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Adams v. McElroy

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 11, 2018

JOHNNY ISAAC ADAMS PLAINTIFF-APPELLEE
v.
PATRICIA JONES MCELROY, ADMINISTRATOR, ETC., ET AL. DEFENDANTS-APPELLANTS

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-783248.

          ATTORNEYS FOR APPELLANT Amy E. Asseff David A. Freeburg Freeburg Law Firm, L.P.A.

          FOR APPELLEE Johnny Isaac Adams, pro se

          Also Listed Antonio Jones, pro se Kelly Hill, pro se, Marva Edwards, pro se Linda Wiley, pro se, Key Bank National Association 127 Public Square Cleveland, Ohio 44144, Key Bank National Association 4910 Tiedeman Road, Suite C Brooklyn, Ohio 44114, Home Sales Inc., IL Forza, LLC

          For Dondi S. Jones, Patricia Jones McElroy, and George Jones, III Virgil T. Morant

          BEFORE Celebrezze, J., Keough, P.J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶1} Defendant-appellant, Tanisha Jones ("appellant"), appeals the trial court's judgment denying her motion to vacate judgment and for relief from judgment in a declaratory judgment action. Specifically, appellant argues that the trial court abused its discretion in denying her motion after she presented unchallenged evidence that service upon her was not perfected, and by failing to hold an evidentiary hearing on her motion. After a thorough review of the record and law, this court reverses and remands for further proceedings consistent with this opinion.

         I. Factual and Procedural History

         {¶2} On May 23, 2012, in Cuyahoga C.P. No. CV-12-783248, plaintiff-appellee, Johnny Isaac Adams ("Adams"), filed a complaint for declaratory judgment. Adams is the surviving spouse of Minnie Jones Adams ("decedent"), who died on January 19, 2012.

         {¶3} Adams's declaratory judgment involved a dispute regarding the parcels of land that decedent owned at the time of her death and whether she conveyed title to any parcels of land during her lifetime. In his complaint, Adams alleged that he did not release his dower interest in the parcels that decedent conveyed, and as a result, he sought payment of his dower interest. Adams filed an amended complaint on May 25, 2012.

         {¶4} Appellant was the title holder of record of one of the parcels at issue, located at 3596 East 131st Street, Cleveland, Ohio 44120. Appellant acquired title to the property from her husband, George Jones, IV, in 2011. Adams named appellant as a defendant in both the original and the amended complaints.

         {¶5} The record reflects that the clerk mailed the summons and both complaints by certified mail to appellant at 16115 Arcade Avenue, Cleveland, Ohio 44110. The certified mail receipt from the original complaint was returned as "mail received at address 05/31/2012 signed by other."[1] The certified mail receipt from the amended complaint was returned as "unclaimed notice mailed to [appellant's] attorney."[2] A copy of the summons and the amended complaint was then sent to appellant at the Arcade Avenue address by regular mail. There is nothing in the record indicating that this envelope was returned as undeliverable.

         {¶6} Appellant did not respond to Adams's complaints. On August 23, 2012, Adams filed a motion for default judgment against all defendants who failed to file an answer or a responsive pleading. Notice of the default judgment hearing was sent to appellant at the Arcade Avenue address. The trial court held a hearing on Adams's default judgment motion on September 4, 2012. The trial court granted Adams's motion for default judgment against all "non-answering parties" including appellant.[3]

         {¶7} Adams reached an agreement with the remaining defendants that filed a responsive pleading or appeared in the trial court.[4] Under this agreement, decedent's conveyances of various properties - including the East 131st Street property - were set aside and titles to the properties were returned to decedent's estate. The trial court journalized the parties' agreed judgment entry on May 28, 2013.

         {¶8} On December 2, 2016, appellant filed a motion to vacate the default judgment entered against her or, in the alternative, for relief from judgment pursuant to Civ.R. 60(B)(5). Therein, appellant argued that she had never been served with the complaint or the amended complaint in this matter, and thus, service was never perfected upon her. Appellant submitted an affidavit in support of her motion.

         {¶9} Adams did not respond to or oppose appellant's motion. On December 9, 2016, defendants Patricia Jones McElroy, George Jones, III, and Dondi S. Jones filed a memorandum in opposition to appellant's motion.

         {¶10} On December 31, 2016, the trial court denied appellant's motion to vacate without holding an evidentiary hearing. It is from this judgment that appellant filed the instant appeal. Appellant assigns two errors for review:

I. Because [appellant] produced unrefuted evidentiary-quality information demonstrating that she did not receive service, the trial court abused its discretion in denying her motion to vacate the default judgment entered against her.
II. Because [appellant] alleged operative facts that would warrant relief, the trial court abused its discretion in failing to hold an evidentiary hearing to take evidence and ...

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