Claims Management Services, Inc. v. Tate, Unpublished Decision (9-29-2000)
Claims Management Services, Inc. v. Tate, Unpublished Decision (9-29-2000)
Opinion of the Court
OPINION
Plaintiffs-appellants, Claims Management Services, Inc., and James Cumbee, filed suit against defendant-appellee, Fred Tate, and his daughter, Tammi Tate, with respect to an automobile accident. Appellants served the complaint on appellee at his residence. Another of appellee's daughters, an adult who did not reside with appellee, signed the certified mail receipt. Appellee failed to answer or otherwise appear in the action. Consequently, on August 31, 1998, the trial court granted a default judgment against him.On October 26, 1999, appellee filed a motion for relief from judgment pursuant to Civ.R. 60(B), in which he claimed that he did not receive service of process. After a hearing, the trial court found that appellee did not receive the summons and complaint, but that it was "intercepted by the co-defendant." It granted appellee's Civ.R. 60(B) motion, holding that because the court had not obtained personal jurisdiction over appellee, the judgment should be set aside.
In their sole assignment of error, appellants state that the trial court erred in granting appellee's motion for relief from judgment. They argue that service was proper and that appellee's motion was not timely filed. This assignment of error is well taken.
Appellee is correct in the assertion that a default judgment entered without proper service of process is void. State ex rel.Ballard v. O'Donnell (1990),
"[C]ertified mail, under the Rules of Civil Procedure, no longer requires actual service upon the party receiving the notice, but is effective upon certified delivery." Castellano v.Kosydar (1975),
Nevertheless, the propriety of granting appellee's Civ.R. 60(B) motion for relief from judgment is a separate issue. SeeCaldwell, supra. Some courts have held that even though service was proper, the lack of actual notice of the pending suit constitutes excusable neglect, justifying relief from judgment under Civ.R. 60(B)(1). See Doddridge v. Fitzpatrick (1978),
Civ.R. 60(B) requires that a motion seeking relief under subsections (1), (2), or (3) be filed within one year of the entry of the judgment. Strack v. Pelton (1994),
Accordingly, we hold that the trial court abused its discretion in granting appellee's Civ.R. 60(B) motion for relief from judgment. See Strack, supra, at 174,
Judgment accordingly. WINKLER and SHANNON, JJ., concur.
RAYMOND E. SHANNON, retired, from the First Appellate District, sitting by assignment.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.