[Cite as Spotsylvania Mall Co. v. Nobahar, 2013-Ohio-1280.]
                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


SPOTSYLVANIA MALL COMPANY                         )       CASE NO. 11 MA 82
                                                  )
        PLAINTIFF-APPELLEE                        )
                                                  )
VS.                                               )       OPINION
                                                  )
SYED NOBAHAR, et al.                              )
                                                  )
        DEFENDANTS-APPELLANTS                     )

CHARACTER OF PROCEEDINGS:                                 Civil Appeal from the Court of Common
                                                          Pleas of Mahoning County, Ohio
                                                          Case No. 06 CV 3380

JUDGMENT:                                                 Reversed.
                                                          Default Judgment Vacated.

APPEARANCES:

For Plaintiff-Appellee,                                   Atty. David A. Fantauzzi
Spotsylvania Mall Company:                                Atty. Ronald J. Yourstowsky
                                                          2445 Belmont Avenue
                                                          P.O. Box 2186
                                                          Youngstown, Ohio 44504-0186

For Defendant-Appellant, Ben Manesh:                      Atty. Matthew T. Anderson
                                                          Atty. Timothy M. Clayton, Jr.
                                                          Atty. David M. Scott
                                                          Luper Neidenthal & Logan
                                                          A Legal Professional Association
                                                          50 West Broad Street, Suite 1200
                                                          Columbus, Ohio 43215-3374

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                          Dated: March 27, 2013
[Cite as Spotsylvania Mall Co. v. Nobahar, 2013-Ohio-1280.]
WAITE, J.


        {¶1}     Appellant, Ben Manesh, signed a commercial lease with Appellee,

Spotsylvania Mall Company. Appellant had a co-signor on the lease, Syed Nobahar.

The lease designated a Maryland address be used for communications to Appellant

and Nobahar concerning the lease.                  Nobahar later requested that information

concerning the lease be sent to an address in Virginia. Appellant never provided an

address other than the Maryland address contained in the lease, and did not sign the

later request sent by Nobahar. When Appellee filed a collection action against both

Appellant and Nobahar, service was attempted only at the address provided by

Nobahar, in Virginia. The trial court subsequently granted default judgment against

Appellant alone, after Nobahar was released from liability in bankruptcy court.

Appellant claims that he only became aware of the lawsuit due to Appellee’s attempts

to collect the judgment which were served at his home address in Maryland.

Appellant contends that he never received service of the original complaint at any

address reasonably calculated to give him notice of the lawsuit.

        {¶2}     Appellee failed to explain why service to Appellant in Virginia was

reasonable, or to establish any connection between Appellant and the Virginia

address.       Appellant denied receiving service at the Virginia address and never

appeared in the lawsuit. Under these circumstances, it was unreasonable for the trial

court to deny Appellant’s motion to vacate.                   The judgment of the trial court is

reversed, and the default judgment against Appellant is vacated.

                                 Factual and Procedural History
                                                                                         -2-

       {¶3}   The record in this case is particularly thin. This is partly because the

initial resolution of the lawsuit was through a default judgment. The subsequent

motion to vacate added little to the facts of the case. The record also lacks, as

Appellee notes, a transcript of the hearing on Appellant’s motion to vacate and the

exhibits introduced during that hearing. This omission is due to Appellant’s failure to

file the transcript or seek leave to file the transcript when he filed his objections to the

magistrate’s decision denying his motion to vacate.           The evidentiary deficiency

extends beyond the subject matter of the hearing itself. Also absent is a copy of the

lease agreement that formed the basis of the complaint as well as the facsimile sent

by Nobahar that was alleged to have changed the address for service after the

execution of the lease. A thorough review of the record in the trial court reveals that

default judgment was granted despite the fact that Appellee never filed a copy of the

lease agreement. The record further discloses that after obtaining default judgment

on a contract it never produced, Appellee never remedied the omission. The lease

agreement or agreements may have been produced to the magistrate during the

hearing on the motion to vacate, however, because neither party filed a transcript of

the hearing or copies of the evidence used during the hearing, this material, apart

from a single clause included in the magistrate’s findings of fact, was not part of the

record before the trial court when ruling on Appellant’s objections to the magistrate’s

decision or when entering final judgment. Because this material was not provided to

the trial court it is not properly before us on appeal.
                                                                                    -3-

       {¶4}   The facts that can be gleaned from the record as it comes before us

begin with Appellee Spotsylvania Mall Company’s complaint for money only, filed on

August 30, 2006. Appellee alleges in the complaint that it is the owner of property

leased by Appellant, Ben Manesh, and another man, Syed Nobahar. According to

Appellee the address for both men is 5610 Heritage Hills Circle, Fredericksburg,

Virginia, 22407. According to the complaint, copies of the lease or leases for two

units in the Spotsylvania Mall in Fredericksburg, Virginia, were not submitted with the

complaint because they were “voluminous” and would be “submitted to [the court]

prior to or at trial.” (8/30/06 Compl., ¶3.) Appellee did attach an accounting to the

complaint, itemizing the delinquent amounts for each property.         The complaint

alleged, and the accounting reflected, damages initially totaling $40,795.03, a total

that would continue to increase until final judgment. The court ultimately awarded

Appellee $188,006.55 plus 18% interest to accrue until payment is made in full, and

all costs of the action. (4/27/11 J.E.)

       {¶5}   Both parties agree that Appellant and his co-defendant in the matter

below, Syed Nobahar, co-signed at least one commercial lease for property owned

by Appellee on July 9, 2004. Appellant claims ignorance of the lease terms, although

he concedes that he signed a lease. He also claims ignorance of the change of

address sent by Nobahar and has no knowledge of service of the complaint to the

Virginia address provided to Appellee by Nobahar. The complaint actually refers to

two leases. However, the parties, the magistrate, and the trial court subsequently

refer to a single lease. The parties agree that the lease or leases include a provision
                                                                                    -4-

agreeing to the jurisdiction of Mahoning County courts for all disputes arising out of

the lease terms. The parties agree, and the magistrate’s findings of fact adopted by

the trial court confirm that the lease required Appellant and Nobahar to designate an

address for all communications pertaining to the lease and established a procedure

for changing that address. (4/27/11 J.E., p. 2.) According to the magistrate’s findings

of fact adopted by the trial court, the lease specifies 401 Stone Mason Drive,

Gaithersburg, Maryland, 20878, as the address for both Appellant and Nobahar.

(4/27/11 J.E., p. 2.) According to Appellee and the magistrate’s findings of fact, on

October 13, 2005 Appellee received a facsimile seeking to change the designated

address from the original Maryland address to 5610 Heritage Hills Circle,

Fredericksburg, Virginia, 22407. (4/27/11 J.E., p. 2.) Appellee admits that this notice

was faxed from and signed by Nobahar, but not Appellant. (4/27/11 J.E., p. 2.)

According to Appellant, he had no knowledge of the facsimile and has no connection

to the address in Fredericksburg. All parties agree that, although the facsimile did

not comply with the procedure designated in the lease for a change of address,

Appellee used the Virginia address provided by Nobahar for all subsequent

communications concerning the lease.

      {¶6}   On September 7, 2006, service of the complaint was initially attempted

via certified mail to both Appellant and Nobahar at 5610 Heritage Hills Circle,

Fredericksburg, Virginia, 22407, the change of address provided by Nobahar, alone.

On October 4, 2006, both pieces of certified mail were returned by the U.S. Post

Office to the Clerk of Courts as unclaimed. Appellee then requested, pursuant to
                                                                                     -5-

Civ.R. 4.6(D), that service to both parties be reissued via regular mail, to the same

Fredericksburg, Virginia, address. Service via regular mail was completed by the

clerk on October 6, 2006, and a certificate of mailing was entered on the docket by

the clerk the same day. There is no indication in the record that service via regular

mail to the Fredericksburg address was returned. Nothing further appears in the

docket pertaining to service of the complaint. The next docket entry is a suggestion

of bankruptcy, filed by Appellee on behalf of Nobahar, on March 20, 2007. The

certificate of service indicates that this filing was sent to both Nobahar and allegedly

to Appellant, again to the Fredericksburg address. The trial court stayed the matter

due to Nobahar’s Chapter 7 filing on March 22, 2007.

       {¶7}   The trial court granted Appellee’s motion to return the case to the active

docket on April 4, 2008, and specifically noted that proceedings would continue

against Appellant, alone, as Nobahar had received a discharge in bankruptcy. No

certificate of service accompanied Appellee’s April 3, 2008 motion to return the case

to the active docket.

       {¶8}   Appellee filed a motion for default judgment on May 19, 2008. Without

explanation, this motion was sent to Appellant at 9901 Potomac Manors Drive,

Potomac, Maryland, 20854, rather than the Fredericksburg address used for every

other document in the lawsuit to date. Appellee attached a new statement of account

and supporting affidavit to the motion, as well as an affidavit verifying that Appellant

was not in active military service, in compliance with the Servicemembers Civil Relief

Act. Appellee did not attach to the motion, or separately file, a copy of the lease
                                                                                   -6-

agreement(s). Despite the fact that the lease was never properly filed with the court,

the trial court granted default judgment against Appellant for $188,006.55, plus

interest and the costs of the lawsuit, on July 10, 2008. Between the May 19, 2008

motion for default judgment and the July 10, 2008 entry granting default judgment no

additional filings appear of record. Between the filing of the complaint on August 30,

2006 and the decision granting default judgment on June 12, 2009, Appellant never

answered the complaint or otherwise appeared in the lawsuit.

      {¶9}   On June 12, 2010, a year after default judgment was granted, Appellee

took steps to collect on the judgment.     Appellee began by filing a praecipe for

authentication of judgment. Nothing appears in the record between the June 12,

2010 praecipe and Appellant’s first entries on the docket, filed on December 3, 2010,

which included a motion to reactivate the case and a hybrid motion to vacate the

judgment and for stay of execution. According to Appellant’s motions, and the copy

of an affidavit attached to the motion to vacate (no original document appears in the

file), Appellant was never served with the underlying complaint and was unaware of

the lawsuit until Appellee began collection attempts. Appellant also alleged that he

had never “maintained a habitual, continuous or highly continual and repeated

physical presence at 5160 Heritage Hills Circle, Fredericksburg, VA 22407,” the

address provided solely by Nobahar and which was used by Appellee to allegedly

obtain service of the complaint. (12/3/10 Motion Exh., Manesh Aff., ¶4.)

      {¶10} Appellee responded to Appellant’s motion to vacate by detailing its

collection efforts through the Maryland courts. Appellee discusses only collection
                                                                                     -7-

efforts, all of which reflect attempted service at the Potomac, Maryland address, not

the original Gaithersburg address specified in the lease, or the Fredericksburg,

Virginia, address where service was originally alleged to have been made and all

documents prior to the motion for default judgment were sent. Appellant’s motion to

vacate was set for a hearing before the magistrate on February 3, 2011 and leave

was granted by the magistrate until February 17, 2011 to allow Appellant to file a

supplemental memorandum.          In his memorandum, Appellant challenged service

based on the terms of section 22 of the lease agreement, which was later quoted, at

least in part, in the magistrate’s decision.     This section apparently contains the

procedure to change an address for notice purposes under the lease. The full lease

agreement, however, was not attached to the memorandum.               The magistrate’s

decision denying Appellant’s motion to vacate was filed on March 3, 2011.

Appellant’s objections to the decision were timely filed on March 16, 2011. As earlier

noted, no transcript of the hearing was filed with Appellant’s objections and no motion

for an order granting an extension of time to file the transcript appears in the record.

No additional exhibits or transcripts were filed by either party.

       {¶11} The trial court held a hearing on Appellant’s objections to the

magistrate’s decision on April 19, 2011. On April 27, 2011, the trial court overruled

Appellant’s objections and adopted the magistrate’s findings of fact and conclusions

of law in their entirety. On May 20, 2011 Appellant filed this timely appeal from the

April 27, 2011 entry of judgment.
                                                                                        -8-

       {¶12} On June 6, 2011, nearly two months after the trial court’s ruling and

approximately two weeks after Appellant filed his notice of appeal, a transcript of the

February 4, 2011 hearing and accompanying exhibits were filed to this Court. The

transcript was endorsed by the court reporter on June 6, 2011. The date of filing, the

date of the reporter’s signature, and the accompanying statement by the reporter

clearly reflect that the transcript and attached exhibits were not filed with the trial

court prior to the court’s April 27, 2011 ruling adopting the magistrate’s decision and

were instead filed for the first time in the court of appeals. (Notice of filing transcript

of proceedings on appeal with exhibits, June 6, 2011).

       {¶13} The record also contains three blue assignment notice envelopes, all of

which were returned by the U.S. Postal Service as addressee not known, unable to

forward. The first two assignment envelopes were sent on May 30, 2008 and appear

to have contained the trial court’s May 29, 2008 notice of assignment of a July 9,

2008 hearing on the motion for default. It is unclear to what address these notices

were sent, but “Don’t live here anymore” is handwritten across both under the U.S.

Post Office’s “attempted-not known” notice and the two envelopes were returned by

the U.S. Post Office to the court on June 10, 2008.           A third assignment notice

envelope, apparently containing the trial court’s January 6, 2011 notice of

assignment for the February 7, 2011 hearing on Appellee’s motion to reactivate the

case, is also endorsed “Don’t live here,” and was returned by the U.S. Post Office as

“attempted not known” on January 10, 2011.

                                   Argument and Law
                                                                                       -9-

                                  Assignment of Error

       THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE’S

       DECISION DENYING MANESH’S MOTION TO VACATE JUDGMENT.

       {¶14} A trial court’s decision to deny a motion to vacate judgment is reviewed

on appeal for an abuse of discretion whether that motion is made pursuant to Civ.R.

60(B) or to the court’s inherent power at common law to vacate a void judgment.

GTE Automatic Elec., Inc., v. ARC Industries, Inc., 47 Ohio St.2d 146, 150, 351

N.E.2d 113 (1976) (“[h]aving found that the order of the trial court [granting the

motion to vacate judgment] was a final order, we may now proceed to the question of

whether the making of the order was an abuse of discretion”) and Terwoord v.

Harrison, 10 Ohio St.2d 170, 171, 757 N.E.2d 362 (1967) (because the trial court

order overruled a motion to vacate default judgment “the trial court had the inherent

right, founded upon the common law, to sustain or overrule the motion to vacate that

judgment” and the appellate court “in ruling on the propriety or impropriety of that

order, had only to rule upon the limited question of whether or not the trial judge

abused his discretion in refusing to vacate the order”). “It is axiomatic that for a court

to acquire jurisdiction there must be a proper service of summons or an entry of

appearance, and a judgment rendered without proper service or entry of appearance

is a nullity and void.” Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61, 64 (1956) “[A]

trial court is without jurisdiction to render a judgment or to make findings against a

person who was not served summons, did not appear, and was not a party in the

court proceedings. A person against whom such judgment and findings are made is
                                                                                    -10-

entitled to have the judgment vacated.” State ex rel Ballard v. O’Donnell, 50 Ohio

St.3d 182, 184, 553 N.E.2d 650 (1990). “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, 518 N.E.2d 941 (1988), paragraph

four of the syllabus.

       {¶15} Abuse of discretion connotes more than an error of judgment; it implies

that the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “When applying the

abuse of discretion standard, a reviewing court is not free to merely substitute its

judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d 135, 137-138,

566 N.E.2d 1181 (1991). “The term discretion itself involves the idea of choice, of an

exercise of the will, of a determination made between competing considerations. In

order to have an ‘abuse’ in reaching such determination, the result must be so

palpably and grossly violative of fact and logic that it evidences not the exercise of

will but perversity of will, not the exercise of judgment but defiance thereof, not the

exercise of reason but rather of passion or bias.” Huffman v. Hair Surgeon, Inc., 19

Ohio St.3d 83, 87, 482 N.E.2d 1248, 1252 (1985).

       {¶16} The motion to vacate judgment in this instance was initially heard by a

magistrate.   An appeal filed from a trial court’s decision adopting a magistrate’s

decision is also subject to the same abuse of discretion standard. Where, as here,

the “party objecting to a referee’s report has failed to provide the trial court with the

evidence and documents by which the court could make a finding independent of the
                                                                                     -11-

report, appellate review of the court's findings is limited to whether the trial court

abused its discretion in adopting the referee’s [decision].” State ex rel. Duncan v.

Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995).                 A

party’s failure to provide the trial court with the transcript or other evidence prevents

this Court from considering any transcript submitted with the appellate record. Id.

“[W]here the objecting party fails to provide the trial court with the transcript of the

proceedings before the magistrate, the appellate court is precluded from considering

the transcript” submitted with the appellate record because “[a] reviewing court

cannot add matter to the record before it, which was not a part of the trial court's

proceedings, and then decide the appeal on the basis of the new matter.” State ex

rel. Duncan and State v. Ishmail, 54 Ohio St.2d 402, 337 N.E.2d 500 (1978),

paragraph one of syllabus. An appeal under these circumstances limits the appellate

court review to “whether the trial court's application of the law to its factual findings”

was an abuse of discretion. State ex rel. Duncan at 730.

       {¶17} In order to meet the “standard of due process, first enunciated in

Mullane v. Central Hanover Bank & Trust Co.,” service of the summons and

complaint required to initiate a lawsuit must satisfy “[a]n elementary and fundamental

requirement of due process,” which is, “notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and afford

them an opportunity to present their objections.”       (Emphasis deleted.)      Samson

Sales, Inc. v. Honeywell, Inc., 66 Ohio St.2d 290, 293, 421 N.E.2d 522 (1981) and
                                                                                  -12-

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94

L.Ed. 865 (1950).

      {¶18} The mechanics of service to an out-of-state party is governed by Civ.R.

4.3: Process: Out-of-State Service

      When service permitted. Service of process may be made outside of

      this state, as provided in this rule, in any action in this state, upon a

      person who, at the time of service of process, is a nonresident of this

      state * * * ‘Person’ includes an individual, an individual’s executor,

      administrator, or other personal representative, or a corporation,

      partnership, association, or any other legal or commercial entity who,

      acting directly or by an agent, has caused an event to occur out of

      which the claim that is the subject of the complaint arose, from the

      person’s:


      ***


      Methods of service.


      Service by certified or express mail. Evidenced by return receipt

      signed by any person, service of any process shall be by certified or

      express mail unless otherwise permitted by these rules. The clerk shall

      place a copy of the process and complaint or other document to be

      served in an envelope. The clerk shall address the envelope to the

      person to be served at the address set forth in the caption or at the
                                                                                    -13-

      address set forth in written instructions furnished to the clerk with

      instructions to forward.

      {¶19} In addition to the service specified by Civ.R. 4.3(B)(1), which prescribes

service by certified or express mail, but also allows service “otherwise permitted by

these rules,” Civ.R. 4.6 provides options where service is refused or unclaimed:

      Service unclaimed. If a certified or express mail envelope is returned

      with an endorsement showing that the envelope was unclaimed, the

      clerk shall forthwith notify, by mail, the attorney of record * * * If the

      attorney, or serving party, after notification by the clerk, files with the

      clerk a written request for ordinary mail service, the clerk shall send by

      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. * * * 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, by mail.

      {¶20} The significance of the service requirement cannot be understated and

it is clear that even if a defendant becomes aware of a suit against him through other
                                                                                     -14-

means or at some later stage in the suit, unless service has been properly made or

the party has otherwise waived service by appearing in the lawsuit, no judgment may

be entered against him. Maryhew v. Yova, 11 Ohio St.3d 154, 157, 464 N.E.2d 538

(1984). “Inaction upon the part of a defendant who is not served with process, even

though he might be aware of the filing of the action, does not dispense with the

necessity of service.” Haley v. Hanna, 93 Ohio St. 49, 52, 112 N.E. 149 (1915).

       {¶21} As a preliminary matter, Appellant’s argument that service cannot be

perfected on an out-of-state party via regular mail is incorrect. Appellant attempts to

create an ambiguity in Civ.R. 4.3 that ignores the text of the rule, which explicitly

allows service “otherwise permitted by these rules.” Civ.R. 4.3(B)(1). When service

is unclaimed or refused, as opposed to undeliverable, the Civil Rules allow service by

regular mail, and deem service complete only where the regular mail is not returned

as undeliverable. Civ.R. 4.6(D). Challenges to the mechanics prescribed by the Civil

Rules for service by regular mail on an out-of state party are infrequent, but in the last

thirty years, every Ohio district court that has considered the issue has found service

via regular mail to be proper.       Examples include, but are not limited to, J.R.

Productions, Inc. v. Young, 3 Ohio App.3d 407, 409 44d N.E.2d 740 (10th Dist.1982)

(“In other words, Civ. R. 4.6(D) is a specific provision applicable when a certified mail

envelope is returned with an endorsement of ‘unclaimed’” and is proper for out-of-

state service where the requirements of Civ.R. 4.6 are met); also State ex rel. Scioto

Cty. Dept. of Human Servs. v. Proctor, 2005-Ohio-1581, ¶13 (4th Dist.) (“service of

process on an out-of-state defendant can be perfected when certified mail is
                                                                                     -15-

unclaimed by either filing the affidavit described in Civ.R. 4.3(B) or serving the

defendant by ordinary mail as contemplated in Civ.R. 4.6(D)” (Emphasis deleted.));

and Ferrie v. Ferrie, 2 Ohio App.3d 122, 124, 440 N.E.2d 1229 (9th Dist.1981) (when

serving an out-of-state party after certified mail was unclaimed, “appellee’s use of

Civ. R. 4.6(D) is fully authorized by the Rules of Civil Procedure and was proper in

this case”).

         {¶22} The Supreme Court has not explicitly ruled on the issue, but that

Court’s recent change to Civ.R. 4.3, effective July 1, 2012, comports with the

conclusion reached by the various district courts who have ruled on the issue. The

new version of the rule is not applicable to the current matter, but the consensus of

the various districts as to the interaction between the prior versions of Civil Rules 4.3

and 4.6 is persuasive. It is clear that the mechanics of service in this matter were

correct. Of note here, however, is the rule that, in order for service via regular mail to

satisfy due process, the address Appellant used for service must still be “reasonably

calculated, under all the circumstances, to apprise interested parties of the pendency

of the action and afford them an opportunity to present their objections.” Mullane,

supra, at 314.

         {¶23} According to the material that appears in the record, and to the findings

adopted by the trial court, Appellant and another man, Syed Nobahar, signed a

lease.    Because no party has provided evidence of the complete terms of the

agreement, we are bound by the facts pertaining to the lease as they appear in the

magistrate’s decision adopted by the trial court on April 27, 2011. According to those
                                                                                 -16-

findings, the lease required that Appellant and Nobahar provide an address for

receipt of all communications pertaining to the lease. Service was not sent to this

address. According to Appellee’s own admission, a second address was provided to

Appellee by Nobahar, not Appellant, for communications pertaining to the lease. The

notice was apparently not provided pursuant to lease provisions for a change of

address.     Appellee admits that the notice was signed by Nobahar, but not by

Appellant. Nothing in the record connects Appellant to the notice containing this

changed address. Nothing in the record connects Appellant to the address itself.

Nothing in the record before us provides evidence of what, if any, legal relationship

may exist between Nobahar and Appellant to allow service by proxy or to authorize

Nobahar to change the address on behalf of both parties. Although Appellee claimed

during oral argument that the terms of the lease made service on one party sufficient

for both, Appellee failed to produce any evidence of such a clause in the record

below.     Service to the Fredericksburg address provided by only Nobahar was

unclaimed. Service was never attempted to any other address. Appellant never

responded to the lawsuit or appeared in the record. A default judgment motion was

filed, and Appellant never responded or appeared in the record. When Appellant

filed his motion to vacate on December 3, 2010, he attached a copy of an affidavit

averring that he never received service.

         {¶24} It is not necessary to apply the rules governing service to a place of

business in this instance, because nothing in the record suggests that the

Fredericksburg address was Appellant’s, or in fact Nobahar’s, place of business.
                                                                                 -17-

While there is a suggestion that the changed address referred to the location of the

leased premises, Appellee has not produced, and the trial court did not find, a single

connection in the record between Appellant and the Fredericksburg address provided

by Nobahar. Even if there was evidence that the leased premises was located in

Fredericksburg, there is still no evidence that Appellant had any connection to this

address other than his apparent agreement to the terms of the lease. Nothing in the

record justifies a presumption that Appellant could be served at that address.

Appellee’s emphasis on Appellant’s subsequent behavior after default was granted

and denials of service at a third address when collection was later sought is

misplaced. Absent appropriate service of the complaint, a party is not obligated to

participate in or otherwise even acknowledge a legal proceeding is taking place.

Appellant’s subsequent behavior is irrelevant to Appellee’s burden to meet the

threshold requirement that initial service of process be made at an address

reasonably calculated to give the party notice. Appellee has failed to introduce any

evidence on the record that establishes a connection between Appellant and the

address where service was attempted that would support the conclusion that service

to that address was reasonably calculated to give notice pursuant to Civ.R. 4.

      {¶25} Assuming Appellant was actively avoiding service of Appellee’s

collection attempts at the Potomac, Maryland address, nothing, short of waiver, can

excuse the basic due process requirement that Appellee was first required to obtain

service of the complaint. The lack of any evidence connecting Appellant in any way

to the Fredericksburg address coupled with the admitted facts surrounding the
                                                                                    -18-

attempts at service negate the presumption that service to Appellant was complete at

that address.   The trial court’s finding that Appellant was not credible when he

claimed he did not receive service at the Fredericksburg address because he also

denied that he later received service of the motion for default judgment at his

(apparent) home address is unreasonable. Had the record demonstrated a sufficient

connection between Appellant and the Fredericksburg address, had service of the

complaint been made to the address provided in the lease, or had service of the

complaint been attempted at what may be Appellant’s home in Potomac, Maryland

that Appellee used when seeking to collect its judgment, Appellee would have a

stronger case that default judgment was appropriate.        However, the record as it

comes to this Court offers no support for the conclusion that such judgment was

warranted, here.    While the trial court may appropriately make findings as to

Appellant’s credibility, subsequent denial of service during collection procedures does

not effect failure of service on the underlying complaint. The facts before us do not

establish that service on the complaint was properly sought or obtained against

Appellant. The trial court’s decision to adopt the magistrate’s decision was an abuse

of discretion. Accordingly, Appellant’s assignment of error is sustained. The decision

of the trial court denying Appellant’s motion to vacate is reversed and the trial court’s

default judgment against him is vacated.

                                      Conclusion

       {¶26} Appellant’s single assignment of error is sustained.          Because no

evidence of a connection between Appellant and the Fredericksburg address used
                                                                                  -19-

for attempted service of the complaint appears in the record, it was unreasonable for

the trial court to conclude that service had been perfected on Appellant. The trial

court’s decision denying Appellant’s motion to vacate is reversed and the trial court’s

judgment entry granting default judgment against Appellant is hereby vacated.


Donofrio, J., concurs.

DeGenaro, P.J., dissents; see dissenting opinion.
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DeGenaro, P.J., dissenting.
       {¶27} While I concur with the majority’s analysis regarding the propriety of the
mechanism of service used in this case, I dissent from the conclusion that service
was not perfected against Appellant. Given the scant nature of the record and the
procedural posture of this appeal, Appellant’s ability to make his case that it was error
as a matter of law to deny his motion to vacate the default judgment is constrained.
Moreover, these two factors dictate a very narrow issue to be tested by our standard
of review. Based upon the paucity of the record, we cannot adequately test whether
the trial court abused its discretion by overruling Appellant’s objections to the
Magistrate’s Decision. Rather, we must presume the regularity of those proceedings.
Accordingly, the judgment of the trial court should be affirmed.
       {¶28} The majority and I differ on how to apply the United States Supreme
Court holding in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70
S.Ct. 652, 94 L.Ed. 865 (1950), to the facts of this case; specifically, whether the
address used by Appellee was “reasonably calculated” to provide Appellant with
notice of the Complaint. Resolution of this issue is fact-driven by necessity; what is
reasonable in one case may not be in another.           This raises another analytical
distinction. As a matter of Ohio law, in the absence of a transcript the court of
appeals must presume sufficient evidence was presented to the trial court to support
its decision.   Here, the majority has done the opposite, presuming insufficient
evidence was presented.
       {¶29} The majority correctly notes the record is very limited here in the first
instance; for example, it is unclear from the record whether the lease was filed with
the trial court before default judgment was granted. That the lease was not properly
before the trial court was detrimental to Appellant’s argument contained in his
objections before the trial court and fatal to his argument on appeal, as will be
discussed below. However, the complaint was for money damages only, and the
absence of the lease, while sloppy litigation practice, was not fatal to Appellee here
as the majority has concluded. The record reveals there was a hearing before the
trial court on the motion for default judgment on July 9, 2008 where evidence was
                                                                                   -21-

presumably presented, including the lease. However, Appellant has failed to file that
transcript. We do know the lease was presented at the hearing before the magistrate
on Appellant’s motion to vacate; however, we cannot consider the substance of that
document, aside from what the magistrate notes in his findings of fact.
      {¶30} But I differ with the majority in the presumptions that can be made in
light of this evidentiary gap. “When portions of the transcript necessary for resolution
of assigned errors are omitted from the record, the reviewing court has nothing to
pass upon and thus, as to those assigned errors, the court has no choice but to
presume the validity of the lower court's proceedings, and affirm.” Knapp v. Edwards
Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384, 385 (1980).
      {¶31} The majority has done the opposite; in effect presuming from the lack of
a transcript that evidence in support of certain factual matters was not presented by
Appellee, and vacating the default judgment for that reason. Pursuant to Knapp’s
directive, we must presume sufficient evidence was presented to support the initial
default judgment as well as the Magistrate’s finding that Appellant was properly
served; that as a matter of law the Fredericksburg Virginia address was reasonably
calculated to provide notice. Mullane, supra.
      {¶32} The procedural posture of the case controls from which party’s
perspective we review the record; specifically, which party bears the burden of proof.
The default judgment was not appealed. This matter is before us on Appellant’s
motion to vacate a judgment, first heard by a magistrate, and then by the trial court
hearing Appellant’s objections, and denying the motion. On appeal, Appellant argues
that the magistrate and the trial court abused their discretion by denying a motion to
vacate a judgment, not in granting judgment in the first instance. This is a subtle but
fundamental difference, because it dictates how broadly or narrowly this court
reviews the discretion exercised by the trial court. Coupled with the inadequacy of
the record filed with this court by Appellant, our standard of review is particularly
constrained in this case. The issue before us is a narrow one: whether the trial court
abused its discretion by overruling Appellant’s objections and denying the motion to
vacate. State ex rel. Duncan, supra.
                                                                                  -22-

      {¶33} Appellant failed to provide the trial court with, at a minimum, the
transcript of the hearing before the magistrate, including admitted exhibits.      The
transcript from the default judgment hearing has not been included in the record as
well. This makes it virtually impossible for this court to measure whether the trial
court abused its discretion in determining as a matter of law that service was proper
as contemplated by Mullane. Thus, Knapp dictates we presume the regularity of the
proceedings before the magistrate.
      {¶34} Reliance on Appellant’s self-serving affidavit to find the trial court
abused its discretion is inapposite.   There was a full evidentiary hearing on the
motion to vacate before the magistrate, who found Appellant’s testimony “not
credible.” We simply do not know what the other terms of the lease provided with
respect to notice; e.g., whether the notice provisions of the lease quoted in the
Magistrate’s Decision can be waived; or whether one co-tenant’s statement regarding
a change of address can bind the other. We do not know whether correspondence,
rent payments and the like between the parties originated from or were sent to the
Fredericksburg Virginia address, which would be another factual consideration
relevant to whether service was reasonably calculated pursuant to Mullane.
Moreover, counsel conceded that Appellant and the discharged defendant were
partners.   This raises a whole host of factual and legal issues that need to be
resolved when considering the motion to vacate. Given Appellant’s failure to provide
a sufficient record for us to review, we must resolve ambiguities or gaps in the record
by presuming the regularity of the proceedings before the magistrate.
      {¶35} What is properly in the record for appellate review are the various
exhibits filed by Appellee in opposition to Appellant’s Motion to Vacate Default
Judgment and a transcript of the hearing before the trial court on Appellant’s
objections. At that hearing, counsel for Appellant argued that Appellant’s affidavit (a
photocopy, no original was filed as a part of the record) denying service of the
complaint was uncontroverted, and pursuant to Russell v. Rooney, 7th Dist. No. 88
CA 80, 1989 WL 27779 (Mar. 23,1989), that alone defeats service. However, as
noted above, there was a full evidentiary hearing at which Appellee did challenge
                                                                                      -23-

Appellant’s claim that he did not receive the Complaint, and in fact, the magistrate
found that denial incredible. The trial court’s and our standard of review of factual
findings by the magistrate is limited precisely because neither court has the benefit of
viewing the testimony of the witnesses in the manner the trier of fact did, in this
instance the magistrate. Without the benefit of reading the transcript, neither the trial
court, nor this court can say the magistrate abused his discretion by concluding
service was proper. To let a one-dimensional, self-serving affidavit factually trump
live testimony subject to cross-examination is problematic. It would create case law
in this district permitting a defendant to collaterally attack and defeat a valid default
judgment, rather than defending it in the first instance, or filing a direct appeal of that
judgment. To permit this collateral attack would also negatively impact the principle
of the finality of judgments.
       {¶36} In conclusion, it is incumbent upon Appellant to provide a sufficient
record to the trial court to address his objections, and to this court to address the
assigned error. Here, Appellant failed to do so. Further, the procedural posture of
the case placed the burden of proof on the motion to vacate upon Appellant.
Whether the Fredericksburg Virginia address was “reasonably calculated” to provide
Appellant with notice of the Complaint, as contemplated by Mullane, is necessarily
driven by the facts; what is reasonable in one case may not be in another. Given
Appellant’s failure to provide a sufficient record for us to review, we must resolve
ambiguities or gaps in the record by presuming the regularity of the proceedings
before the magistrate. Thus, the decision of the trial court should be affirmed.
