[Cite as Vargyas v. Brasher, 2015-Ohio-464.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


John T. Vargyas                                    Court of Appeals No. L-14-1193

          Appellee                                 Trial Court No. CVG-12-14496

v.

David C. Brasher, Brittany Galbraith
and Cliff C. Barnard                               DECISION AND JUDGMENT

          Appellants                               Decided: February 6, 2015

                                               *****

          Joanna M. Orth, for appellee.

          Douglas A. Wilkins, for appellants.

                                               *****

          SINGER, J.

          {¶ 1} This is an appeal from a judgment entry denying a motion to set aside a

default judgment issued by the Toledo Municipal Court. For the reasons that follow, we

affirm.
       {¶ 2} Appellants, David C. Brasher and Brittany Galbraith, entered into a lease

agreement with appellee, John Vargyas, in September of 2009. Upon failing to make

timely rent payments, appellants were provided with a three-day notice to leave the

premises in accordance with R.C. 1923.04 on August 7, 2012. The notice lawfully

reflected appellee’s intention to file a landlord complaint seeking forcible entry and

detainer if appellants remained on the premises beyond August 10, 2012. The notice thus

made apparent appellee’s demand for appellants to vacate by August 10, 2012.

Appellants, however, did not adhere to the demand and remained on the premises until

August 12, 2012.

       {¶ 3} Without knowledge and confirmation of appellants’ vacation of the property,

appellee filed the forcible entry and detainer action on August 13, 2012. On August 15,

2012, the Toledo Municipal Court sent out the summons and complaint to appellants via

ordinary mail with a certificate of mailing. This mail was never returned from the post

office. The Toledo Municipal Court also attempted personal service of process upon

appellants on August 16, 2012. With no reception of the personal service of process, the

summons and complaint were posted on appellants’ door. Appellee did not then receive

any past due rents owed, but did receive the keys to the premises from appellants on

August 25, 2012. Judgment for possession was awarded to appellee.

       {¶ 4} Appellee subsequently filed for default judgment and requested a hearing for

an assessment of damages on December 18, 2012. The Toledo Municipal Court granted




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default judgment for restitution in favor of appellee and, after the damages-assessment

hearing, awarded $3,297.82 on February 5, 2013.

       {¶ 5} Appellants claim they had no notice of the default judgment against them

until attempting to purchase a vehicle in May of 2014. Appellants subsequently filed a

motion to set aside the default judgment, pursuant to Civ.R. 60(B). The Toledo

Municipal Court denied the motion to set aside the judgment because appellants failed to

put forth justifiable reasons as to why the judgment should be set aside.

       {¶ 6} From that judgment, appellants now bring this appeal, setting forth the

following assignment of error:

              The Court Erred in Failing to Set Aside the 2/15/13 Judgment.

       {¶ 7} Civ.R. 60(B) provides, in pertinent part, that on motion and upon just terms,

the court may relieve a party from a final judgment for mistake, inadvertence, surprise,

excusable neglect, or any other equitable reason justifying relief. In order for appellants

to have been entitled to such relief, appellants would thus have had to demonstrate that

they had a meritorious defense or claim to present, and they were entitled to such relief in

accordance with Civ.R. 60(B)(1) through (5). Lambert v. Lambert, 6th Dist. Fulton No.

F-05-002, 2005-Ohio-6145, ¶ 13. (Citation omitted.)

       {¶ 8} A lower court’s determination to not set aside a judgment is reviewed for an

abuse of discretion, which is a discretion that requires a finding that the trial court’s

attitude was “unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140, 1142 (1983). (Citation omitted.)




3.
       {¶ 9} As previously noted by this court, “a judgment based on faulty service is

[generally] void.” See G.K.G. Builders, Inc. v. Burgess, 2014-Ohio-2431, 13 N.E.3d 745,

¶ 7 (6th Dist.), citing Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61, 133 N.E.2d 606

(1956), paragraph three of the syllabus. Moreover, a voidable judgment may be vacated

because of the inherent power of Ohio Courts. Id. (Citation omitted.) A party may thus

be entitled to this court vacating a default judgment if the service of process is deemed

faulty. Id. (Citation omitted.) However, a trial court’s determination to not vacate a

default judgment is only overturned when an abuse of discretion is evident from the

record. Id. (Citation omitted.)

       {¶ 10} Although Ohio Rules of Civil Procedure generally govern service of

process, forcible entry and detainer actions are exempt and are governed by the rules of

the Toledo Municipal Code. Civ.R. 1(C). Accord Machshonba v. Cleveland Metro.

Hous. Auth., 2011-Ohio-6760, ¶ 9 (8th Dist.). Toledo Municipal Code 35(A)(1)

provides:

              In forcible entry and detainer (FED) actions under Ohio Revised

       Code Chapter 1923, summons shall be issued in the form as specified in

       section 1923.06(B) of the Ohio Revised Code and shall be served as in the

       Rules of Civil Procedure, except as set forth in subsection (3) [herein].

       Service of summons shall be made at least 5 days before the hearing date.




4.
See G.K.G. Builders, 2014-Ohio-2431, 13 N.E.3d 745, at ¶ 9 (finding service of process

complete because summons and complaint were sent by ordinary mail and posted on

tenant’s door in accordance with Loc.R. 35(A)).

       {¶ 11} Toledo Municipal Code 35(A)(3)(c) provides further elaboration in that

service of process is deemed complete “on the date ‘both ordinary mail service under

division (A)(3)(b) and service by posting pursuant to division (A)(3)(a)(2) of this section

have been made.” Id. at ¶ 10.

       {¶ 12} The court here finds the application of the above rules illustrated in G.K.G.

Builders persuasive in analyzing the case at bar. In G.K.G. Builders, this court held that a

tenant’s motion to vacate judgment due to a lack of proper service in a forcible entry and

detainer action was denied because service of the summons and complaint was indeed

complete. Id. at ¶ 20. Service of process was deemed complete because the summons

and complaint were sent by ordinary mail and simultaneously posted on the tenant’s door

in compliance with Toledo Municipal Code 35(A). Id. at ¶ 16. The date of posting was

found to be the date of completeness because it occurred after the summons and

complaint had been sent. Id. This court also noted that in addition to the plain reading of

Toledo Municipal Code 35(A), preserving the summary nature of forcible entry and

detainer actions led to the conclusion that service of process was complete and in

accordance with due process. Id. at ¶ 19. See also Amherst Village Mgmt. v. Vestal, 6th

Dist. Wood No. WD-99-075, 2000 Ohio App. LEXIS 4981, *13 (Oct. 27, 2000)

(implying mirror statute R.C. 1923.06 is constitutional because, inter alia, the necessity




5.
for landlords to have a “summary, extraordinary, and speedy method for the recovery of

possession of real estate”).

       {¶ 13} Here, appellants concede that residential and ordinary mail were appellee’s

attempted methods of service. Appellee contends that these attempted methods were in

compliance with R.C. Chapter 1923 and Toledo Municipal Code 35(A). The record

reflects that the Toledo Municipal Court sent the summons and complaint via ordinary

mail on August 15, 2012. The record also reflects that the bailiff of the court attempted

personal service upon appellants on August 16, 2012. Consistent with the rationale

subscribed to in G.K.G. Builders, as of August 16, 2012, appellee’s service of process

was complete. See G.K.G. Builders, 2014-Ohio-2431, 13 N.E.3d 745, at ¶ 16 (finding

service of process complete on the later of the two dates between the mail and bailiff

deliveries).

       {¶ 14} Furthermore, appellants here contend that appellee’s service of process was

not made in a manner reasonably calculated to apprise interested parties of the action and

to afford them an opportunity to respond. Tube City, Inc. v. Halishak, 8th Dist.

Cuyahoga No. 88287, 2007-Ohio-2118, ¶ 19, citing Akron-Canton Reg’l Airport Auth. v.

Swinehart, 62 Ohio St. 2d 403, 406, 406 N.E.2d 811 (1980). This determination is made

on a case-by-case basis. Id. (Citation omitted.)

       {¶ 15} This court cannot grant merit to this claim. Appellants were fully aware

that they were being evicted for non-payment of rent. It is reasonable for this court to

assume that appellants have life experience sufficient to recognize that a landlord’s




6.
business is to collect rent from her tenants. Therefore, appellants were indeed apprised of

a potential forcible entry and detainer action against them based on the idea that appellee

was still owed past rent and may look to the court to secure it.

       {¶ 16} Appellants, moreover, were placed on notice of the potential forcible entry

and detainer action once the three-day notice was placed on their door. See, e.g., Showe

Mgmt. Corp. v. Cunningham, 191 Ohio App.3d 123, 2011-Ohio-432, 944 N.E.2d 1234,

¶ 7 (10th Dist.) (explaining that a three-day notice is one of “several layers of Due

Process protections” accorded to a tenant facing a forcible entry and detainer action).

Although the actual date appellants vacated the premises is in contention, the earliest date

appellants claim to have left is August 12, 2012. However, that date is still two days

beyond the required date of August 10, as established on the three-day notice. Hence, the

record reflects that appellants were not only reasonably apprised because they had not

paid their rent, but that appellants were also reasonably apprised because the three-day

notice notified them that appellee had legal standing to bring a forcible entry and detainer

action against them.

       {¶ 17} For the foregoing reasons, this court finds that the Toledo Municipal Court

did not err in denying the motion to set aside the default judgment issued against

appellants. Appellants’ assignment of error is thus found not well-taken.

       {¶ 18} On consideration whereof, the judgment of the Toledo Municipal Court is

affirmed and costs to appellants shall be assessed pursuant to App.R.24.

                                                                        Judgment affirmed.




7.
                                                                      Vargyas v. Brasher
                                                                      C.A. No. L-14-1193




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Stephen A. Yarbrough, P.J.                                 JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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