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Corley v. Sullivan-Busman

Court of Appeals of Ohio, Eighth District

July 18, 2013

VICKY CORLEY PLAINTIFF-APPELLEE
v.
JEROME J. SULLIVAN-BUSMAN DEFENDANT-APPELLANT

Civil Appeal from the Cleveland Municipal Court Case No. 2010 CVG 003410

ATTORNEYS FOR APPELLANT Peter M. Iskin Hazel G. Remesch The Legal Aid Society of Cleveland

FOR APPELLEE Vickey Corley, pro se.

BEFORE: Blackmon, J., Rocco, P.J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

PATRICIA ANN BLACKMON, J.

{¶1} Appellant Jerome J. Sullivan-Busman ("Sullivan-Busman") appeals the Cleveland Municipal Court's denial of his motion to vacate the default judgment in favor of his former landlord, Vicky Corley ("Corley"), and assigns the following errors for our review:

I. The trial court erred as matter of law and committed reversible error when it: (1) held that, if a landlord elects under Civil Rule 18(A) to join in a complaint against a tenant both a Forcible Entry and Detainer ("FED") action and action for money damages for unpaid rent, unpaid charges or fees, or other rental agreement violations ("landlord's action for money damages"), the landlord's action for money damages is an FED action or a cause of action arising under R.C. Chapter 1923 and therefore subject to Civil Rule 1(C); and (2) thereupon held that the service of process for the landlord's action for money damages is not required to comport with the requirements of Civil Rules 4.1 and 4.6 and therefore entered the Judgment Entry, filed December 19, 2012 ("Dec. 2012 Judgment Entry"), denying Defendant's Motion to Vacate Judgment, filed April 29, 2011 ("Motion to Vacate").
II. The trial court abused its discretion, erred as a matter of law, and committed reversible error when it: (1) held that Defendant's uncontradicted sworn statements, in which he stated that he did not receive the service of process in this case and he stated related supportive facts, do not meet the requirements to vacate the default judgment for money damages that the trial court entered against him in Judgment Entry, filed April 28, 2010 ("April 2010 Judgment Entry"); and (2) therefore entered the Dec. 2012 Judgment Entry, denying the Motion to Vacate.

{¶2} Having reviewed the record and pertinent law, we affirm the trial court's decision. The apposite facts follow.

{¶3} On February 22, 2010, Corley filed a forcible entry and detainer complaint in which she asserted a cause of action for back rent. The municipal court sent the complaint along with the summons to Sullivan-Busman simultaneously by certified and regular mail. The post office returned the certified mail to the clerk's office marked "unclaimed." The regular mail was not returned.

{¶4} On April 26, 2010, after Sullivan-Busman had failed to file an answer or other responsive pleading within 28 days of service, the magistrate conducted a default hearing. After presentation of testimony and other evidence, the magistrate granted judgment to Corley in the amount $3, 000 for unpaid rent. On April 28, 2010, the trial court adopted and approved the magistrate's decision.

{¶5} On April 29, 2011, Sullivan-Busman filed a motion to vacate the default judgment entered in favor of Corley. In the motion, Sullivan-Busman alleged that he vacated the rental property on February 4, 2010, never received the complaint or summons, and only became aware of the action on December 2, 2010, when he was reviewing his credit report.

{ΒΆ 6} On December 19, 2012, the trial court denied Sullivan-Busman's motion to vacate. ...


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