[Cite as Adams v. McElroy,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105399

JOHNNY ISAAC ADAMS PLAINTIFF-APPELLEE

vs.

PATRICIA JONES MCELROY, ADMINISTRATOR, ETC., ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-783248

BEFORE: Celebrezze, J., Keough, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: January 11, 2018 ATTORNEYS FOR APPELLANT

Amy E. Asseff David A. Freeburg Freeburg Law Firm, L.P.A. 6690 Beta Drive, Suite 320 Mayfield Village, Ohio 44143

FOR APPELLEE

Johnny Isaac Adams, pro se 7279 Rocker Avenue Chagrin Falls, Ohio 44023

Also Listed

Antonio Jones, pro se Kelly Hill, pro se 10917 Notre Dame Cleveland, Ohio 44104

Marva Edwards, pro se Linda Wiley, pro se 1325 East 84th Street Cleveland, Ohio 44103

Key Bank National Association 127 Public Square Cleveland, Ohio 44144

Key Bank National Association 4910 Tiedeman Road, Suite C Brooklyn, Ohio 44114

Home Sales Inc. c/o Corp. Trust Co. Statutory Agent 1209 Orange Street Wilmington, Delaware 19801

IL Forza, LLC 2230 W. Chapman Avenue Orange, California 92868

For Dondi S. Jones, Patricia Jones McElroy, and George Jones, III

Virgil T. Morant 2130 Lakeland Avenue Lakewood, Ohio 44107 FRANK D. CELEBREZZE, JR., J.:

{¶1} Defendant-appellant, Tanisha Jones (“appellant”), appeals the trial court’s

judgment denying her motion to vacate judgment and for relief from judgment in a

declaratory judgment action. Specifically, appellant argues that the trial court abused its

discretion in denying her motion after she presented unchallenged evidence that service

upon her was not perfected, and by failing to hold an evidentiary hearing on her motion.

After a thorough review of the record and law, this court reverses and remands for further

proceedings consistent with this opinion.

I. Factual and Procedural History

{¶2} On May 23, 2012, in Cuyahoga C.P. No. CV-12-783248, plaintiff-appellee,

Johnny Isaac Adams (“Adams”), filed a complaint for declaratory judgment. Adams is

the surviving spouse of Minnie Jones Adams (“decedent”), who died on January 19,

2012.

{¶3} Adams’s declaratory judgment involved a dispute regarding the parcels of

land that decedent owned at the time of her death and whether she conveyed title to any

parcels of land during her lifetime. In his complaint, Adams alleged that he did not

release his dower interest in the parcels that decedent conveyed, and as a result, he sought

payment of his dower interest. Adams filed an amended complaint on May 25, 2012.

{¶4} Appellant was the title holder of record of one of the parcels at issue, located

at 3596 East 131st Street, Cleveland, Ohio 44120. Appellant acquired title to the property from her husband, George Jones, IV, in 2011. Adams named appellant as a

defendant in both the original and the amended complaints.

{¶5} The record reflects that the clerk mailed the summons and both complaints by

certified mail to appellant at 16115 Arcade Avenue, Cleveland, Ohio 44110. The

certified mail receipt from the original complaint was returned as “mail received at

address 05/31/2012 signed by other.” 1 The certified mail receipt from the amended

complaint was returned as “unclaimed notice mailed to [appellant’s] attorney.”2 A copy

of the summons and the amended complaint was then sent to appellant at the Arcade

Avenue address by regular mail. There is nothing in the record indicating that this

envelope was returned as undeliverable.

{¶6} Appellant did not respond to Adams’s complaints. On August 23, 2012,

Adams filed a motion for default judgment against all defendants who failed to file an

answer or a responsive pleading. Notice of the default judgment hearing was sent to

appellant at the Arcade Avenue address. The trial court held a hearing on Adams’s

default judgment motion on September 4, 2012. The trial court granted Adams’s motion

for default judgment against all “non-answering parties” including appellant.3

See docket entry on June 5, 2012. 1

See docket entry on June 26, 2012. 2

The non-answering parties were Antonio Jones, appellant, Dondi Jones, Linda Wiley, Marva 3

Edwards, Key Bank National Association, Home Sales Inc., Kelly Hill, and IL Forza, LLC. {¶7} Adams reached an agreement with the remaining defendants that filed a

responsive pleading or appeared in the trial court.4 Under this agreement, decedent’s

conveyances of various properties — including the East 131st Street property — were set

aside and titles to the properties were returned to decedent’s estate. The trial court

journalized the parties’ agreed judgment entry on May 28, 2013.

{¶8} On December 2, 2016, appellant filed a motion to vacate the default judgment

entered against her or, in the alternative, for relief from judgment pursuant to Civ.R.

60(B)(5). Therein, appellant argued that she had never been served with the complaint

or the amended complaint in this matter, and thus, service was never perfected upon her.

Appellant submitted an affidavit in support of her motion.

{¶9} Adams did not respond to or oppose appellant’s motion. On December 9,

2016, defendants Patricia Jones McElroy, George Jones, III, and Dondi S. Jones filed a

memorandum in opposition to appellant’s motion.

{¶10} On December 31, 2016, the trial court denied appellant’s motion to vacate

without holding an evidentiary hearing. It is from this judgment that appellant filed the

instant appeal. Appellant assigns two errors for review:

I. Because [appellant] produced unrefuted evidentiary-quality information demonstrating that she did not receive service, the trial court abused its discretion in denying her motion to vacate the default judgment entered against her.

Patricia Jones, Patrice Jones, George Jones, III, and William Jones. 4 II. Because [appellant] alleged operative facts that would warrant relief, the trial court abused its discretion in failing to hold an evidentiary hearing to take evidence and verify facts before ruling on her motion to vacate.

II. Law and Analysis

{¶11} Both of appellant’s assignments of error pertain to the trial court’s denial of

her motion to vacate default judgment. In her first assignment of error, appellant argues

that the trial court abused its discretion by denying her motion to vacate default judgment.

{¶12} This court reviews a trial court’s decision regarding a motion to vacate a

purportedly void judgment for an abuse of discretion. Hook v. Collins, 8th Dist.

Cuyahoga No. 104825,

, ¶ 10, citing Miley v. STS Sys.,

,

,

, ¶ 7 (10th Dist.), and Hoffman v. New Life

Fitness Ctrs.,

,

(3d Dist. 1996). An abuse of

discretion implies that a trial court’s decision is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶13} In the instant matter, appellant moved to vacate the default judgment based

on lack of personal jurisdiction asserting that she was not served with the complaint, the

amended complaint, or notice of the default judgment hearing.

{¶14} Trial courts have inherent authority to vacate a void judgment.

, citing Newark Orthopedics, Inc. v. Brock,

,

(10th Dist. 1994). Accordingly, a defendant may raise the issue of insufficient service of process in a Civ.R. 60(B) motion, however, the defendant need not meet the requirements

of establishing a meritorious defense or that the motion was timely filed under Civ.R.

60(B).

, citing CompuServe, Inc. v. Trionfo,

,

(10th Dist. 1993). When a trial court renders default judgment without

obtaining service over the defendant, the default judgment is void and the defendant is

entitled to have the judgment vacated. Broadvox, L.L.C. v. Oreste, 8th Dist. Cuyahoga

No. 92064,

, ¶ 12.

{¶15} In order for service to be consistent with standards of due process, it must be

made “in a manner reasonably calculated to apprise interested parties of the action and to

afford them an opportunity to respond.” Hook, 8th Dist. Cuyahoga No. 104825,

, at ¶ 13, citing Akron-Canton Regional Airport Auth. v. Swinehart,

,

(1980). Civ.R. 4.1 provides three permissible

methods of service: certified or express mail service, personal service, or residence

service. In Ohio, certified mail is the preferred method for serving a party, and service

is evidenced by a signed return receipt.

. Pursuant to Civ.R. 4.1(A),

individuals must be served at their “usual place of residence,” and any person residing at

that address who is of “suitable age and discretion” may receive such service.

The plaintiff bears the burden of obtaining proper service on a defendant. Cincinnati Ins. Co. v. Emge,

,

(1st Dist. 1997). Where the plaintiff follows the civil rules governing service of process, courts presume that service is proper unless the defendant rebuts this presumption with sufficient evidence of non-service. Carter-Jones Lumber Co. v. Meyers, 2d Dist. Clark No. 2005 CA 97,

. In order to rebut the presumption of proper service, the other party must produce evidentiary-quality information demonstrating that he or she did not receive service. McWilliams v. Schumacher, 8th Dist. Cuyahoga Nos. 98188, 98288, 98390, and 98423,

, citing Thompson v. Bayer, 5th Dist. Fairfield No. 2011-CA-00007,

.

Relevant to the circumstances presented in this case, the rebuttable presumption of proper service may be rebutted by evidence that the defendant did not reside, nor received mail, at the address to which such ordinary mail service was addressed. Schumacher at ¶ 49, citing Cent. Ohio Sheet Metal, Inc. v. Walker, 10th Dist. Franklin No. 03AP-951,

, ¶ 10. “Where the defendant files a motion to vacate judgment, and swears under oath that he or she did not reside at the address to which process was sent, the presumption is rebutted, and it is incumbent upon the plaintiff to produce evidence demonstrating that defendant resided at the address in question.” Watts v. Brown, 8th Dist. Cuyahoga No. 45638,

, 14-15 (Aug. 4, 1983).

(Emphasis added.)

.

{¶16} In the instant matter, Adams attempted to serve appellant with both the

original complaint and amended complaint at 16115 Arcade Avenue, Cleveland, Ohio

44110. According to appellant, defendant George Jones, III, resides at the Arcade

Avenue address.5 The record reflects that the summons and both complaints were

mailed to George Jones, III, at 16115 Arcade Avenue, Down, Cleveland, Ohio 44110.

In her motion to vacate, appellant asserted that she lived in Portage County at 925

Creekview Drive, Aurora, Ohio 44202 prior to and throughout the pendency of the trial

court’s proceedings.

{¶17} Appellant submitted an affidavit along with her motion to vacate in which

she averred, in relevant part:

Appellant is married to George Jones, IV. 5 6. At the time [CV-12-783248] was filed, I was residing at 925 Creekview Drive, Aurora, OH 44202, in Portage County.

7. At all times during the pendency of the [l]awsuit, I resided at 925 Creekview Drive, Aurora, OH 44202.

8. I never received service of the [c]omplaint or [a]mended [c]omplaint filed in the [l]awsuit at my residence.

9. The [l]awsuit docket listed my address as 16115 Arcade Avenue, Cleveland, OH 44110. I did not reside at that address at any time during the [l]awsuit and I have never resided at that address.

10. 16115 Arcade Avenue was the home of my father-in-law, George Jones III, also a [d]efendant in the [l]awsuit.

11. I was not physically present at 16115 Arcade Avenue on a regular basis and I never received mail at that address.

12. All correspondence addressed to me concerning the [l]awsuit was sent to 16115 Arcade Avenue, Cleveland, OH 44110. I never received any correspondence.

13. The [l]awsuit docket showed my attorney as Sam Thomas III. I was never represented by Sam Thomas III or any other attorney in the [l]awsuit.

14. I never filed an answer to the [c]omplaint and never made any appearance in the [l]awsuit.

15. Pursuant to the [l]awsuit [d]ocket [e]ntry dated August 22, 2012, I never received written notification of the pending [d]efault [h]earing.

16. I never received notification of the [d]efault [j]udgment entered against me on September 4, 2012.

17. The [l]awsuit [d]ocket [e]ntry dated January 4, 2013, stating that a [r]esponse to [Adams] [m]otion for [s]ummary [j]udgment was filed on my behalf was incorrect. I was never represented by the filing attorney, Sam Thomas III.

18. I did not learn that the [c]ourt had ordered the [East 131st Street property] transferred back to the [decedent’s estate], pursuant to a settlement agreement entered into by the remaining parties to the [l]awsuit, until I was contacted by the court-appointed [f]iduciary for the [e]state, Michael Stinn.

{¶18} As noted above, Adams did not oppose appellant’s motion. However,

Patricia Jones McElroy, Dondi Jones, and George Jones, III (“defendants”), filed a

memorandum in opposition to appellant’s motion to vacate. Therein, defendants

requested that appellant’s motion to vacate be denied or, in the alternative, that the trial

court hold a full hearing on appellant’s motion. Defendants argued that the trial court

should not strictly rely on appellant’s motion and the memorandum in opposition in

determining whether service on appellant was improper. Defendants asserted that they

had a right to contest and controvert appellant’s claim that she never received service by

submitting further evidence or cross-examining appellant. Defendants stated that it

would be improper to deny them “an opportunity for a hearing to prove that service was

received [by appellant].” Defendants explained that “further factual and legal

examination through a hearing is crucial in determining whether service was nevertheless

sufficient.” Defendants emphasized that a hearing on appellant’s motion was crucial

based on the case’s “history of complications” including: (1) both the common pleas court

and the probate court had been involved in the matter, (2) defendant William Anthony

Jones died during the pendency of the case, (3) defendant George Jones, III, moved

during the pendency of the case and “had to be searched out by [c]ounsel,” and (4)

Adams’s counsel withdrew from representation and, thus, his ability to respond to

appellant’s motion to vacate in a timely manner was compromised. {¶19} After reviewing the record, we find that appellant sufficiently rebutted the

presumption of proper service. See Hook, 8th Dist. Cuyahoga No. 104825,

, at ¶ 15, citing Watts, 8th Dist. Cuyahoga No. 45638,

, at 14-15. Appellant’s affidavit indicated that (1) she never resided at the

Arcade Avenue address, (2) she was not served with the complaint, the amended

complaint, or notice of the default judgment hearing prior to the trial court granting

default judgment in Adams’s favor, and (3) she only became aware of the default

judgment and settlement agreement when she was contacted by the court-appointed

fiduciary for decedent’s estate.

{¶20} Although appellant rebutted the presumption of proper service, Adams did

not respond to appellant’s motion to vacate and, thus, he failed to demonstrate that

appellant resided at the Arcade Avenue address. The responding defendants’

memorandum in opposition to appellant’s motion to vacate also failed to demonstrate that

appellant resided at the Arcade Avenue address. Defendants simply requested that the

trial court hold a hearing to provide them with an opportunity to contest and controvert —

through “further evidence or cross-examination” — appellant’s assertion that she never

received service. However, defendants failed to produce any such further evidence in

support of their memorandum.

{¶21} Accordingly, the record reflects that appellant sufficiently rebutted the

presumption of valid service by demonstrating that she did not reside or otherwise receive

mail at the Arcade Avenue address to which the complaint, amended complaint, and notice of the default judgment hearing were addressed. Furthermore, there is nothing in

the record indicating that appellant appeared or waived service prior to the September 4,

2012 default judgment.

{¶22} The record contains a January 4, 2013 docket entry titled “defendant (s)

Patricia Jones McElroy (D1), George Jones (D2), William Anthony Jones (D3), Antonio

Jones (D4), Tanisha Jones (D5), Patrice N. Jones (D6) and Dondi S. Jones (D7) response

to [Adams’s] motion for summary judgment. Sam Thomas 0067848.” In her motion to

vacate, appellant argued that she was erroneously listed in the docket entry, and that she

was never represented by the attorney, Sam Thomas, that filed the response to Adams’s

summary judgment motion. Furthermore, in her affidavit, appellant averred that she was

never represented by attorney Thomas.

{¶23} After reviewing the record, it is evident that the January 4, 2013 docket

entry erroneously indicated that the response to Adams’s motion for summary judgment

was filed by or on behalf of appellant. The trial court’s July 2, 2012 docket entry

provides that attorney Thomas filed a notice of appearance of counsel for defendants

Patricia Jones McElroy and Patrice Jones only. 6 There is nothing in the record

indicating that attorney Thomas was representing or acting on behalf of appellant.

{¶24} Based on the foregoing analysis, we find that the trial court abused its

discretion by denying appellant’s motion to vacate the default judgment. Appellant’s

first assignment of error is sustained. We further find that the trial court’s denial of

See July 2, 2012 docket entry. 6 appellant’s motion without holding an evidentiary hearing constituted an abuse of

discretion. “When the movant’s motion to vacate contains allegations of operative facts

that would warrant relief, the trial court should grant a hearing on such motion.” Khatib

v. Peters, 8th Dist. Cuyahoga No. 102663,

, citing Adomeit v.

Baltimore,

,

(8th Dist. 1974). In Khatib, the

movant’s motion to vacate contained operative facts that would warrant relief from

judgment. The movant attached an affidavit to her motion to vacate in which she

averred that she had not concealed her location from plaintiffs-appellees to avoid service;

she also provided the various address at which she had lived for the last several years.

Plaintiffs-appellees failed to produce any evidence rebutting the movant’s affidavit, they

merely argued that the affidavit was self-serving. This court held that the trial court

abused its discretion by denying the motion to vacate without a hearing, explaining that

“[w]ithout a hearing, the trial court could not determine [the movant’s] credibility[.]”

Id. at ¶ 25, citing Money Tree Loan Co. v. Williams,

,

,

, ¶ 16 (8th Dist.) (“trial court errs in summarily

overruling a defendant’s motion to aside a judgment for lack of service, when the

defendant submits a sworn statement that she did not receive service of process, without

affording the defendant a hearing.”).

{¶25} In the instant matter, like Khatib, appellant’s motion to vacate and

supporting affidavit contained operative facts that would warrant relief from judgment,

and Adams neither responded nor presented any evidence to rebut appellant’s affidavit. Furthermore, the defendants that filed the memorandum in opposition did not present any

evidence to rebut appellant’s affidavit or challenge the credibility of appellant’s sworn

statement. As noted above, these defendants requested that a hearing be held on

appellant’s motion to vacate.

{¶26} Based on the foregoing analysis, we find that the trial court abused its

discretion by denying appellant’s motion to vacate without holding a hearing.

Appellant’s second assignment of error is sustained.

III. Conclusion

{¶27} A review of the record reflects that appellant’s motion to vacate and her

supporting affidavit contained operative facts that would warrant relief from judgment.

These operative facts were not rebutted by Adams or by the other defendants in their

memorandum in opposition. Accordingly, we find that the trial court abused its

discretion by denying appellant’s motion to vacate default judgment without holding a

hearing.

{¶28} The trial court’s judgment denying appellant’s motion to vacate is reversed

and the matter is remanded for the trial court to conduct an evidentiary hearing on the

motion to vacate.

It is ordered that appellant recover of said appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

KATHLEEN ANN KEOUGH, P.J., and PATRICIA ANN BLACKMON, J., CONCUR