Summary
In Mitchell v. Mitchell (1980), 64 Ohio St.2d 49, 51, 413 N.E.2d 1182, the Court held "* * * certified mail service under Civ.R. 4.
Summary of this case from Herman v. ChunOpinion
No. 80-120
Decided December 3, 1980.
Actions — Service of process — By certified mail — Delivery to defendant only, not required — Constitutionality.
1. Civ. R. 4.3(B)(1) does not require that delivery of service of process by certified mail be restricted to the defendant or to a person authorized by appointment or by law to receive service of process for the defendant.
2. Service of process by certified mail under the Civil Rules is consistent with due process standards where it is reasonably calculated to give interested parties notice of a pending action.
CERTIFIED by the Court of Appeals for Vinton County.
On February 9, 1978, appellee, Emmett Mitchell, filed a complaint for divorce against appellant, Thelma Mitchell, in the Court of Common Pleas of Vinton County. The caption of the complaint correctly listed appellant's address in Fairview, Tennessee.
Service of process was made by certified mail pursuant to Civ. R. 4.3(B)(1). The return receipt, received by the court on February 18, 1978, showed that an envelope containing a copy of the process and appellee's complaint had been delivered to one Alice Taylor on February 14, 1978, at appellant's address.
Appellant did not file an answer to appellee's complaint or appear at trial on May 11, 1978, although a notice of trial had been sent by regular mail to appellant's address pursuant to Civ. R. 75(K). On May 15, 1978, the court granted appellee a divorce from appellant.
On September 14, 1978, appellant filed a motion for relief from judgment pursuant to Civ. R. 60(B). The basis for the motion was lack of jurisdiction over appellant's person by reason of invalid certified mail service. Appellant asserted that service was invalid because the return receipt showed delivery to a person other than herself.
The court denied appellant's motion on January 22, 1979. The Court of Appeals affirmed the judgment, holding that service was valid although the envelope containing the documents to be served had been delivered to a person other than appellant.
The Court of Appeals finding its judgment to be in conflict with the judgment of the Court of Appeals for Licking County in Southgate Shopping Center Corp. v. Jones (1975), 49 Ohio App.2d 358, certified the record of the case to this court for review and final determination.
Southgate Shopping Center Corp. v. Jones was subsequently overruled, in effect, by this court's decision in Regional Airport Authority v. Swinehart (1980), 62 Ohio St.2d 403, fn. 2 at pages 406-407.
Mr. Roy J. Gilliland, for appellee.
Mr. Timothy J. Foran and Ms. Linda K. Fiely, for appellant.
Civ. R. 4.3(B)(1), which provides for service of process upon the out-of-state defendant by certified mail, states in pertinent part:
"Evidenced by return receipt signed by any person, service of any process shall be by certified mail unless otherwise permitted by these rules. The clerk shall place a copy of the process and complaint or other document to be served in an envelope and shall address the envelope to the person to be served at his last known address set forth in the caption or set forth in written instructions furnished to the clerk, with instructions to forward. He shall affix adequate postage and place the sealed envelope in the United States mail as certified mail return receipt requested with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered.
The words, "Evidenced by return receipt signed by any person," were added to Civil Rule 4.3(B)(1) by amendment on July 1, 1980.
"The clerk shall forthwith enter the fact of mailing on the appearance docket and make a similar entry when the return receipt is received by him. If the envelope is returned with an endorsement showing failure of delivery, the clerk shall forthwith notify, by mail, the attorney of record, or if there is no attorney of record, the party at whose instance process was issued. He shall enter the fact of notification on the appearance docket. The clerk shall file the return receipt or returned envelope in the records of the action. If the envelope is returned with an endorsement showing failure of delivery, service is complete when the attorney or serving party, after notification by the clerk, files with the clerk an affidavit setting forth facts indicating the reasonable diligence utilized to ascertain the whereabouts of the party to be served."
The Staff Note pertaining to Civ. R. 4.3(B)(1) states that certified mail service under the rule does not require delivery to the defendant only. This court in Castellano v. Kosydar (1975), 42 Ohio St.2d 107, 110, certiorari denied, 423 U.S. 932, declared that certified mail service under the Rules of Civil Procedure does not require actual service upon the defendant, but is effective upon certified delivery. This court recognized that a need for actual notice would be contrary to modern service requirements.
Similarly, certified mail service under the rule does not require that delivery to a person other than the defendant be restricted to a person authorized by appointment or by law to receive service of process for the defendant. All that is required is that certified mail service be consistent with due process standards; i.e., it must be 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. Mullane v. Central Hanover Bank Trust Co. (1950), 339 U.S. 306; In re Foreclosure of Liens (1980), 62 Ohio St.2d 333. This court in Castellano v. Kosydar, supra, concluded that service of process by certified mail is reasonably calculated to give interested parties notice of a pending action.
Accordingly, certified mail service under Civ. R. 4.3(B)(1) is valid where the envelope containing the documents to be served is delivered to a person other than the defendant, at the defendant's address. The Civil Rules do not require that delivery be restricted to the defendant or to a person authorized by appointment or by law to receive service of process for the defendant. Regional Airport Authority v. Swinehart (1980), 62 Ohio St.2d 403.
In the instant case, delivery of the envelope containing a copy of the process and appellee's complaint to Alice Taylor at appellant's address constituted valid certified mail service. Delivery to Alice Taylor was reasonably calculated to notify appellant that a complaint for divorce had been filed against her. In fact, appellant never asserted that she was unaware of the pendency of the action.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.
STILLMAN, J., of the Eighth Appellate District, sitting for DOWD, J.