Opinion
No. 108669
04-23-2020
CAPITAL ONE BANK (USA) NA, Plaintiff-Appellee, v. Khadija SMITH, Defendant-Appellant.
Shermeta Law Group, P.L.L.C., Abbey Gudowski-DeMarais, Gregory R. Dye, and Tricia N. McKinnon, for appellee. The Misra Law Firm, L.L.C., and Anand N. Misra ; Beachwood, Robert S. Belovich, Attorney L.L.C., and Robert S. Belovich, Parma, for appellant.
Shermeta Law Group, P.L.L.C., Abbey Gudowski-DeMarais, Gregory R. Dye, and Tricia N. McKinnon, for appellee.
The Misra Law Firm, L.L.C., and Anand N. Misra ; Beachwood, Robert S. Belovich, Attorney L.L.C., and Robert S. Belovich, Parma, for appellant.
JOURNAL ENTRY AND OPINION
MICHELLE J. SHEEHAN, J.:
{¶ 1} Defendant Khadija Smith ("Smith") appeals from a judgment of the Parma Municipal Court denying her motion for relief from a default judgment and motion to declare the default judgment void. She claims the trial court erred in denying her request to vacate the default judgment because her sworn affidavit denying she received service of the complaint was unchallenged by plaintiff Capital One Bank, U.S.A. N.A. ("Capital One"). The issue on appeal is whether the trial court properly denied Smith's request to vacate the default judgment without determining the validity of her unchallenged sworn statement denying service of the complaint. After a review of the record and pertinent case law, we reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion.
Background
{¶ 2} On March 19, 2018, Capital One filed a complaint in the Parma Municipal Court against Smith for $5,322.75 due on her credit card account. Attached to the complaint was an account statement for the period of March 21, 2017, to April 20, 2017, reflecting a balance of $5,322.75. The complaint listed Smith's address as "6410 Stumph Rd. Apt. 203, Cleveland, OH 44130," which is undisputedly in the city of Parma Heights.
{¶ 3} On the same day, the court sent the summons and complaint by certified mail. The court's record contains a receipt of the certified mail dated March 23, 2018, which bore an image of an illegible signature.
{¶ 4} Smith did not answer the complaint. On October 26, 2018, the trial court issued a notice to Capital One's attorney for default hearing on January 23, 2019.
{¶ 5} On January 16, 2019, Capital One filed a motion for default judgment. On January 31, 2019, the trial court granted the motion and issued a judgment of $5,322.75 plus interest and costs in favor of Capital One. On April 22, 2019, Capital One filed an order of garnishment seeking to garnish funds on deposit with Smith's PNC Bank account. On April 29, 2019, Smith requested a garnishment hearing. On the same day the court set a garnishment hearing to be held before a magistrate on May 6, 2019.
{¶ 6} On May 6, 2019, before the scheduled garnishment hearing, Smith's counsel filed a "Motion to Strike the Complaint and Declare the Judgment Void," contending that the trial court did not have personal jurisdiction over Smith because she did not receive service of the complaint. She attached a notarized signed affidavit to the motion averring that, in March 2018, she resided at "3844 West 117th Street, Cleveland, 44111" and did not have a residence in Parma Heights, she did not sign a receipt for the certified mail from the municipal court, she did not receive a copy of the summons and complaint in this case, and she did not learn of the existence of this matter until she received a notice of garnishment.
{¶ 7} The court's docket shows that, on the day scheduled for the garnishment hearing, the magistrate filed a "Report of Magistrate Garnishment Hearing." The report reflects the following notation: "[d]efendant having failed to show, hearing cancelled. Garnishment shall go forward according to law." In an affidavit subsequently filed by Smith's counsel, however, counsel averred that he "attended the hearing scheduled by the court [on May 16, 2019]. During the hearing the magistrate stated that he was canceling the garnishment and referring the motion [counsel] had filed to the assigned judge for disposition." The docket reflects that, on that same day, the trial court issued a journal entry permitting the garnishment to go forward based on the magistrate's report. {¶ 8} On May 17, 2019, Smith filed a "Motion for Relief from Judgment," contending again the trial court lacked jurisdiction to enter a judgment, for the same ground asserted in her prior motion, which she incorporated by reference.
{¶ 9} Capital One did not file an opposition to either motion. On May 23, 2019, the trial court denied both motions without a hearing.
{¶ 10} Smith now appeals. Her sole assignment of error states:
I. The trial court incorrectly exercised jurisdiction over this case after receiving undisputed evidence that appellant did not reside in the court's judicial district when process was served.
Law and Analysis
{¶ 11} The record reflects that Smith filed a "Motion to Strike the Complaint and Declare the Judgment Void" and a "Motion for Relief from Judgment." Despite the captions, both motions essentially claimed the trial court's judgment was void for lack of personal jurisdiction because she did not receive service of the complaint.
{¶ 12} "A trial court lacks jurisdiction to render a judgment against a defendant if effective service of process has not been made on the defendant and the defendant has not appeared in the case or waived service." Lakhodar v. Madani , 8th Dist. Cuyahoga No. 91564, 2008-Ohio-6502, 2008 WL 5182896, ¶ 11, citing Money Tree Loan Co. v. Williams , 169 Ohio App.3d 336, 2006-Ohio-5568, 862 N.E.2d 885, ¶ 18 (8th Dist.). "A judgment in the absence of personal jurisdiction over the defendant is void." Id. , citing Lincoln Tavern, Inc. v. Snader , 165 Ohio St. 61, 64, 133 N.E.2d 606 (1956).
{¶ 13} Civ.R. 4(A) provides that "[u]pon the filing of the complaint the clerk shall forthwith issue a summons for service upon each defendant listed in the caption." Under Civ.R. 4.1(A), service may be made by certified or express mail, personal service, or residential service. Furthermore, "service of process must be made in a manner reasonably calculated to apprise interested parties of the action and to afford them an opportunity to respond." Chilcote v. Kugelman , 8th Dist. Cuyahoga No. 98873, 2013-Ohio-1896, 2013 WL 1932793, ¶ 8, citing Akron-Canton Regional Airport Auth. v. Swinehart , 62 Ohio St.2d 403, 406, 406 N.E.2d 811 (1980).
{¶ 14} The plaintiff bears the burden of obtaining proper service on a defendant. Cincinnati Ins. Co. v. Emge , 124 Ohio App.3d 61, 63, 705 N.E.2d 408 (1st Dist.1997). Where the plaintiff follows the civil rules governing the service of process, the service is presumed to be proper unless the defendant rebuts the presumption with sufficient evidence of nonservice. Lakhodar at ¶ 13, citing Rafalski v. Oates , 17 Ohio App.3d 65, 66, 477 N.E.2d 1212 (8th Dist.1984), and Grant v. Ivy , 69 Ohio App.2d 40, 429 N.E.2d 1188 (10th Dist.1980).
{¶ 15} The trial court's determination of whether service was completed will not be disturbed absent an abuse of discretion. Money Tree Loan Co. , 169 Ohio App.3d 336, 2006-Ohio-5568, 862 N.E.2d 885.
{¶ 16} Here, Capital One served Smith the complaint by certified mail. Therefore, a rebuttable presumption arose that service was proper. Smith, however, rebutted the presumption with a sworn statement that in March 2018 she did not live at the address to which the complaint was sent and she never received a copy of the complaint. {¶ 17} It is well settled that " ‘[w]here 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.’ " Hook v. Collins , 8th Dist. Cuyahoga No. 104825, 2017-Ohio-976, 2017 WL 1034605, ¶ 15, quoting Watts v. Brown , 8th Dist. Cuyahoga No. 45638, 1983 WL 5633, *3 (Aug. 4, 1983). See also Tomcho v. ALTL, Inc. , 8th Dist. Cuyahoga Nos. 106284 and 106562, 2018-Ohio-4613, 2018 WL 6012590, ¶ 20. Smith's sworn statement was unchallenged by Capital One when the trial court denied Smith's motions.
{¶ 18} Where the defendant's sworn statement that he or she never received the complaint is uncontested by the plaintiff, it is reversible error for the trial court to disregard it. Lakhodar, 8th Dist. Cuyahoga No. 91564, 2008-Ohio-6502, at ¶ 14, citing Rafalski , 17 Ohio App.3d at 67, 477 N.E.2d 1212. "At the least, such a sworn statement warrants the trial court conducting a hearing to determine the validity of the movant's statement. " (Emphasis added.) Id. , citing Patterson v. Patterson , 8th Dist. Cuyahoga No. 86282, 2005-Ohio-5352, 2005 WL 2471012 (the trial court is not required to give preclusive effect to a movant's sworn statement that he or she did not receive service of process when the record contains no other indication that service was ineffectual, however, a sworn statement at least warrants the trial court conducting a hearing to determine the validity of the movement's statement). See also Nationwide Ins. Co. v. Mahn , 36 Ohio App.3d 251, 522 N.E.2d 1096 (10th Dist.1987) (where a party seeking to vacate a default judgment presents an uncontradicted sworn affidavit stating that she did not reside or receive mail at the address where the service of summons and complaint were sent, at the very least, the trial court should afford that party the opportunity to contest the issue of notice at an evidentiary hearing).
{¶ 19} The municipal court here summarily denied Smith's motions claiming a lack of jurisdiction without holding a hearing to determine the validity of her uncontested sworn statement that she did not receive service of the complaint. Pursuant to case law authority, we find the court to have abused its discretion.
{¶ 20} Our decision comports with the basic tenant in Ohio law that "whenever possible cases should be decided on their merits." Rafalski at 67, 477 N.E.2d 1212, citing Perotti v. Ferguson , 7 Ohio St.3d 1, 3, 454 N.E.2d 951 (1983). See also Rice v. Gen. Dynamics Land Sys. , 86 Ohio App.3d 841, 844, 621 N.E.2d 1304 (3d Dist.1993) (default judgments are not favored in the law and cases should be decided on their merits rather than on technical grounds).
{¶ 21} The assignment of error is sustained for the reasons set forth in the foregoing analysis. The case is reversed and remanded for further proceedings consistent with this opinion. Lakhodar, 8th Dist. Cuyahoga No. 91564, 2008-Ohio-6502, at ¶ 15-16.
{¶ 22} Judgment reversed and remanded.
EILEEN T. GALLAGHER, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR