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Runyon v. Hawley

Court of Appeals of Ohio, Ninth District, Lorain

June 25, 2018

JEFFREY A. RUNYON Appellant
v.
JOEL D. HAWLEY, et al. Appellees

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 16CV189102

          BARRY R. MURNER, Attorney at Law, for Appellees.

          JONATHAN E. ROSENBAUM, Attorney at Law, for Appellant.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN, JUDGE.

         {¶1} Appellant, Jeffrey Runyon, appeals from the judgment of the Lorain County Common Pleas Court vacating the default judgment against Appellees, Joel Hawley and Hawley Motors, L.L.C. For the reasons set forth below, this Court affirms.

         I.

         {¶2} Mr. Hawley retained the services of Mr. Runyon to paint and restore a 1960 Lincoln Mark V convertible and to repair and paint a 2012 Jeep Wrangler. Due to Mr. Hawley's failure to pay for the parts and labor, Mr. Runyon placed a mechanic's lien on the vehicles and stored the vehicles on his premises for an extended period of time. During this time, Mr. Hawley transferred the title of the Lincoln from his name to his business, Hawley Motors, L.L.C. Mr. Hawley is the statutory agent for Hawley Motors, L.L.C.

         {¶3} Mr. Runyon filed a complaint against Mr. Hawley for breach of contract and quantum merit to recover the costs of the parts and labor and the storage costs of the vehicles. Additionally, the complaint included a demand against Hawley Motors, L.L.C. for a judgment transferring the title of the Lincoln to Mr. Runyon.

         {¶4} Service of the summons and complaint was initially attempted on Mr. Hawley and Hawley Motors, L.L.C. via certified mail at 309 County Road 40, Sullivan, Ohio 44880. This address was listed on the complaint and the Ohio Secretary of State's website as the statutory agent's address. The certified mail of the summons and complaint for Mr. Hawley and Hawley Motors, L.L.C. were returned as "[unclaimed." Mr. Runyon then requested service of the summons and complaint upon Mr. Hawley and Hawley Motors, L.L.C. by ordinary mail at the same address. The ordinary mail was not returned to the clerk of court for either Mr. Hawley or Hawley Motors, L.L.C.

         {¶5} Mr. Runyon moved for default judgment against Mr. Hawley and Hawley Motors, L.L.C, which the trial court granted. Mr. Runyon filed a certificate of judgment lien and transferred the title of the Lincoln into his name.

         {¶6} Six months later, Mr. Hawley and Hawley Motors, L.L.C. filed a Civ.R. 60(B) motion to vacate the default judgment and a supporting affidavit averring "they were unaware of this case and [] the judgment entered against them" and Mr. Runyon committed a fraud upon the court based on the contents of his affidavit in support of the default judgment. The motion to vacate was fully briefed, but no hearing was held.

         {¶7} Pursuant to Civ.R. 60(B), the trial court granted the motion to vacate the default judgment filed by Mr. Hawley and Hawley Motors, L.L.C. on the basis that they "never received proper service of the [c]omplaint." Mr. Runyon timely appeals from this judgment entry, asserting three assignments of error. To facilitate the analysis, this Court will address the assignments of error out of order.

         II.

         ASSIGNMENT OF ERROR NO. 1

         THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING THE MOTION TO VACATE THE DEFAULT JUDGMENT BECAUSE THE DEFENDANTS ALLEGED THEY DID NOT ACTUALLY RECEIVE THE SUMMONS WHEN SERVICE WAS PERFECTED PURSUANT TO THE CIVIL RULES.

         {¶8} Mr. Runyon's first assignment of error sets forth various instances in which the trial court abused its discretion when it vacated the default judgment because "[Mr. Hawley and Hawley Motors, L.L.C.] never received proper service of the [c]omplaint." This Court disagrees with each of Mr. Runyon's sub-arguments.

         Motion to Vacate: Civ.R. 60(B) v. Common Law

         {¶9} As an initial matter, Mr. Runyon argues that the motion to vacate should have been treated as a common law motion. Mr. Hawley and Hawley Motors, L.L.C. filed their motion to vacate pursuant to Civ.R. 60(B) and the trial court addressed the issue of improper service of process pursuant to the requirements of Civ.R. 60(B). Mr. Runyon did not raise this issue in the trial court and, therefore, has forfeited this argument. See JPMorgan Chase Bank, Natl. Assn. v. Burden, 9th Dist. Summit No. 27104, 2014-Ohio-2746, ¶ 12 ("Arguments that were not raised in the trial court cannot be raised for the first time on appeal."). Nonetheless, the filing of a Civ.R. 60(B) motion to vacate a void judgment is not fatal and this Court will consider the motion as a common law motion to vacate.[1] See In re Adoption of A.A.C., 5th Dist. Muskingum No. CT2011-0028, 2011-Ohio-5609, ¶ 12; U.S. Bank, N.A. v. Cooper, 9th Dist. Medina No. 12CA0084-M, 2014-Ohio-61, ¶ 10, rev'd on other grounds, 140 Ohio St.3d 1519, 2014-Ohio-5251.

         {¶10} Mr. Runyon framed all of his arguments in the first assignment of error as the trial court having abused its discretion. Generally, a trial court's decision regarding a common law motion to vacate is reviewed for an abuse of discretion. Terwoord v. Harrison, 10 Ohio St.2d 170, 171 (1967). However, Mr. Runyon is challenging the trial court's determination that it did not have personal jurisdiction over Mr. Hawley and Hawley Motors, L.L.C. "'Challenges to a trial court's jurisdiction present questions of law and are reviewed by this Court de novo.'" First Merit Bank, N.A. v. Wood, 9th Dist. Lorain No. 09CA009586, 2010-Ohio-1339, ¶ 5, quoting Eisel v. Austin, 9th Dist. Lorain No. 09CA009653, 2010-Ohio-816, ¶ 8. Accordingly, this Court will conduct a de novo review of the first assignment of error.

         A Presumption of Service: Compliance with the Civil Rules

         {¶11} Proper service of process is required before a court can render a valid default judgment. Gen. Motors Acceptance Corp. v. Kollert, 33 Ohio App.3d 274, 275 (9th Dist.1986). When a plaintiff follows the Ohio Rules of Civil Procedure that govern service of process, a presumption of proper service arises. Talarek v. Miles, 9th Dist. Lorain No. 96CA006567, 1997 Ohio App. LEXIS 3164, *6 (July 23, 1997); Jacobs v. Szakal, 9th Dist. Summit No. 22903, 2006-Ohio-1312, ¶ 14, quoting Rafalski v. Oates, 17 Ohio App.3d 65, 66 (8th Dist.1984).

         {¶12} Civ.R. 4.1(A)(1)(a) provides for service to be made by certified or express mail. If either of these methods is attempted and the envelope "is returned with an endorsement stating that the envelope was unclaimed," the party requesting service must be notified by the clerk and the party may request service by ordinary mail. Civ.R. 4.6(D). Ordinary mail service is "deemed complete when the fact of mailing is entered of record" and "the ordinary mail envelope is not returned by the postal authorities with an endorsement showing failure of delivery" Id.

         {¶13} Civ.R. 4.2 specifies who may be served. Under that rule, to serve a limited liability company, a plaintiff may direct "[s]ervice of process pursuant to Civ.R. 4 through Civ.R. 4.6" to "the agent authorized by appointment or by law to receive service of process." Civ.R. 4.2(G).

         {¶14} For purposes of service, Mr. Hawley was the statutory agent for Hawley Motors, L.L.C. See Civ.R. 4.2(G). In this case, the docket reflects that certified mail service issued to Mr. Hawley and Hawley Motors, L.L.C. at 309 County Road 40, Sullivan, Ohio 44880 was returned to the clerk unclaimed. See Civ.R. 4.1(A)(1)(a). At Mr. Runyon's request, the clerk issued ordinary mail service to Mr. Hawley and Hawley Motors, L.L.C. to the same address, which was not returned to the clerk. See Civ.R. 4.6(D). Based on the above service ...


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