[Cite as CP Properties of Shaker, L.L.C. v. Eaton, 2011-Ohio-6085.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 96945




                   CP PROPERTIES OF SHAKER, LLC
                                                           PLAINTIFF-APPELLEE

                                                     vs.

                            WILLIAM R.                     EATON, JR.
                                                           DEFENDANT-APPELLANT




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                      Civil Appeal from the
                                  Shaker Heights Municipal Court
                                     Case No. 11 CVI 00301

        BEFORE:           Boyle, P.J., Celebrezze, J., and Keough, J.

        RELEASED AND JOURNALIZED:                            November 23, 2011

 ATTORNEY FOR APPELLANT
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James R. Douglass
James R. Douglass Co., LPA
20521 Chagrin Boulevard, Suite D
Shaker Heights, Ohio 44122


ATTORNEY FOR APPELLEE

Peter Hardin-Levine
Thorman & Hardin-Levine Co., LPA
The Bradley Building
1220 West Sixth Street, Suite 207
Cleveland, Ohio 44113




MARY J. BOYLE, P.J.:

      {¶ 1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1.

      {¶ 2} Defendant-appellant, William Eaton, Jr., appeals from the trial court’s

judgment entering judgment against him and in favor of plaintiff-appellee, CP Properties

of Shaker, LLC (“CP Properties”), in the amount of $1,915, plus interest and court costs.

 Finding merit to the appeal, we reverse and remand.

                                      Procedural History
                                            3

        {¶ 3} In March 2011, CP Properties filed a small claims action against Eaton in

Shaker Heights Municipal Court, claiming that Eaton failed to pay his last two months

rent, wrote bad checks, and refused to respond to requests for payment. CP Properties

requested a judgment against Eaton in the amount of $2,985.          The form complaint

contained an “Affidavit of Complainant’s Claim,” which was signed by CP Properties’

representative, directing the clerk to reissue service of the summons and complaint if the

original service of process by certified mail was returned as unclaimed or refused.

        {¶ 4} The clerk of court sent service of summons to Eaton by certified mail at his

home in Germantown, Tennessee, return receipt requested, on March 17, 2011.           The

summons notified Eaton that the court would hold a hearing on the matter on April 21,

2011.    On April 11, the service of summons was returned unclaimed.      That same day,

the clerk of court sent service of summons via regular mail to Eaton.      The summons

again notified Eaton that the court would hold a hearing on the matter on April 21, 2011.

 The ordinary mail envelope was not returned as undelivered.

        {¶ 5} As the notice indicated, a magistrate held a hearing on the matter on April

21.   Eaton failed to appear.    The magistrate entered judgment against Eaton in the

amount of $1,915, plus interest and court costs.

        {¶ 6} On May 4, 2011, Eaton filed objections to the magistrate’s decision.     In

his affidavit, he averred that he is a resident of Tennessee, and that as part of his

employment, he travels a lot.   He stated that he received the summons and notice of the
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trial date, as well as the magistrate’s April 21st decision, on April 28, 2011, when he

returned home from a business trip.

       {¶ 7} On May 19, the trial court overruled Eaton’s objections and entered

judgment against him as recommended by the magistrate. It is from this judgment that

Eaton appeals.   He raises two assignments of error for our review:

       {¶ 8} “[1.] The court erred by setting an answer date/trial nine (9) days after

service of process was issued by regular mail.

       {¶ 9} “[2.]   The court erred in entering a default judgment against

defendant-appellant when service of process had not been accomplished.”

       {¶ 10} We will discuss Eaton’s second assignment of error first since it addresses

the court’s jurisdiction over him.

                                       Personal Jurisdiction

       {¶ 11} In his second assignment of error, Eaton maintains that the Shaker Heights

Municipal Court never obtained personal jurisdiction over him since he did not receive

service of process until after the magistrate held a hearing on the matter.   We disagree.

       {¶ 12} Eaton admits that he received service of summons by regular mail.         He

just did not receive it until he returned from a business trip, which was after the

magistrate held the hearing.

       {¶ 13} Civ.R. 4.3 provides rules for methods for serving a person who lives out of

state. It is by certified or express mail, or by personal service. Civ.R. 4.3(B)(1) and
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(2).   If certified mail is returned as unclaimed, which it was here, then, upon request of

a party or the party’s attorney, “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.”   Civ.R. 4.6(D).   “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.” Id.

       {¶ 14} The clerk first sent service of summons to Eaton via certified mail, return

receipt requested.   When it was returned as unclaimed, the clerk then sent service of

summons via regular mail.          The envelope was not returned as undeliverable.

Accordingly, service of summons was complete on April 11, 2011, the date the clerk sent

the summons by regular mail.

       {¶ 15} Eaton’s second assignment of error is overruled.

                                        Notice of Hearing

       {¶ 16} In his first assignment of error, Eaton claims that the trial court erred when

it set a hearing date for April 21, 2011, which he claims was nine days after service of

summons was issued by regular mail.       We agree with Eaton that the trial court erred

when it set the hearing for April 21, 2011, but for different reasons than Eaton argues.

       {¶ 17} Chapter 1925 of the Ohio Revised Code governs proceedings in the small

claims division of a municipal court.         Shaker Heights Loc.R. 7.2.1 provides that
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“[a]ctions filed in the small claims division of the court shall be filed and proceedings

had in accordance with the provisions of R.C. 1925 and any amendments thereto.”

       {¶ 18} R.C. 1925.05(A) prescribes that notice of the filing of an action in small

claims court “shall be served on the defendant as provided by the Rules of Civil

Procedure.”    R.C. 1925.05(B) requires that “[i]f the notice is returned undelivered or if

in any other way it appears that notice has not been received by the defendant, at the

request of the plaintiff or his attorney, a further notice shall be issued, setting the trial for

a subsequent date, to be served in the same manner as a summons is served in an

ordinary civil action.”   (Emphasis added.)

       {¶ 19} The plain language of this statute requires the clerk to set the trial for a

date subsequent to the originally assigned date whenever the clerk sends a further notice

of the action at the request of plaintiff or plaintiff’s attorney. Pursuant to the plain

language of R.C. 1925.05(B), it was mandatory that the further notice contain a new,

rescheduled trial date.    In this case, the record discloses that when the clerk of court

sent the service of summons by regular mail, as previously instructed by CP Properties, it

included a second notice that contained the original trial date, not a rescheduled trial

date, and thus did not comply with the statute.

       {¶ 20} The Tenth Appellate District was presented with a nearly identical fact

pattern in Bodmann v. Locations, Ltd., 10th Dist. No. 03AP-910, 2005-Ohio-1511.
                                           7

Because this court could not say it better, we quote several paragraphs of Bodmann on

this exact issue:

        {¶ 21} “As the Fourth Appellate District noted in Hays v. Crow (Dec. 1, 1982),

4th Dist. No. 472, ‘[t]he evident purpose of setting a new trial date is to allow the

defendant an opportunity to appear and defend.’    Id.   That court reversed a trial court’s

grant of a default judgment in a case where, as here, the trial date was not reset upon the

issuance of further notice and summons following the return, unclaimed, of attempted

certified mail service.

        {¶ 22} “In the present case [the Bodmann case], the requirement of a rescheduled

trial date was not met, though R.C. 1925.05(B) demands it, and the trial court entered a

default judgment despite this failure.   Inasmuch as the mandatory requirement that the

trial date be rescheduled to a subsequent date was not observed, the entry of default

judgment was improper. See AMCA Internatl. Corp. v. Carlton (1984), 10 Ohio St.3d

88, 90-91, 461 N.E.2d 1282. If we were to affirm the default judgment entered in this

case we would render ineffective and meaningless the requirement in the plain language

of R.C. 1925.05(B) that a subsequent notice sent to the defendant contain a rescheduled

trial date.

        {¶ 23} “The purpose of service of process is both to notify a defendant that a

judicial proceeding has been commenced against him, and also to provide him with an

opportunity to appear and defend himself.     Zachary v. White (1971), 26 Ohio App.2d
                                            8

97, 99, 269 N.E.2d 625. Both components of proper service are just as important in

small claims court as they are in the court of common pleas, despite the fact that small

claims court is ‘intended to provide a forum for people with relatively small,

uncomplicated claims to seek redress without the need for attorney representation,’

Klemas v. Flynn (1993), 66 Ohio St.3d 249, 252, 611 N.E.2d 810, and to ‘provide for the

efficient, informal and inexpensive adjudication of small claims.’     Neroni v. Bendersky

(Apr. 28, 1998), 8th Dist. No. 53885.

       {¶ 24} “A small claims action does not contemplate the use of a formal answer

served upon the plaintiff and filed with the court prior to trial. For this reason, it is all

the more necessary to ensure, by means of statutorily proper service of summons, that all

defendants have been notified of the pendency of proceedings and have been afforded

sufficient time to prepare and present a defense.        This advances the dual goals of

judicial economy and efficient use of the small claims plaintiff’s time and resources.

       {¶ 25} “To this end, R.C. 1925.05 is designed to ensure that necessary parties to

an action are properly served with process and that they are afforded adequate time to

prepare for trial.   In including the trial scheduling provision in paragraph (B), the

General Assembly plainly sought to ensure that additional time to prepare for trial would

automatically be afforded a defendant upon his receipt of notice in any attempt at service

other than the initial one, without placing the onus upon the defendant to request a

continuance.   It is not our place to opine regarding the practicality or wisdom of such a
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legislative choice; we are bound to give effect to it when, as here, it has been clearly

expressed in the words used in the statute. If legislative intent ‘is clearly expressed [in

the statute], the statute may not be restricted, constricted, qualified, narrowed, enlarged

or abridged; significance and effect should, if possible, be accorded to every word,

phrase, sentence and part of an act ***.’ Weaver v. Edwin Shaw Hosp., 104 Ohio St.3d

390, 2004-Ohio-6549, 819 N.E.2d 1079, at ¶13, quoting Wachendorf v. Shaver (1948),

149 Ohio St. 231, 78 N.E.2d 370, paragraph five of the syllabus. See, also, State v.

Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, ¶10. Because the trial

date was not rescheduled upon the mailing of the subsequent notice in this case, in

contravention of the plain language of R.C. 1925.05(B), the default judgment entered

against appellants must be reversed.” Bodmann at ¶12-16.

       {¶ 26} Here, the Shaker Heights Municipal Court erred by entering default

judgment against Eaton without setting the trial for a subsequent date to the original one

(April 21, 2011).

       {¶ 27} Eaton’s first assignment of error is sustained.

       {¶ 28} Judgment reversed and remanded to the lower court for further

proceedings consistent with this opinion.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
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       It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
