The opinion
[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-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 (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
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.
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