[Cite as Tax Ease Ohio, L.L.C. v. Richards, 2019-Ohio-5059.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


TAX EASE OHIO, LLC,                                     :      OPINION

                 Plaintiff-Appellee,                    :
                                                               CASE NO. 2019-P-0061
        - vs -                                          :

GREGORY S. RICHARDS, et al.,                            :

                 Defendant-Appellant,                   :

HOME SUITE HOME PROPERTIES OF                           :
OHIO, LLC,
                                                        :
                 Appellee.
                                                        :


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2018 CV
00003.

Judgment: Reversed and remanded.


Austin B. Barnes, David T. Brady, and Brian S. Gozelanczyk, Sandhu Law Group, LLC,
1213 Prospect Avenue, Suite 300, Cleveland, OH 44115 (For Plaintiff-Appellee).

Tony Dalayanis, 12 East Exchange Street, 5th Floor, Akron, OH                  44308 (For
Defendant-Appellant).

Antonios C. Scavdis, Jr., Scavdis & Scavdis, LLC, 261 West Spruce Avenue, P.O. Box
978, Ravenna, OH 44266 (For Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Gregory S. Richards, appeals from the judgment of the Portage

County Court of Common Pleas, denying his motion to vacate a previous judgment in
foreclosure and order of sale, entered on certain real property, for failure of service. We

reverse and remand the matter.

      {¶2}   Appellee, Tax Ease Ohio, LLC (“Tax Ease”), initiated the underlying tax

certificate foreclosure action on January 2, 2018 against property located at 6377

Wayland Road, Wayland, OH 44285. Tax Ease initially attempted to perfect service on

appellant, the owner of the property, via certified mail. When certified mail failed as

unclaimed, Tax Ease proceeded to attempt service via ordinary mail, pursuant to Civ.R.

4.6. Service via ordinary mail was deemed successful on February 14, 2018. After

filing dispositive motions, judgment was granted in Tax Ease’s favor on April 18, 2018.

      {¶3}   On November 19, 2018, appellant filed the first of two motions seeking

relief from the July 9, 2018 order of sale. On November 27, 2018, appellant filed the

second motion. Tax Ease duly opposed to both motions and, after seeking leave to

plead, Home Suite Home Properties of Ohio, LLC (“HSH”) also opposed. On February

20, 2019 a hearing was held before the magistrate after which appellant withdrew his

initial motion to vacate. In a subsequent order, the court formally noted the first motion

was withdrawn and stated the second motion would remain pending.                 A status

conference was scheduled for May 10, 2019. The status conference, however, was

continued, per motion by HSH. In its April 25, 2019 entry granting the continuance, the

court stated the status conference would be “reset at the convenience of this Court.”

The status conference was not reset and, without any further action by the parties or the

court, the trial court entered judgment denying appellant’s motion on April 29, 2019.

This appeal follows.

      {¶4}   Appellant raises three assignments of error. His first and third provide:




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       {¶5}   “[1.] The trial court in error found that it had jurisdiction to enter judgment

against appellant where effective service of process has not been made upon appellant

and appellant has not appeared in the case or otherwise waived service.

       {¶6}    “[3.] The trial court in error denied appellant’s motion for relief from final

judgment and/or stay where service of process was improper against appellant.”

       {¶7}   Preliminarily, appellant framed his motion to vacate, and the trial court

analyzed the same, pursuant to Civ.R. 60(B). An allegation that service failed, however,

is a challenge to the court’s jurisdiction over the person. See Thomas v. Freeman, 79

Ohio St.3d 221, 225 (1997). And a judgment entered without proper service is null and

void. Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 87 Ohio St.3d

363, 366–367 (2000); see also State ex rel. Ballard v. O'Donnell, 50 Ohio St.3d 182,

183 (1990).    Accordingly, to the extent appellant can establish the court lacked in-

personam jurisdiction, the requirements of Civ.R. 60(B) are inconsequential.            The

authority to vacate a void judgment is an inherent power of the court and is not

derivative of Civ.R. 60(B). See Patton v. Diemer, 35 Ohio St.3d 68 (1988), paragraph

four of the syllabus.

       {¶8}   With this point in mind, appellant argues, pursuant to Rafalski v. Oates, 17

Ohio App.3d 65 (8th Dist.1984), he is entitled to have the judgment vacated because he

submitted an uncontroverted statement that he did not receive service of the complaint.

In Rafalski, the Eighth Appellate District held:

       {¶9}   Where a party seeking a motion to vacate makes an uncontradicted
              sworn statement that she never received service of a complaint,
              she is entitled to have the judgment against her vacated even if her
              opponent complied with Civ.R. 4.6 and had service made at an
              address where it could reasonably be anticipated that the
              defendant would receive it. * * * Appellant has presented no



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              evidence to show that appellee actually received service. It is
              reversible error for a trial court to disregard unchallenged testimony
              that a person did not receive service. (Citation omitted.) Rafalski,
              supra, at 66-67.

       {¶10} While the foregoing statement supports appellant’s position, other

appellate districts, including this court, have rejected the Rafalski rule and advanced a

more equitable procedure. See Famageltto v. Telerico, 11th Dist. Portage No. 0146,

2013-Ohio-3666, ¶18; Redfoot v. Mikouis, 11th Dist. Trumbull No. 96-T-5398, 1996 WL

761224, *2 (Nov. 29, 1996); Infinity Broadcasting, Inc. v. Brewer, 1st Dist. Hamilton No.

C-020329, 2003-Ohio-1022, ¶8; United Home Fed. v. Rhonehouse, 76 Ohio App.3d

115, 125 (6th Dist.1991); Sec. Natl. Bank and Trust Co. v. Murphy, 2d Dist. Clark No.

2552, 1989 WL 80954, *2 (July 10, 1989). In these cases, the courts concluded that an

unchallenged, self-serving affidavit may not be sufficient to render a judgment void ab

initio. Instead, a court must hold an evidentiary hearing and assess the competency

and credibility of the evidence. After doing so, a court may find the movant’s assertion

that he or she did not receive proper service untenable and overrule the motion.

       {¶11} In Famageltto, supra, this court concluded an evidentiary hearing on a

motion to vacate due to lack of service is necessary before denying the same. Id. at

¶19. This is particularly important where, as in this case, the original plaintiff, appellee,

opposed the motion. Such a requirement “strikes the proper balance.” Id. To wit: a

strict application of Rafalski would allow a movant’s self-serving claims to undermine a

previously settled judgment.     Were we to dispense with the hearing requirement,

however, a trial court could deny a motion to vacate without full consideration of the

merits. A hearing requirement requires the court to weigh the credibility of the parties’




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positions and, after considering the evidence, accept a movant’s position or decline to

do so where the circumstantial evidence of receipt is compelling.

      {¶12} Because the trial court in the instant matter denied appellant’s motion

without a hearing, it committed reversible error. Thus, the matter must be reversed and

remanded for a hearing on appellant’s motion.

      {¶13} Appellant’s first and third assigned errors are sustained.

      {¶14} Appellant’s second assignment of error provides:

      {¶15} “The trial court in error required that appellant present that he had a

meritorious defense where service of process was improper against appellant.”

      {¶16} Given our disposition of the second and third assignments of error, this

assigned error is overruled as moot.

      {¶17} For the reasons discussed in this opinion, the judgment of the Portage

County Court of Common Pleas is reversed and the matter is remanded for the trial

court to conduct an evidentiary hearing on appellant’s motion to assess the evidence he

has adduced in support of his argument that he did not receive service.



THOMAS R. WRIGHT, P.J.,

MATT LYNCH, J.,

concur.




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