[Cite as Detty v. Yates, 2014-Ohio-1935.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        ROSS COUNTY


BERMAN P. DETTY, et al.,                              :

        Plaintiffs-Appellees,                         :   Case No. 13CA3390

        vs.                                           :

MICHAEL YATES,                                        :   DECISION AND JUDGMENT ENTRY


      Defendant-Appellant.             :
_________________________________________________________________
                                APPEARANCES:

COUNSEL FOR APPELLANT:                      Joshua A. Koltak and Bryan A. Niemeyer, FAULKNER,
                                            GARMHAUSEN, KEISTER & SHENK, Courtview
                                            Center–Suite 300, 100 South Main Avenue, Sidney, Ohio
                                            45365

COUNSEL FOR APPELLEE:                       Thomas M. Spetnagel, LAW OFFICES OF THOMAS M.
                                            SPETNAGEL, 42 East Fifth Street, Chillicothe, Ohio
                                            45601

CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED:4-30-14
ABELE, P.J.

        {¶ 1} This is an appeal from a Ross County Common Pleas Court judgment that denied

a motion for relief from judgment filed by Michael Yates, defendant below and appellant herein.

        {¶ 2} Appellant assigns the following errors for review:

                 FIRST ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT ERRED BY REFUSING TO GRANT
                 DEFENDANT-APPELLANT’S MOTION FOR RELIEF FOR
                 JUDGMENT AND REQUEST FOR HEARING BECAUSE THE
                 JUDGMENT WAS VOID AS A MATTER OF LAW SINCE
                 DEFENDANT-APPELLANT SUBMITTED AN AFFIDAVIT
ROSS, 13CA3390                                                                                                               2

                  TESTIFYING UNDER OATH THAT HE DID NOT RECEIVE
                  SERVICE OF PROCESS BECAUSE HE NO LONGER
                  UTILIZED THE ADDRESS TO WHICH SERVICE WAS SENT.”

                  SECOND ASSIGNMENT OF ERROR:

                  “THE TRIAL COURT ERRED BY REFUSING TO CONDUCT
                  A HEARING ON DEFENDANT-APPELLANT’S MOTION FOR
                  RELIEF FROM JUDGMENT AND REQUEST FOR HEARING
                  BECAUSE THE JUDGMENT WAS VOID AS A MATTER OF
                  LAW SINCE DEFENDANT-APPELLANT SUBMITTED AN
                  AFFIDAVIT TESTIFYING UNDER OATH THAT HE DID NOT
                  RECEIVE SERVICE OF PROCESS BECAUSE HE NO
                  LONGER UTILIZED THE ADDRESS TO WHICH SERVICE
                  WAS SENT.”

                  THIRD ASSIGNMENT OF ERROR:

                  “THE TRIAL COURT ERRED BY REFUSING TO GRANT
                  DEFENDANT-APPELLANT’S MOTION FOR RELIEF FROM
                  JUDGMENT AND REQUEST FOR HEARING PURSUANT TO
                  OHIO CIVIL RULE 60(B) WHEN DEFENDANT-APPELLANT
                  SUBMITTED AN AFFIDAVIT TESTIFYING UNDER OATH
                  THAT HE DID NOT RECEIVE SERVICE OF PROCESS
                  BECAUSE HE NO LONGER UTILIZED THE ADDRESS TO
                  WHICH SERVICE WAS SENT.”

        {¶ 3} On July 26, 2012, appellees Berman P. Detty and Sara Detty re-filed a negligence

complaint against appellant.1 Appellees alleged that appellant’s three dogs attacked Mr. Detty

and his horse.

        {¶ 4} Appellees requested the clerk to serve the complaint upon appellant by certified

mail at 2253 Ragged Ridge Road, Frankfort, Ohio 45628. The certified mail service was

returned as “unclaimed.” On August 24, 2012, the clerk reissued the complaint via ordinary


             1
                Appellees filed the first complaint in 2008.   The trial court dismissed the complaint, without prejudice,
   on July 29, 2011 for failure to prosecute.
ROSS, 13CA3390                                                                                       3

mail to the same address.

       {¶ 5} On October 13, 2012, appellees filed a motion for default judgment. On October

23, 2012, the trial court granted appellees default judgment. On January 2, 2013, the court

entered a $75,000 judgment against appellant plus costs.

       {¶ 6} On January 29, 2013, appellant filed a motion for relief from judgment and

requested a hearing. Appellant argued that he did not receive proper service of the complaint

and, thus, the court lacked personal jurisdiction over him, that rendered the trial court’s judgment

void ab initio. Appellant further requested relief under Civ.R. 60(B)(1) because his failure to

answer the complaint resulted from excusable neglect because he did have actual notice of the

complaint. Appellant additionally argued that he had a meritorious defense to present and that

he filed the motion within a reasonable time.

       {¶ 7} To support his motion, appellant submitted an affidavit. In it, appellant averred

that his “current mailing address is P.O. Box 596, Frankfort, Ohio 45682" and that his “prior

mailing address was 2253 Ragged Ridge Road, Frankfort, Ohio 45628.” Appellant stated that

“several years ago” he obtained a P.O. Box “due to my mailbox being run over frequently.”

Appellant averred that “[a]t all times relevant for this purpose of this lawsuit I have not received

mail at 2253 Ragged Ridge Road, Frankfort, Ohio 45628, including since before July 2012.”

Appellant stated that he did not receive actual notice of appellees’ complaint and that he did not

become aware of the proceedings until January 10, 2013, when a Ross County Sheriff’s Office

representative came to his home.

       {¶ 8} On May 9, 2013, the trial court overruled appellant’s motion. This appeal

followed.
ROSS, 13CA3390                                                                                         4

                                                   I

          {¶ 9} In his first assignment of error, appellant argues that he did not receive proper

service of process and, thus, the trial court’s judgment is void ab initio because the court did not

have personal jurisdiction over him.

          {¶ 10} “‘It is rudimentary that in order to render a valid personal judgment, a court must

have personal jurisdiction over the defendant.’” State ex rel. Doe v. Capper, 132 Ohio St.3d

365, 2012-Ohio-2686, 972 N.E.2d 553, ¶13, quoting Maryhew v. Yova, 11 Ohio St.3d 154, 156,

464 N.E.2d 538 (1984). “‘[F]or 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.’” State ex rel. Ballard v. O’Donnell, 50 Ohio St.3d 182,

183-184, 553 N.E.2d 650 (1990), quoting Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61, 64,

133 N.E.2d 606 (1956); e.g., Knickerbocker Properties, Inc. XLII v. Delaware Cty. Bod. of

Revision, 119 Ohio St.3d 233, 2008-Ohio-3192, 893 N.E.2d 457, ¶20; Cincinnati School Dist.

Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 87 Ohio St.3d 363, 366-367, 721 N.E.2d 40

(2000). Thus, a “‘trial court is without jurisdiction to render judgment or to make findings

against a person who was not served summons, did not appear, and was not a party to the court

proceedings.’” MB West Chester, L.L.C. v. Butler Cty. Bd. of Revision, 126 Ohio St.3d 430,

2010-Ohio-3781, 934 N.E.2d 928, ¶29, quoting State ex rel. Ballard v. O’Donnell, 50 Ohio St.3d

182, 553 N.E.2d 650 (1990), paragraph one of the syllabus. A decision entered without

jurisdiction “is unauthorized by law and amounts to usurpation of judicial power.” Ballard, 50

Ohio St.3d at 184, citing State ex rel. Osborn v. Jackson, 46 Ohio St.2d 41, 52, 346 N.E.2d 141

(1976).
[Cite as Detty v. Yates, 2014-Ohio-1935.]
        {¶ 11} A court possesses inherent power to vacate a void judgment. Patton v. Diemer,

35 Ohio St.3d 68, 70, 518 N.E.2d 941 (1988). Thus, a party seeking to vacate a default

judgment due to a lack of jurisdiction need not comply with Civ.R. 60(B), which governs relief

from voidable—not void—judgments. Partin v. Pletcher, 4th Dist. Jackson No. 08CA5,

2008-Ohio-6749, ¶11; accord U.S. Bank v. Cooper, 9th Dist. Medina No. 12CA0084-M,

2013-Ohio-61, ¶10; Surgical Servs. v. Cremeans, 8th Dist. Cuyahoga No. 83493,

2004-Ohio-2330, ¶6.

        {¶ 12} In the case sub judice, appellant claims that the trial court did not acquire

jurisdiction over him because appellees did not properly serve him. Thus, we must examine

whether appellees properly served appellant with the complaint.

        {¶ 13} Service of process is valid when a plaintiff complies with the requirements

outlined in the Ohio Rules of Civil Procedure. Partin at ¶13. Civ.R. 4.1 allows the plaintiff to

serve the summons and complaint by certified mail. Civ.R. 4.6(D) states that if a certified mail

envelope is returned with an endorsement showing that it was “unclaimed,” the clerk shall notify

the attorney of record. The attorney then may request the clerk to send the summons and

complaint by ordinary mail. “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.” Civ.R. 4.6(D).

        {¶ 14} In the case at bar, appellees initially served the summons and complaint by

certified mail, but it was returned as “unclaimed.” Appellees then requested the clerk to serve

the summons and complaint by ordinary mail, which the clerk did. The postal authorities did
ROSS, 13CA3390                                                                                                                6

not return the ordinary mail envelope with an endorsement showing failure of delivery. Thus,

under Civ.R. 4.6(D), service was complete upon mailing, and appellees validly served appellant.

        {¶ 15} However, several courts have determined that Civ.R. 4.6(D) merely creates a

rebuttable presumption of proper service. E.g., Famageltto v. Telerico, --- Ohio App.3d. ---,

2013-Ohio-3666, 994 N.E.2d 932 (11th Dist.), ¶14; Galbreath v. Martin, 10th Dist. Franklin No.

11AP-348, 2011-Ohio-5852, ¶9; Rafalski v. Oates, 17 Ohio App.3d 65, 66, 477 N.E.2d 1212

(8th Dist.1984). This court has concluded that Civ.R. 4.6(D) plainly states that service is

complete upon mailing and that the rule does not, by its terms, create a rebuttable presumption.2

State ex rel. Scioto Cty. Dept. of Human Services v. Proctor, 4th Dist. Scioto No. 04CA2948,

2005-Ohio-1581, ¶14 (“Civ.R. 4.6(D) provides that service by ordinary mail is deemed complete

so long as the envelope is not returned to the clerk.”); accord 2 Klein, Darling, and Terez,

Baldwin’s Ohio Civil Practice, Section 4.6.22 (2013) (“The ‘rebuttable presumption of proper

service’ language * * * is puzzling because service which complies with the Civil Rules surely

does not become ‘improper’ under the Rules merely because it does not actually reach the

defendant in question.”). Thus, in Proctor, we rejected the appellant’s argument that his

affidavit attesting that he did not receive service showed that service of process was improper

and deprived the court of jurisdiction. Id. at ¶14. We did, however, recognize that the

appellant may be entitled to relief under Civ.R. 60(B).




             2
                 To the extent our earlier decision in Velvet Ice Cream-Ringold v. Hatfield, 4th Dist. Scioto 93CA1970 (May
   4, 1994), is inconsistent with this rule, we hereby overrule it.
ROSS, 13CA3390                                                                                        7

       {¶ 16} Consequently, in the case sub judice, service of process was proper under Civ.R.

4.6(D), and, thus, appellant is unable to show that the court lacked jurisdiction. The trial court’s

judgment, therefore, is not void ab initio.

       {¶ 17} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s

first assignment of error.

                                                  II

       {¶ 18} In his second assignment of error, appellant argues that the trial court erred by

failing to hold a hearing to determine the validity of his assertion that he did not receive proper

service.

       {¶ 19} It is not clear whether appellant argues that he was entitled to a hearing to rebut

the presumption of proper service in order to prove that the court’s judgment was void ab initio,

or if his argument is that he was entitled to a hearing regarding his Civ.R. 60(B) motion. To the

extent it is the former, we reject it. As we stated infra, if a plaintiff complies with Civ.R. 4.6(D),

service is deemed complete. The rule does not create a rebuttable presumption of service. To

the extent appellant asserts that the court erred by failing to hold a hearing regarding his Civ.R.

60(B) motion, we agree.

       {¶ 20} A trial court possesses discretion when determining whether to hold a hearing

regarding a Civ.R. 60(B) motion. Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 19, 665

N.E.2d 1102 (1996). Thus, an appellate court will not reverse a trial court’s decision regarding a

Civ.R. 60(B) evidentiary hearing absent an abuse of discretion. Id. “‘Abuse of discretion’

connotes an unreasonable, arbitrary, or unconscionable decision.” State ex rel. Stine v. Brown

Cty. Bd. of Elections, 101 Ohio St.3d 252, 2004-Ohio-771, 804 N.E.2d 415, ¶12. This standard
ROSS, 13CA3390                                                                                        8

is deferential and does not permit an appellate court to simply substitute its judgment for that of

the trial court. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶34; In

re Jane Doe 1, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991).

       {¶ 21} A party moving for relief from judgment under Civ.R. 60(B) is not automatically

entitled to an evidentiary hearing. E.g., Peoples Bank, Natl. Assn. v. McGhee, 4th Dist. Gallia

Nos. 12CA11 and 13CA4, 2013-Ohio-3859, ¶7. The movant bears the burden to demonstrate

that he is entitled to a hearing regarding a Civ.R. 60(B) motion. PHH Mtge. Corp. v. Northrup,

4th Dist. Pickaway No. 11CA6, 2011–Ohio–6814, ¶28.

       “‘If the movant files a motion for relief from judgment and it contains allegations
       of operative facts which would warrant relief under Civil Rule 60(B), the trial
       court should grant a hearing to take evidence and verify these facts before it rules
       on the motion.’”

Coulson v. Coulson, 5 Ohio St.3d 12, 16, 448 N.E.2d 809 (1983), quoting Adomeit v. Baltimore,

39 Ohio App.2d 97, 105, 316 N.E.2d 469 (1974); accord Kay v. Marc Glassman, supra. “Thus,

the trial court abuses its discretion in denying a hearing where grounds for relief from judgment

are sufficiently alleged and are supported with evidence which would warrant relief from

judgment.” Id. at 19.

       {¶ 22} To be entitled to a hearing, a movant must present operative facts to show all three

of the following circumstances:

       “(1) the party has a meritorious defense or claim to present if relief is granted; (2)
       the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)
       through (5); and (3) the motion is made within a reasonable time, and, where the
       grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the
       judgment, order or proceeding was entered or taken.”
ROSS, 13CA3390                                                                                         9

GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),

paragraph two of the syllabus.

         {¶ 23} In the case sub judice, we believe that appellant presented operative facts to show

all three of the foregoing circumstances and, thus, the trial court abused its discretion by failing

to hold a hearing to ascertain the verity of the facts.

         {¶ 24} Appellant set forth operative facts to demonstrate that he has a meritorious

defense to present. “‘[A] proffered defense is meritorious if it is not a sham and when, if true, it

states a defense in part, or in whole, to the claims for relief set forth in the complaint.’”

Spaulding–Buescher v. Skaggs Masonry, Inc., 4th Dist. Hocking No. 08CA1, 2008–Ohio–6272,

¶10, quoting Amzee Corp. v. Comerica Bank–Midwest, 10th Dist. Franklin No. 01AP–465,

2002–Ohio–3084, ¶20; accord Peoples Bank, supra, at ¶12. “The movant’s burden is to allege

operative facts that would create a defense. The movant need not conclusively establish the

defense at this stage.” French v. Taylor, 4th Dist. Lawrence No. 01CA15 (Jan. 2, 2002).

         {¶ 25} In the case at bar, appellant’s motion claimed that he had a meritorious defense to

present. Appellant denied liability for appellees’ claims. He asserted that he did not own the

dogs that allegedly caused appellees’ injuries and that he does not believe appellees have any

evidence to prove that he does own the dogs. Appellant further argued that the deposition

testimony taken in the prior case shows that appellees could not have suffered the $75,000 in

damages that the court awarded by default. These facts, if true, warrant relief under Civ.R.

60(B).

         {¶ 26} Appellant additionally set forth operative facts to demonstrate that he is entitled to

relief under Civ.R. 60(B)(1). Appellant submitted an affidavit in which he stated that he did not
ROSS, 13CA3390                                                                                     10

receive actual notice of the complaint. Several courts have recognized that a judgment may be

voidable under Civ.R. 60(B)(1) if a defendant lacked actual notice of the action. LVNV

Funding, Inc. v. Burns, 2nd Dist. Clark No. 2013CA67, 2014-Ohio-732, ¶14, citing Lawrence v.

Primetime Agrimarketing Network, Inc., 5th Dist. Muskingum No.2007–0057, 2008–Ohio–2552,

¶13, and Portfolio v. Recovery Assoc. L.L.C. v. Thacker, 2nd Dist. Clark No.2008 CA 119,

2009–Ohio–4406, ¶58 (Grady, J., concurring); accord PHH mortgage at ¶16. If a movant

submits an uncontroverted affidavit stating that the movant did not receive service of process, the

movant “‘should be afforded the opportunity at an evidentiary hearing to contest the issue of

notice.’” Oxley v. Zacks, 10th Dist. Franklin No. 00AP-247 (Sept. 29, 2000), quoting

Nationwide Ins. Co. v. Mahn, 36 Ohio App.3d 251, 252, 552 N.E.2d 1096 (1987); Infinity

Broadcasting, Inc. v. Brewer, 1st Dist. Hamilton No. C-020329, 2003-Ohio-1022, ¶8 (stating that

“a trial court cannot dismiss an allegation of a lack of notice out of hand.). Thus, if appellant’s

assertion that he lacked actual notice of the complaint is true, he is entitled to relief under Civ.R.

60(B).

         {¶ 27} Moreover, appellant presented operative facts to show that he filed the motion

within a reasonable time. On January 2, 2013, the trial court entered final judgment in

appellees’ favor. On January 29, 2013, appellant filed his motion for relief from judgment, less

than thirty days from the date of the court’s final judgment. This is well under the one-year time

limit set forth in Civ.R. 60(B).

         {¶ 28} Consequently, because appellant set forth operative facts to demonstrate all three

factors required under Civ.R. 60(B), we believe that the trial court abused its discretion by failing

to hold a hearing to ascertain the truth of the facts alleged. We emphasize that our decision is
ROSS, 13CA3390                                                                                      11

not a comment on the ultimate merits of appellant’s Civ.R. 60(B) motion. Instead, our decision

simply recognizes that appellant set forth operative facts that, if true, would entitle him to relief.

       {¶ 29} Accordingly, based upon the foregoing reasons, we hereby sustain appellant’s

second assignment of error and remand this matter to the trial court for an evidentiary hearing.

                                                  III

       {¶ 30} Our disposition of appellant’s second assignment of error renders his third

assignment of error moot. We therefore do not address it. App.R. 12(A)(1)(c).

       {¶ 31} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s

third assignment of error. We reverse the trial court’s judgment and remand for a hearing

regarding appellant’s Civ.R. 60(B) motion.

                                                               JUDGMENT REVERSED AND
                                                               CASE REMANDED FOR
                                                               FURTHER PROCEEDINGS
                                                               CONSISTENT WITH THIS
                                                               OPINION.
[Cite as Detty v. Yates, 2014-Ohio-1935.]
                                            JUDGMENT ENTRY

       It is ordered that the judgment be reversed and case remanded for further proceedings.
Appellant shall recover of appellees the costs herein taxed.

        The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

        Harsha, J. & McFarland, J.: Concur in Judgment & Opinion

                                                                 For the Court




                                                                 BY:
                                               Peter B. Abele
                                               Presiding Judge




                                        NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
