[Cite as Hunt v. Alderman, 2023-Ohio-3454.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT )

MIGUEL HUNT

Appellant

v.

ROBERT E. ALDERMAN, JR.

Appellee

C.A. No. 30344

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF SUMMIT, OHIO

CASE No. CV 2019-05-1673

DECISION AND JOURNAL ENTRY

Dated: September 27, 2023

HENSAL, Presiding Judge.

{¶1} Miguel Hunt appeals a judgment of the Summit County Court of Common Pleas 

that granted summary judgment to Robert Alderman on his claims. For the following reasons, this 

Court affirms.

I.

{¶2} In 2012, Mr. Hunt sued Mr. Alderman and served him at his then residence, which 

was in a building owned by Mr. Alderman’s father. In 2014, Mr. Hunt took Mr. Alderman’s 

deposition and during the deposition, Mr. Alderman stated that his address was at a different 

location than where he had been served. Mr. Hunt later voluntarily dismissed his lawsuit, but he 

refiled it a year later. Mr. Hunt had the clerk of court mail service of the refiled complaint to the 

same address as in the first action. The then resident of the address passed the complaint on to Mr. 

Alderman’s father, who gave it to Mr. Alderman. Mr. Alderman filed an answer that alleged lack 

of proper service and later moved for summary judgment on that ground, arguing that, because 
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service of process was insufficient, Mr. Hunt had failed to commence the action within a year, as 

required under Civil Rule 3(A). The trial court determined that Mr. Hunt complied with the Ohio 

Rules of Civil Procedure. It concluded, however, that sending service to Mr. Alderman’s former 

address did not comply with due process requirements and it, therefore, granted summary 

judgment to Mr. Alderman. Mr. Hunt has appealed, assigning as error that the trial court 

incorrectly granted Mr. Alderman’s motion for summary judgment. 

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING 

SUMMARY JUDGMENT DISMISSING THIS CASE.

{¶3} Mr. Hunt argues that the trial court incorrectly granted summary judgment to Mr. 

Alderman. Under Rule 56(C), summary judgment is appropriate if:

[n]o genuine issue as to any material fact remains to be litigated; (2) the moving 

party is entitled to judgment as a matter of law; and (3) it appears from the evidence 

that reasonable minds can come to but one conclusion, and viewing such evidence 

most strongly in favor of the party against whom the motion for summary judgment 

is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for summary 

judgment, the party moving for summary judgment must first be able to point to evidentiary 

materials that demonstrate there is no genuine issue as to any material fact, and that it is entitled 

to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant 

satisfies this burden, the nonmoving party “must set forth specific facts showing that there is a 

genuine issue for trial[.]” Id. at 293, quoting Civ.R. 56(E). This Court reviews an award of 

summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).

{¶4} “In civil cases, a court with subject matter jurisdiction where venue is appropriate 

has personal jurisdiction over the parties when an action is commenced in accordance with Civ.R. 
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3(A).” State v. Upchurch, 9th Dist. No. Medina No. 20CA0001-M, 2021-Ohio-94, ¶ 5. Rule 3(A) 

provides, in relevant part, that “[a] civil action is commenced by filing a complaint with the court, 

if service is obtained within one year from such filing upon a named defendant[.]” Rule 12(B) 

provides a defendant “an option to assert the defense of lack of jurisdiction over the person either 

by way of a motion prior to any pleading or in the responsive pleading to the complaint.” Maryhew 

v. Yova, 11 Ohio St.3d 154, 157 (1984). “The obligation is upon plaintiffs to perfect service of 

process; defendants have no duty to assist them in fulfilling this obligation.” Gliozzo v. Univ. 

Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, ¶ 16. “[A]ctual notice is not 

the touchstone of proper service or the exercise of personal jurisdiction.” Goering v. Lacher, 1st 

Dist. Hamilton No. C-110106, 2011-Ohio-5464, ¶ 13. Although “the spirit of the Civil Rules is to 

resolve cases upon their merits[,] * * * a failure to perfect service * * * affects whether a court has 

personal jurisdiction over a defendant.” LaNeve v. Atlas Recycling, Inc., 119 Ohio St.3d 324, 

2008-Ohio-3921, ¶ 21-22.

{¶5} To determine whether “service of process was effectively made[,]” a court should 

“look first to Civ.R. 4.1(1),” which “speaks primarily to how service shall be made, rather than 

where or to whom process may be served.” (Emphasis added.) Akron-Canton Regional Airport 

Auth. v. Swinehart, 62 Ohio St.2d 403, 405 (1980). Beyond Rule 4.1, due process “determine[s] 

the parameters for proper service[.]” Id. “An elementary and fundamental requirement of due 

process in any proceeding which is to be accorded finality is notice reasonably calculated, under 

all the circumstances, to apprise interested parties of the pendency of the action and afford them 

an opportunity to present their objections.” Id. at 406, quoting Mullane v. Cent. Hanover Bank & 

Trust Co., 339 U.S. 306, 314 (1950). Thus, “[s]o long as service is ‘reasonably calculated’ to reach 

interested parties, then the service is constitutionally sound.” Id.
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{¶6} Although we review a motion for summary judgment de novo, “[t]he determination 

of the sufficiency of service of process is within the sound discretion of the trial court.” Vrbanac 

v. Zulick, 9th Dist. Summit No. 19864, 2001 WL 22302, *2 (Jan. 10, 2001), citing Bell v. 

Midwestern Educational Servs., Inc., 89 Ohio App.3d 193, 203 (2d Dist.1993). “A trial court will 

be found to have abused its discretion when its decision is contrary to law, unreasonable, not 

supported by evidence, or grossly unsound.” Hall v. Silver, 9th Dist. Summit No. 28798, 2018-

Ohio-1706, ¶ 19, quoting Tustin v. Tustin, 9th Dist. Summit No. 27164, 2015-Ohio-3454, ¶ 21.

{¶7} The trial court determined that Mr. Hunt complied with Rule 4.1 when he had the 

complaint and summons sent to Mr. Alderman by certified mail. It concluded, however, that he 

did not send service of process in a manner reasonably calculated to apprise Mr. Alderman of the 

pendency of the action. Specifically, it noted that Mr. Alderman had stopped living at his former 

address in May 2012 and that Mr. Alderman had informed Mr. Hunt of a more recent address when 

Mr. Hunt deposed him during the first action. The court also noted that there was no evidence in 

the record that Mr. Alderman continued to accept mail at his former address following his move.

{¶8} Mr. Hunt argues that whether service of the complaint complied with due process 

requirements should only be considered if a defendant never received the summons and complaint. 

According to Mr. Hunt, the key is whether the defendant received the suit papers that were sent to 

a different address. The Ohio Supreme Court has stated, however, that “[i]t is axiomatic that for 

a court to acquire jurisdiction there must be a proper service of summons or an entry of 

appearance[.]” Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61, 64 (1956). Just because a 

defendant happens to learn of the existence of a lawsuit, even if it is in time to submit a timely 

answer, does not moot the requirement of proper service. See LaNeve, 119 Ohio St.3d 324, 2008-

Ohio-3921 at ¶ 22 (“[I]t is an established principle that actual knowledge of a lawsuit’s filing and 
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lack of prejudice resulting from the use of a legally insufficient method of service do not excuse a 

plaintiff’s failure to comply with the Civil Rules.”), Ward v. Ludwig, 149 Ohio App.3d 687, 2002-

Ohio-5948, ¶ 15 (4th Dist.) (concluding that actual notice of complaint was insufficient to establish 

personal jurisdiction). For example, before Rule 4.1(A)(1)(b) allowed service by a commercial 

carrier, this Court held that proper service could not be made by Federal Express, even if a 

defendant’s insistence on technical compliance with service requirements appeared “to be a 

dilatory tactic designed to unnecessarily prolong the litigation[.]” J. Bowers Constr. Co., Inc. v. 

Vinez, 9th Dist. Summit No. 25948, 2012-Ohio-1171, ¶ 17. The Ohio Supreme Court has similarly 

held that “[t]he 30–day time period to file a notice of appeal begins upon service of notice of the 

judgment and notation of service on the docket by the clerk of courts regardless of actual 

knowledge of the judgment by the parties.” Clermont Cty. Transp. Improvement Dist. v. Gator 

Milford, L.L.C., 141 Ohio St.3d 542, 2015-Ohio-241, syllabus. These cases emphasize that service 

requirements must be met for a trial court to acquire personal jurisdiction over a defendant, even 

if the defendant learns about a proceeding by other means. 

{¶9} The cases cited by Mr. Hunt do not support his assertion that the issue of whether 

service is reasonably calculated does not arise unless the defendant never received the lawsuit 

papers. In Thompson v. Bayer, 5th Dist. Fairfield No. 2011-CA-00007, 2011-Ohio-5897, the Fifth 

District Court of Appeals stated only that a defendant can rebut the presumption of proper service 

“by producing evidentiary quality information he or she did not receive service of process.” Id. at 

¶ 23. In Johnson v. Johnson, 2d Dist. Greene No. 2020-CA-7, 2020-Ohio-5275, the Second 

District Court of Appeals noted the same and explained that a trial court cannot disregard 

unchallenged testimony that a person did not receive service. Id. at ¶ 16. In Hendrickson v. 

Grinder, 4th Dist. Ross No. 16CA3537, 2016-Ohio-8474, the Fourth District Court of Appeals 
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also only addressed the evidence necessary to rebut the presumption of proper service. Id. at ¶ 32. 

In McWilliams v. Schumacher, 8th Dist. Cuyahoga Nos. 98188, 98288, 98390, 98423, 2013-Ohio29, the Eighth District Court of Appeals likewise only addressed the defendant’s burden of 

production to rebut the presumption of proper service. Id. at ¶ 52. It did the same in Mitchell v. 

Babickas, 8th Dist. Cuyahoga No. 105294, 2018-Ohio-383, and Capital One Bank (USA) v. Smith, 

8th Dist. Cuyahoga No. 108669, 2020-Ohio-1614. Mitchell at ¶ 10; Smith at ¶ 14-16. In Friedman 

v. Kalail, 9th Dist. Summit No. 20657, 2002 WL 498172 (Apr. 3, 2002), this Court explained that 

service of process must be accomplished in a manner reasonably calculated to apprise interested 

parties of the action and must satisfy the requirements of Rules 4 and 4.1. Id. at *3. It also set 

forth how a defendant can rebut the presumption of proper service. Id. This Court determined 

that, under the particular facts of that case, the trial court did not abuse its discretion when it 

determined that the service of process was reasonably calculated to provide notice. Id. Together, 

these cases establish that defendants must produce some evidence to overcome the presumption 

that service of process was proper. They do not support the idea that defendants cannot challenge

whether service of process was reasonably calculated to reach them if they received actual notice 

of the proceeding. In addition, we note that, although many of the cases addressing the 

requirements of proper service involve default judgments, that is unremarkable because, if service 

is deficient, it is predictable that a defendant will not learn about the lawsuit until after judgment 

is entered. 

{¶10} Although Mr. Alderman received notice of the complaint shortly after Mr. Hunt 

refiled his action, this Court cannot escape the Ohio Supreme Court’s directive that service is not 

constitutionally sound unless it is “reasonably calculated” to reach the interested parties. 

Swinehart, 62 Ohio St.2d at 406; see also Mullane, 339 U.S. at 314. We are also required to give 
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deference to the trial court’s “determination of the sufficiency of service of process[.]” Vrbanac, 

2001 WL 22302 at *2. Upon review of the record, we cannot say that the trial court exercised 

improper discretion when it determined that the sending of the summons and complaint to Mr. 

Alderman’s old address was not reasonably calculated to apprise Mr. Alderman of the pendency 

of the action. The uncontroverted evidence in the record establishes that Mr. Alderman informed 

Mr. Hunt of a new address during his deposition in the first action. Nevertheless, Mr. Hunt 

attempted to serve Mr. Alderman at his former address five years after the date of that deposition. 

There is also no evidence in the record that Mr. Hunt knew that Mr. Alderman’s father was the 

owner of the building where Mr. Alderman used to live. Because service of process was 

insufficient and Mr. Alderman preserved the issue in his answer, we are compelled by Swinehart 

to conclude that the trial court did not err when it granted summary judgment to Mr. Alderman. 

Mr. Hunt’s assignment of error is overruled.

III.

{¶11} Mr. Hunt’s assignment of error is overruled. The judgment of the Summit County 

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period 

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to 

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the 

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL

FOR THE COURT

SUTTON, P. J.

CONCURS.

STEVENSON, J.

DISSENTING.

{¶12} I respectfully dissent from the majority opinion as I believe the trial court 

correctly determined service was proper in this case. In discussing service, the trial court 

stated:

It is beyond dispute that the complaint and summons were sent to the 

Residence, and a person signed it on May 6, 2019. The Plaintiff presented evidence 

that he never signed for the complaint at the Residence. However, Yeager testified 

she signed for the complaint. ‘Notably, Civ.R. 4.1(A) does not require that delivery 

is restricted to the defendant or to a person authorized to receive service of process

on the defendant's behalf.’ Brownfield v. Krupman, 10[th] Dist. Franklin No. 

14AP-294, 2015-Ohio-1966, ¶ 16. In the Ninth District, ‘certified mail need not be 

delivered to and signed by the addressee only in order to be effective.’ 

Buckingham, Doolittle & Burroughs, L.L.P. v. Healthcare Imaging Solutions 

L.L.C., 9[th] Dist. Summit No. 14AP-294, 2010-Ohio-418, ¶ 15[,] citing Castellano 

v. Kosydar, 42 Ohio St.2d 107, 110 [] (1975). Consequently, the Court finds that

the Plaintiffs complied with the Ohio Rules of Civil Procedure.
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When a party complies with the service requirements of the Ohio Rules of 

Civil Procedure, a rebuttable presumption of proper service arises ‘However, this 

presumption is rebuttable [only] if the defendant presents credible evidence that he 

or she did not, in fact, receive the summons and complaint.’ Buckingham[] at ¶ 

16 citing Erie Ins. v. Williams, 9[th] Dist. [Summit] No. 23157, 2006-Ohio-6754,[]

¶ 6. In this case, the Defendant testified he became aware of the complaint in early 

June of 2019 by Alderman Sr. Moreover, Alderman Sr. testified he gave the 

complaint to Defendant in early June of 2019. As such, the Court finds the 

Defendant failed to presented [sic] credible evidence that he did not receive

the summons and complaint. Consequently, the Court finds the Plaintiffs properly

served the Defendant.

{¶13} Based on this finding, I do not believe that any further analysis was necessary. 

However, the trial court continued to analyze the question of service under due process standards. 

Due process requires notice and an opportunity to be heard. Appellee Alderman received the full 

extent of his due process rights when he was given a copy of a properly served complaint by his 

father and appeared to defend the case. 

{¶14} The trial court and the majority proceed to cite a number of cases that require notice 

be “reasonably calculated to apprise” a defendant of the action for due process to be met. Ohio 

courts have rightfully applied that standard to cases where a defendant did not receive service or 

did not defend the case and a default judgment was taken against that defendant. It is a necessary 

standard to apply in those cases to ensure that defendants are afforded their full due process rights 

before judgments are taken or enforced against them. However, that standard is miscast as a means 

to dismiss an action against a defendant who fully participates in an action after receiving proper 

service as it does not closely follow the rationale of due process expressed by the Ohio and United 

States Supreme Courts. 

{¶15} The majority finds it cannot escape the directive of Akron-Canton Regional Airport 

Auth. v. Swinehart, 62 Ohio St.2d 403, 405 (1980). However, I find Swinehart to be readily 

distinguishable. Swinehart involved service on defendant Sengpiel, a joint owner of property with 
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Swinehart. Id. at 403. Sengpiel received certified mail service of a complaint signed for by a 

receptionist at an office located in a different city than his own office. Sengpiel did not visit that 

office and was never given a copy of the complaint, unlike Appellee Alderman. Id. at 404. The 

Ohio Supreme Court found that service was not properly made upon Sengpiel as he never received 

a copy of the complaint and did not keep an office at that location. Id. at 407. Even though Sengpiel 

was not properly served, the Court still found that dismissal of the suit was not proper as the parties 

filed a joint answer to the complaint and that answer established consent to personal jurisdiction. 

Id. at 407-408. Thus, I would only find Swinehart compels a court to dismiss an action for improper 

service when a defendant does not receive an actual copy of the complaint and does not appear in 

the action. Appellee Alderman received a copy of the complaint, through service that the trial 

court found proper, and appeared in this case. Thus, Swinehart does not apply. 

{¶16} Further, Swinehart relies on the reasoning of the United States Supreme Court case 

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). In Mullane, the Court

considered a statute that only required service by publication, even for those parties with known 

addresses. The Court found service by publication to those defendants violated due process 

because it was not reasonably calculated to apprise them of the action. The Court acknowledged, 

however, that “[p]ersonal service of written notice within the jurisdiction is the classic form of 

notice always adequate in any type of proceeding.” Id. at 313. In this case, Appellee Alderman 

received written notice in the jurisdiction, which should be adequate. The reason written notice 

within the jurisdiction is adequate is based on the fundamental due process rights at stake. Mullane 

clearly laid out those rights, stating:

This is defined by our holding that ‘The fundamental requisite of due process of 

law is the opportunity to be heard.’ Grannis v. Ordean, 234 U.S. 385, 394 * * * 

[(1914)]. This right to be heard has little reality or worth unless one is informed 
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that the matter is pending and can choose for himself whether to appear or default, 

acquiesce or contest.

Id. at 314. Here, Appellee Alderman was informed of the action and exercised his right to be 

heard. He has suffered no procedural harm from the method of service in this case. 

{¶17} Lastly, I believe closely following Mullane best fulfills the purpose of the Civil 

Rules. Civ.R. 1(B) states that the Civil Rules “shall be construed and applied to effect just results 

by eliminating delay, unnecessary expense and all other impediments to the expeditious 

administration of justice.” The Ohio Supreme Court stated that this rule suggests that “[t]he spirit 

of the Civil Rules is the resolution of cases upon their merits, not upon pleading 

deficiencies.” Peterson v. Teodosio, 34 Ohio St.2d 161, 175 (1973). In DeHart v. Aetna Life Ins. 

Co., 69 Ohio St.2d 189, 192 (1982) the Ohio Supreme Court stated that “it is a fundamental tenet 

of judicial review in Ohio that courts should decide cases on the merits. Judicial discretion must 

be carefully-and cautiously-exercised before this court will uphold an outright dismissal of a case 

on purely procedural grounds.” (Internal citation omitted.) 

{¶18} In upholding the trial court's dismissal of a case—which was vigorously 

defended—for lack of sufficient service, this Court is ignoring the implicit holdings of Peterson

and DeHart and forgetting the purpose of due process. The whole point of service of process is to 

put the other party on notice that a lawsuit has been filed and permit them to be heard; it serves no 

other purpose. Appellee Alderman was served, and he should be required to defend his actions on 

the merits rather than have the complaint dismissed on a technicality. Accordingly, I respectfully 

dissent.
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APPEARANCES:

DAVID P. BERTSCH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and MARVIN D. EVANS, Assistant 

Prosecuting Attorney, for Appellee.