[Cite as Ohio State Aerie Fraternal Order of Eagles v. Alsip,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

OHIO STATE AERIE FRATERNAL ORDER : OF EAGLES, : CASE NO. CA2013-05-079 Plaintiff-Appellee, : OPINION 11/4/2013 - vs - :

: DAVID C. ALSIP, : Defendant-Appellant. :

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2010-07-3150

Charles L. Tate, 5374-A Cox-Smith Road, Mason, Ohio 45040, for plaintiff-appellee

David C. Alsip, #A637-013, London Correctional Institution, P.O. Box 69, London, Ohio 43140, defendant-appellant, pro se

HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, David C. Alsip, appeals from a decision of the Butler

County Court of Common Pleas denying his motion to vacate a default judgment entered in

favor of plaintiff-appellee, Ohio State Aerie Fraternal Order of Eagles, Inc. For the reasons

discussed below, we affirm in part, reverse in part, and remand this matter to the trial court.

{¶ 2} On July 29, 2010, appellee filed a complaint against appellant for negligence, Butler CA2013-05-079

conversion and embezzlement, fraud, and indemnification. The complaint alleged appellant

was formerly employed by appellee as a secretary and, in this position, appellant had the

responsibility of managing appellee's business accounts, including issuing and receiving

money on behalf of appellee. Appellant began embezzling funds by writing checks to himself

and his creditors. As a result of appellant's actions, appellee sustained losses of over

$277,000 in damages.

{¶ 3} The summons and complaint were served on appellant by certified mail on

August 7, 2010 at appellant's address of 3911 Grand Avenue, Middletown, Ohio 45044.

Appellant did not file an answer or otherwise appear in the action. On November 23, 2010,

appellee moved for default judgment. In the motion, appellee noted that, in a related criminal

case, appellant pleaded guilty to aggravated theft and had been ordered to pay "Fraternal

Order of Eagles" restitution in the amount of $277,763.68. See State v. Alsip, Butler C.P. No.

CR2010-06-1060 (Sept. 2, 2010 Judgment of Conviction Entry). In support of its motion,

appellee attached the affidavit of Stephen C. Winters, a detective for the Middletown Police

Department, which stated that Winters had investigated the allegations made by appellee

against appellant, reviewed approximately 11,000 checks, discovered the theft by appellant,

and found $277,763.68 wrongfully taken by appellant.

{¶ 4} On December 13, 2010, the trial court entered default judgment against

appellant in the amount of $277,763.68 plus interests and costs. Appellant did not appeal

from this decision. Rather, on March 27, 2013, appellant filed a "Motion in Response to the

Entry [of] Default Judgment Against Defendant, Defendant was Denied his Constitutional

Rights to Appeal, Defendant was not Sent a[n] Appealable Order to Appeal, Defendant was

not able to Defend the Judgment without Notice by the Plaintiff." In his motion, appellant

sought to have the default judgment vacated, and he set forth a variety of issues which he

argued precluded judgment from being entered in favor of appellee. Appellant argued he -2- Butler CA2013-05-079

was not properly served with the summons and complaint, he was denied the right to appeal

because he had not received notice of the default judgment entry, and appellee was not a

proper party to the action, as the "actual victim" of his theft was the "Ohio State Eagles

Charity Fund, Inc."

{¶ 5} On May 3, 2013, the trial court issued a decision denying appellant's motion.

From the record, it appears the trial court treated appellant's motion as a common-law motion

to vacate default judgment. In its decision, the trial court determined that it had personal

jurisdiction over appellant as he had received proper service of process by certified mail. The

court further determined that, as appellant was in default for failure to appear, he was not

entitled to notice of the default judgment entry pursuant to Civ.R. 58(B). The court did not

address appellant's claim that appellee was not the proper party to bring the lawsuit.

{¶ 6} Appellant now appeals the trial court's decision, setting forth two assignments

of error. For ease of discussion, we begin by addressing appellant's second assignment of

error.

{¶ 7} Assignment of Error No. 2:

{¶ 8} DEFENDANT APPELLANT ARGUES THAT THE CIVIL COURT ERRED TO

THE PREJUDICE AWARDING [SIC] THE [APPELLEE] A DEFAULT JUDGMENT WHEN

[APPELLEE] WAS NOT THE VICTIM. FURTHER THE CIVIL COURT DID NOT HAVE

JURISDICTION OVER HIM. A JUDGMENT RENDERED WITHOUT PERSONAL

JURISDICTION OVER [APPELLANT] IS VOID AB INITO [SIC] IN THIS INSTANT CASE

[WHERE] THE [APPELLANT] WAS NOT SERVED PROPERLY BY THE ALLEGED VICTIM

OF THE ALLEGED CRIME.

{¶ 9} In his second assignment of error, appellant argues the trial court erred in

denying his motion to vacate default judgment as the trial court lacked personal jurisdiction

over him. Appellant contends he was not properly served with the summons and complaint -3- Butler CA2013-05-079

in this matter, and the judgment entered against him is, therefore, void. Appellant argues

that he should have been served with the summons and complaint at the London

Correctional Institution, where he is serving a three-year prison term, rather than at his

personal address.

{¶ 10} "In order to render a valid judgment, a court must have jurisdiction over the

defendant in the action." Beachler v. Beachler, 12th Dist. Preble No. CA2006-03-007, 2007-

Ohio-1220, ¶ 12, citing Maryhew v. Yova,

(1984). "If a plaintiff fails to

perfect service on a defendant and the defendant has not appeared in the action or waived

service, a trial court lacks the jurisdiction to enter a default judgment against the defendant."

Bendure v. Xpert Auto, Inc., 10th Dist. Franklin No. 11AP-144,

, ¶ 16. See

also Beachler at ¶ 12 ("A court may acquire personal jurisdiction over the defendant either by

service of process upon the defendant, the voluntary appearance and submission of the

defendant or his legal representative, or by certain acts of the defendant or his legal

representative which constitute an involuntary submission to the jurisdiction of the court"). A

judgment rendered by a court that has not acquired personal jurisdiction over the defendant

is void, not merely voidable. Id. at ¶ 13, citing Peoples Banking Co. v. Brumfield Hay & Grain

Co.,

(1961), paragraph two of the syllabus. "The power to vacate a void

judgment does not arise from Civ.R. 60(B), but rather, from an inherent power possessed by

the courts in this state." Id. at ¶ 18, citing Patton v. Diemer,

(1988),

paragraph four of the syllabus. An appellate court reviews the denial of a common law-

motion to vacate under an abuse of discretion standard.

. An abuse of

discretion constitutes more than an error of law or judgment; it requires a finding that the trial

court acted unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore,

(1983).

{¶ 11} As previously stated, a court may acquire personal jurisdiction over a party by -4- Butler CA2013-05-079

service of process. Beachler at ¶ 12; Maryhew,

. Civ.R. 4.1 outlines the

methods of obtaining service of process within the state of Ohio, and it provides that "service

of any process shall be by United States certified or express mail unless otherwise permitted

by these rules." Service is perfected by certified mail when it is sent to an address that is

reasonably calculated to cause service to reach the defendant. Akron-Canton Regional

Airport Auth. v. Swinehart,

(1980); Hamilton v. Digonno, 12th Dist.

Butler No. CA2005-03-075,

("Service of process is consistent with due

process standards where it is reasonably calculated, under the circumstances, to give

interested parties notice of a pending action and an opportunity to appear"). Proper service

of process is "[e]videnced by [a] return receipt signed by any person." (Emphasis added.)

Civ.R. 4.1(A). Valid service of process is presumed when the envelope is received by any

person at the defendant's residence; the recipient need not be the defendant or an agent of

the defendant. Castellano v. Kosydar,

(1975); Ohio Civ. Rights

Comm. v. First Am. Properties, Inc.,

(2d Dist. 1996). The

presumption of proper service may be rebutted by a defendant "with sufficient evidence of

nonservice." Griffin v. Braswell,

,

, ¶ 15 (6th Dist.).

{¶ 12} Appellant has not presented sufficient evidence of nonservice in this case.

Rather, the record demonstrates that appellee complied with Civ.R. 4.1 as it served appellant

by certified mail at his Grand Avenue address in Middletown, Ohio. The certified mail return

receipt was received and signed by "David Alsip" on August 7, 2010, and returned to the trial

court on August 10, 2010. Appellant's contention that due process required him to be served

with the summons and complaint at the London Correctional Institution is without merit.

Appellant was not sentenced to serve his three-year prison term until August 31, 2010. See

State v. Alsip, Butler C.P. No. CR2010-06-1060 (Sept. 2, 2010 Judgment of Conviction

Entry). Appellant was not incarcerated at the London Correctional Institution as of August 7, -5- Butler CA2013-05-079

2010, the date he signed the certified mail return receipt at his Grand Avenue address.

Accordingly, appellant's assertion that he was not properly served at the London Correctional

Institution is insufficient to rebut the presumption of effective service of process under Civ.R.

4.1. The trial court acquired personal jurisdiction over appellant by valid service of process

and was, therefore, able to render a valid judgment against him in this matter.

{¶ 13} For the reasons discussed above, we find that the trial court did not abuse its

discretion by denying appellant's common-law motion to vacate default judgment for lack of

personal jurisdiction. Appellant's second assignment of error is, therefore, overruled.

{¶ 14} Assignment of Error No. 1:

{¶ 15} THE TRIAL COURT ERRED TO THE PREJUDICE OF [APPELLANT] WHEN

IT AWARDED OHIO STATE AERIE FRATERNAL ORDER OF EAGLES A DEFAULT

JUDGMENT WH[E]N THE OHIO STATE AERIE FRATERNAL ORDER OF EAGLES WAS

NOT THE ALLEGED VICTIM PURSUANT TO OHIO REVISED CODE 2929.18(A)(1).

{¶ 16} In his first assignment of error, appellant argues the trial court erred by denying

his motion to vacate default judgment as judgment could not have been awarded to appellee

when the "actual victim" of his theft was another party, the "Ohio State Eagles Charity Fund,

Inc." Essentially, appellant argues that appellee is not a proper party to the action because

he was ordered in his criminal case to pay restitution to "Fraternal Order of Eagles," and not

to appellee or the Ohio State Eagles Charity Fund, Inc. See State v. Alsip, Butler C.P. No.

CR2010-06-1060 (Sept. 2, 2010 Judgment of Conviction Entry). Appellant states that he has

filed a motion to correct the judgment of conviction entry in his criminal case to have the trial

court "correct the alleged victim's name" in the restitution order from "Fraternal Order of

Eagles" to the "true victim's" name, the "Ohio State Eagles Charity Fund, Inc."

{¶ 17} In order for a trial court to vacate or modify its own judgment, a Civ.R. 60(B)

motion must be made. Combs v. Children's Med. Ctr., Inc., 12th Dist. Butler No. CA95-12- -6- Butler CA2013-05-079

217,

, *3 (July 29, 1996) ("Civ.R. 60(B) provides the exclusive grounds

which must be present and the procedure which must be followed in order for a court to

vacate its own judgment"). The issue before this court is whether appellant's March 27, 2013

"Motion in Response to the Entry [of] Default Judgment Against Defendant, Defendant was

Denied his Constitutional Rights to Appeal, Defendant was not Sent a[n] Appealable Order to

Appeal, Defendant was not able to Defend the Judgment without Notice by the Plaintiff"

should have been construed by the trial court as a Civ.R. 60(B) motion for relief from

judgment.

{¶ 18} A trial court has the authority to construe an improperly captioned post-

judgment motion as though it were a Civ.R. 60(B) motion for relief from judgment. See The

Bluffs of Wildwood Homeowners' Assn., Inc. v. Dinkel,

(12th

Dist. 1994) (construing a motion to "set aside summary judgment" as a Civ.R. 60(B) motion);

Fredebaugh Well Drilling, Inc. v. Brower Contracting, 11th Dist. Ashtabula No. 2004-A-0061,

(permitting a trial court to construe a party's filing as a Civ.R. 60(B)

motion even though it was not labeled as such); Ray v. Dickinson, 7th Dist. Belmont No. 03-

BE-29,

(permitting a trial court to construe a party's motion for

consideration as a Civ.R. 60(B) motion); Pete's Auto Sales v. Conner, 8th Dist. Cuyahoga

No. 77014,

, *3 (Aug. 24, 2000) (remanding the matter back to the trial

court for further consideration after finding that "regardless of its style," the defendant's

motion was "effectively a motion for relief from judgment consistent with Civ.R. 60(B)").

{¶ 19} In its May 3, 2013 decision denying appellant's motion, the trial court did not

address appellant's argument that appellee was not a proper party to the action. We

recognize that in his motion, appellant did not express his claim that appellee was not a

proper party to the action within the context of Civ.R. 60(B) or the GTE factors. See GTE

Automatic Elec., Inc. v. ARC Industries, Inc.,

(1976), paragraph two of the -7- Butler CA2013-05-079

syllabus ("To prevail on a motion brought under Civ.R. 60(B), the 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"). Appellant first mentions Civ.R. 60(B) in his reply brief to appellee's

memorandum in opposition to his motion, which was filed five days after the trial court issued

its May 3, 2013 decision denying appellant's motion. Nonetheless, regardless of appellant's

failure to use proper Civ.R. 60(B) language, it is clear that appellant was asserting a claim for

relief under Civ.R. 60(B) as he argued he had a meritorious defense to the action that would 1 entitle him to relief from judgment.

{¶ 20} Therefore, with respect to appellant's claim that appellee is not the proper party,

we find that the trial court should have construed appellant's motion as a motion for relief

from judgment pursuant to Civ.R. 60(B). Whether appellant's "proper party" claim presents a

meritorious defense to appellee's action, as well as whether his motion was timely made and

whether appellant is entitled to relief pursuant to Civ.R. 60(B)(1) through (5), should have

been addressed and ruled on by the trial court.

{¶ 21} We therefore sustain appellant's first assignment of error and remand this

matter to the trial court for consideration of appellant's argument that appellee is not a proper

party to the present action. In analyzing appellant's argument, the trial court shall utilize the

standards set forth in Civ.R. 60(B) and GTE Automatic Elec., Inc.

{¶ 22} Judgment is affirmed in part, reversed in part, and remanded to the trial court

for further proceedings consistent with this Opinion.

1. This fact is bolstered by appellee's memorandum in opposition to appellant's motion, wherein appellee addressed appellant's arguments within the context of the GTE factors and the requirements of Civ.R. 60(B). -8- Butler CA2013-05-079

S. POWELL and RINGLAND, JJ., concur.

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