[Cite as Clellan v. Lancione, 2017-Ohio-1460.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Joan K. Clellan et al.,                          :

                 Plaintiffs-Appellants,          :
                                                                       No. 16AP-677
v.                                               :                  (C.P.C. No. 14CV-6181)

Bernard G. Lancione et al.,                      :               (REGULAR CALENDAR)

                 Defendants-Appellees.           :




                                           D E C I S I O N

                                      Rendered on April 20, 2017


                 On brief: Joan K. Clellan, pro se. Argued: Joan K. Clellan.

                 On brief: Gallagher Sharp LLP, Timothy T. Brick, Holly M.
                 Olarczuk-Smith, and Shane A. Lawson, for appellees.
                 Argued: Shane A. Lawson.

                  APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.
        {¶ 1} Plaintiffs-appellants, Joan K. Clellan, in her individual capacity and as the
executor of the estate of Dorothy Mae Swartz, and John R. Clellan (collectively,
"appellants"), appeal from a judgment of the Franklin County Court of Common Pleas
granting a motion to dismiss filed by defendant-appellee, Bernard G. Lancione.1 Because
we conclude the trial court did not abuse its discretion, we affirm.
I. Facts and Procedural History
        {¶ 2} On October 25, 2012, appellants filed a complaint against Lancione and
Bernard G. Lancione Legal Services seeking damages for legal malpractice in preparing a
will for Dorothy Mae Swartz. A copy of the complaint was served by certified mail on

1The complaint that commenced this action also named Bernard G. Lancione Legal Services as a defendant.
Lancione asserts this is a non-existent entity incapable of being sued.
No. 16AP-677                                                                              2


Lancione at 3212 High Street, Columbus, Ohio. Lancione filed a motion to dismiss the
complaint, pursuant to Civ.R. 12(B)(6), asserting that appellants lacked standing to
pursue legal malpractice claims against him. On June 17, 2013, the common pleas court
granted Lancione's motion to dismiss, concluding that appellants failed to state a claim
for which relief could be granted because appellants lacked privity with Swartz that would
give them standing to assert a legal malpractice claim against Lancione. The order
granting Lancione's motion to dismiss provided that the complaint was dismissed without
prejudice.
       {¶ 3} Appellants filed a second complaint for legal malpractice against Lancione
and Bernard G. Lancione Legal Services on June 13, 2014. Appellants requested service of
the complaint on Lancione at 2600 Tiller Lane, Columbus, Ohio, but two attempts at
personal service at that address failed. Appellants subsequently filed requests for personal
service and certified mail service on Lancione at 1050 Landings Loop, Columbus, Ohio. A
Franklin County Deputy Sheriff filed a return of service indicating that "residential
service" was made on "B. Lancione" at 1050 Landings Loop on June 1, 2015.
       {¶ 4} The record does not reflect any further activity in the case until June 6,
2016, when a notice of limited appearance of counsel for Lancione was filed for the
purpose of filing a motion to dismiss. Counsel for Lancione then filed an answer to the
complaint, a motion for judgment on the pleadings, and a motion to dismiss the
complaint. In his motion to dismiss, Lancione asserted that service was insufficient
because he was not served with the summons and complaint. Lancione further argued
that due to insufficient service, the trial court lacked personal jurisdiction. Lancione's
motion to dismiss was supported by affidavits from his wife, Rosemary Lancione, and his
daughter-in-law, Britanee Lancione, asserting that Lancione did not reside at 1050
Landings Loop in June 2015. Appellants filed motions to strike Lancione's answer and
motion for judgment on the pleadings, along with responses to the motion to dismiss and
motion for judgment on the pleadings. The trial court granted Lancione's motion to
dismiss, concluding that it lacked personal jurisdiction because service was not perfected
on Lancione within one year of the filing of the complaint.
II. Assignments of Error
       {¶ 5} Appellants appeal and assign the following three errors for our review:
No. 16AP-677                                                                                                 3


                 I. TRIAL COURT ABUSED ITS DISCRETION                                     IN
                 GRANTING DEFENDANTS-APPELLEES-BERNARD                                    G.
                 LANCIONE'S MOTION TO DISMISS FOR LACK                                    OF
                 JURISDICTION AND IMPROPER COMMENCEMENT                                   OF
                 THE CASE.

                 II. TRIAL COURT ABUSED ITS DISCRETION BY SUA
                 SPONTE NOTICING A NON-PARTY AND SOLICITING
                 COUNSEL FOR DEFENDANTS-APPELLEES-BERNARD G.
                 LANCIONE WHICH PARTY WAS IN DEFAULT.

                 III. TRIAL COURT ABUSED ITS DISCRETION BY
                 DENYING PLAINTIFFS-APPELLANTS-JOAN K. CLELLAN
                 AND JOHN R. CLELLAN'S REQUEST FOR DEFAULT
                 JUDGMENT WHILE GRANTING ORAL LEAVE TO FILE
                 ANSWER AND DISPOSITIVE MOTION TO DEFENDANTS-
                 APPELLEES-BERNARD G. LANCIONE AFTER TRIAL
                 DATE    WITHOUT   EXCUSABLE    NEGLECT    AND
                 RECORDATION.
III. Discussion
        {¶ 6} In their first assignment of error, appellants argue the trial court abused its
discretion by granting Lancione's motion to dismiss.2 We review a trial court's dismissal
for insufficient service of process for abuse of discretion.3 Craig v. Reynolds, 10th Dist.
No. 14AP-125, 2014-Ohio-3254, ¶ 9. An abuse of discretion occurs when a trial court's
decision is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
        {¶ 7} The civil rules provide that an action is commenced by filing a complaint if
service is obtained within one year from the filing of the complaint. Civ.R. 3(A). Civ.R. 4.1
sets forth the methods of service in the state, including certified mail, personal service,


2 We note that Lancione moved to dismiss, pursuant to Civ.R. 12(B)(2) and (5), asserting lack of personal
jurisdiction and insufficiency of service of process. The trial court order granting the motion to dismiss
recited the standard for a motion to dismiss for failure to state a claim on which relief can be granted
pursuant to Civ.R. 12(B)(6). Despite this misstatement, the trial court applied the appropriate standard in its
analysis of the motion, concluding that service was not perfected on Lancione and that the court lacked
personal jurisdiction because appellants did not obtain service within one year of filing the complaint.

3 While dismissal for insufficient service is subject to review for abuse of discretion, an order granting a
motion to dismiss for lack of personal jurisdiction is subject to de novo review. Austin v. White Castle Sys.,
10th Dist. No. 12AP-1029, 2013-Ohio-5107, ¶ 6. In this case, the trial court concluded that it lacked personal
jurisdiction over Lancione because appellants failed to obtain service on him within one year of filing the
complaint. Thus, the key issue in the case was whether service was perfected on Lancione. Accordingly, our
analysis will focus on whether service was sufficient.
No. 16AP-677                                                                                           4


and residence service. When the civil rules are followed there is a presumption of proper
service, which may be rebutted with sufficient evidence. State ex rel. Benjamin v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 06AP-158, 2007-Ohio-2471, ¶ 5; Rogers v. United
Presidential Life Ins. Co., 36 Ohio App.3d 126, 128 (10th Dist.1987). "The determination
of whether service of process was sufficient in any particular case rests on the factual
evaluation by the court and is within the sound discretion of the court." C&W Invest. Co.
v. Midwest Vending, Inc., 10th Dist. No. 03AP-40, 2003-Ohio-4688, ¶ 13.
        {¶ 8} Appellants initially requested service on Lancione at 2600 Tiller Lane,
Columbus, Ohio. Franklin County Deputy Sheriff James Boyd attempted personal service
on Lancione at that address on June 18 and 30, 2014. After the second attempt, Deputy
Boyd filed a return indicating that service could not be completed because Lancione did
not work at that address. Appellants subsequently filed a request for service on Lancione
at 1050 Landings Loop, Columbus, Ohio. Service was completed at that address on
June 1, 2015.     Although appellants requested personal service on Lancione at 1050
Landings Loop, the return of service filed by Franklin County Deputy Sheriff Jayjay
Skomra indicates that "residential service" was made on "B. Lancione" at that address.4
Despite this variance in the method of service, appellants' compliance with the Ohio Rules
of Civil Procedure regarding service created a rebuttable presumption of proper service.
        {¶ 9} Lancione's motion to dismiss sought to rebut the presumption of service
through the affidavits from Rosemary and Britanee. Rosemary stated that she had been
married to and resided with Lancione for more than 39 years. She stated that in May and
June 2015, her son and daughter-in-law resided at 1050 Landings Loop. Rosemary
further attested that neither she nor Lancione resided or operated a business at 1050
Landings Loop. Similarly, Britanee stated that she was Lancione's daughter-in-law, and
that in June 2015, she and her husband lived at 1050 Landings Loop. Britanee stated that
Lancione never resided at 1050 Landings Loop, nor operated a business from that
address. Britanee attested that on or around June 1, 2015, a deputy sheriff served her




4 The record also indicates that appellants requested certified mail service on Lancione at 1050 Landings

Loop. Certified mail containing the summons and complaint was issued to 1050 Landings Loop, but the
record does not contain a return receipt or any record that the certified mailing was returned as
undeliverable or for any other reason.
No. 16AP-677                                                                              5


with documents related to the lawsuit and that, although the documents were left in her
possession, Lancione was not present at the time of service.
       {¶ 10} The common pleas court concluded that Rosemary's and Britanee's
affidavits established that 1050 Landings Loop was Britanee's residence and that
Lancione did not reside at that address. Therefore, residence service on Lancione at 1050
Landings Loop was insufficient. The court concluded that it lacked personal jurisdiction
over Lancione because appellants failed to properly serve him within one year of filing the
complaint. In granting the motion to dismiss, the trial court cited this court's decision in
Erin Capital Mgt., LLC v. Fournier, 10th Dist. No. 11AP-483, 2012-Ohio-939, which held
that service at the residence of the defendant's parents was insufficient.
       {¶ 11} The complaint in Fournier was served by certified mail at the residence of
the defendant's parents and returned unclaimed; pursuant to the civil rules, it was then
served by regular mail to the same address. Id. at ¶ 17. Compliance with the civil rules
created a rebuttable presumption of proper service. Id. at ¶ 18. After a default judgment,
the defendant moved to vacate, supporting the motion with an affidavit averring that she
never resided at her parents' address where the complaint was sent, and an affidavit from
her mother stating that she never received the certified or ordinary mail containing the
summons and complaint. Id. at ¶ 7. This court held that service by regular mail at the
residence of the defendant's parents, rather than the defendant's own residence, did not
satisfy the requirements of due process because it was not reasonably calculated to
apprise the defendant of the action against her. Id. at ¶ 24-25. By concluding that trial
court lacked personal jurisdiction, the Fournier court implicitly concluded that the
assertions contained in the affidavits were sufficient to overcome the presumption of
service. See also Benjamin at ¶ 6-7 (holding that affidavit from employee of respondent
stating that respondent did not have offices at the location where the petition for writ of
mandamus was served and that respondent had no record of being served with the
summons and petition was sufficient to rebut the presumption of service arising from
compliance with the civil rules).
       {¶ 12} In the present case, Britanee and Rosemary both asserted that Lancione did
not reside at 1050 Landings Loop. As explained above, appellants requested personal
service on Lancione at 1050 Landings Loop, but the return of service filed by the deputy
No. 16AP-677                                                                                                6


sheriff indicated that residence service was completed on "B. Lancione" at that address.
Personal service is not required to be made at the residence of the person to be served.
See Civ.R. 4.1(B) ("When process issued from the Supreme Court, a court of appeals, a
court of common pleas, or a county court is to be served personally under this division,
the clerk of the court shall deliver the process and sufficient copies of the process and
complaint, or other document to be served, to the sheriff of the county in which the party
to be served resides or may be found. * * * The person serving process shall locate the
person to be served and shall tender a copy of the process and accompanying documents
to the person to be served."). (Emphasis added.) Residence service, by contrast, must be
made "at the usual place of the residence of the person to be served." Civ.R. 4.1(C).
        {¶ 13} The deputy's notation on the return of service suggests that he did not
personally serve Lancione, but rather left the summons and complaint for Lancione at
1050 Landings Loop believing it was his residence. Appellants assert that they had no
way of knowing that the "B. Lancione" indicated on the return of service was anyone other
than Bernard Lancione. Appellants further argue that the affidavits from Britanee and
Rosemary are insufficient to overcome the presumption of service arising from
compliance with the civil rules. However, as in Fournier and Benjamin, appellants have
failed to present any evidence to contradict the sworn statements from Britanee and
Rosemary asserting that Lancione did not reside at 1050 Landings Loop in June 2015. If
Lancione did not reside at 1050 Landings Loop, residence service could not have been
perfected on him at that address, and there is no evidence that he was personally served at
that address. Under these circumstances, the trial court did not abuse its discretion by
determining that service on Lancione was insufficient.5
        {¶ 14} Accordingly, we overrule appellants' first assignment of error.
        {¶ 15} In their second assignment of error, appellants argue the trial court abused
its discretion by allegedly sua sponte notifying Lancione's insurance carrier of the pending
action. Appellants claim in their third assignment of error that the trial court abused its
discretion by denying their request for default judgment and by granting leave to

5 The trial court did not conduct an evidentiary hearing on the motion to dismiss in this case. Generally, "a
trial court has broad discretion in deciding whether to conduct an evidentiary hearing on a motion before it."
Carter v. St. Ann's Hosp., 10th Dist. No. 11AP-715, 2012-Ohio-1662, ¶ 20. It appears that appellants actively
opposed a hearing, arguing in their memorandum in opposition to the motion to dismiss that a hearing on
the issue of service would be improper.
No. 16AP-677                                                                               7


Lancione to file an answer and dispositive motion without showing excusable neglect. We
will address appellants' second and third assignments of error together. Appellants assert
that at a status conference on June 8, 2016, the trial court denied their motion for leave to
file for default judgment so that the court could notify Lancione's insurance company,
which was known to the court based on a prior matter. Appellants claim that the trial
court notified Lancione's insurance company, which resulted in an appearance by counsel
for Lancione.    Appellants further assert that the trial court orally granted leave to
Lancione's counsel to file dispositive motions and an answer at a status conference on
June 13, 2016.
        {¶ 16} The record in this case reflects that counsel for Lancione filed a notice of
limited appearance on June 8, 2016. Lancione's counsel subsequently filed an answer to
the complaint, motion for judgment on the pleadings, and motion to dismiss on July 13,
2016.   While the dates of these filings are consistent with the timeline set forth in
appellants' brief, there is nothing in the record to establish that the common pleas court
sua sponte notified Lancione's insurance company of the pending proceedings. Further,
there is nothing in the record to establish that appellants moved for leave to file for
default judgment or that the trial court denied any request for leave to do so.
        {¶ 17} "[A] trial court's proceedings are presumed regular unless the record
demonstrates otherwise." State v. Phillips, 74 Ohio St.3d 72, 92 (1995). See also id. ("This
court cannot assume that the trial court provided any supplemental instructions, much
less that they were given in appellant's absence, unless the record affirmatively indicates
that to be true."); State v. Grant, 67 Ohio St.3d 465, 483 (1993) ("[I]n an appeal, all
reasonable presumptions consistent with the record will be indulged in * * * favor of the
regularity of the proceedings below."); Stanley v. Ohio State Univ. Med. Ctr., 10th Dist.
No. 12AP-999, 2013-Ohio-5140, ¶ 50 ("[A] reviewing court presumes regularity of the
proceedings below where the record does not affirmatively demonstrate error."). Absent
any transcript, entry, order, or other item in the record to support the alleged abuses of
discretion asserted in appellants' second and third assignments of error, we must
presume regularity in the common pleas court's proceedings.
        {¶ 18} Accordingly, we overrule appellants' second and third assignments of error.
No. 16AP-677                                                                      8


IV. Conclusion
      {¶ 19} For the foregoing reasons, we overrule appellants' three assignments of
error and affirm the judgment of the Franklin County Court of Common Pleas.
                                                                  Judgment affirmed.
                         SADLER and HORTON, JJ., concur.
