[Cite as Thompson v. Bayer, 2011-Ohio-4212.]

[Please see nunc pro tunc opinion at 2011-Ohio-5897.] 

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

LEE A. THOMPSON 

 Plaintiff-Appellee 

-vsSCOTT BAYER, DBA 

BAYER PLUMBING & HEATING 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. John W. Wise, J. 

: 

: 

: Case No. 2011-CA-00007 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court 

of Common Pleas, Case No. 96CV128 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: August 15, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JAMES A. FIELDS RONALD B. NOGA 

FIELDS & INNOCENTI 1010 Old Henderson Road, Ste. 1 

117 W. Main Street, Ste. 206 Columbus, OH 43220 

Lancaster, OH 43130 
[Cite as Thompson v. Bayer, 2011-Ohio-4212.]

Hoffman, J. 

{¶1} Defendant-appellant Scott Bayer appeals a judgment of the Court of 

Common Pleas of Fairfield County, Ohio, overruling his motion for relief from judgment 

pursuant to Civ. R. 60 (B)(1) and (5). Plaintiff-appellee is Lee A. Thompson. 

{¶2} Appellant assigns three errors to the trial court: 

{¶3} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO 

FIND THE JUDGMENT WAS VOID AB INITIO FOR FAILURE OF SERVICE. 

{¶4} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN 

FAILING TO VACATE THE JUDGMENT UNDER RULE 60 (B),O.R.C.P. 

{¶5} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED 

ITS DISCRETION IN FAILING TO VACATE THAT PORTION OF THE DEFAULT 

JUDGMENT PERTAINING TO PUNITIVE DAMAGES.” 

{¶6} The issue in this case is whether Appellant’s motion to vacate was timely, 

contained a meritorious defense, and demonstrated he is entitled to relief under Civ. R. 

60(B). 

{¶7} The factual history of the case is unusual. Appellee brought suit against 

Appellant in 1996, alleging that while attempting to perform repairs on a pump at 

Appellee’s well, Appellant negligently damaged the pump and well, causing damages of 

$6,689.95. Appellee also alleged Appellant had held himself out as qualified to repair 

submersible pumps, when he was not. Appellee asserted this constituted fraudulent 

conduct, and prayed for punitive damages and attorney fees. 
Fairfield County, Case No. 2011-CA-00007 3 

{¶8} Appellant failed to file an answer, and Appellee took a default judgment for 

$10,723.25 plus costs and interest, including compensatory damages, punitive 

damages, and attorney fees. 

{¶9} In 2000 and 2001, Appellee attempted to conduct judgment debtor’s 

examinations to collect on the judgment. Service of the notices was unsuccessful in 

three instances and inadequate in a fourth. Attempts to serve him with a show cause 

motion were unsuccessful. 

{¶10} In 2008, Appellee moved the court to revive the judgment against 

appellant, and the court issued a conditional order of revivor. Appellant then moved the 

court for reconsideration of the judgment, and the court properly found the Ohio Rules 

of Civil Procedure do not provide for motions for reconsideration after final judgment. 

However, the court found it had jurisdiction over the motion for reconsideration because 

Appellee had failed to submit a final judgment entry for the court’s signature. The court 

sustained the motion for reconsideration and found Appellee’s judgment could not be 

revived. 

{¶11} The matter came before this Court in Thompson v. Baird, dba Baird 

Plumbing & Heating, Licking App. No. 08-CA-89. We found Appellee’s motion for 

revivor was timely under the statute and should have been considered by the trial court 

on the merits. We reversed and remanded. 

{¶12} On September 22, 2009, the trial court sustained Appellee’s motion for 

revivor, and revived the judgment for $5,723.25 for compensatory damages, $5,000.00 

for punitive damages, and interest at the stipulated rate. 
Fairfield County, Case No. 2011-CA-00007 4 

{¶13} On September 17, 2010, Appellant moved the court to vacate the 

judgment, arguing the judgment was void ab initio for failure of service of process, and 

asserting he could raise meritorious defenses, including that he had performed the work 

in a workmanlike manner, and had not fraudulently held himself out as able to do the 

work. He also challenged the court’s award of punitive damages and attorney fees, 

asserting the record did not demonstrate he behaved with actual malice. 

{¶14} The trial court found the motion for relief from judgment was untimely, and 

overruled it. 

I 

{¶15} In his first assignment of error, Appellant argues the judgment is void ab 

initio for failure of service. The trial court rejected this argument, finding Appellant was 

properly served by ordinary mail at Appellant’s advertised business address. 

{¶16} Ohio law clearly provides that a judgment rendered without personal 

jurisdiction over a defendant is void ab initio rather than voidable. See Patton v. Diemer

(1988), 35 Ohio St.3d 68, 518 N.E.2d 941 and CompuServe, Inc. v. Trionfo (1993), 91 

Ohio App.3d 157, 161, 631 N.E.2d 1120. Accordingly, a judgment rendered without 

proper service is a nullity and is void. Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio 

St. 61, 64, 133 N.E.2d 606. The authority to vacate a void judgment is not derived from 

Civ. R. 60(B), “but rather constitutes an inherent power possessed by Ohio courts.” 

Patton, supra, paragraph four of the syllabus. To be entitled to relief from a void 

judgment, a movant need not present a meritorious defense or show that the motion 

was timely filed under Civ. R. 60(B). Id.
Fairfield County, Case No. 2011-CA-00007 5 

{¶17} After filing suit in 1996, Appellee attempted to serve the original complaint 

by certified mail, but it was returned “unclaimed”. Subsequently, Appellee sent the 

complaint by regular mail and it was not returned. The address Appellee used was 602 

South Columbus Street, Lancaster, Ohio. 

{¶18} At the hearing on Appellant’s motion for relief from judgment, Appellant 

testified 602 South Columbus Street, Lancaster, Ohio, was a warehouse where he 

stored materials. Appellant testified he had ceased to use the warehouse as his mailing 

address because of repeated vandalism incidents. He had no secretary at the address, 

and phone calls were forwarded to his mother, so she could relay information to him. 

Appellant testified he maintained a post office box for his business mail. 

{¶19} On cross, Appellant conceded he listed the warehouse address in the 

Yellow Pages in 1996. By 2008, however, Appellant had transferred the warehouse to 

his brother, who used the warehouse for a different business. 

{¶20} In Grant v. Ivy (1980), 69 Ohio App. 2d 40, 429 N.E.2d 1188, the Court of 

Appeals for the Tenth District held: 

{¶21} “1. While ordinary mail service following unsuccessful certified mail service 

is sufficient to vest jurisdiction in the court pursuant to Civ.R. 4.6(D) where the ordinary 

mail envelope is not returned indicating failure of delivery, the rebuttable presumption of 

proper service arising under such circumstances may be rebutted by evidence that 

defendant never resided nor received mail at the address to which such ordinary mail 

service was addressed. 

{¶22} “2. Although Civ.R. 4.1 and 4.6 requires the clerk to send the ordinary or 

certified mail envelope addressed to defendant at the address set forth in the caption of 
Fairfield County, Case No. 2011-CA-00007 6 

the complaint or set forth by special instructions given in writing to the clerk, plaintiff 

must use, in such caption or instructions, an address for defendant at which it could 

reasonably be expected he would receive mail addressed to him.” Syllabi by the court. 

{¶23} The plaintiff in a case bears the burden of achieving proper service on a 

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

408. In those instances where the plaintiff follows the Ohio Civil Rules governing service 

of process, courts presume that service is proper unless the defendant rebuts this 

presumption with sufficient evidence of non- service. Rafalski v. Oates (1984), 17 Ohio

App.3d 65, 66, 477 N.E.2d 1212. The defendant can rebut the presumption by 

producing evidentiary- quality information he or she did not receive service of process. 

{¶24} A trial court is not always required to give preclusive effect to a movant's 

sworn statement that he did not receive service of process when the record contains no 

other indication that service was ineffectual. TCC Management v. Clapp, Franklin App. 

No. 05AP-42, 2005-Ohio-4357, citing Oxley v. Zacks (Sept. 29, 2000), Franklin App. No. 

00AP-247. However, “[i]t is reversible error for a trial court to disregard unchallenged 

testimony that a person did not receive service.” Rafalski, supra at 67. The trial court 

should conduct a hearing to determine the validity of the movant's statement. 

Nationwide Ins. Co. v. Mahn (1987), 36 Ohio App.3d 251, 522 N.E.2d 1096. 

{¶25} It appears Ohio appellate courts are split on the issue of whether a court 

may weigh the credibility of a defendant’s unrebutted evidence he did not receive 

service of process. LaSalle Bank NA v. Tirado, Delaware App. No. 2009-CA-22, 2009 -

Ohio- 2589 at paragraphs 42-48. In Miller v. Booth, Fairfield App. No. 06-CA-10, 2006-

Ohio-5679, we held: 
Fairfield County, Case No. 2011-CA-00007 7 

{¶26} “***[W]e find that appellant has presented sufficient evidence rebutting the 

presumption of proper service. While the affidavits may be self-serving, without a 

hearing, the trial court could not appropriately assess the appellant's credibility or the 

persuasiveness of appellant's evidence and could not determine whether appellant was 

truthful in alleging that he did not receive proper service of process.” Id. at paragraph 17 

(Citations deleted). 

{¶27} Here, it is apparent the court simply did not believe Appellant’s testimony. 

A trial court's determination of whether service was completed will not be disturbed 

absent an abuse of discretion. Ramirez v. Shagawat, Cuyahoga App. No. 85148, 2005-

Ohio-3159, citations deleted “An abuse of discretion connotes an unreasonable, 

arbitrary, or unconscionable attitude.” State ex rel. Grady v. State Employment 

Relations Board, (1997), 78 Ohio St.3d 181, 183, 677 N.E.2d 343. 

{¶28} However, Appellant testified he received no notice of the action until 

Appellee attempted to execute the judgment, and the record does not demonstrate the 

clerk of court ever served notice of the default judgment on Appellant. Appellant’s 

motion for relief from judgment filed Sept. 17, 2010, included an allegation he had no 

knowledge of the judgment until 2008, but his focus in the trial court and before us is on 

the service of the complaint. We will address the issue of notice of the default judgment 

in II infra. 

{¶29} This Court cannot reverse the trial court’s determination Appellant 

received service of the complaint absent a finding the court abused its discretion. On 

the record, we cannot find the court abused its discretion in finding service was 

accomplished. 
Fairfield County, Case No. 2011-CA-00007 8 

{¶30} The first assignment of error is overruled. 

II & III 

{¶31} In his second assignment of error, Appellant argues the trial court erred in 

not vacating the judgment, finding the motion was untimely. We disagree. 

{¶32} Civ. R. 60 provides: 

{¶33} “(B) Mistakes; inadvertence; excusable neglect; newly discovered 

evidence; fraud; etc 

{¶34} “On motion and upon such terms as are just, the court may relieve a party 

or his legal representative from a final judgment, order or proceeding for the following 

reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered 

evidence which by due diligence could not have been discovered in time to move for a 

new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or 

extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment 

has been satisfied, released or discharged, or a prior judgment upon which it is based 

has been reversed or otherwise vacated, or it is no longer equitable that the judgment 

should have prospective application; or (5) any other reason justifying relief from the 

judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) 

and (3) not more than one year after the judgment, order or proceeding was entered or 

taken. A motion under this subdivision (B) does not affect the finality of a judgment or 

suspend its operation.” 

{¶35} In order to prevail on a Civ. R. 60 (B) motion for relief from judgment, the 

movant must establish that (1) the party has a meritorious defense or claim to present if 

relief is granted; (2) the parties are entitled to relief under one of the grounds stated in 
Fairfield County, Case No. 2011-CA-00007 9 

Civ. R. 60 (B)(1) through (5); and (3) the motion is made within a reasonable time, and 

where the grounds for relief are Civ. R. 60 (B)(1), (2), or (3), not more than one year 

after the judgment, order or proceeding was taken. GTE Automatic Electric v. ARC 

Industries (1976), 47 Ohio St. 2d 146, 351 N.E. 2d 133. 

{¶36} Because he did not file an answer or otherwise appear, Appellant was not 

served with the default judgment entry. He testified he only became aware of the 

judgment in 2008. Appellee argues Appellant had notice of the judgment against him at 

least by 2000, when Appellee filed a motion for a debtor’s examination. 

{¶37} The record shows, after an unsuccessful attempt at service by certified 

mail, Appellee attempted “personal or residence” service. The record contains a return 

of service of summons showing service on “Chris Bayer by D. Maple”, a person of 

suitable age and discretion residing at 602 South Columbus Street, Lancaster, Ohio on 

December 5, 2000. Appellant did not attend the examination. Appellee then moved for 

a show cause order, but service was unsuccessful. 

{¶38} Appellant testified his brother’s name is Chris, but the record does not 

contain any information regarding who D. Maple is. D. Maple could be the person who 

accepted the summons on behalf of Chris Bayer, or could be the deputy who served the 

summons, but Allison Gibson was the person who actually signed the return of 

summons. Appellant testified 602 South Columbus Street was a warehouse and no 

one resided there. Appellant testified the only document regarding the case his brother 

had given him was a letter regarding the judgment in 2008. 

{¶39} Civ. R. 4.1 states personal service is accomplished when the process 

server locates the person to be served and tenders a copy of the process to be served, 
Fairfield County, Case No. 2011-CA-00007 10 

along with the accompanying documents. The person serving the process shall then 

endorse the fact on the process and return it to the clerk of court. Residence service is 

accomplished by leaving a copy of the process at the usual place of residence of the 

person to be served with some person of suitable age and discretion then residing 

therein. 

{¶40} The record does not show Appellant was personally served with the 

notice of the debtor’s examination, does not show the person who served it was the 

person who endorsed the return, and does not show any attempt was made to locate 

Appellant’s residence. We conclude the record does not show personal or residence 

service of the notice was accomplished in 2000, in compliance with the Civil Rules. The 

record does not affirmatively demonstrate Appellant knew of the judgment against him 

in 2000. 

{¶41} In Sun Finance & Loan Company v. Cavin (June 29, 1978), Cuyahoga 

App. No. 37600, the Eighth District reviewed a situation similar to the one at bar. The 

bank took a default confessed judgment against Cavin in 1970, and unsuccessfully 

attempted to garnish Cavin’s wages twice the same year. The court noted, although the 

judgment was entered on March 6, 1970, the record did not reflect that Cavin received 

notice of it until October of 1975, when the bank addressed the demand to his home 

address. The record did not bear out the bank’s arguments that Cavin knew of the 

attempted garnishments. The court of appeals found Cavin was first informed of the 

judgment more than five years after the judgment was entered, by which time it had 

become dormant and unenforceable. 
Fairfield County, Case No. 2011-CA-00007 11 

{¶42} Appellant admits he was aware of the judgment in 2008. Appellant 

defended against the revivor action and after an appeal to this Court, the trial court 

entered a judgment reviving the judgment on September 22, 2009. Appellant filed his 

motion for relief from judgment on Sept. 17, 2010, within one year. 

{¶43} In finding the motion for relief from judgment was untimely, the court 

rejected Appellant’s argument the motion was timely filed as of the date the judgment 

was revived, September 22, 2009. We find the trial court erred. 

{¶44} In Mansfield Truck Sales & Service, Inc. v. Fortney, Ashland App. No. 

2008-COA-040, 2009-Ohio-2686, this Court cited Heselden Plumbing Co. v. Justice 

(March 13, 1986), Franklin App. No. 85AP-733, wherein the Court of Appeals for the 

10th Dist. explained a motion to revive a judgment can be defeated only if the judgment 

debtor shows the judgment has been paid or settled, or is barred by the statute of 

limitations. Fortney, supra at paragraph 6, citing Heselden Plumbing at 3, in turn citing 

Van Nover v. Eshleman (1911), 14 Ohio C.C. (N.S.) 38, and Eshleman v. Van Nover 

(1913), 89 Ohio St. 48. 

{¶45} Similarly, in Walsh v. Patitucci, Cuyahoga App. No. 93717, 2009-Ohio6829, the court of appeals noted a challenge to the validity of a judgment cannot be 

asserted in a revivor proceeding. Id. at paragraph 29 (Citations deleted). The correct 

procedure to raise the issue is with a motion to vacate. Cavin, supra at 2, citing 

McAllister v. The Schlemmer & Graber Co. (1930), 39 Ohio App. 434, 177 N.E. 841. 

{¶46} We find the trial court erred in finding the motion for relief from judgment 

was untimely under the circumstances of this case. One could not reasonably expect 

Appellant to move for relief from a dormant judgment, which the trial court initially found 
Fairfield County, Case No. 2011-CA-00007 12 

could not be revived. Only after we found the court should have revived the judgment 

could Appellant be expected to challenge the underlying judgment, and he could not do 

so in the revivor action itself. The only vehicles by which Appellant could attack the 

judgment was by a motion pursuant to Civ. R. 60, or alleging the judgment was void ab 

initio. 

{¶47} Appellant brought his motion for relief from judgment pursuant to Civ. R. 

60(B)(1) and (5). In overruling the motion, the court found Appellant had not established 

he was entitled to relief under subsection (1), mistake or excusable neglect. The court 

properly found “excusable neglect” involves some unexpected or unavoidable hindrance 

or accident. Judgment of December 23, 2010, p. 3. We agree with the trial court 

Appellant has not demonstrated that but for an unexpected or unavoidable event he 

would have appeared and defended in 1996. 

{¶48} Appellant’s motion for relief also cited Civ. R. 60(B)(5), which the trial court 

accurately described as “a catch-all provision reflecting the inherent power of a court to 

relieve a person from the unjust operation of a judgment*** to be used in the 

extraordinary and unusual case when the interest of justice warrants it”. Id. at 4, 

citations deleted. The court found Appellant was not entitled to relief under subsection 

(5). 

{¶49} We recognize Appellant raised various meritorious defenses in his motion. 

Particularly troublesome was the award of punitive damages and attorney fees. 

{¶50} However, Civ. R.60(B) is not a substitute for an appeal. Doe v. Trumbull 

County Childrens’ Services Board (1986), 28 Ohio St. 3d 128. Civ.R. 58(B) specifically 

excludes service of default judgment in accordance with Civ.R. 5(B) when the defendant 
Fairfield County, Case No. 2011-CA-00007 13 

has not appeared. Having determined the trial court did not err in finding Appellant did 

not demonstrate excusable neglect for not answering the complaint [or otherwise 

appearing], we find no exception to the general rule is warranted in this case. 

{¶51} Appellant’s second and third assignments of error are overruled. 

{¶52} The judgment of the trial court is affirmed. 

By: Hoffman, J., 

Gwin, P.J. and 

Wise, J., concur 

 s/ William B. Hoffman ________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin ____________________

 HON. W. SCOTT GWIN 

 s/ John W. Wise ____________________

 HON. JOHN W. WISE 
[Cite as Thompson v. Bayer, 2011-Ohio-4212.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

LEE A. THOMPSON : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

SCOTT BAYER, DBA 

BAYER PLUMBING & HEATING : 

 : 

 : 

 Defendant-Appellant : CASE NO. 2011-CA-00007 

 For the reasons stated in our accompanying Opinion, the judgment of the Court 

of Common Pleas of Fairfield County, Ohio is affirmed. Costs to Appellant. 

 s/ William B. Hoffman ________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin ____________________

 HON. W. SCOTT GWIN 

 s/ John W. Wise ____________________

 HON. JOHN W. WISE