Midland Funding, L.L.C. v. Cherrier

2020 Ohio 3280

MIDLAND FUNDING, L.L.C., Plaintiff-Appellee, v. NATHAN CHERRIER, Defendant-Appellant.

No. 108595

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

June 11, 2020

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-08-679103

Appearances:

Law Office of J. Michael Goldberg, L.L.C., and J. Michael Goldberg, for appellant.

EILEEN T. GALLAGHER, A.J.:

{¶ 1} Defendant-appellant, Nathan Cherrier ("Cherrier"), appeals the denial of his motions to vacate a default judgment and to dismiss the complaint. He claims three errors:

1. The trial court erred as a matter of law in denying defendant-appellant's motion to vacate the void default judgment.

2. The trial court abused its discretion by disregarding unrefuted sworn testimony that defendant did not reside at the address where service of process was attempted.

3. The trial court erred as a matter of law in denying defendant-appellant's motion to dismiss the complaint.

{¶ 2} We find merit to the appeal, reverse the trial court's judgment, and remand the case to the trial court to vacate the default judgment.

I. Facts and Procedural History

{¶ 3} Plaintiff-appellee, Midland Funding L.L.C. ("Midland"), filed a complaint to recover a debt on December 22, 2008. The clerk of the Cuyahoga County Common Pleas Court sent service of the complaint by certified mail to 3365 Tullamore Road, in Cleveland Heights, Ohio (the "Tullamore address"). The mailing was returned to the clerk as "unclaimed." The clerk subsequently sent service of the complaint to the Tullamore address by ordinary mail on February 4, 2009. This mailing was not returned to the clerk, and no answer to the complaint was filed. Consequently, in May 2009, the court entered a default judgment against Cherrier in the amount of $1,785.46, plus costs and statutory interest from the date of judgment.

{¶ 4} Nine and half years later, on October 8, 2018, Midland filed a postjudgment motion to revive the default judgment, which had become dormant. Once again, Midland filed instructions with the clerk of courts to serve the motion and summons by certified mail to Cherrier at the Tullamore address. The mailing was returned "unclaimed" on November 4, 2018. Per Midland's request, the clerk subsequently sent service of the motion and summons to the Tullamore address by ordinary mail on December 27, 2018. On January 25, 2019, Cherrier filed a motion to quash service of the motion and to dismiss the complaint, arguing the trial court lacked personal jurisdiction to render a judgment against him in 2009 because he was never properly served with the complaint.

{¶ 5} The trial court held a hearing on Midland's motion to revive a dormant judgment and on Cherrier's motions to quash service of summons and to dismiss the complaint. Cherrier testified that he was not living at the Tullamore address in December 2008, when the complaint was filed and service was attempted. (Tr. 12-13.) Cherrier lived temporarily with his mother at that address from sometime in 2007 until July 2008, when he moved to Willoughby, Ohio. (Tr. 13.) Cherrier explained that he moved out of his mother's house because he had a "contentious" relationship with her and they rarely spoke to each other. (Tr. 14.) Cherrier had his mail forwarded from the Tullamore address in July 2008, but did not remember how long the mail was forwarded to his new address. Cherrier testified that he had no knowledge that he had been sued until his mother contacted him when she received Midland's motion to revive a dormant judgment in January 2019. (Tr. 15.)

{¶ 6} Following the hearing, the court denied Midland's motion to revive the dormant judgment and denied Cherrier's motion to quash the service of process relating to Midland's motion to revive a dormant judgment as moot. The court converted Cherrier's motion to dismiss the complaint into a motion for relief from judgment and denied it. The court found that Cherrier was properly served with the complaint by ordinary mail in January 2009, since the ordinary mail service was sent to his last known address. The court's judgment entry further held that Midland has until May 14, 2024, to file another motion to revive the dormant judgment. This appeal followed.

II. Law and Analysis

A. Motion to Vacate

{¶ 7} In the first assignment of error, Cherrier argues the trial court erroneously failed to vacate the default judgment. He contends the default judgment is void because Midland failed to perfect service on him and, therefore, the trial court lacked personal jurisdiction to render a judgment against him. Cherrier also contends the court erred in converting his motion to vacate the default judgment into a motion for relief from judgment under Civ.R. 60(B) because the default judgment was void.

{¶ 8} In the second assignment of error, Cherrier argues the trial court abused its discretion by failing to consider the unrefuted sworn testimony that (1) Cherrier did not reside at the Tullamore address where service was attempted in December 2008 and February 2009, and (2) Cherrier did not receive notice of the lawsuit until Midland attempted to revive the default judgment, almost ten years after Midland attempted to serve him with the complaint and summons. We discuss these assigned errors together because they are closely related.

{¶ 9} A trial court cannot render judgment against a defendant over whom it has no personal jurisdiction. "[T]o enter a valid judgment, a court must have personal jurisdiction over the defendant." Mayfran Intl., Inc. v. Eco-Modity, L.L.C., 2019-Ohio-4350, 135 N.E.3d 792, ¶ 9 (8th Dist.), citing Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). A judgment rendered without personal jurisdiction is void. GGNSC Lima, L.L.C. v. LMOP, L.L.C., 8th Dist. Cuyahoga No. 105910, 2018-Ohio-1298, ¶ 14, citing Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph three of the syllabus.

{¶ 10} A court does not acquire personal jurisdiction over a defendant unless and until the defendant is properly served with the complaint and summons or the defendant makes an appearance in the case. State ex rel. Ballard v. O'Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650 (1990), syllabus. Since it is undisputed that Cherrier never made an appearance in the case, and Midland never obtained service by certified mail, the issue in this case is whether Cherrier was properly served by ordinary mail.

{¶ 11} Service of process, which is governed by Civ.R. 4.1 through 4.6, must be made in a manner reasonably calculated to apprise the defendant of the action and to afford him an opportunity to respond. Akron-Canton Regional Airport Auth. v. Swinehart, 62 Ohio St.2d 403, 406, 406 N.E.2d 811 (1980). As relevant here, Civ.R. 4.6(D) provides that when service of the complaint is returned "unclaimed," the serving party may attempt to serve the defendant by ordinary mail. Under Civ.R. 4.6(D),¹ service by ordinary mail is deemed complete only 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." Civ.R. 4.6(D).

{¶ 12} The plaintiff bears the burden of obtaining proper service on a defendant. Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d 61, 63, 705 N.E.2d 408 (1st Dist.1997). 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 nonservice. Hook v. Collins, 8th Dist. Cuyahoga No. 104825, 2017-Ohio-976, ¶ 14, citing Carter-Jones Lumber Co. v. Meyers, 2d Dist. Clark No. 2005 CA 97, 2006-Ohio-5380, ¶ 11. "Where the defendant files a motion to vacate judgment, and swears under oath that he or she did not reside at the address to which process was sent, the presumption is rebutted, and it is incumbent upon the plaintiff to produce evidence demonstrating that defendant resided at the address in question." Id., quoting Watts v. Brown, 8th Dist. Cuyahoga No. 45638, 1983 Ohio App. LEXIS 15311, 14-15 (Aug. 4, 1983).

{¶ 13} We review the trial court's judgment regarding the validity of service for an abuse of discretion. GGNSC Lima, L.L.C., 8th Dist. Cuyahoga No. 105910, 2018-Ohio-1298, at ¶ 15. A trial court abuses its discretion when, among other things, it "applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact." Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.), citing Berger v. Mayfield Hts., 265 F.3d 399, 402 (6th Cir.2001).

{¶ 14} Cherrier testified under oath at the hearing that he moved away from the Tullamore address in July 2008, because his relationship with his mother was "contentious." (Tr. 13-14.) Since service was not attempted at that address until December 2008, Cherrier moved away from the Tullamore address at least five months before service was attempted. Cherrier testified that he never received the complaint or summons and had no knowledge that he had been sued until January 2019, when his mother received the motion to revive a dormant judgment. (Tr. 14-15.) Cherrier testified that his mother never contacted him to inform him that she received mail in his name from the Cuyahoga County Clerk of Courts in December 2008 or early 2009.

{¶ 15} Midland elicited no testimony and presented no evidence to refute Cherrier's testimony that he did not live at the Tullamore address when process was attempted there. Moreover, the trial court never indicated that it found Cherrier's testimony incredible. Indeed, there is no evidence that the trial court considered Cherrier's testimony at all. The trial court's judgment entry states, in relevant part:

Upon review of the docket[,] the certified mail receipt came back unclaimed on 1/12/2009 from the Tullamore address. Pursuant to OH Civ. Rule

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