[Cite as Lauver v. Ohio Valley Selective Harvesting, L.L.C., 2017-Ohio-5777.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




JAMES M. LAUVER, et al.,                                :

        Plaintiffs-Appellants,                          :           CASE NO. CA2016-11-076

                                                        :                       OPINION
    - vs -                                                                       7/10/2017
                                                        :

OHIO VALLEY SELECTIVE                                   :
HARVESTING, LLC, et al.,
                                                        :
        Defendants-Appellees.
                                                        :



        CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                            Case No. 2013-CVC-1834



Farris & Manter, Aaron J. Manter, 6124 Corbly Road, Cincinnati, Ohio 45230, for plaintiffs-
appellants, James M. Lauver and Michelle Kramer

Anthony A. Moraleja, 106 North High Street, Waverly, Ohio 45690, for defendant-appellee,
Ohio Valley Selective Harvesting, LLC



        HENDRICKSON, P.J.

        {¶ 1}     Plaintiffs-appellants, James Lauver and Michelle Kramer, appeal from a

decision of the Clermont County Court of Common Pleas granting defendant-appellee, Ohio

Valley Selective Harvesting, LLC ("OVSH"), relief from judgment and vacating an agreed

judgment entry. For the reasons set forth below, we affirm the trial court's decision.
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        {¶ 2}    On December 11, 2013, appellants filed a complaint against "[OVSH] c/o

Peggy A. Lansing, Statutory Agent," Brad Lansing, Robert L. Brown, and John Doe in the

common pleas court.1 The complaint alleged that Brown owned a heavily wooded property

neighboring that of appellants' property and that Brown entered into a logging contract with

OVSH, a limited liability company appellants believed was solely owned and operated by

Brad Lansing. Appellants claimed that Brad, OVSH, and its employees trespassed onto their

property in Williamsburg, Clermont County, Ohio with heavy equipment, thereby causing

extensive damage to appellants' property including the destruction and loss of trees and the

loss of ground cover.

        {¶ 3}    The summons and complaint were served by certified mail on the defendants.

The summons to "OVSH, c/o Peggy A. Lansing, Statutory Agent," was delivered on

December 16, 2013, at 1311 Smokey Hollow Road, Piketon, Ohio 45661. It was signed for

by Brad and was returned and filed with the clerk of courts on December 24, 2013. The

summons to Brad was delivered on December 23, 2013, at 1311 Smokey Hollow Road,

Piketon, Ohio 45661. It was signed for by Brad and was returned and filed with the clerk of

courts on December 31, 2013. On January 24, 2014, attorney Chase Carter filed an answer

and counterclaim on behalf of both Brad and OVSH.

        {¶ 4}    The case proceeded with various scheduling conferences and pretrial

hearings. At some point, the parties agreed to submit their dispute to mediation, and on

September 28, 2015, an "Agreed Judgment Entry Between Plaintiffs and Defendants, Ohio

Valley Selective Harvesting, LLC and Brad Lansing" was filed. The Agreed Judgment Entry

provided that appellants were "granted judgment jointly and severally" against OVSH and

Brad in the amount of $50,000 plus interest at the rate of four percent per annum from July


1. Robert L. Brown was dismissed as a party to the action on August 27, 2015. Brown, Brad Lansing, and John
Doe are not parties to the present appeal.
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22, 2015. The entry was signed by appellants' counsel and by Chase Carter on behalf of

OVSH and Brad.

        {¶ 5}    In July 2016, appellants instituted garnishment proceedings against OVSH and

Brad.2 Shortly thereafter, on August 22, 2016, OVSH, represented by attorney Anthony A.

Moraleja, filed a Motion for Relief from Judgment, asking the court to set aside the

September 28, 2015 Agreed Judgment Entry on the basis of Civ.R. 60(B)(1), (3), and (5).3

OVSH also argued that the Agreed Judgment Entry had been issued "without effective

service upon [OVSH] and without notice and consent of [OVSH]." Attached to the motion

was the affidavit of Peggy Lansing. In her affidavit, Peggy averred in relevant part as follows:

                1.    I am the statutory agent for [OVSH].

                2.    [OVSH] is a limited liability company, registered with the
                      office of the Ohio Secretary of State.

                3.    I am the sole member of [OVSH], and I am the only officer of
                      the company.

                4.    No other person or entity has any authority, and I have not
                      delegated authority to any other person or entity, to enter any
                      kind of agreement on behalf of the company.

                5.    I did not receive a copy of the complaint, notices, or other
                      documents filed in the * * * case, from either the Court, the
                      Clerk of Courts, the Plaintiff[s], the Plaintiff's [sic] attorney, or
                      anyone else.

                6.    I did not sign for any certified mail related to the * * * case,
                      including certified mail with the original complaint.

                7.    I did not participate in, nor was I represented in, any
                      settlement negotiations with the Plaintiff[s] or the other
                      Defendant, Brad Lansing * * *.

                8.    I was not even aware of the action in the * * * case until Brad
                      Lansing informed me that collection proceedings had been

2. Appellants had initially instituted garnishment proceedings in February 2016, but dismissed those proceedings
in June 2016.

3. OVSH inadvertently omitted page 4 of its initial Motion for Relief from Judgment. An amended motion was
filed on September 9, 2016, to correct this omission.
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                   instituted against the company, after which I immediately
                   informed the company's regular attorney, Anthony A.
                   Moraleja, on July 28, 2016.

              9.   Brad Lansing is not an officer of the company, nor is he the
                   company's statutory agent for service of process, nor does
                   he have any authority from the company, or from me as the
                   sole member and officer of the company, to negotiate any
                   agreement on behalf of the company.

              10. Brad Lansing has access to the mailbox at the address of the
                  company, and had received all the mail related to the * * *
                  case without informing me of said mail, or providing me a
                  copy of the same.

              11. Brad Lansing informed me that he represented to his
                  attorney that he had authority to bind the company to a
                  negotiated agreement to settle the * * * case, when, in fact,
                  he had no such authority.

              12. I was entirely unaware and had no prior notice of the
                  judgment entered by the court in the * * * case on September
                  28, 2015, and further was unaware and had no prior notice of
                  the proceedings that led to said judgment.

       {¶ 6} Appellants filed a memorandum in opposition to OVSH's motion, arguing that

service had been perfected on OVSH when the summons and complaint were served by

certified mail at the address of Peggy Lansing, the statutory agent for the company, and were

signed for by Brad, Peggy's husband and an employee of OVSH. Appellants further argued

that relief from judgment was inappropriate pursuant to Civ.R. 60(B) as OVSH could not

demonstrate it had a meritorious defense to the action or that it was entitled to relief under

one of the grounds listed in Civ.R. 60(B)(1) through (5).

       {¶ 7} The trial court held a hearing on OVSH's motion for relief from judgment on

October 18, 2016. At this time, the court heard testimony from Peggy and Brad. Peggy's

testimony was consistent with the averments set forth in her affidavit. She explained that she

and her husband, Brad, resided at 1311 Smokey Hollow Road, Piketon, Ohio 45661, and that

she operated OVSH out of this address. She testified that she is the sole member OVSH


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                                                                    Clermont CA2016-11-076

and is the company's statutory agent. She explained that any mail pertinent to OVSH was

sent to the Smokey Hollow Road address and that she was the only person permitted to

handle such mail. Although Brad was an employee of OVSH, he was not a member of the

company. Peggy denied that Brad had authority to enter into any contracts on behalf of

OVSH. She stated only she could sign contracts on behalf of the company, and she had not

entered into a contract for OVSH to log timber out of Brown's property. She did admit,

however, that Brad had access to OVSH's bank accounts and he had made deposits into

OVSH's accounts on occasion.

       {¶ 8} Peggy testified she had no knowledge of the case appellants filed against

OVSH until sometime in late July 2016, when Brad called her to inform her that Pike County

Sheriff's deputies were at their property and were attempting to seize equipment of OVSH in

execution of the judgment entered in appellants' favor. Peggy stated she had not signed the

certified mail receipt for the summons, and that Brad did not have authority to sign the receipt

on behalf of OVSH. She denied that she had hired Chase Carter to represent OVSH and

stated she never authorized or entered into any agreement to settle the lawsuit. Peggy

stated attorney Anthony A. Moraleja was her business and personal attorney. Peggy

explained that after Brad disclosed the lawsuit and his conduct regarding the suit, she

contacted Moraleja and filed for divorce from Brad.

       {¶ 9} Brad testified he entered a contract with Brown to log timber on Brown's

property and that Peggy and OVSH "had nothing to do with [it]" other than "hauling the logs."

Brad testified he had not told his wife about the contract with Brown, about the lawsuit filed

by appellants, or about hiring Carter to represent him "because it had nothing to do with her."

He explained that he has access to the mailbox at 1311 Smokey Hollow Road, and that he is

the "first one to get the mail." He admitted that he signed the receipt for the service of the

summons and complaint for OVSH, but testified he did not inform Peggy about the lawsuit.

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Instead, he contacted Chase Carter to handle the lawsuit for him, and Carter settled the

case. Only after this occurred, and sheriff's deputies had attempted to seize equipment

owned by OVSH did Brad tell Peggy about the lawsuit.

       {¶ 10} Following Brad's testimony, the court heard arguments from the parties'

attorneys before taking the matter under advisement. On October 20, 2016, the court issued

an opinion granting OVSH's motion for relief. The court found that the "threshold issue for it

to determine [was] whether the service of the complaint upon OVSH was valid." The court

concluded that although there was presumption of proper service as the civil rules regarding

service had been followed, "OVSH ha[d] sufficiently rebutted the presumption of service in

this matter." In so finding, the court specifically stated that it found Brad and Peggy's

testimony credible. With respect to Peggy's testimony, the court noted it "had the opportunity

to see and hear [Peggy's] testimony and observe her demeanor on the witness stand * * *.

Her answers were direct, spontaneous, and did not appear to be contrived or rehearsed. * * *

[She] appeared sincere and can be described as being, at appropriate times, upset and even

indignant as to how her company was involved in this matter without her knowledge,

enhancing her credibility."

       {¶ 11} As the trial court found that the presumption of service was rebutted and that

the judgment against OVSH was therefore void, the court did not address OVSH's arguments

as they pertained to Civ.R. 60(B). The court vacated the September 28, 2015 Agreed

Judgment Entry as it pertained to OVSH.

       {¶ 12} Appellants timely appealed the trial court's decision, raising the following as

their sole assignment of error:

       {¶ 13} THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION IN GRANTING

[OVSH'S] AMENDED MOTION FOR RELIEF FROM JUDGMENT BASED ON

INSUFFICIENT PROCESS WHEN PROCESS COMPORTED WITH THE OHIO RULES OF
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CIVIL PROCEDURE AND THE REQUIREMENTS OF DUE PROCESS.

       {¶ 14} In their sole assignment of error, appellants argue the trial court erred when it

determined that OVSH had rebutted the presumption of service of the summons and

complaint, granted OVSH's motion for relief from judgment, and vacated the September 28,

2015 Agreed Judgment Entry. Appellants contend that because service complied with the

Rules of Civil Procedure and R.C. 1705.06 and was directed to an address where it was

"reasonably calculated under the circumstances to reach the statutory agent," OVSH's

motion should have been denied.

       {¶ 15} A judgment rendered in the absence of personal jurisdiction over a defendant

is void. Motorists Mut. Ins. Co. v. Roberts, 12th Dist. Warren No. CA2013-09-089, 2014-

Ohio-1893, ¶ 30; Chuang Dev. LLC v. Raina, 10th Dist. Franklin Nos. 15AP-1062 and 16AP-

500, 2017-Ohio-3000, ¶ 28. "A trial court lacks personal jurisdiction over a defendant if

effective service of process has not been made on the defendant and the defendant has not

voluntarily appeared in the case or waived service." Id., citing State ex rel. Ballard v.

O'Donnell, 50 Ohio St.3d 182 (1990), paragraph one of the syllabus.

       {¶ 16} "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." Id. at ¶ 29. See also

Roberts at ¶ 30. Therefore, a party seeking to challenge a void judgment on the basis that a

court lacked personal jurisdiction due to improper service of process should file a motion to

vacate or set aside the judgment. Id. Where a party has mistakenly attempted to vacate a

void judgment through a Civ.R. 60(B) motion, a court should treat the motion as a common-

law motion to vacate or set aside the judgment, as "it is 'not significant' that the motion has

been styled as a Civ.R. 60(B) motion." Beachler v. Beachler, 12th Dist. Preble No. CA2006-

03-007, 2007-Ohio-1220, ¶ 19. "An appellate court reviews the denial of a common-law

motion to vacate under an abuse of discretion standard." Ohio State Aerie Fraternal Order of
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Eagles v. Alsip, 12th Dist. Butler No. CA2013-05-079, 2013-Ohio-4866, ¶ 10; Roberts at ¶

30; Raina at ¶ 29. An abuse of discretion constitutes more than an error of law or judgment;

it requires a finding that the trial court acted arbitrarily, unreasonably, or unconscionably.

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

       {¶ 17} "Service of process is consistent with due process standards where it is

reasonably calculated, under the circumstances, to give interested parties notice of a pending

action and an opportunity to be appear." Roberts, 2014-Ohio-1893 at ¶ 32, citing Hamilton v.

Digonno, 12th Dist. Butler CA2005-03-075, 2005-Ohio-6552, ¶ 9. Civ.R. 4.1 outlines the

methods of obtaining service of process within the state of Ohio, and it provides for service

by certified mail, personal service, or residential service. With respect to limited liability

companies, R.C. 1705.06 provides that the company "shall maintain continuously in this state

an agent for service of process on the company" and that "[a]ny legal process, notice, or

demand required or permitted by law to be served upon a limited liability company may be

served * * * [on] the agent * * * by delivering a copy of the process, notice, or demand to the

agent." R.C. 1705.06(A), (H)(1)(a). "Service by certified mail, '[e]videnced by return receipt

signed by any person,' is complete when the clerk notes receiving the return receipt on the

docket." Raina, 2017-Ohio-3000 at ¶ 30, citing Civ.R. 4.1(A)(1)(a). "[A] signed receipt

returned to the sender establishes a prima facie case of delivery to the addressee. * * *

Valid service of process is presumed when any person at the defendant's address received

the certified mail envelope, whether or not the recipient is the defendant's agent." TCC Mgt.

v. Clapp, 10th Dist. Franklin 05AP-42, 2005-Ohio-4357, ¶ 11.

       {¶ 18} Where a plaintiff follows the Rules of Civil Procedure regarding service of

process, a rebuttable presumption of proper service arises. Id. at ¶ 13; Raina at ¶ 31.

However, this presumption can be rebutted where a defendant presents sufficient evidence

demonstrating that service was not accomplished. Id. at ¶ 32, citing Griffin v. Braswell, 187
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Ohio App.3d 281, 2010-Ohio-1597, ¶ 15 (10th Dist.). See also Gaston v. Medina Cty. Bd. of

Revision, 133 Ohio St.3d 18, 2012-Ohio-3872, ¶ 18, fn. 2 (recognizing that "the presumption

of valid service is rebuttable"). "A failure of service may * * * occur where 'the defendant

does not receive the summons and complaint, even though the plaintiff complied with the civil

rules and service was made at an address where the plaintiff could reasonably anticipate that

the defendant would receive it.'" Raina at ¶ 32, quoting Erin Capital Mgt. LLC v. Fournier,

10th Dist. Franklin No. 11AP-483, 2012-Ohio-939, ¶ 19. See also Mortgage Bank Corp. v.

WWIO, Ltd, 10th Dist. Franklin No. 16AP-44, 2016-Ohio-7069, ¶ 21-24; Clapp, 2005-Ohio-

4357 at ¶ 14-16.       "In determining whether a defendant has sufficiently rebutted the

presumption of valid service, the trial court may assess the credibility and competency of the

submitted evidence demonstrating non-service." Id. at ¶ 15.

         {¶ 19} In the present case, the clerk of courts mailed the summons and complaint to

the address of OVSH's statutory agent at "1311 Smokey Hollow Road, Piketon, Ohio 45661"

via certified mail, as permitted by Civ.R. 4.1(A)(1)(a). Brad signed the return receipt for the

certified mail on December 16, 2013, and it was returned to the clerk of courts on December

24, 2013. As Civ.R. 4.1 was followed, a rebuttable presumption of proper service on OVSH

arose.

         {¶ 20} After reviewing the record, we find no error in the trial court's determination

that the presumption of service was rebutted.          OVSH presented sufficient evidence

demonstrating that service was not accomplished as Brad did not inform OVSH's statutory

agent and sole member, Peggy, of the lawsuit or provide her the summons and complaint

sent to the Smokey Hollow Road address. Not only did Peggy testify that she was unaware

of the lawsuit and had not received the summons and complaint, but she also testified that

she had not hired Chase Carter to represent OVSH or authorized him to enter into a

settlement agreement on the company's behalf. The first-time Peggy learned of appellants'
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lawsuit and judgment against OVSH was in July 2016, when Brad finally informed her of the

lawsuit after assets of the company were almost seized.

       {¶ 21} Further, despite the fact that the September 28, 2015 Agreed Judgment will

remain valid against him, Brad testified in a manner consistent with Peggy's testimony. He

explained that although he signed the certified mail addressed to OVSH's statutory agent, he

had not advised Peggy of the lawsuit or provided her with the summons and complaint. Brad

hired an attorney to handle the lawsuit for him, and the attorney settled the case without

Peggy knowing about the suit. It was only after sheriff's deputies attempted to seize

equipment owned by OVSH that Brad informed Peggy of the lawsuit.

       {¶ 22} The trial court found Peggy's and Brad's testimony that Peggy had not

received the summons and complaint or learned of the lawsuit until July 2016 credible. The

trial court was in the best position to assess the witnesses' credibility as it had the opportunity

to view the witnesses and observe their demeanor, gestures and voice inflections, and this

court will not second guess the trial court's assessments. See First Fin. Bank, FSB v.

Doellman, 12th Dist. Butler No. CA2012-05-112, 2013-Ohio-1383, ¶ 12. Appellants did not

present evidence to contradict Peggy's and Brad's testimony regarding Peggy's lack of

knowledge of the suit and judgment. As such, we conclude that the trial court did not err in

finding that the presumption of service was rebutted. See, e.g., Clapp, 2005-Ohio-4357 at ¶

14-16 (upholding trial court's determination that the presumption of service that arose after a

certified mail receipt had been signed for by a spouse and returned to the clerk of courts had

been rebutted where the defendant demonstrated her husband had not advised her of the

lawsuit or given her a copy of the summons and complaint); WWIO, 2016-Ohio-7069 at ¶ 21-

24 (upholding trial court's determination that the presumption of service had been rebutted

where the defendant presented evidence that his wife never informed him of a cross-claim

she had received by certified mail and where he demonstrated his wife frequently threw out
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his mail).

       {¶ 23} As OVSH overcame the presumption of valid service, we find that the trial

court did not abuse its discretion in granting OVSH's motion for relief from judgment and

vacating the September 28, 2015 Agreed Judgment Entry. Appellants' sole assignment of

error is overruled.

       {¶ 24} Judgment affirmed.


       S. POWELL and RINGLAND, JJ., concur.




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