D00Tz 606 Llc V Dennis

Key Facts

Issues

• The appellant argues he was never properly served with the complaint and the case should not have proceeded without proper service. The court examines whether certified mail service returned unclaimed allows ordinary mail service under Civ.R. 4.6(D) and whether the appellant waived the defense by appearing without raising jurisdictional objections. The court finds ordinary mail service was authorized and completed when certified mail was returned unclaimed and the ordinary mail envelope was not returned undelivered.
• The appellant challenges the trial court's decision to strike his answer, counterclaim, and third-party complaint as untimely filed without leave of court. The court determined Dennis waived his right to appeal this ruling since he failed to file a timely notice of appeal from the November 21, 2024 order, and the appeal was only filed four-and-one-half months later, making the court without jurisdiction to consider these assignments of error.
• The appellant contends the trial court erred in not adding Daniel Oliver as a party to the case. Oliver was alleged to be the sole member of the LLC who purportedly executed the mortgage, but the appellant never sought to add him as a party to the action and this issue is addressed under the second assignment of error.

Holdings

• The court lacks jurisdiction to consider appellant's claims to strike pleadings and add Daniel Oliver as a party because appellant failed to timely appeal the November 21, 2024 order striking his pleadings. Appellant waited more than four-and-one-half months to file the notice of appeal.
• The court affirmed that appellant was properly served by ordinary mail under Civ.R. 4.6(D) after certified mail was returned unclaimed, and that appellant waived the personal jurisdiction defense by appearing in the action without raising jurisdictional objections.

Remedies

Legal Principles

• In determining whether a defendant has sufficiently rebutted the presumption of valid service, a trial court may assess the credibility and competency of the submitted evidence demonstrating non-service. A defendant must meet their burden to demonstrate why a default judgment should be set aside, showing excusable neglect for not timely filing an answer or otherwise responding to the complaint.
• There is a presumption of proper service when the record reflects that the rules pertaining to service have been followed. A trial court is not required to give preclusive effect to a movant's sworn statement that they did not receive service of process when the record contains no indication that service was ineffectual. The mere filing of a self-serving affidavit, without affording the other party an opportunity to cross-examine the affiant, does not rebut the presumption of valid service.
• A court may acquire personal jurisdiction over the defendant either by service of process upon the defendant, voluntary appearance and submission, or certain acts constituting involuntary submission to jurisdiction. In most civil actions, the defense of lack of jurisdiction over the person usually must be raised either in the defendant's answer or in a motion filed prior to filing an answer. Where a defendant makes an appearance without raising the defense of lack of personal jurisdiction, the defendant is considered to have waived the defense. If a party fails to file a notice of appeal within the time prescribed by law, the reviewing court is without jurisdiction to consider the matter being appealed.

Precedent Name

• Zaring v. Lyons
• In re Estate of Brunswick
• Summit Mgt. Servs., Inc. v. Andrews
• Maryhew v. Yova
• Grahl v. Matthews
• Doe v. Trumbull Cty. Children Serv. Bd.
• Bowling v. Grange Mut. Cas. Co.
• State ex rel. Pendell v. Adams Cty. Bd. of Elections
• Beacher v. Beachler
• Bank of New York Mellon v. Maxfield
• Stiles v. Hayes
• In re M.D.D.

Cited Statute

• Time period to file notice of appeal
• Costs taxation
• Mandate execution
• Notice of appeal requirement
• Deadline to file answer
• Service by ordinary mail when certified mail is unclaimed
• Default judgment for failure to answer
• Discovery action for inability to file complaint or answer
• Service by ordinary mail when certified mail refused
• Voluntary dismissal of claims

Judge Name

• Mike Powell
• Robert A. Hendrickson
• Robin N. Piper

Passage Text

• A trial court is not required to give preclusive effect to a movant's sworn statement that [he] did not receive service of process when the record contains no indication that service was ineffectual. The mere filing of a self-serving affidavit, without affording [the other party] an opportunity to cross-examine the affiant, does not rebut the presumption. This is especially true in the present case, where Dennis did not claim that he had not been properly served until he filed his reply memorandum in support of his motion for relief from default judgment. In the affidavit attached to his reply, Dennis stated, for the first time, 'I was never served in this action.' However, Dennis' statement is not credible. The address where he was served by ordinary mail—2425 Baker Road, Springfield, Ohio 45504—is the same address Dennis personally listed as his mailing address on all his trial court filings.
• As certified mail service was returned 'unclaimed,' Civ.R. 4.6(D) applied. This provision allowed service by ordinary mail as follows: (D) United States certified or express mail, or commercial carrier service unclaimed. If attempted service using United States certified or express mail or commercial carrier within or outside the state is returned with an endorsement stating that the envelope was unclaimed or a similar endorsement indicating the item was unclaimed, the clerk shall forthwith notify the attorney of record and enter the fact and method of notification on the appearance docket. The clerk shall send by United States 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. Answer day shall be twenty-eight days after the date of mailing as evidenced by the certificate of mailing. 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.
• Because Dennis failed to timely appeal the trial court's order striking his answer, counterclaim and third-party complaint, we are without jurisdiction to review that order. As such, this court is without jurisdiction to consider Dennis' second and third assignments of error and they are hereby overruled. Generally, a trial court's order striking a defendant's pleadings is not a final appealable order. However, once the trial court issued a final appealable order granting default judgment to appellees on November 21, 2024 and quieting title to the property, thereby resolving all the issues in the case, the interlocutory order striking Dennis' answer, counterclaim, and third-party complaint became appealable. Dennis therefore had to file a notice of appeal within 30 days of the November 21, 2024 order granting default judgment. He failed to do so. Instead, he waited more than four-and-one-half months, until April 9, 2025, to file a notice of appeal and the final judgment appealed from was the denial of his motion to set aside default judgment.

Damages / Relief Type

• Quiet title to property at 7950 Ruth Court, West Chester, Ohio
• More than $25,000 in damages for slander of title