[Cite as Hathaway Brown School v. Cummings , 2023

- Ohio

- 374.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

HATHAWAY BROWN SCHOOL, :

Plaintiff

- Appellee

, : No. 111566

v. :

DESMOND CUMMINGS
, :

Defendant

- Appellee

. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: February 9, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV

- 14

- 825746

Appearances:

Wel t man , Weinberg & Reis Co., L.P.A., and Robert B. Weltman, for a

ppellee

. Taft Stettinius & Hollister, James D. Abrams, and David C. Roper
, for a

ppellant

.

LISA B. FORBES , J.:

Appellant Desmond Cummings (“Cummings”) appeals the trial

court’s order denying his motion to vacate default judgment rendered in favor of

appellee Hathaway Brown School (“Hathaway Brown”). After reviewing the facts of

the case and the pertinent law, we reverse

.I. Facts and Procedural History

On April 23, 2014 , Hathaway Brown filed a complaint asserting a

claim for breach of contract against Cummings and Kimberly Cummings

. 1 The

complaint listed Cummings’s address as: 4676 E. 178th Street Cleveland, Ohio

44128. The record reflects that Hathaway Brown sent a copy of the complaint via

certified mail to Cummings at this address on April 28, 2014, which was unclaimed

.

Hathaway Brown filed a request for s ervice by ordinary mail on

June 2, 2014. The complaint was sent by ordin ary mail to Cummings at 4676 East

178th Street Cleveland, Ohio 44128

, on June 4, 2014.

Cummings did not answer or otherwise respond to Hathaway

Brown’s complaint. On July 8, 2014, Hathaway B rown moved for default judgment,

which was granted by the trial court on August 13, 201 4.

Cummings moved the trial court to “Reopen, Vacate the Default

Judgment Order, and Dismiss All Claims” on April 11, 2022. In that motion,

Cummings claimed he was never properly served with Hathaway Brown’s

complaint, “meaning the default judgment again st him is void ab initio.” Cummings

attached an affidavit to this motion

, which stated that he “was never served with

Hathaway Brown’s complaint at any time prior to January 26, 2022.” Further, he

lived at 6799 Broadview Road, Seven Hills, OH 43131 from June 2013 to February 2016; 9261 Shady Lake Dr., Apt. 104, Streetsboro, OH 44241 from June 2016 to December 2016; 3768 Sunrise Lake Circle, Columbus, OH 43219 from October 2017 to June 2020; 6472 Helber Drive F, Columbus, OH 43230 from June 2020 through Ju ne 2021;

1 Kimberly Cummings is not a party to the instant appeal.and 3178 Deermeadow Way, Powell, OH 43065 from June 2021

through the present.

The trial court denied Cummings’s motion. It is from this order that

Cummings appeals.

II. Law and Analysis

Cummings raises the following two assignments of error:

The tria l court erred in summarily denying Mr. Cummings’ Motion to Reopen, Vacate, and Dismiss.

The trial court erred in enforcing the enrollment contract against Mr. Cummings when the evidence showed that he did not agree to the terms set forth in that document.

“ Trial courts have inherent authority to vacate a void j udgment , and

a party asserting lack of jurisdiction due to lack of service does not n eed to meet the

requirements of Civ.R. 60(B). ” (Citations omitted.) Midland Funding, L.L.C. v.

Cherrier , 8th Dist. Cuyahoga No. 108595, 2020

- Ohio

- 3280, ¶ 16. Here, Cummings

asserts that the trial court lacked jurisdiction over him because he was never

properly served with Hathaway Brown’s complaint. Therefore, we review whether

the trial court erred in finding that Hathaway Brown properly served Cummings

when it denied his motion to vacate

.

Appellate courts review a trial court’s decision regarding the validity

of service for an abuse of discretion. GGNSC Lima, L.L.C. v. LMOP, L.L.C. , 8th Dist.

Cuyahoga No. 10 5910, 2018

- Ohio

- 1298, ¶ 15. The term abuse of discretion “ implies

that the court ’ s attitude is unreasonable, arbitrary, or unconscionable. ” Blakemore

v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).“[T]o enter a valid judgment, a court must have personal jurisdiction

over the defendant.” Mayfran Int ernat l., Inc. v. Eco

- Modity, L.L.C. , 2019

- Ohio

4350, 135 N.E.3d 792, ¶ 9 (8th Dist.), citing Maryhew v. Yova , 11 Ohio St.3d 154,

156, 464 N.E.2d 538 (198 4). A judgment is void if it was rendered without personal

jurisdiction

. GGNSC Lima at ¶ 14, citing Patton v. Diemer , 35 Ohio St.3d 68, 518

N.E.2d 941 (1988), paragraph three of the syllabus. “A court does not acquire

personal jurisdiction over a defend ant unless and until the defendant is properly

served with the complaint and summons or the defendant makes an appearance in

the case.” Mi dland Funding at ¶ 10
, citing State ex rel. Ballard v. O ’ Donnell , 50
Ohio St.3d 182, 553 N.E.2d 650 (1990), syllabus.

Obtaining proper service upon the defendant is the plaintiff’ s burden.

Hook v. Collins , 8th Dist. Cuyahoga No . 104825, 2017

- Ohio

- 976, ¶ 14
, citing

Cincinnati Ins. Co. v. Emge
, 124 Ohio App. 3d 61, 63, 705 N.E.2d 408 (1st Dist. 1997).

“Where the plaintiff follows the civil rules governing service of process, courts

presume that service is proper unless the defendant rebuts this presumption with

sufficient evidence of nonservice.” (Citations omitted.) Midland Funding

, 8th Dist.

Cuyahoga No. 108595, 2020

- Ohio

- 3280, at ¶ 12.

The “ presumption of proper service may be rebutted by evidence that

the defendant did not reside, nor received mail, at the address to which such

ordinary mail service was addressed. ” Hook at ¶ 15, citing McWilliams v.

Schuma cher, 8th Dist. Cuyahoga Nos. 98188, 98288, 98390, and 98423, 2013

-

Ohio

- 29, ¶ 49, citing Cent. Ohio Sheet Metal, Inc. v. Walker

, 10th Dist. FranklinNo. 03AP

- 951, 2004

- Ohio

- 2816, ¶ 10

. T he crux of this analysis is that for a

defendant “to rebut the presumption of proper service, the [defendant] must

produce evidentiary

- quality information demonstrating that he or she did not

receive service.” McWilliams at ¶ 51.

If the defendant rebuts the presumption, “‘ it is incumbent upon the

plaintiff to produce evidence demonstrating that defendant resided at the address

in question. ’ ” Hook at ¶ 15, quoting Watts v. Brown
, 8th Dist. Cuyahoga No. 45638,

1983 Ohio App. LEXIS 15311, 14

- 15 (Aug. 4, 1983).

On appeal, Hathaway Brown argues that “while [Cummings’ s ]

affidavit stated that he ‘lived at the 655 Rolling Brooke Way’ address for a time,

nothing in the carefully crafted Affidavit states that he was not otherwise receiving

mail at the 4 676 East 178 Streets address” where service was attempted.

In his affidavit, Cummings attest ed to the fact that he did not live at

the East 178 th Street address in 2014

. Hathaway Brown attempted service at the

East 178th S treet address in 2014. Further

, in his affidavit Cummings stated that he

had not been served with Hathaway Brown’s complaint until January 26, 2022.

Though Cummings did not affirmatively state that he did not receive

mail at the East 178 th Street address in 2014, we find his affidavi t sufficient to rebut

the presumption of service. At that point, it became incumbent upon Hathaway

Brown to produce evidence that Cummings did reside at that address at the time of

service. Hathaway Brown did not produce any such evidence. Further, Hathaway

Brown did not produce any evidence to rebut Cummings’s statement that he had notbeen served with its complaint until January 26, 2022. Our review of the trial court

record reveals that Hathaway Brown pro vided numerous documents attached to an

affidavit from Hathaway Brown’s attorney in response to Cummings’s motion to

vacate . O ne of those documents appears to be an automotive credit agreement in

Cummings’s name from March 25, 2016 , which purported to show that Cummings

lived in Clevelan d

. While most of the information is redacted, the document shows

that Cleveland was listed as part of Cummings’s address and that his “time at

residence” there was listed as ten years. However, Hathaway Brown did not produce

any evidence to the trial cou rt that Cummings lived at 4676 East 178th Street

Cleveland, Ohio 44128 when it attempted service there in 2014

.

Accordingly, t he trial court abused its discretion when it determined

that service was proper by denying Cummings’s motion

.

Cummings’s first assignment of error is sustained. Our resolution of

Cummings’s first assignment of error renders his second assignment moot.

Judgment reversed . The case is remanded to the trial court for

proceedings cons istent with this opinion.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution

.A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________________ LISA B. FORBES
, JUDGE

ANITA LASTER MAYS
, A

. J., and MARY J. BOYLE , J., CONCUR