[Cite as Hunt v. Alderman,

.]

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

MIGUEL HUNT C.A. No. 30344

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE ROBERT E. ALDERMAN, JR. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2019-05-1673

DECISION AND JOURNAL ENTRY

Dated: September 27, 2023

HENSAL, Presiding Judge.

{¶1} Miguel Hunt appeals a judgment of the Summit County Court of Common Pleas

that granted summary judgment to Robert Alderman on his claims. For the following reasons, this

Court affirms.

I.

{¶2} In 2012, Mr. Hunt sued Mr. Alderman and served him at his then residence, which

was in a building owned by Mr. Alderman’s father. In 2014, Mr. Hunt took Mr. Alderman’s

deposition and during the deposition, Mr. Alderman stated that his address was at a different

location than where he had been served. Mr. Hunt later voluntarily dismissed his lawsuit, but he

refiled it a year later. Mr. Hunt had the clerk of court mail service of the refiled complaint to the

same address as in the first action. The then resident of the address passed the complaint on to Mr.

Alderman’s father, who gave it to Mr. Alderman. Mr. Alderman filed an answer that alleged lack

of proper service and later moved for summary judgment on that ground, arguing that, because 2

service of process was insufficient, Mr. Hunt had failed to commence the action within a year, as

required under Civil Rule 3(A). The trial court determined that Mr. Hunt complied with the Ohio

Rules of Civil Procedure. It concluded, however, that sending service to Mr. Alderman’s former

address did not comply with due process requirements and it, therefore, granted summary

judgment to Mr. Alderman. Mr. Hunt has appealed, assigning as error that the trial court

incorrectly granted Mr. Alderman’s motion for summary judgment.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING SUMMARY JUDGMENT DISMISSING THIS CASE.

{¶3} Mr. Hunt argues that the trial court incorrectly granted summary judgment to Mr.

Alderman. Under Rule 56(C), summary judgment is appropriate 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 such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc.,

(1977). To succeed on a motion for summary

judgment, the party moving for summary judgment must first be able to point to evidentiary

materials that demonstrate there is no genuine issue as to any material fact, and that it is entitled

to judgment as a matter of law. Dresher v. Burt,

(1996). If the movant

satisfies this burden, the nonmoving party “must set forth specific facts showing that there is a

genuine issue for trial[.]”

, quoting Civ.R. 56(E). This Court reviews an award of

summary judgment de novo. Grafton v. Ohio Edison Co.,

(1996).

{¶4} “In civil cases, a court with subject matter jurisdiction where venue is appropriate

has personal jurisdiction over the parties when an action is commenced in accordance with Civ.R. 3

3(A).” State v. Upchurch, 9th Dist. No. Medina No. 20CA0001-M,

. Rule 3(A)

provides, in relevant part, that “[a] civil action is commenced by filing a complaint with the court,

if service is obtained within one year from such filing upon a named defendant[.]” Rule 12(B)

provides a defendant “an option to assert the defense of lack of jurisdiction over the person either

by way of a motion prior to any pleading or in the responsive pleading to the complaint.” Maryhew

v. Yova,

(1984). “The obligation is upon plaintiffs to perfect service of

process; defendants have no duty to assist them in fulfilling this obligation.” Gliozzo v. Univ.

Urologists of Cleveland, Inc.,

,

, ¶ 16. “[A]ctual notice is not

the touchstone of proper service or the exercise of personal jurisdiction.” Goering v. Lacher, 1st

Dist. Hamilton No. C-110106,

. Although “the spirit of the Civil Rules is to

resolve cases upon their merits[,] * * * a failure to perfect service * * * affects whether a court has

personal jurisdiction over a defendant.” LaNeve v. Atlas Recycling, Inc.,

,

, ¶ 21-22.

{¶5} To determine whether “service of process was effectively made[,]” a court should

“look first to Civ.R. 4.1(1),” which “speaks primarily to how service shall be made, rather than

where or to whom process may be served.” (Emphasis added.) Akron-Canton Regional Airport

Auth. v. Swinehart,

(1980). Beyond Rule 4.1, due process “determine[s]

the parameters for proper service[.]”

“An elementary and fundamental requirement of due

process in any proceeding which is to be accorded finality is notice reasonably calculated, under

all the circumstances, to apprise interested parties of the pendency of the action and afford them

an opportunity to present their objections.”

, quoting Mullane v. Cent. Hanover Bank &

Trust Co.,

(1950). Thus, “[s]o long as service is ‘reasonably calculated’ to reach

interested parties, then the service is constitutionally sound.”

4

{¶6} Although we review a motion for summary judgment de novo, “[t]he determination

of the sufficiency of service of process is within the sound discretion of the trial court.” Vrbanac

v. Zulick, 9th Dist. Summit No. 19864,

, *2 (Jan. 10, 2001), citing Bell v.

Midwestern Educational Servs., Inc.,

(2d Dist. 1993). “A trial court will

be found to have abused its discretion when its decision is contrary to law, unreasonable, not

supported by evidence, or grossly unsound.” Hall v. Silver, 9th Dist. Summit No. 28798, 2018-

Ohio-1706, ¶ 19, quoting Tustin v. Tustin, 9th Dist. Summit No. 27164,

, ¶ 21.

{¶7} The trial court determined that Mr. Hunt complied with Rule 4.1 when he had the

complaint and summons sent to Mr. Alderman by certified mail. It concluded, however, that he

did not send service of process in a manner reasonably calculated to apprise Mr. Alderman of the

pendency of the action. Specifically, it noted that Mr. Alderman had stopped living at his former

address in May 2012 and that Mr. Alderman had informed Mr. Hunt of a more recent address when

Mr. Hunt deposed him during the first action. The court also noted that there was no evidence in

the record that Mr. Alderman continued to accept mail at his former address following his move.

{¶8} Mr. Hunt argues that whether service of the complaint complied with due process

requirements should only be considered if a defendant never received the summons and complaint.

According to Mr. Hunt, the key is whether the defendant received the suit papers that were sent to

a different address. The Ohio Supreme Court has stated, however, that “[i]t is axiomatic that for

a court to acquire jurisdiction there must be a proper service of summons or an entry of

appearance[.]” Lincoln Tavern, Inc. v. Snader,

, 64 (1956). Just because a

defendant happens to learn of the existence of a lawsuit, even if it is in time to submit a timely

answer, does not moot the requirement of proper service. See LaNeve,

, 2008-

Ohio-3921 at ¶ 22 (“[I]t is an established principle that actual knowledge of a lawsuit’s filing and 5

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.”), Ward v. Ludwig,

, 2002-

Ohio-5948, ¶ 15 (4th Dist.) (concluding that actual notice of complaint was insufficient to establish

personal jurisdiction). For example, before Rule 4.1(A)(1)(b) allowed service by a commercial

carrier, this Court held that proper service could not be made by Federal Express, even if a

defendant’s insistence on technical compliance with service requirements appeared “to be a

dilatory tactic designed to unnecessarily prolong the litigation[.]” J. Bowers Constr. Co., Inc. v.

Vinez, 9th Dist. Summit No. 25948,

. The Ohio Supreme Court has similarly

held that “[t]he 30–day time period to file a notice of appeal begins upon service of notice of the

judgment and notation of service on the docket by the clerk of courts regardless of actual

knowledge of the judgment by the parties.” Clermont Cty. Transp. Improvement Dist. v. Gator

Milford, L.L.C.,

,

, syllabus. These cases emphasize that service

requirements must be met for a trial court to acquire personal jurisdiction over a defendant, even

if the defendant learns about a proceeding by other means.

{¶9} The cases cited by Mr. Hunt do not support his assertion that the issue of whether

service is reasonably calculated does not arise unless the defendant never received the lawsuit

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

, the Fifth

District Court of Appeals stated only that a defendant can rebut the presumption of proper service

“by producing evidentiary quality information he or she did not receive service of process.” Id. at

¶ 23. In Johnson v. Johnson, 2d Dist. Greene No. 2020-CA-7,

, the Second

District Court of Appeals noted the same and explained that a trial court cannot disregard

unchallenged testimony that a person did not receive service. Id. at ¶ 16. In Hendrickson v.

Grinder, 4th Dist. Ross No. 16CA3537,

, the Fourth District Court of Appeals 6

also only addressed the evidence necessary to rebut the presumption of proper service. Id. at ¶ 32.

In McWilliams v. Schumacher, 8th Dist. Cuyahoga Nos. 98188, 98288, 98390, 98423, 2013-Ohio-

29, the Eighth District Court of Appeals likewise only addressed the defendant’s burden of

production to rebut the presumption of proper service. Id. at ¶ 52. It did the same in Mitchell v.

Babickas, 8th Dist. Cuyahoga No. 105294,

, and Capital One Bank (USA) v. Smith,

8th Dist. Cuyahoga No. 108669,

.

; Smith at ¶ 14-16. In Friedman

v. Kalail, 9th Dist. Summit No. 20657,

(Apr. 3, 2002), this Court explained that

service of process must be accomplished in a manner reasonably calculated to apprise interested

parties of the action and must satisfy the requirements of Rules 4 and 4.1. Id. at *3. It also set

forth how a defendant can rebut the presumption of proper service. Id. This Court determined

that, under the particular facts of that case, the trial court did not abuse its discretion when it

determined that the service of process was reasonably calculated to provide notice. Id. Together,

these cases establish that defendants must produce some evidence to overcome the presumption

that service of process was proper. They do not support the idea that defendants cannot challenge

whether service of process was reasonably calculated to reach them if they received actual notice

of the proceeding. In addition, we note that, although many of the cases addressing the

requirements of proper service involve default judgments, that is unremarkable because, if service

is deficient, it is predictable that a defendant will not learn about the lawsuit until after judgment

is entered.

{¶10} Although Mr. Alderman received notice of the complaint shortly after Mr. Hunt

refiled his action, this Court cannot escape the Ohio Supreme Court’s directive that service is not

constitutionally sound unless it is “reasonably calculated” to reach the interested parties.

Swinehart,

; see also Mullane,

. We are also required to give 7

deference to the trial court’s “determination of the sufficiency of service of process[.]” Vrbanac,

at *2. Upon review of the record, we cannot say that the trial court exercised

improper discretion when it determined that the sending of the summons and complaint to Mr.

Alderman’s old address was not reasonably calculated to apprise Mr. Alderman of the pendency

of the action. The uncontroverted evidence in the record establishes that Mr. Alderman informed

Mr. Hunt of a new address during his deposition in the first action. Nevertheless, Mr. Hunt

attempted to serve Mr. Alderman at his former address five years after the date of that deposition.

There is also no evidence in the record that Mr. Hunt knew that Mr. Alderman’s father was the

owner of the building where Mr. Alderman used to live. Because service of process was

insufficient and Mr. Alderman preserved the issue in his answer, we are compelled by Swinehart

to conclude that the trial court did not err when it granted summary judgment to Mr. Alderman.

Mr. Hunt’s assignment of error is overruled.

III.

{¶11} Mr. Hunt’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

Judgment affirmed.

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. 8

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.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

SUTTON, P. J. CONCURS.

STEVENSON, J. DISSENTING.

{¶12} I respectfully dissent from the majority opinion as I believe the trial court

correctly determined service was proper in this case. In discussing service, the trial court

stated:

It is beyond dispute that the complaint and summons were sent to the Residence, and a person signed it on May 6, 2019. The Plaintiff presented evidence that he never signed for the complaint at the Residence. However, Yeager testified she signed for the complaint. ‘Notably, Civ.R. 4.1(A) does not require that delivery is restricted to the defendant or to a person authorized to receive service of process on the defendant's behalf.’ Brownfield v. Krupman, 10[th] Dist. Franklin No. 14AP-294,

, ¶ 16. In the Ninth District, ‘certified mail need not be delivered to and signed by the addressee only in order to be effective.’ Buckingham, Doolittle & Burroughs, L.L.P. v. Healthcare Imaging Solutions L.L.C., 9[th] Dist. Summit No. 14AP-294,

, ¶ 15[,] citing Castellano v. Kosydar,

[] (1975). Consequently, the Court finds that the Plaintiffs complied with the Ohio Rules of Civil Procedure. 9

When a party complies with the service requirements of the Ohio Rules of Civil Procedure, a rebuttable presumption of proper service arises ‘However, this presumption is rebuttable [only] if the defendant presents credible evidence that he or she did not, in fact, receive the summons and complaint.’ Buckingham[] at ¶ 16 citing Erie Ins. v. Williams, 9[th] Dist. [Summit] No. 23157,

,[] ¶ 6. In this case, the Defendant testified he became aware of the complaint in early June of 2019 by Alderman Sr. Moreover, Alderman Sr. testified he gave the complaint to Defendant in early June of 2019. As such, the Court finds the Defendant failed to presented [sic] credible evidence that he did not receive the summons and complaint. Consequently, the Court finds the Plaintiffs properly served the Defendant.

{¶13} Based on this finding, I do not believe that any further analysis was necessary.

However, the trial court continued to analyze the question of service under due process standards.

Due process requires notice and an opportunity to be heard. Appellee Alderman received the full

extent of his due process rights when he was given a copy of a properly served complaint by his

father and appeared to defend the case.

{¶14} The trial court and the majority proceed to cite a number of cases that require notice

be “reasonably calculated to apprise” a defendant of the action for due process to be met. Ohio

courts have rightfully applied that standard to cases where a defendant did not receive service or

did not defend the case and a default judgment was taken against that defendant. It is a necessary

standard to apply in those cases to ensure that defendants are afforded their full due process rights

before judgments are taken or enforced against them. However, that standard is miscast as a means

to dismiss an action against a defendant who fully participates in an action after receiving proper

service as it does not closely follow the rationale of due process expressed by the Ohio and United

States Supreme Courts.

{¶15} The majority finds it cannot escape the directive of Akron-Canton Regional Airport

Auth. v. Swinehart,

(1980). However, I find Swinehart to be readily

distinguishable. Swinehart involved service on defendant Sengpiel, a joint owner of property with 10

Swinehart.

. Sengpiel received certified mail service of a complaint signed for by a

receptionist at an office located in a different city than his own office. Sengpiel did not visit that

office and was never given a copy of the complaint, unlike Appellee Alderman.

. The

Ohio Supreme Court found that service was not properly made upon Sengpiel as he never received

a copy of the complaint and did not keep an office at that location.

. Even though Sengpiel

was not properly served, the Court still found that dismissal of the suit was not proper as the parties

filed a joint answer to the complaint and that answer established consent to personal jurisdiction.

. Thus, I would only find Swinehart compels a court to dismiss an action for improper

service when a defendant does not receive an actual copy of the complaint and does not appear in

the action. Appellee Alderman received a copy of the complaint, through service that the trial

court found proper, and appeared in this case. Thus, Swinehart does not apply.

{¶16} Further, Swinehart relies on the reasoning of the United States Supreme Court case

Mullane v. Central Hanover Bank & Trust Co.,

(1950). In Mullane, the Court

considered a statute that only required service by publication, even for those parties with known

addresses. The Court found service by publication to those defendants violated due process

because it was not reasonably calculated to apprise them of the action. The Court acknowledged,

however, that “[p]ersonal service of written notice within the jurisdiction is the classic form of

notice always adequate in any type of proceeding.”

. In this case, Appellee Alderman

received written notice in the jurisdiction, which should be adequate. The reason written notice

within the jurisdiction is adequate is based on the fundamental due process rights at stake. Mullane

clearly laid out those rights, stating:

This is defined by our holding that ‘The fundamental requisite of due process of law is the opportunity to be heard.’ Grannis v. Ordean,

, 394 * * * [(1914)]. This right to be heard has little reality or worth unless one is informed 11

that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.

Id. at 314. Here, Appellee Alderman was informed of the action and exercised his right to be

heard. He has suffered no procedural harm from the method of service in this case.

{¶17} Lastly, I believe closely following Mullane best fulfills the purpose of the Civil

Rules. Civ.R. 1(B) states that the Civil Rules “shall be construed and applied to effect just results

by eliminating delay, unnecessary expense and all other impediments to the expeditious

administration of justice.” The Ohio Supreme Court stated that this rule suggests that “[t]he spirit

of the Civil Rules is the resolution of cases upon their merits, not upon pleading

deficiencies.” Peterson v. Teodosio,

(1973). In DeHart v. Aetna Life Ins.

Co.,

(1982) the Ohio Supreme Court stated that “it is a fundamental tenet

of judicial review in Ohio that courts should decide cases on the merits. Judicial discretion must

be carefully-and cautiously-exercised before this court will uphold an outright dismissal of a case

on purely procedural grounds.” (Internal citation omitted.)

{¶18} In upholding the trial court's dismissal of a case—which was vigorously

defended—for lack of sufficient service, this Court is ignoring the implicit holdings of Peterson

and DeHart and forgetting the purpose of due process. The whole point of service of process is to

put the other party on notice that a lawsuit has been filed and permit them to be heard; it serves no

other purpose. Appellee Alderman was served, and he should be required to defend his actions on

the merits rather than have the complaint dismissed on a technicality. Accordingly, I respectfully

dissent. 12

APPEARANCES:

DAVID P. BERTSCH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and MARVIN D. EVANS, Assistant Prosecuting Attorney, for Appellee.