[Cite as Famalgeltto v. Telerico, 2013-Ohio-3666.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


MICHAEL FAMAGELTTO d.b.a.                            :   OPINION
FIVE STAR LANDSCAPING,

                 Plaintiff-Appellee,                 :
                                                         CASE NO. 2012-P-0146
        - vs -                                       :

LOUIS A. TELERICO,                                   :

                 Defendant-Appellant.                :


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2012 CV
0352.

Judgment: Reversed and Remanded.


Stacy L. Bauer, P.O. Box 22113, Beachwood, OH 44122 (For Plaintiff-Appellee).

Susan J. Lax, 755 White Pond Drive, #403, Akron, OH 44320 (For Defendant-
Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellant, Louis A. Telerico (hereafter Telerico), appeals from judgments

of the Portage County Common Pleas Court, ordering default judgment against him in

the amount of $42,231.65 and denying his subsequent motion to vacate.

        {¶2}     This case involves whether Telerico received proper service of a

complaint which was sent to his home address. Thus, dates and events are relevant.
       {¶3}   From April 2009 through July 2011, appellee, Michael Famageltto, d.b.a.,

Five Star Landscaping (hereafter Famageltto), performed landscaping services at

several of Telerico’s properties, including his residence.        On March 27, 2012,

Famageltto filed a three-count complaint alleging that Famageltto provided goods,

materials and services to Telerico in the amount of $42,231.65 and that as of the date of

the complaint that sum remained due and owing. Famageltto listed Telerico’s home

address on the complaint and on March 29, 2012, the summons and a copy of the

complaint were served via certified mail upon Louis A. Telerico, 545 Bristol Way,

Aurora, Ohio 44202.     On April 2, 2012 the summons and a copy of the complaint were

reissued to Telerico because the address for Famageltto’s attorney was incorrect. On

April 24, 2012, the initial summons and a copy of the complaint were returned as

“unclaimed” and “unable to forward” with instructions to “return to sender.” On April 27,

2012, the second summons and complaint were returned as “unclaimed” and “unable to

forward” with instructions to “return to sender.”

       {¶4}   As a result, Famageltto requested the court serve Telerico via ordinary

U.S. mail. On May 2, 2012, the clerk of court sent the summons and a copy of the

complaint via ordinary U.S. mail to Louis A. Telerico, 545 Bristol Way, Aurora, Ohio

44202. The ordinary mail complaint was never returned as undeliverable. Telerico did

not file an answer to the complaint.

       {¶5}   On June 6, 2012, Famageltto filed a motion for default judgment alleging

that Telerico failed to answer or otherwise plead to the complaint. There is no indication

from the common pleas docket that a copy of the motion was sent to Telerico. On July

6, 2012, the court granted Famageltto’s motion for default and entered judgment against




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Telerico in the amount of $42,231.65 plus costs and interest. The court found that a

copy of the complaint was duly served upon Telerico and that Telerico failed to file an

answer.

       {¶6}     On August 29, 2012, Telerico filed a motion to vacate the July 6, 2012

judgment pursuant to Civ.R. 60(B).         Telerico alleged in an affidavit that he never

received a copy of the complaint. On September 5, 2012, Famageltto filed a brief in

opposition outlining the service history of the case as noted in the court docket.

Famageltto also argued that Telerico’s self-serving statement failed to support an

alleged meritorious defense.

       {¶7}     In his October 10, 2012 decision, the judge determined that Telerico failed

to establish a meritorious defense under Civ.R. 60(B).              However, the court did not

address the issue raised by Telerico in his motion: whether Famageltto secured service

of process on Telerico in a lawful manner.

       {¶8}     Telerico filed a timely appeal, asserting a sole assignment of error:

       {¶9}     “The trial court erred and abused its discretion in finding that Defendant-

Appellant did not raise a ‘meritorious defense’ in Defendant’s Motion for Relief under

Civ.R. 60(B) and failing to find the Complaint void ab initio for lack of service.”

       {¶10} An appellate court reviews the denial of a motion to vacate under an

abuse of discretion standard. See e.g. Linquist v. Drossel, 5th Dist. Stark No. 2006-CA-

00119, 2006-Ohio-5712. The phrase “abuse of discretion” indicates the trial court’s

attitude   in   issuing   its   decision   was       arbitrary,   unreasonable,   or   otherwise

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Even though

there is a preference in the law for deciding matters upon their merits, a court’s decision




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denying a defendant's motion to vacate a default judgment will not be overturned unless

it neither comports with the record nor reason. In re Wiley, 11th Dist. Portage No. 2007-

P-0013, 2007-Ohio-7123, ¶17.

      {¶11} In Ohio, it is well-established that before a trial court can enter judgment

against a defendant, it must first have personal jurisdiction over the defendant.

Sweeney v. Smythe, Cramer Co., 11th Dist. Geauga Nos. 2002-G-2422 and 2002-G-

2448, 2003-Ohio-4032, ¶12. Accordingly, a default judgment issued by a court without

jurisdiction over the person of the defendant is void. Id. 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 v. Diemer, 35 Ohio St.3d 68, paragraph four of the

syllabus (1988). When a court lacks personal jurisdiction over a defendant as a result

of deficient service, that defendant is entitled to have the judgment vacated and need

not satisfy the requirements of Civ.R. 60(B). See State ex rel. Ballard v. O’Donnell, 50

Ohio St.3d 182, paragraph one of the syllabus (1990).

      {¶12} To be valid, service of process must satisfy Civ.R. 4.1, which allows

service of process by certified mail, personal service, or residence service.      Here,

service by certified mail was attempted, but was returned to the clerk unclaimed.

Famageltto next attempted service pursuant to Civ.R. 4.6(D), which provides:

      {¶13} “If a United States certified or express mail envelope attempting service

within or outside the state is returned with an endorsement stating that the envelope

was unclaimed, the clerk shall forthwith notify the attorney of record or, if there is no

attorney of record, the party at whose instance process was issued and enter the fact

and method of notification on the appearance docket. If the attorney, or serving party,




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after notification by the clerk, files with the clerk a written request for ordinary mail

service, the clerk shall send by United States ordinary mail a copy of the summons and

complaint or other document to be served to the defendant at the address set forth in

the caption, or at the address set forth in written instructions furnished to the clerk. The

mailing shall be evidenced by a certificate of mailing which shall be completed and filed

by the clerk. Answer day shall be twenty-eight days after the date of mailing as

evidenced by the certificate of mailing. The clerk shall endorse this answer date upon

the summons which is sent by ordinary mail. Service shall be deemed complete when

the fact of mailing is entered of record, provided that the ordinary mail envelope is not

returned by the postal authorities with an endorsement showing failure of delivery. If the

ordinary mail envelope is returned undelivered, the clerk shall forthwith notify the

attorney, or serving party.”

       {¶14} Under the above rule, service is effective when the fact of mailing is

entered on the record, unless the ordinary mail envelope is returned undelivered. The

ordinary mail envelope was not returned as undelivered in this matter.          There is a

presumption that proper service has been perfected as long as the ordinary mail was

sent to an address where there is a reasonable expectation that it will be delivered to

the defendant. Redfoot v. Mikouis, 11th Dist. Trumbull No. 96-T-5398, 1996 Ohio App.

LEXIS 5415, *5 (Nov. 29, 1996); see also News-Herald v. Bahr, 11th Dist. Lake No.

2002-L-176, 2003-Ohio-6223, ¶18. However, this presumption is rebuttable where the

defendant presents sufficient evidence that service was not properly perfected.

Redfoot, supra.




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       {¶15} Telerico argues the trial court erred in overruling his motion to vacate

because he presented evidence, by way of personal affidavit, that he did not receive

service. A review of the evidence shows that Famageltto did not offer any evidence to

contradict Telerico’s claim that he did not receive service of the complaint.

       {¶16} Telerico’s argument is supported by the Eighth Appellate District’s opinion

in Rafalski v. Oates, 17 Ohio App.3d 65 (8th Dist.1984). In Rafalski, the court held:

       {¶17} “Where a party seeking a motion to vacate makes an uncontradicted

sworn statement that she never received service of a complaint, she is entitled to have

the judgment against her vacated even if her opponent complied with Civ.R. 4.6 and

had service made at an address where it could reasonably be anticipated that the

defendant would receive it. * * *” Id. at 66-67.

       {¶18} However, various districts, including this one, have found a blanket

application of the rule announced in Rafalski inappropriate. See Redfoot, supra; see

also Old Meadow Farm Co. v. Petrowski, 11th Dist. Geauga No. 2000-G-2265, 2001

Ohio App. LEXIS 782, *8-9 (Mar. 2, 2001); Infinity Broadcasting, Inc. v. Brewer, 1st Dist.

Hamilton No. C-020329, 2003-Ohio-1022, ¶8; Sec. Natl. Bank and Trust Co. v. Murphy,

2d Dist. Clark No. 2552, 1989 Ohio App. LEXIS 2868, *4 (July 20, 1989). In these

cases, the courts have held that an unchallenged, self-serving affidavit may be

insufficient to vacate an entry of default judgment. These courts have held that a trial

court may overrule the motion to vacate if, after an evidentiary hearing is held, it does

not find defendant’s testimony that service was not received credible. Under these

circumstances, the self-serving affidavit will not rebut the presumption of proper service

of process.




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       {¶19} The First Appellate District further noted that a trial court cannot dismiss

an allegation of lack of notice without affording a hearing to assess the credibility of the

defendant’s assertions that he did not receive service of the complaint.             Infinity

Broadcasting, Inc. at ¶8. We agree that this approach strikes the proper balance.

       {¶20} A review of the record shows that the trial court did not hold a hearing on

Telerico’s motion to vacate. Additionally, in its decision the trial court did not address

Telerico’s claim that he never received service of the complaint. Instead the trial court

held that Telerico had not established a meritorious defense as outlined in Civ.R.

60(B)(1).   However, as noted above, when a court lacks personal jurisdiction the

defendant is entitled to have the judgment vacated and need not satisfy the

requirements of Civ.R. 60(B). O’Donnell, supra, at paragraph one of the syllabus.

       {¶21} The judgment of the Portage County Court of Common Pleas is reversed

and this matter is remanded for further proceedings consistent with this opinion. It is

ordered that appellee is assessed costs herein taxed.



CYNTHIA WESCTOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




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