G.F.S. Leasing Management v. MacK, Unpublished Decision (6-27-2000)
G.F.S. Leasing Management v. MacK, Unpublished Decision (6-27-2000)
Opinion of the Court
OPINION
Defendant-appellant Mable S. Mack appeals from the December 9, 1999, Judgment Entry of the Stark County Court of Common Pleas in Case No. 1998CV01182 and the December 17, 1998, Judgment Entry of the Stark County Court of Common Pleas in Case No. 1999CV01101.STATEMENT OF THE FACTS AND CASE, Appellant Mable S. Mack is a resident of Altercare of Canton, a nursing home located at 820-836 34th St., N.W., in Canton. On October 6, 1998, appellee GFS Leasing Management, Inc., dba Altercare of Canton filed a complaint on account against appellant and her son, Guy Mack, Jr. in the Stark County Court of Common Pleas (Case No. 1998CV01882). The case was assigned to Judge Lee Sinclair. Appellee, in its complaint, alleged that appellant and her son owed appellee $20,638.28 for "care and services" plus any additional amounts due for care and services which were not reimbursed by Medicaid. Pursuant to an agreement with appellee, Guy Mack, Jr., appellant's son, had agreed to use all of appellant's funds to pay appellee for appellant's nursing care and services. Appellee, in its complaint, alleged that Guy Mack, Jr. had breached such agreement. Guy Mack, Jr. was served by certified mail with a copy of the complaint on October 8, 1998. With respect to appellant, the summons and complaint, which were sent by certified mail, were addressed as follows: Mable S. Mack, c/o Altercare of Canton, 820-836 34th St. N.W., Canton, OH 44709. An employee at appellee's nursing home signed the certified mail receipt on appellant's behalf on October 8, 1998. After appellant and her son failed to file an answer to appellee's complaint, appellee filed an Application for Default Judgment on November 18, 1998. Pursuant to a Judgment Entry filed the next day, appellee was granted judgment against appellant and her son, jointly and severally, in the amount of $20,638.28 "plus any additional amounts due for care and services rendered hereafter which are not reimbursed by Medicaid, together with late charges and costs of suit." Thereafter, a Certificate of Judgment for Lien Upon Land and Tenements was filed on December 8, 1998. Subsequently, appellee on May 13, 1999, filed a complaint for foreclosure against appellant, her son (Guy Mack, Jr.), the Stark County Treasurer, and Kimberly A. Varney in the Stark County Court of Common Pleas (Case No. 1999CV01102) seeking to foreclose on real property owned by appellant. The case was assigned to Judge Richard Reinbold. Guy Mack, Jr. was served by certified mail with a copy of the summons and complaint on May 15, 1999. Once again, the summons and complaint were addressed to "Mable S. Mack c/o Altercare of Canton, 820-836 34th St. N.W., Canton, Ohio 44709." An employee at appellee's nursing home signed the certified mail receipt on appellant's behalf. Although an answer was filed by Kimberly A. Varney on May 24, 1999, and an answer and cross-claim were filed by the Stark County Treasurer on June 9, 1999, neither appellant nor her son filed an answer to the complaint. Thereafter, a Judgment and Decree of Foreclosure was filed on August 31, 1999, in Case No. 1999CV01102. On November 1, 1999, the subject property was sold at a Sheriff's Sale. Appellant, on November 19, 1999, filed a Motion to Vacate Judgment in Case No. 1998CV01882 seeking to vacate and set aside the default judgment entered against her in such case. On the same date, appellant filed a Motion to Vacate Judgment in Case No. 1999CV01102. In such case, the decree of confirmation of the Sheriff's Sale had yet to be filed. Appellant, in both Motions to Vacate, alleged that the trial court lacked personal jurisdiction over her since she was not properly served with the summons and complaint in either case and that, therefore, the judgments against her were void ab initio. Pursuant to an assignment notice filed on November 22, 1999, Judge Sinclair scheduled a non-oral hearing in Case No. 1998CV01182 on appellant's Motion to Vacate Judgment for December 16, 1999. Thereafter, appellee filed responses to both Motions to Vacate on November 24, 1999. After appellant filed a supplemental memorandum in support of her Motion to Vacate in Case No. 1999CV01102 (the foreclosure), Judge Reinbold scheduled an oral hearing for January 7, 2000. However, after Judge Sinclair denied the Motion to Vacate Judgment that had been filed by appellant in Case No. 1998CV01882 pursuant to a Judgment Entry filed on December 9, 1999, Judge Reinbold denied appellant's Motion to Vacate Judgment in Case No. 1999CV0112 pursuant to a Judgment Entry filed on December 17, 1999, without holding the scheduled oral hearing. Both Motions to Vacate were denied for the same reasons, namely, that appellant had failed to establish the basis for her motions and failed to establish a meritorious defense to appellee's claims as is required by Civ.R. 60(B). It is from the December 9, 1999, Judgment Entry in Case No. 1998CV01882 and the December 17, 1999, Judgment Entry in Case No. 1999CV01102 that appellant prosecutes her appeal, raising the following assignment of error:
THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF DEFENDANT-APPELLANT IN FAILING TO SET ASIDE THE DEFAULT JUDGMENT ENTERED AGAINST HER; THE TRIAL COURT ERRONEOUSLY APPLIED THE REQUIREMENTS OF CIVIL RULE 60(B) AND FURTHER FAILED TO FIND THE DEFAULT JUDGMENT VOID AB INITIO FOR LACK OF PERSONAL SERVICE.
The judgment of the Stark County Court of Common Pleas is affirmed.
__________________ EDWARDS, J.
By Edwards, J. Farmer, P.J. and Wise, concurs
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