had received a letter
from the Montgomery County Clerk of Courts. Finally, Kessler also stated that he had
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not received any demands for payment from Brookhaven. Motion for Relief from
Judgment (June 30, 2021), Kessler Affidavit, ¶ 1-7.
{¶ 44} Brookhaven argues that Kessler should have submitted evidence from
these friends, and that the trial court was not required to accept his affidavit as credible.
However, the court’s decision was not based on lack of credibility; it was primarily based
on a finding that Kessler failed to demonstrate “excusable neglect.” Decision at p. 2. As
noted, Kessler was not required to prove excusable neglect; he only had to establish a
lack of service. Carter-Jones Lumber, 2d Dist. Clark No. 2005-CA-97, 2006-Ohio-5380,
at ¶ 10. The court also failed to consider the failure of notification and the inconsistency
in the notations on the certified mail envelope.
{¶ 45} Accordingly, the trial court erred in analyzing the motion to vacate, and its
decision was based on unsound reasoning. Kessler’s first assignment of error therefore
is sustained.
III. Failure to Hold Evidentiary Hearing
{¶ 46} Kessler’s second assignment of error states that:
The Trial Court Committed an Error of Law and/or Abused Its
Discretion By Failing to Hold a Hearing Before Ruling on Appellant Bruce
R. Kessler’s Motion for Relief From Judgment.
{¶ 47} Under this assignment of error, Kessler argues that the trial court erred in
failing to hold a hearing on whether he had been properly served. In support of this
position, Kessler has cited Portfolio Recovery Assocs., L.L.C. v. Thacker, 2d Dist. Clark
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No. 2008-CA-119, 2009-Ohio-4406. In Portfolio Recovery, the defendant was served at
her residence address by certified mail, which was unclaimed. Ordinary mail service
was then sent to the same address. Id. at ¶ 2. The defendant was not, however, served
with a copy of the motion for default judgment; our opinion also does not indicate whether
a copy of the default judgment was sent to her. Id. at ¶ 2-3.
{¶ 48} In any event, the defendant filed a motion to vacate the default judgment
shortly after it had been filed, and she submitted an affidavit claiming she had not received
the complaint or the default judgment entry. Id. at ¶ 5. The trial court overruled the
motion without holding a hearing. Id. at ¶ 7-8.
{¶ 49} On appeal, we concluded that “when process was sent to a defendant at
the defendant's correct address and the defendant has only his self-serving testimony
that he did not receive service of process, the court must hold a hearing to determine
whether service was proper.” Id. at ¶ 31, citing Sec. Nat. Bank & Trust Co. v. Murphy,
2d Dist. Clark No. 2552, 1989 WL 80954 (July 20, 1989).
{¶ 50} Unlike the present case, the clerk in Portfolio Recovery appears to have
properly complied with procedures for service. Therefore, the case is not controlling.
{¶ 51} Nonetheless, there is disputed evidence here about whether service was,
in fact, “Unclaimed” or was “Attempted – Not Known.” There is also some confusion
about the proper zip code. The default notice, the motion for default judgment, and the
default judgment entry were all sent by ordinary mail to the 903 Avery Lane address,
which is also the address listed on Kessler’s affidavit. However, the zip code on these
documents and on the service documents was 45322, whereas the zip code on Kessler’s
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affidavit was 45321. Whether this played a factor in the alleged lack of service is
unknown. Consequently, a hearing could be beneficial in determining whether service
was achieved.
{¶ 52} Based on the preceding discussion, the second assignment of error is
sustained. This cause will be remanded for a hearing on the service of process.
IV. Relief Under Civ.R. 60(B)
{¶ 53} Kessler’s third assignment of error is as follows:
The Trial Court Abused Its Discretion By Denying Appellant Bruce R.
Kessler’s Motion for Relief from Judgment Pursuant to Civ.R. 60(B)(1) and
Civ.R. 60(B)(5).
{¶ 54} As an alternative argument, Kessler contends that his motion should have
been granted under Civ.R. 60(B), because he had a meritorious defense, his failure to
appear was the result of excusable neglect under Civ.R. 60(B)(1) or (5), and the motion
was timely filed. In view of our resolution of the first two assignments of error, we need
not address this assignment of error. However, on remand, Kessler may make whatever
arguments he deems necessary concerning relief from judgment under Civ.R. 60(B).
VI. Conclusion
{¶ 55} The judgment of the trial court is reversed, and this matter is remanded for
further proceedings consistent with this opinion.
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TUCKER, P.J. and LEWIS, J., concur.
Copies sent to:
Alexander W. Cloonan
R.C. Wiesenmayer
Hon. Dennis J. Adkins