[Cite as Emerson Family Ltd. Partnership v. Emerson Tool, L.L.C.,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

EMERSON FAMILY LIMITED C.A. No. 26200 PARTNERSHIP

Appellant APPEAL FROM JUDGMENT v. ENTERED IN THE COURT OF COMMON PLEAS EMERSON TOOL, LLC, nka Ohio Knife COUNTY OF SUMMIT, OHIO Company CASE No. CV 2010 06 4524

Appellee

DECISION AND JOURNAL ENTRY

Dated: December 5, 2012

CARR, Judge.

{¶1} Appellant, Emerson Family Limited Partnership (“Emerson”), appeals from a

judgment of the Summit County Court of Common Pleas that granted summary judgment to

appellee, Emerson Tool, LLC, nka as Ohio Knife Company (“Ohio Knife”), on Emerson’s claim,

which alleged that Ohio Knife had converted certain pieces of Emerson’s equipment. In the

event this Court reverses summary judgment, Ohio Knife assigns error to the trial court’s denial

of its earlier motion to dismiss the complaint based on insufficient service of process. This Court

reverses summary judgment because Ohio Knife failed to support its motion with evidence

permitted by Civ.R. 56(C). This Court also reverses the trial court’s denial of Ohio Knife’s

motion to dismiss because Emerson failed to comply with the service of process requirements of

Civ.R. 4.6 and failed to commence suit within one year, as required by Civ.R. 3(A). 2

I.

{¶2} Although the circumstances underlying this dispute are somewhat complicated,

the basic facts relevant to this appeal are not. On June 28, 2010, Emerson filed a complaint

against Ohio Knife, alleging that Emerson Tool Company, LLC, now known as Ohio Knife, had

converted certain pieces of equipment. Specifically, it alleged that Ohio Knife’s predecessor had

leased the equipment from Emerson in 2000 and failed to return it when the lease expired in

2007.

{¶3} Ohio Knife filed several dispositive motions against Emerson, including an

October 12, 2010, motion to dismiss and/or for summary judgment. In that motion, it raised

several alternate grounds, including the defense of insufficient service of process, arguing that

Emerson failed to serve the complaint in a manner permitted by Civ.R. 4.6. The trial court

denied the motion, concluding that there was a presumption of proper service, which Ohio Knife

failed to rebut, because Emerson served Ohio Knife with the complaint via ordinary mail after

unsuccessfully attempting service by express mail.

{¶4} Ohio Knife later moved for summary judgment, asserting grounds that included

the defenses of res judicata, collateral estoppel, and/or law of the case. Specifically, it claimed

that Emerson had already litigated this dispute through three civil actions against it, which

culminated in a sheriff’s sale of the equipment at issue to partially satisfy a prior judgment. Ohio

Knife attached unsworn and uncertified documents to its motion, which purported to be

judgment entries and other filings from the prior civil actions and documents from the Summit

County Sheriff’s Office pertaining to the sale of the equipment.

{¶5} Emerson filed a brief in opposition to summary judgment. It objected to the

evidence presented by Ohio Knife and also challenged the merits of its legal arguments. 3

Emerson’s objection to the evidence was that the unauthenticated documents were not proper

summary judgment evidence under Civ.R. 56(C) and, therefore, could not be considered by the

trial court.

{¶6} Ohio Knife responded by filing an affidavit of its attorney, attached to the same

documents it submitted with its summary judgment motion. The attorney attested that he had

personal knowledge “of all the matters expressed” in the attached documents and that they were

true and accurate copies of documents that he printed from the website of the Summit County

Clerk of Court and documents that “Defendant” obtained from the Summit County Sheriff’s

Office.

{¶7} Emerson moved to strike the attorney’s affidavit for failing to comply with Civ.R.

56(E) because it was not based on personal knowledge. Emerson further argued that the

attorney’s affidavit could not serve to authenticate the unsworn and unauthenticated documents

submitted by Ohio Knife.

{¶8} On July 28, 2011, Ohio Knife filed another motion to dismiss the complaint, again

claiming insufficient service of process. It added the argument that, because it had been more

than one year since Emerson filed its complaint, Emerson had failed to perfect service of the

complaint within one year, as required by Civ.R. 3(A). It attached the affidavit of its chief

operating officer, who attested that Ohio Knife had never received a copy of the complaint but

had learned about the pending litigation through the website of the clerk of court.

{¶9} The trial court ultimately overruled Emerson’s objection to the summary

judgment evidence presented by Ohio Knife, denied its request to strike the attorney’s affidavit,

and considered the merits of the summary judgment motion. The trial court found that Emerson

no longer held title to the equipment and had no right to seek recovery of it from Ohio Knife 4

because the equipment had been sold at sheriff’s sale. Consequently, it granted summary

judgment to Ohio Knife.

{¶10} Because the trial court granted summary judgment to Ohio Knife, it denied its

renewed motion to dismiss, concluding that it was moot. The court also reiterated its earlier

ruling that there had been a presumption of proper service of the complaint.

{¶11} Emerson appeals and raises three assignments of error.1 In the event this Court

reverses the trial court’s judgment, Ohio Knife raises one assignment of error.

I.

EMERSON’S ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN HOLDING THAT THE [ATTORNEY’S] AFFIDAVIT SATISFIED RULE 56(E) OF THE OHIO RULES OF CIVIL PROCEDURE.

EMERSON’S ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING [OHIO KNIFE] SUMMARY JUDGMENT.

{¶12} This Court will address Emerson’s first two assignments of error together because

they are closely related. Emerson argues that the trial court erred in accepting the affidavit of

Ohio Knife’s attorney and in considering the evidence submitted by Ohio Knife on summary

judgment. It further maintains that, because Ohio Knife failed to present any proper evidence

under Civ.R. 56, the trial court erred in granting summary judgment. We agree.

{¶13} Pursuant to Civ.R. 56(C), summary judgment is proper if:

[N]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the

1 Although Emerson lists four assignments of error in the preface of its brief, it actually argues three different assignments of error. 5

evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party.

State ex. rel. Howard v. Ferreri,

(1994). The court must resolve all

doubts in favor of the nonmoving party. Horton v. Harwick Chem. Corp.,

(1995).

{¶14} A party moving for summary judgment bears an initial burden of pointing to

“some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the

nonmoving party has no evidence to support the nonmoving party’s claims.” (Emphasis sic.)

Dresher v. Burt,

(1996). Civ.R. 56(C) provides an exclusive list of

materials that a trial court may consider when deciding a motion for summary judgment. Spier v.

Am. Univ. of the Caribbean,

(1st Dist. 1981). Those materials are

“pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact.” Civ.R. 56(C).

{¶15} Ohio Knife attempted to support its motion for summary judgment with unsworn

and uncertified documents that, on their face, purported to be journal entries and other filings

from this Court, the Summit County Court of Common Pleas, and the Summit County Sheriff’s

Office. Documents that are “not sworn, certified, or authenticated by affidavit have no

evidentiary value” and cannot be considered by the trial court on summary judgment unless “the

opposing party has raised no objection.” Green v. B.F. Goodrich Co.,

(9th Dist. 1993). None of the documents submitted by Ohio Knife fell within the categories of

evidence set forth in Civ.R. 56(C), and Emerson raised a timely objection on that basis in its

brief in opposition to summary judgment.

{¶16} In response to Emerson’s objection, Ohio Knife attempted to remedy the problem

by submitting the same materials attached to the affidavit of its attorney, who incorporated the 6

documents by reference. See Biskupich v. Westbay Manor Nursing Home,

(8th Dist. 1986) (recognizing that documents may be introduced as proper summary

judgment evidence when they are incorporated through reference in a properly framed affidavit).

The attorney attested that he had personal knowledge that the documents were “true and correct

copies” of what they purported to be because he had printed the court documents from the

website of the clerk of court and the “Defendant” had obtained the sheriff’s sale documents

directly from the sheriff’s office.

{¶17} Emerson again objected to the evidence and moved to strike the attorney’s

affidavit because it did not comply with the requirements of Civ.R. 56(E), which provides, in

relevant part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit.

{¶18} Emerson argued that the attorney’s affidavit failed to comply with Civ.R. 56(E)

because the attorney did not have personal knowledge of the contents of the documents and none

of the documents had been sworn or certified by the custodian of those public records.

{¶19} “‘Personal knowledge’” must be “‘gained through firsthand observation or

experience.’” Bonacorsi v. Wheeling & Lake Erie Ry. Co.,

,

, quoting Black’s Law Dictionary 875 (7th Ed.Rev. 1999). “‘The subject of a witness’s

testimony must have been perceived through one or more of the senses of the witness.’”

quoting Weissenberger, Ohio Evidence 213, Section 602.1 (2002).

{¶20} Although Ohio Knife’s attorney would have the requisite personal knowledge to

authenticate documents that he actually prepared, he did not prepare any of the documents that 7

were attached to the summary judgment motion, nor did he perceive their preparation with any of

his senses. Consequently, to the extent the attorney’s affidavit attempted to authenticate the

documents as true and accurate copies of what they purported to be, it should have been stricken.

See Johnston v. Great Lakes Constr. Co., 9th Dist. No. 95CA006111,

, *3 (Feb.

28, 1996).

{¶21} Although public records require no extrinsic evidence of authenticity if properly

certified, none of these records bore any certification. Evid.R. 902(4). Even if the attorney had

personal knowledge about where he received the documents and received them directly from the

keeper of those records, an attestation to that effect does not serve to authenticate them. Windsor

v. Noldge, 3d Dist. No. 13-96-11,

, *2 (Aug. 26, 1996). Documents can be

certified as correct only by “the custodian of the document or another individual with personal

knowledge that the document is what its proponent purports it to be.” State ex rel. Varnau v.

Wenninger, 12th Dist. No. 2009-02-010,

, ¶ 18.

{¶22} Ohio Knife’s sole evidence before the trial court on summary judgment consisted

of materials that did not comply with Civ.R. 56(C) or Civ.R. 56(E), and Emerson raised a timely

objection on that basis. Consequently, the trial court was without authority to consider Ohio

Knife’s evidence on summary judgment. Because Ohio Knife failed to support its motion with

any proper evidence, the trial court erred in granting it summary judgment. Emerson’s first and

second assignments of error are sustained for that reason. This Court does not reach Emerson’s

alternate argument on the merits of the trial court’s summary judgment decision.

EMERSON’S ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN DETERMINING THAT EMERSON FAMILY WAS REQUIRED TO CONTEST THE VALIDITY OF THE EXECUTION OF SALE IN THE PREVIOUS CASE. 8

{¶23} Emerson’s remaining assignment of error challenges the merits of the trial court’s

summary judgment decision. Because this Court has determined that the trial court erred in

considering the evidence presented by Ohio Knife on summary judgment, the remaining

assignment of error has been rendered moot and will not be addressed. App.R. 12(A)(1)(c).

OHIO KNIFE’S ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED ERROR, PREJUDICIAL TO [OHIO KNIFE], BY FAILING TO DISMISS THE COMPLAINT, BECAUSE [EMERSON] FAILED TO OBTAIN SERVICE AS REQUIRED BY OHIO CIV.R. 4.6, WITHIN ONE (1) YEAR AFTER THE COMPLAINT WAS FILED, IN VIOLATION OF OHIO CIV.R. 3(A).

{¶24} Because this Court reverses summary judgment, it will address Ohio Knife’s

assignment of error, through which it argues that the trial court should have granted its motion to

dismiss Emerson’s complaint due to insufficient service of process. There is no dispute that

Ohio Knife timely raised this defense through a motion to dismiss, which it filed prior to filing

an answer to the complaint, and that it preserved the defense despite its subsequent participation

in the litigation. See Gliozzo v. Univ. Urologists of Cleveland,

, 2007-Ohio-

3762, ¶ 9, 18. “Absent a waiver of service, a party must be served with the summons and

complaint pursuant to the methods set forth in Civ.R. 4.1 through 4.6.” King v. Hazra,

(9th Dist. 1993).

{¶25} Ohio Knife twice moved to dismiss the complaint based on insufficient service of

process. Ohio Knife filed its first motion on October 12, 2010, asserting that the complaint

should be dismissed because Emerson failed to comply with the service requirements of Civ.R.

4.6 by serving the complaint by ordinary mail without first properly attempting service by

certified or express mail. Specifically, Ohio Knife argued that Emerson’s attempts to serve the

complaint by express mail had not been “refused” or “unclaimed” at an address reasonably 9

calculated to reach Ohio Knife, as required by Civ.R. 4.6(C) or (D), but instead were returned

because they were sent to non-existent addresses.

{¶26} On July 28, 2011, Ohio Knife filed its second motion to dismiss, again alleging

insufficient service of process and adding that Emerson had failed to perfect service of the

complaint within one year, as required by Civ.R. 3(A). It attached the affidavit of E. William

Glause, III, its chief operating officer. Glause attested that Ohio Knife never received a copy of

the complaint in this case and that it became aware of Emerson’s attempted service only through

the trial court’s online docket.

{¶27} Emerson opposed each of Ohio Knife’s motions to dismiss, arguing that service

by ordinary mail after unsuccessful attempted service by express mail created a presumption of

effective service and that, even without a presumption of service, Ohio Knife suffered no

prejudice as a result. The trial court denied Ohio Knife’s motions to dismiss the complaint based

on the grounds asserted by Emerson.

{¶28} Emerson and the trial court seemed to overlook the fundamental premise

underlying any presumption that a complaint has been served on a defendant. A rebuttable

presumption of effective service arises only if the Ohio Civil Rules on service have been

followed. Jacobs v. Szakal, 9th Dist. No. 22903,

. Ohio Knife

maintained throughout these proceedings, however, that Emerson did not comply with the civil

rules in its attempts to serve it with the complaint.

{¶29} Civ.R. 4 through 4.6 address the appropriate means of obtaining service of

process. Ohio Knife argued that Emerson did not comply with Civ.R. 4.6 because it attempted to

serve the complaint via ordinary mail without first complying with the requirements of Civ.R. 10

4.6 for service by express mail. This Court agrees, although for a different reason from the one

specifically argued by Ohio Knife.

{¶30} At the time service of Emerson’s complaint was attempted on Ohio Knife in 2010,

Civ.R. 4.6(C) and (D) authorized service by ordinary mail, evidenced by a certificate of mailing,

only after the clerk of court received appropriate documentation that attempted service “by

certified or express mail” had been returned with a postal endorsement that it had been “refused”

or “unclaimed.” Former Civ.R. 4.6(C) and (D). Ohio Knife argued that Emerson had failed to

comply with Civ.R. 4.6 because its attempt to serve it via express mail had never been returned

“refused” or “unclaimed” but instead had been returned because it was sent to undeliverable

addresses, which failed to satisfy former Civ.R. 4.6 (C) or (D).

{¶31} Ohio Knife supported its argument by reference to the trial court’s appearance

docket, which demonstrated that Emerson first attempted to serve the complaint via FedEx

“express mail” at an address on Annadale Street in Akron, which was returned to the clerk of

court marked “VACANT.” Emerson’s second attempt to serve the complaint was also sent via

FedEx express mail to an address on Mayfield Road in Chesterland, which was returned to the

clerk’s office marked “BAD ADDRESS.”

{¶32} Although the trial court and the parties seemed to believe that Emerson’s

attempted service via FedEx “express mail” complied with the civil rules at that time, it did not.

In 2010, when Emerson directed the clerk of court to serve the complaint on Ohio Knife, Civ.R.

4.1(A) explicitly provided that “service of any process shall be by United States certified or

express mail unless otherwise permitted by these rules.” The term “express mail,” as used in

Civ.R. 4.1(A) both then and now, refers only to express mail service via the United States Postal

Service, not a commercial carrier. Prior to the July 1, 2012, effective date of amendments to 11

Civ.R. 4.1 and 4.6, service of the complaint via a commercial carrier did not comply with the

civil rules. Former Civ.R. 4.6(C) and (D) and 4.1; See J. Bowers Constr. Co., Inc. v. Vinez, 9th

Dist. No. 25948,

(construing the out-of-state service requirements of

former Civ.R. 4.1 and 4.3). Consequently, notwithstanding Ohio Knife’s additional challenge

that Emerson improperly attempted to serve it at two incorrect addresses, service of process was

insufficient in this case because it was attempted via a commercial carrier, which was not

authorized by the Ohio Civil Rules at that time.

{¶33} Through its second motion to dismiss, filed more than one year after Emerson

filed its complaint in this case, Ohio Knife further argued that Emerson never properly

commenced this action against it because it had failed to serve it with the complaint within one

year, as required by Civ.R. 3(A). It attached the affidavit of E. William Glause, its chief

operating officer, who attested that Ohio Knife had never received a copy of the complaint.

There is nothing in the record to contradict his assertion that Ohio Knife never received the

complaint.

{¶34} Finally, despite Emerson’s argument to the contrary, its failure to comply with the

rules governing service of process constituted grounds for dismissal of its complaint, regardless

of whether Ohio Knife suffered any prejudice or otherwise had knowledge of the lawsuit.

“[I]t is an established principle that actual knowledge of a lawsuit’s filing and lack of prejudice resulting from the use of a legally insufficient method of service do not excuse a plaintiff’s failure to comply with the Civil Rules. In this regard, the Civil Rules are not just a technicality, and we may not ignore the plain language of a rule in order to assist a party who has failed to comply with a rule’s specific requirements. The Civil Rules are a mechanism that governs the conduct of all parties equally.”

(Internal citations omitted.) J. Bowers Constr. Co.,

, quoting LaNeve v.

Atlas Recycling, Inc.,

,

, ¶ 22 -23. 12

{¶35} Because Ohio Knife demonstrated to the trial court that Emerson had failed to

comply with the service requirements of Civ.R. 4.1, 4.6, and 3(A), the trial court erred in

denying its motion to dismiss the complaint. Ohio Knife’s assignment of error is sustained.

III.

{¶36} Emerson’s first and second assignments of error are sustained insofar as they

challenge the impropriety of the evidence considered by the trial court on summary judgment.

Its third assignment of error and the part of its second assignment of error that challenge the

merits of the trial court’s summary judgment decision are not addressed because they are

rendered moot by this Court’s determination that the trial court erred in considering the evidence

before it. Ohio Knife’s assignment of error is sustained. The judgment of the Summit County

Court of Common Pleas is reversed and remanded for proceedings consistent with this opinion.

Judgment reversed and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 13

Costs taxed to the parties equally.

DONNA J. CARR FOR THE COURT

WHITMORE, P. J. DICKINSON, J. CONCUR.

APPEARANCES:

ROBERT M. STEFANCIN, Attorney at Law, for Appellant.

SIDNEY N. FREEMAN, Attorney at Law, for Appellee.