[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:

Weltman, Weinberg & Reis Co., L.P.A., and Robert B. 

Weltman, for appellee. 

Taft Stettinius & Hollister, James D. Abrams, and David 

C. Roper, for appellant. 

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 service by ordinary mail on 

June 2, 2014. The complaint was sent by ordinary 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 Brown moved for default judgment, 

which was granted by the trial court on August 13, 2014. 

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 against 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 June 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 trial 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 judgment, and 

a party asserting lack of jurisdiction due to lack of service does not need 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. 105910, 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 Internatl., Inc. v. Eco-Modity, L.L.C., 2019-Ohio4350, 135 N.E.3d 792, ¶ 9 (8th Dist.), citing Maryhew v. Yova, 11 Ohio St.3d 154, 

156, 464 N.E.2d 538 (1984). 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 defendant unless and until the defendant is properly 

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

the case.” Midland 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 

CincinnatiIns. 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.

Schumacher, 8th Dist. Cuyahoga Nos. 98188, 98288, 98390, and 98423, 2013-

Ohio-29, ¶ 49, citing Cent. Ohio Sheet Metal, Inc. v. Walker, 10th Dist. Franklin
No. 03AP-951, 2004-Ohio-2816, ¶ 10. The 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 4676 East 178 Streets address” where service was attempted. 

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

the East 178th Street address in 2014. Hathaway Brown attempted service at the 

East 178th Street 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 178th Street address in 2014, we find his affidavit 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 not 
been served with its complaint until January 26, 2022. Our review of the trial court 

record reveals that Hathaway Brown provided numerous documents attached to an 

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

vacate. One 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 Cleveland. 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 court that Cummings lived at 4676 East 178th Street 

Cleveland, Ohio 44128 when it attempted service there in 2014.

Accordingly, the 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 consistent 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