KIRNER BOLDT CO v. ALMAN (2020)

JOURNAL ENTRY AND OPINION

{¶ 1} Defendant-appellant, Jeffrey J. Alman (“Alman”), appeals from the trial court's judgment adopting the magistrate's decision that granted default judgment in favor of plaintiff-appellee Kirner & Boldt Co., L.P.A. (“Kirner & Boldt”).

{¶ 2} On March 25, 2019, Kirner & Boldt filed a complaint in Parma Municipal Court seeking judgment against Alman for unpaid legal fees. The docket reflects that on that day, the clerk of courts sent the summons and complaint by both certified and regular mail to Alman. The certified mail was returned unclaimed; the ordinary mail envelope was never returned to the court by the post office as undeliverable.

{¶ 3} Alman did not answer the complaint. After a hearing before a magistrate, the magistrate issued a default judgment against Alman for $5,957.12 plus 5 percent interest from May 1, 2019. The trial court subsequently adopted the magistrate's decision, and this appeal followed.

{¶ 4} In his single assignment of error, Alman contends that the court never acquired personal jurisdiction over him because he was not served with the summons and complaint and, therefore, the default judgment is void.

{¶ 5} A judgment rendered without personal jurisdiction over a defendant is void. Madorsky v. Radiant Telecom, Inc., 8th Dist. Cuyahoga No. 87231, 2006-Ohio-6409, 2006 WL 3517968, ¶ 11, citing Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 87 Ohio St.3d 363, 366, 2000-Ohio-452, 721 N.E.2d 40. A court acquires personal jurisdiction over a party by proper service,¹ and where the plaintiff has not perfected service on a defendant, the court lacks jurisdiction to enter a default judgment against the defendant. Woods Cove III, L.L.C. v. DiBlasi, 8th Dist. Cuyahoga No. 106525, 2018-Ohio-3184, 2018 WL 3814846, ¶ 19. Thus, a default judgment rendered by a court without obtaining service over the defendant is void, and the party is entitled to vacation of the judgment. GGNSC Lima, L.L.C. at ¶ 15, citing State ex rel. Ballard v. O'Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650 (1990), syllabus.

{¶ 6} It is undisputed that the attempt to serve Alman by certified mail failed because the certified mail envelope was returned to the court as unclaimed. Service by ordinary mail is governed by Civ.R. 4.6(D), which states in pertinent part:

The clerk shall send by ordinary mail a copy of the summons and complaint or other document to be served to the defendant at the address set forth in the caption, or at the address set forth in the written instructions furnished to the clerk. The mailing shall be evidenced by a certificate of mailing which shall be completed and filed by the clerk. * * * Service shall be deemed complete when the fact of mailing is entered of record, provided that the ordinary mail envelope is not returned by the postal authorities with an endorsement showing failure of delivery.

Thus, service by ordinary mail is deemed complete when (1) the clerk enters the fact of mailing upon the record, and (2) the ordinary mail envelope is not returned to the court with an endorsement showing failure of delivery. Hayes v. Gradisher, 9th Dist. Summit No. 17791, 1996 WL 625231, *3 (Oct. 30, 1996).

{¶ 7} The record in this case contains a certificate of mailing filed by the clerk of courts and certifying that the clerk, at the written request of Kirner & Boldt's attorney, issued service of the complaint and summons by regular mail to Alman on March 25, 2019 (R. 4.) The regular mail service was not returned to the court as undeliverable. Accordingly, pursuant to Civ.R. 4.6(D), service by ordinary mail on Alman is deemed complete.

{¶ 8} Kirner & Boldt directs us to Ramirez v. Shagawat, 8th Dist. Cuyahoga No. 83259, 2004-Ohio-1001, 2004 WL 396335, in which this court opined, in reliance on Gen. Motors Acceptance Corp. v. Kollert, 33 Ohio App.3d 274, 515 N.E.2d 959 (9th Dist.1986), that a “certificate of mailing” pursuant to Civ.R. 4.6(D) requires United States Postal Service confirmation of the mailing. Kirner & Boldt attached to its brief on appeal an unauthenticated copy of a U.S. Postal Service Certificate of Mailing that presumably shows the post office mailed the complaint and summons to Alman. We do not consider the Postal Service Certificate of Mailing, however, because it was never made part of the lower court record.

{¶ 9} Furthermore, the Ninth District rejected its holding from Kollert in Bowers v. Craven, 9th Dist. Summit No. 24422, 2009-Ohio-2222, 2009 WL 1314866, noting that Kollert had relied on then-current staff notes to Civ.R. 4.6(D), but that the court's more recent examination of Civ.R. 4.6(D) demonstrated that “the plain language of Civ.R. 4.6(D) requires the clerk to evidence regular mail service by a certificate of mailing, completed and filed by the clerk,” id. at ¶ 9, and because a court speaks only through its journal, “the fact of mailing is determined from the record, not through certificates and letters [from the Post Office] that are not journalized.” Id. Accordingly, the Bowers court rejected the appellant's contention that service was defective for lack of confirmation of mailing by the United States Postal Service. Id. In light of Bowers, this court's conclusion in Ramirez that the certificate of mailing must be a United States Postal Service confirmation of mailing is no longer good law. As stated in Bowers, service by ordinary mail is deemed complete under Civ.R. 4.6(D) when the fact of mailing is entered by clerk on the record, presuming the mail is not returned as undeliverable. Id.

{¶ 10} Because the record reflects that the clerk served Alman by ordinary mail and the mail was never returned to the court showing failure of delivery, service is deemed complete pursuant to Civ.R. 4.6(D). The trial court thus had personal jurisdiction over Alman and because he failed to respond to the complaint or appear at the hearing before the magistrate, the trial court properly adopted the magistrate's decision granting default judgment to Kirner & Boldt. The assignment of error is overruled.

{¶ 11} Judgment affirmed.

FOOTNOTES

1.   A court may also acquire personal jurisdiction by a party's voluntary appearance, or limited acts by the party or his counsel that involuntarily submit the party to the court's jurisdiction. GGNSC Lima, L.L.C. v. LMOP, L.L.C., 8th Dist. Cuyahoga No. 105910, 2018-Ohio-1298, 2018 WL 1640049, ¶ 15, citing Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). Proper service is the issue in this appeal.

KATHLEEN ANN KEOUGH, J.:

FRANK D. CELEBREZZE, JR., P.J., and EILEEN A. GALLAGHER, J., CONCUR