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Timber Top Apartments v. Klinkiewicz

Court of Appeals of Ohio, Ninth District, Summit

April 25, 2018

TIMBER TOP APARTMENTS Appellee
v.
KAREN KLINKIEWICZ Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 16 CVG 08970

          NEIL P. AGARWAL, Attorney at Law, for Appellant.

          DEAN KONSTAND, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          JENNIFER HENSAL, JUDGE.

         {¶1} Karen Klinkiewicz appeals from the judgment of the Akron Municipal Court. We affirm.

         I.

         {¶2} Timber Top Apartments ("Landlord") filed a forcible-entry-and-detainer action against Karen Klinkiewicz ("Tenant") based upon her failure to pay rent for the apartment located at 1879B Moonlit Trail in Akron (the "Premises"). In addition to the cause of action for eviction, Landlord brought a second cause of action for unpaid rent. The docket reflects that the Clerk of Court issued the summons and complaint "via Federal Express, Regular Mail and Bailiff Service[.]" The docket also reflects that service by Federal Express was returned as undeliverable, but there is no indication that service by regular mail was similarly returned. Further, as it relates to service by posting, the record reflects that a bailiff posted the summons and complaint in a "conspicuous place" at the Premises.

         {¶3} A magistrate held a hearing on the matter, which Tenant did not attend. The magistrate determined that Landlord served Tenant with the eviction cause of action via posting, but determined that Landlord had not perfected service relative to the second cause of action (i.e., for unpaid rent). The magistrate recommended that a writ of restitution be issued with respect to the eviction action, and that the second cause of action be transferred to the administrative docket until Landlord perfected service. The trial court adopted the magistrate's decision and subsequently dismissed Landlord's second cause of action for unpaid rent.

         {¶4} Several months later, Tenant filed a common-law motion to vacate the forcible-entry-and-detainer judgment issued against her. Tenant argued that the judgment was void ab initio because Landlord failed to properly serve her and, therefore, the trial court lacked personal jurisdiction. In support of her motion, Tenant submitted an affidavit wherein she averred, in part, that she never received a copy of the summons and complaint, that she did not otherwise have notice of the action, and that she only became aware of the action when another landlord denied her rental application based upon the underlying eviction. In response, Landlord argued that it perfected service on its eviction action by both regular mail and posting in accordance with Revised Code Section 1923.06. The trial court agreed, holding that Landlord complied with the statutory requirements for service under Section 1923.06(G)(2) because the Clerk of Court issued the summons and complaint via regular mail, and a bailiff subsequently posted service in a conspicuous place at the Premises. The trial court, therefore, denied Tenant's motion. Tenant has appealed that decision, raising one assignment of error for our review.

         II.

         ASSIGNMENT OF ERROR

         THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED THE TENANT'S MOTION TO VACATE THE JUDGMENT AGAINST HER.

         {¶5} In her assignment of error, Tenant argues that the trial court erred when it denied her motion to vacate. We disagree.

         {¶6} Section 1923.06 governs service of process for eviction proceedings. It provides, in relevant part, that "[t]he clerk of the court in which a complaint to evict is filed shall mail any summons by ordinary mail * * *." R.C. 1923.06(C). It also provides that, "[i]n addition to this ordinary mail service, the clerk also shall cause service of that process to be completed" under one of three divisions, including division (D). R.C. 1923.06(C)(1) & (2). Division (D) provides that, if the person serving process cannot locate the tenant at the premises, or cannot leave a copy of the summons and complaint with anyone of "suitable age and discretion" at the premises, then the person serving process shall effect service "[b]y posting a copy in a conspicuous place on the subject premises * * * " ...


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