Shankle v. Egner

Ohio Court of Appeals May 7, 2012

Shankle v. Egner, 2012 Ohio 2027 (2012)

Wise

Opinion

[Cite as Shankle v. Egner,

2012-Ohio-2027

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JACQUELINE SHANKLE JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J. -vs- Case Nos. 2011 CA 00121 and MOLLY ELIZABETH EGNER 2011 CA 00143

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2011 CV 00408

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 7, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ALLEN SCHULMAN ADAM E. CARR SCHULMAN ZIMMERMAN & ASSOC. THE CARR LAW OFFICE 236 Third Street, SW 5824 Akron-Cleveland Road, Suite A Canton, Ohio 44702 Hudson, Ohio 44236 Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 2

Wise, P. J.

{¶1} Defendant-appellant, Molly Egner, appeals from the April 29, 2011, and

the June 23, 2011, Judgment Entries of the Stark County Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant Molly Egner and appellee Jacqueline Shankle were involved in a

motor vehicle accident on or about September 15, 2009. On February 3, 2011, appellee

filed a personal injury complaint against appellant in the Stark County Court of Common

Pleas, seeking compensatory damages in excess of $25,000.00.

{¶3} The summons and complaint, which had been sent to appellant via

certified mail to appellant’s address at the time of the accident, was returned on March

2, 2011. The endorsement from the United States Postal Service read as follows:

“RETURN TO SENDER UNCLAIMED UNABLE TO FORWARD.”

{¶4} On March 4, 2011, appellee’s counsel filed a Praecipe for Alias Summons,

asking that the complaint be served by regular U.S. Mail and requesting a certificate of

mailing. The March 4, 2011, docket entry says, “Instructions for service summons and

copies complaint sent to Molly Egner by ordinary mail.” On March 7, 2011, the Clerk of

Courts filed a certificate of mailing for an unspecified piece of mail to the same address

as used previously. The certificate indicated that the type of mail was “Return Receipt

for Merchandise.” The court docket indicates that a certificate of mailing for service was

filed by the clerk on March 7, 2011, evidencing that service was issued to appellant on

March 4, 2011, by the clerk.

{¶5} Appellant, on March 11, 2011, called the office of appellee’s counsel,

indicated that she had received legal documents from the court in the mail, and asked to Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 3

speak to appellee’s counsel. She was advised by the attorney’s office manager to

contact her insurance agent. On April 12, 2011, appellee filed a Motion for Default

Judgment against appellant. As memorialized in a Judgment Entry filed on April 14,

2011, the motion was granted and a damages hearing was scheduled for April 29,

2011. Pursuant to a Judgment Entry filed on April 29, 2011, the trial court granted

judgment in favor of appellee and against appellant in the amount of $120,000.00 plus

interest.

{¶6} Thereafter, appellant, on May 31, 2011, filed a Motion to Vacate a Void

Judgment; Motion for Relief from Judgment. Appellant, in her motion, alleged that the

judgment was void for lack of effective service of process and that she was entitled to

relief under Civ.R. 60(B)(1) and (5). Appellant alleged that liability was in dispute, that

the damages claimed by appellee were excessive and not authorized by law and that

she was not aware of the need to personally respond to the complaint and summons

because she had liability insurance. Attached to appellant’s motion was an affidavit in

which appellant stated, in relevant part, as follows:

{¶7} “(4) At the time of the accident I was living at 2721 Blackfriars Drive, NW,

Canton, Ohio 44708. I moved from that address in December 2010, approximately a

week before Christmas. I have not lived at that address since.

{¶8} “(5) None of the mailings from this court was addressed to my current,

correct address.”

{¶9} On May 31, 2011, appellant also filed a Notice of Appeal from the trial

court’s April 29, 2011, Judgment Entry. The Notice of Appeal was assigned Case No.

2011CA00121. Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 4

{¶10} This Court, pursuant to a Judgment Entry filed in Case No. 2011CA00121

on June 21, 2011, remanded the matter to the trial court to rule on the pending motions.

The trial court, via a Judgment Entry filed on June 23, 2011, denied appellant’s Motion

for Relief from Judgment. The trial court, in its Judgment Entry, found that appellant had

been appropriately served and had full notice of the litigation. The trial court noted that

appellant, after being served, had contacted the office of appellee’s counsel to discuss

the lawsuit and was told to contact her insurance carrier. The court further found that

there was no excusable neglect or other reason for relief from judgment.

{¶11} Appellant appealed from the trial court’s June 23, 2011, Judgment Entry.

The Notice of Appeal was assigned Case No. 2011CA00143.

{¶12} The two cases were consolidated by this Court pursuant to an Order filed

on July 14, 2011.

{¶13} Appellant now raises the following assignments of error on appeal:

ASSIGNMENTS OF ERROR

{¶14} “I. THE TRIAL COURT ERRED IN ENTERING A DEFAULT JUDGMENT

AGAINST A DEFENDANT WHO HAD NOT BEEN SERVED WITH PROCESS.

{¶15} “II. THE TRIAL COURT ERRED IN ENTERING A DEFAULT JUDGMENT

WITHOUT THE NOTICE REQUIRED BY CIVIL RULE 55(A).

{¶16} “III. THE TRIAL COURT ERRED IN ENTERING A DEFAULT

JUDGMENT IN AN AMOUNT THAT EXCEEDED THE AMOUNT PRAYED FOR IN

THE PLAINTIFF’S DEMAND FOR JUDGMENT.

{¶17} “IV. THE TRIAL COURT ERRED IN FAILING TO VACATE ITS OWN

VOID JUDGMENT. Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 5

{¶18} “V. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

GRANT RELIEF FROM THE JUDGMENT.

{¶19} “VI. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING

EXCESSIVE DAMAGES.”

{¶20} Appellant, in her First Assignment of Error, argues that the trial court erred

in entering a default judgment against her because she had not been served with

process.

{¶21} At issue in this case is whether or not appellant was properly served with

the summons and complaint. Appellee maintains that appellant was properly served by

ordinary mail after certified mail was returned unclaimed.

{¶22} Civ.R. 4.6(D) states as follows: “If a certified or express mail envelope is

returned with an endorsement showing that the envelope was unclaimed, the clerk shall

forthwith notify, by mail, the attorney of record or, if there is no attorney of record, the

party at whose instance process was issued. If the attorney, or serving party, after

notification by the clerk, files with the clerk a written request for ordinary mail service,

the clerk shall send by 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 Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 6

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 notify the attorney, or serving

party, by mail.”

{¶23} If the ordinary mail envelope is not returned, there is a rebuttable

presumption that proper service has been perfected. Hamilton v. Digonno, 12th Dist. No.

CA2005-03-075,

2005-Ohio-6552, ¶ 10

. This Court has held: “Courts will presume

service to be proper in cases where the civil rules are followed unless the defendant

rebuts the presumption by sufficient evidence.” State ex rel. Fairfield County CSEA v.

Landis, 5th Dist. No. 2002 CA 00014,

2002-Ohio-5432

, ¶ 17 citing Bank One Cincinnati,

N.A. v. Wells, 1st Dist. No. C-950279,

1996 WL 526702

(Sept. 18, 1996), citing In re

Estate of Popp,

94 Ohio App.3d 640, 650

641 N.E.2d 739

, (8th Dist. 1994).

{¶24} Where service of process is not made in accordance with the Rules of

Civil Procedure, the trial court lacks jurisdiction to consider the complaint, and any

judgment on that complaint is void ab initio. Rite Rug Co., Inc. v. Wilson,

106 Ohio App.3d 59, 62

665 N.E.2d 260

, (10th Dist. 1998). If service is defective a subsequent

default judgment is void. State ex rel Ballard v. O’Donnell,

50 Ohio St.3d 182

553 N.E.2d 650

(1990).

{¶25} Appellee contends that because ordinary mail was sent to appellant and

was never returned with an endorsement showing failure of delivery, the presumption is

that ordinary mail service was obtained. Appellee further contends that appellant never

denied receiving the summons and complaint and notes that appellant called the office Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 7

of appellee’s counsel on March 11, 2011 and stated that she had received legal

documents from the court in the mail.

{¶26} Upon review, we find, pursuant to Civ.R. 4.6(D), service by ordinary mail

was completed as evidenced by the Clerk’s docket entry on 3/7/11 which states

“Certificate of Mailing for service issued 03-04-2011 to Molly Egner” following the 3/4/11

entry stating “Instructions for service summons and copies of complaint sent to Molly

Egner by ordinary mail.”

{¶27} Civ.R. 4.6(D) states, in pertinent part:

{¶28} “… If the attorney, or serving party, after notification by the clerk, files with

the clerk a written request for ordinary mail service, the clerk shall send by 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. … 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.”

{¶29} While we find that the document in this case purporting to be a “certificate

of mailing” is not the usual type of document, we do not find such to be detrimental in

this case as Civ.R. 4.6(D) provides that service is deemed complete “when the fact of

mailing is entered of record,” and as the trial court speaks only through its journal, “the

fact of mailing is determined from the record, not through certificates and letters that are

not journalized” and because “the fact of mailing was entered into the record, and the

ordinary mail envelope was not returned to the court *** the presumption of completed Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 8

service attached.” Bowers v. Craven, 9th Dist. No. 2442,

2009-Ohio-2222

, citing Talarek

v. Miles (July 23, 1997), 9th District No. 96CA006567.

{¶30} Further, we find that there is evidence in this case that appellant did in fact

receive the summons and complaint as she telephoned the office of counsel for the

appellee upon receipt of such.

{¶31} Based on the foregoing, we find that service of the summons and

complaint were proper in this matter

{¶32} Appellant’s First Assignment of Error is overruled.

II.

{¶33} In her Second Assignment of Error, appellant claims that the trial court

erred in entering default without notice required by Civ.R. 55. We disagree.

{¶34} With respect to entry of default judgment, Civ.R. 55(A) provides, in

pertinent part, as follows:

{¶35} “If the party against whom judgment by default is sought has appeared in

the action, he (or, if appearing by representative, his representative) shall be served

with written notice of the application for judgment at least seven days prior to the

hearing on such application.”

{¶36} By its plain language, Civ.R. 55(A) prohibits a default judgment against a

party who has “appeared in the action” unless that party receives written notice of the

application for judgment at least seven days prior to the hearing on the application.

AMCA Internatl. Corp. v. Carlton,

10 Ohio St.3d 88, 91

(1984). When the trial court fails

to comply with Civ.R. 55(A), entry of default judgment is improper.

Id.

Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 9

{¶37} Applicability of the Civ.R. 55(A) notice requirement hinges on whether

Egner appeared in this action, despite her failure to file an answer

{¶38} Here, appellant argues that her telephone call to appellee’s counsel

constituted an entry of appearance and an intention to defend the lawsuit. However,

upon review, we find that appellant only asked appellee’s counsel what she should do

and was advised that she should contact her insurance carrier. There is no evidence

that appellant made any indication during such telephone call that she intended to

defend the lawsuit. We do not find that appellant entered an appearance requiring

notice pursuant to Civ.R. 55

{¶39} Appellant’s Second Assignment of Error is overruled.

III., VI.

{¶40} In her Third and Sixth Assignments of Error, appellant claims that the trial

court erred in awarding judgment in an amount that exceeded the amount prayed for in

the demand for judgment.

{¶41} Here, appellee’s prayer for relief sought an amount “in excess of Twenty-

five thousand dollars in compensatory damages and, in addition, interest, costs,

attorney fees and such other further relief to which Plaintiff may be entitled.”

{¶42} Civ.R.54(C) states:

{¶43} “A judgment by default shall not be different in kind from or exceed in

amount that prayed for in the demand for judgment. Except as to a party against whom

a judgment is entered by default, every final judgment shall grant the relief to which the

party in whose favor it is rendered is entitled, even if the party has not demanded the

relief in the pleadings.” Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 10

{¶44} Additionally, Civ.R. 8 requires:

{¶45} “(A) Claims for relief

{¶46} “A pleading that sets forth a claim for relief, whether an original claim,

counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain

statement of the claim showing that the party is entitled to relief, and (2) a demand for

judgment for the relief to which the party claims to be entitled. If the party seeks more

than twenty-five thousand dollars, the party shall so state in the pleading but shall not

specify in the demand for judgment the amount of recovery sought, unless the claim is

based upon an instrument required to be attached pursuant to Civ.R. 10. At any time

after the pleading is filed and served, any party from whom monetary recovery is sought

may request in writing that the party seeking recovery provide the requesting party a

written statement of the amount of recovery sought. Upon motion, the court shall require

the party to respond to the request. Relief in the alternative or of several different types

may be demanded.”

{¶47} Further, courts are not limited to only grant the relief requested in a

complaint. Civ.R. 54 authorizes courts to grant the relief to which a party is “entitled,”

regardless of whether the party has demanded the relief in the pleadings. See

Raimonde v. Van Vlerah (1975),

42 Ohio St.2d 21

. A prevailing party is entitled to the

relief according to the proof adduced upon trial.

Id.

{¶48} Upon review, we find that appellant’s prayer complied with the mandates

of Civ.R. 54(C) and Civ.R. 8 and that the judgment awarded by the trial court does not

exceed the amount prayed for in appellees' demand for judgment. Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 11

{¶49} Appellant also argues that the award in this case was excessive “in the

context of all the other facts of this case” claiming such award was the result of passion

or prejudice. However, appellant fails to advance this argument with any further

explanation or support.

{¶50} We therefore find no abuse of discretion in the trial court’s award of

damages in this matter.

{¶51} Appellant’s Third and Sixth Assignments of Error are overruled.

IV.

{¶52} In her Fourth Assignment of Error, appellant argues that the trial court

erred in failing to vacate its own void judgment.

{¶53} In this assignment or error, appellant again argues that the trial court’s

failure to give Appellant notice pursuant to Civ.R. 55 rendered the judgment herein void.

{¶54} Based on our disposition of Assignment of Error II, we find Appellant’s

argument not well-taken.

{¶55} Appellant’s Fourth Assignment of Error is overruled.

{¶56} In her Fifth Assignment of Error, appellant argues that the trial court

abused its discretion in failing to grant her motion or relief for judgment.

{¶57} Civ.R. 60(B) provides:

{¶58} “On motion and upon such terms as are just, the court may relieve a party

or his legal representative from a final judgment, order or proceeding for the following

reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered

evidence which by due diligence could not have been discovered in time to move for a Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 12

new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment

has been satisfied, released or discharged, or a prior judgment upon which it is based

has been reversed or otherwise vacated, or it is no longer equitable that the judgment

should have prospective application; or (5) any other reason justifying relief from the

judgment. The motion shall be made within a reasonable time, and for reasons (1), (2)

and (3) not more than one year after the judgment, order or proceeding was entered or

taken. A motion under this subdivision (B) does not affect the finality of a judgment or

suspend its operation.”

{¶59} In GTE Automatic Electric v. ARC Industries (1976),

47 Ohio St.2d 146

150–151,

351 N.E.2d 113

, the Ohio Supreme Court set forth the factors necessary to

recover under Civ.R. 60(B). “[T]he movant must demonstrate that: (1) the party has a

meritorious defense or claim to present if relief is granted; (2) the party is entitled to

relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion

is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1),

(2) or (3), not more than one year after the judgment, order or proceeding was entered

or taken.”

{¶60} Where any one of the foregoing requirements is not satisfied, Civ.R. 60(B)

relief is improper. State ex rel. Richard v. Seidner,

76 Ohio St.3d 149, 151

, 1996-Ohio-

54,

666 N.E.2d 1134

{¶61} “A motion for relief from judgment under Civ.R. 60(B) is addressed to the

sound discretion of the trial court, and that court's ruling will not be disturbed on appeal

absent a showing of abuse of discretion.” Griffey v. Rajan (1987),

33 Ohio St.3d 75, 77

, Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 13

514 N.E.2d 1122

. In order to find an abuse of that discretion, we must determine the

trial court's decision was unreasonable, arbitrary or unconscionable and not merely an

error of law or judgment. Blakemore v. Blakemore (1983),

5 Ohio St.3d 217

450 N.E.2d 1140

{¶62} In the instant case, appellant based its Civ.R. 60(B) motion on “mistake,

inadvertence, surprise or excusable neglect.” Civ.R. 60(B)(1). In support, appellant

argues that she has no legal training, that she did not know that she had to personally

respond to the complaint because she had liability insurance and because she was not

properly served.

{¶63} Initially, we note there is no bright-line test for excusable neglect. Such a

decision must be made from the facts and circumstances of each case. The Supreme

Court of Ohio has defined “excusable neglect” in the negative, stating “that the inaction

of a defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for

the judicial system.’ ” Kay v. Marc Glassman, Inc.,

76 Ohio St.3d 18, 20

(1996), quoting

GTE Automatic Elec., Inc. at 153. The inquiry into whether a moving party's inaction

constitutes excusable neglect must take into consideration all the individual facts and

circumstances in each case. Colley v. Bazell,

64 Ohio St.2d 243, 249

(1980).

{¶64} Upon review, under the circumstances of the instant case, we find that

Appellant's failure to file an answer did not constitute excusable neglect under Civ.R.

60(B)(1). Appellant acknowledged that she received the summons and complaint. The

summons advised appellant that she was required to file an answer within twenty-eight

days of service or suffer a default judgment for the relief demanded in the complaint. Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 14

{¶65} Further, appellant’s legal inexperience does not equate to excusable

neglect. This Court has previously held that failure to plead and/or seek legal advice

after admittedly receiving complaint is not excusable neglect under Civ.R. 60(B)(1).

Roe v. Nicholas (Apr. 26, 2001), Guernsey App. No. 00CA32. See, also, Curry v. J.

Bowers Constr., Inc. (Feb. 28, 2001), Summit App. No. 20287 (lack of familiarity with

judicial system as lay person is not a decisive factor in determining excusable neglect

where circumstances should have alerted one to the need to act promptly); General

Motors Acceptance Corp. v. Fage (Mar. 13, 1985), Summit App. No. 11805, unreported

(Civ.R. 60[B][1] relief not available to defendant who failed to make any effort to

respond to complaint, including failing to contact an attorney); West Terrace, Inc. v.

Davison (Aug. 29, 1991), Cuyahoga App. No. 58713, unreported (inexperience with

litigation matters and/or failure to understand consequences of complaint may not

constitute excusable neglect under Civ.R. 60(B)(1) ); Walton Constr. Co. v. Perry (Oct.

25, 1996), Montgomery App. No. 15707, unreported (where summons clearly put

defendant on notice that default judgment would be taken if no answer was filed with the

court, failure to file answer deemed inexcusable within contemplation of Civ.R. 60 (B)(1)

); Lebanon Auto Parts v. Dracakis (Apr. 17, 2000), Warren App. No. CA99-09-110,

unreported (courts should not use Civ.R. 60(B)(1) to relieve pro se litigants who are

careless or unfamiliar with legal system).

{¶66} Applying the above law to the facts contained herein, we find the trial court

properly considered all of the surrounding facts and circumstances, and did not abuse

its discretion in determining that based on such facts and circumstance, appellant failed

to establish that she is entitled to relief under one of the grounds stated in Civ.R. Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 15

60(B)(1) through (5). Whether appellant failed to understand that she needed to

personally answer the complaint does not constitute mistake or excusable neglect.

{¶67} Appellant’s Fifth Assignment of Error is overruled.

{¶68} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

By: Wise, P. J.

Delaney, J., concurs.

Edwards, J., dissents.

___________________________________

JUDGES JWW/d 0418 Stark County, Case Nos. 2011 CA 00121 and 2011 CA 00143 16

EDWARDS, J., DISSENTING OPINION

{¶69} I respectfully disagree with the majority’s analysis and disposition of

appellant’s first assignment of error.

{¶70} At issue in this case is whether or not appellant was properly served with

the summons and complaint. Appellee maintains that appellant was properly served by

ordinary mail after certified mail was returned unclaimed.

{¶71} Civ.R. 4.6(D) states as follows: “If a certified or express mail envelope is