[Cite as Runyon v. Hawley, 2018-Ohio-2444.]


STATE OF OHIO                   )                    IN THE COURT OF APPEALS
                                )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                )

JEFFREY A. RUNYON                                    C.A. No.         17CA011141

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JOEL D. HAWLEY, et al.                               COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellees                                    CASE No.   16CV189102

                                DECISION AND JOURNAL ENTRY

Dated: June 25, 2018



        CALLAHAN, Judge.

        {¶1}    Appellant, Jeffrey Runyon, appeals from the judgment of the Lorain County

Common Pleas Court vacating the default judgment against Appellees, Joel Hawley and Hawley

Motors, L.L.C. For the reasons set forth below, this Court affirms.

                                                I.

        {¶2}    Mr. Hawley retained the services of Mr. Runyon to paint and restore a 1960

Lincoln Mark V convertible and to repair and paint a 2012 Jeep Wrangler. Due to Mr. Hawley’s

failure to pay for the parts and labor, Mr. Runyon placed a mechanic’s lien on the vehicles and

stored the vehicles on his premises for an extended period of time. During this time, Mr. Hawley

transferred the title of the Lincoln from his name to his business, Hawley Motors, L.L.C. Mr.

Hawley is the statutory agent for Hawley Motors, L.L.C.

        {¶3}    Mr. Runyon filed a complaint against Mr. Hawley for breach of contract and

quantum merit to recover the costs of the parts and labor and the storage costs of the vehicles.
                                                  2


Additionally, the complaint included a demand against Hawley Motors, L.L.C. for a judgment

transferring the title of the Lincoln to Mr. Runyon.

       {¶4}    Service of the summons and complaint was initially attempted on Mr. Hawley and

Hawley Motors, L.L.C. via certified mail at 309 County Road 40, Sullivan, Ohio 44880. This

address was listed on the complaint and the Ohio Secretary of State’s website as the statutory

agent’s address. The certified mail of the summons and complaint for Mr. Hawley and Hawley

Motors, L.L.C. were returned as “[u]nclaimed.” Mr. Runyon then requested service of the

summons and complaint upon Mr. Hawley and Hawley Motors, L.L.C. by ordinary mail at the

same address. The ordinary mail was not returned to the clerk of court for either Mr. Hawley or

Hawley Motors, L.L.C.

       {¶5}    Mr. Runyon moved for default judgment against Mr. Hawley and Hawley Motors,

L.L.C., which the trial court granted. Mr. Runyon filed a certificate of judgment lien and

transferred the title of the Lincoln into his name.

       {¶6}    Six months later, Mr. Hawley and Hawley Motors, L.L.C. filed a Civ.R. 60(B)

motion to vacate the default judgment and a supporting affidavit averring “they were unaware of

this case and [] the judgment entered against them” and Mr. Runyon committed a fraud upon the

court based on the contents of his affidavit in support of the default judgment. The motion to

vacate was fully briefed, but no hearing was held.

       {¶7}    Pursuant to Civ.R. 60(B), the trial court granted the motion to vacate the default

judgment filed by Mr. Hawley and Hawley Motors, L.L.C. on the basis that they “never received

proper service of the [c]omplaint.” Mr. Runyon timely appeals from this judgment entry,

asserting three assignments of error. To facilitate the analysis, this Court will address the

assignments of error out of order.
                                                 3


                                                 II.

                               ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING                                THE
       MOTION TO VACATE THE DEFAULT JUDGMENT BECAUSE                                    THE
       DEFENDANTS ALLEGED THEY DID NOT ACTUALLY RECEIVE                                 THE
       SUMMONS WHEN SERVICE WAS PERFECTED PURSUANT TO                                   THE
       CIVIL RULES.

       {¶8}    Mr. Runyon’s first assignment of error sets forth various instances in which the

trial court abused its discretion when it vacated the default judgment because “[Mr. Hawley and

Hawley Motors, L.L.C.] never received proper service of the [c]omplaint.” This Court disagrees

with each of Mr. Runyon’s sub-arguments.

Motion to Vacate: Civ.R. 60(B) v. Common Law

       {¶9}    As an initial matter, Mr. Runyon argues that the motion to vacate should have

been treated as a common law motion. Mr. Hawley and Hawley Motors, L.L.C. filed their

motion to vacate pursuant to Civ.R. 60(B) and the trial court addressed the issue of improper

service of process pursuant to the requirements of Civ.R. 60(B). Mr. Runyon did not raise this

issue in the trial court and, therefore, has forfeited this argument. See JPMorgan Chase Bank,

Natl. Assn. v. Burden, 9th Dist. Summit No. 27104, 2014-Ohio-2746, ¶ 12 (“Arguments that

were not raised in the trial court cannot be raised for the first time on appeal.”). Nonetheless, the

filing of a Civ.R. 60(B) motion to vacate a void judgment is not fatal and this Court will consider

the motion as a common law motion to vacate.1 See In re Adoption of A.A.C., 5th Dist.


1
  “[W]here service of process has not been accomplished, any judgment rendered is void ab
initio.” Sampson v. Hooper Holmes, Inc., 91 Ohio App. 3d 538, 540 (9th Dist.1993), citing
Rondy v. Rondy, 13 Ohio App. 3d 19, 22 (9th Dist.1983). The authority to vacate a void
judgment arises from the inherent power possessed by Ohio courts, and not Civ.R. 60(B). Patton
v. Diemer, 35 Ohio St. 3d 68 (1988), paragraph four of the syllabus. The Civ.R. 60(B)
requirements are not applicable when a party asserts the trial court lacked personal jurisdiction
because of improper service of process. First Merit Bank, N.A. v. Wood, 9th Dist. Lorain No.
                                                4


Muskingum No. CT2011-0028, 2011-Ohio-5609, ¶ 12; U.S. Bank, N.A. v. Cooper, 9th Dist.

Medina No. 12CA0084-M, 2014-Ohio-61, ¶ 10, rev’d on other grounds, 140 Ohio St. 3d 1519,

2014-Ohio-5251.

       {¶10} Mr. Runyon framed all of his arguments in the first assignment of error as the trial

court having abused its discretion. Generally, a trial court’s decision regarding a common law

motion to vacate is reviewed for an abuse of discretion. Terwoord v. Harrison, 10 Ohio St. 2d
170, 171 (1967). However, Mr. Runyon is challenging the trial court’s determination that it did

not have personal jurisdiction over Mr. Hawley and Hawley Motors, L.L.C. “‘Challenges to a

trial court’s jurisdiction present questions of law and are reviewed by this Court de novo.’” First

Merit Bank, N.A. v. Wood, 9th Dist. Lorain No. 09CA009586, 2010-Ohio-1339, ¶ 5, quoting

Eisel v. Austin, 9th Dist. Lorain No. 09CA009653, 2010-Ohio-816, ¶ 8. Accordingly, this Court

will conduct a de novo review of the first assignment of error.

A Presumption of Service: Compliance with the Civil Rules

       {¶11} Proper service of process is required before a court can render a valid default

judgment. Gen. Motors Acceptance Corp. v. Kollert, 33 Ohio App. 3d 274, 275 (9th Dist.1986).

When a plaintiff follows the Ohio Rules of Civil Procedure that govern service of process, a

presumption of proper service arises. Talarek v. Miles, 9th Dist. Lorain No. 96CA006567, 1997

Ohio App. LEXIS 3164, *6 (July 23, 1997); Jacobs v. Szakal, 9th Dist. Summit No. 22903,

2006-Ohio-1312, ¶ 14, quoting Rafalski v. Oates, 17 Ohio App. 3d 65, 66 (8th Dist.1984).

       {¶12} Civ.R. 4.1(A)(1)(a) provides for service to be made by certified or express mail.

If either of these methods is attempted and the envelope “is returned with an endorsement stating



09CA009586, 2010-Ohio-1339, ¶ 13. Instead, the movant only needs to establish lack of proper
service. Id.
                                                5


that the envelope was unclaimed,” the party requesting service must be notified by the clerk and

the party may request service by ordinary mail. Civ.R. 4.6(D). Ordinary mail service is “deemed

complete when the fact of mailing is entered of record” and “the ordinary mail envelope is not

returned by the postal authorities with an endorsement showing failure of delivery.” Id.

       {¶13} Civ.R. 4.2 specifies who may be served. Under that rule, to serve a limited

liability company, a plaintiff may direct “[s]ervice of process pursuant to Civ.R. 4 through

Civ.R. 4.6” to “the agent authorized by appointment or by law to receive service of process.”

Civ.R. 4.2(G).

       {¶14} For purposes of service, Mr. Hawley was the statutory agent for Hawley Motors,

L.L.C. See Civ.R. 4.2(G). In this case, the docket reflects that certified mail service issued to

Mr. Hawley and Hawley Motors, L.L.C. at 309 County Road 40, Sullivan, Ohio 44880 was

returned to the clerk unclaimed. See Civ.R. 4.1(A)(1)(a). At Mr. Runyon’s request, the clerk

issued ordinary mail service to Mr. Hawley and Hawley Motors, L.L.C. to the same address,

which was not returned to the clerk. See Civ.R. 4.6(D). Based on the above service attempts, the

trial court concluded that “[i]t appears [Mr. Runyon] properly followed the Ohio Rules of Civil

Procedure in obtaining service.”

       {¶15} On appeal, Mr. Hawley and Hawley Motors, L.L.C. argued that the ordinary mail

service was defective and, thus, the presumption of service was not established. A review of the

record reflects that Mr. Hawley and Hawley Motors, L.L.C. did not present this argument to the

trial court and it is, therefore, forfeited on appeal. See Burden, 2014-Ohio-2746, at ¶ 12.

Accordingly, this Court will assume arguendo that the Civil Rules for service were followed and

there exists a presumption of proper service.
                                                6


A Rebuttable Presumption of Service: Due Process Compliance

       {¶16} A defendant can rebut the presumption of proper service by presenting sufficient

evidence, such as an affidavit, that service was not accomplished or received by the defendant.

Talarek, 1997 Ohio App. LEXIS 3164, at *10; Jacobs, 2006-Ohio-1312, at ¶ 14, 18. It is then

incumbent upon the plaintiff to refute the defendant’s evidence with either an affidavit or by

requesting a hearing to cross-examine the defendant on his assertion that he did not receive

service. See Wood, 2010-Ohio-1339, at ¶ 9-10; Daily v. Papp, 9th Dist. Summit No. 8141, 1976

Ohio App. LEXIS 6283, *5 (Nov. 17, 1976).

       {¶17} In order for service of process to be effective, it must comport with the

requirements of due process. See Vrbanac v. Zulick, 9th Dist. Summit No. 19864, 2001 Ohio

App. LEXIS 39, *4 (Jan. 10, 2001); Akron-Canton Regional Airport Auth. v. Swinehart, 62 Ohio

St.2d 403 (1980), syllabus. Due process requires that service of process be accomplished in a

manner “‘reasonably calculated, under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present their objections.’” (Emphasis

deleted.) Swinehart at 406, quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,

314 (1950). See Akron Metro. Hous. Auth. v. Thompson, 9th Dist. Summit No. 14428, 1990

Ohio App. LEXIS 3094, * 2-3 (July 25, 1990). Thus, a plaintiff must direct service to an address

at which the plaintiff has a reasonable expectation that the defendant will receive delivery.

Simon & Karam Ents. v. Cook, 9th Dist. Summit No. 17960, 1997 Ohio App. LEXIS 1739, *4

(Apr. 30, 1997). However, no reasonable expectation can arise if the address is incorrect. See

Grant v. Ivy, 69 Ohio App. 2d 40, 43 (10th Dist.1980).

       {¶18} This Court has held that a defendant’s uncontradicted affidavit that the defendant

did not receive service of the complaint is sufficient to rebut the presumption of proper service.
                                                 7


Wood at ¶ 9-12. While the districts are split as to the effect of the uncontradicted affidavit, this

Court has repeatedly adopted the position set out by the Eighth District:

       “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.”

Jacobs at ¶ 14, quoting Rafalski, 17 Ohio App. 3d at 66-67. Accord Wood at ¶ 9; Medina v.

Davis, 9th Dist. Lorain No. 11CA009953, 2011-Ohio-4465, ¶ 6; Eisel, 2010-Ohio-3458, at ¶ 11.

See also Cook at *5. “It is reversible error for a trial court to disregard unchallenged testimony

that a person did not receive service.” (Quotation marks and citations omitted.) Jacobs at ¶ 17.

       {¶19} Mr. Runyon argues that the trial court abused its discretion in finding that service

of process was improper because Mr. Hawley and Hawley Motors, L.L.C. did not present

evidence to rebut the presumption of service. Specifically, Mr. Runyon claims that “[t]he

evidence and the affidavit[] do ‘not provide any indication that service of process * * * was not,

under all the circumstances, reasonably calculated to provide [Mr. Hawley and Hawley Motors,

L.L.C.] such notice.’”

       {¶20} Mr. Hawley and Hawley Motors, L.L.C. challenged the presumption of service

with an affidavit which averred that the address used for service was incorrect. Mr. Runyon

directed service of the complaint to Mr. Hawley’s residence address and Hawley Motor, L.L.C.’s

statutory agent’s address. Mr. Hawley, however, averred that in March and April of 2016, when

certified mail was attempted at the Sullivan, Ohio address, he “was working in Kentucky and

traveling back and forth to Sullivan, Ohio.” Then in May of 2016, when ordinary mail was

issued, Mr. Hawley averred he “was working in Kentucky full time, residing in Kentucky” and

he “resided at 128 Robroy, Nicholasville, [Kentucky] 40356.” Mr. Hawley also averred that he
                                               8


was the statutory agent for Hawley Motors, L.L.C. and incorporated all of the averments,

including those regarding the Kentucky address, on behalf of the business.

       {¶21} Contrary to Mr. Runyon’s arguments, Mr. Hawley and Hawley Motors, L.L.C.

did contend that the Sullivan, Ohio address was invalid because Mr. Hawley was residing in

Kentucky. Because Mr. Hawley, as the statutory agent was not residing within Ohio, Hawley

Motors, L.L.C. failed to continuously maintain an agent in Ohio for service of process as

required by R.C. 1705.06(A)(1), (D). Based on these averments in the affidavit, the service of

process to the Sullivan, Ohio address was not reasonably calculated to reach Mr. Hawley or

Hawley Motors, L.L.C. See Grant, 69 Ohio App. 2d at 43. Accordingly, the affidavit of Mr.

Hawley and Hawley Motors, L.L.C. presented evidence rebutting the presumption of service.

       Mr. Runyon’s attempt to refute Mr. Hawley’s Affidavit

       {¶22} The affidavit of Mr. Hawley and Hawley Motors, L.L.C. shifted the burden to Mr.

Runyon to move forward with evidence opposing the motion to vacate. See Daily, 1976 Ohio

App. LEXIS 6283, at *5. It was necessary for Mr. Runyon to refute the affidavit of Mr. Hawley

and Hawley Motors, L.L.C. with either his own affidavit or other evidence, or by requesting a

hearing to cross-examine the defendant on his assertion that he did not receive service. See

Wood, 2010-Ohio-1339, at ¶ 9-10.

       {¶23} In response to the motion to vacate and the affidavit filed by Mr. Hawley, Mr.

Runyon submitted an affidavit which averred that “[t]o the best of [his] knowledge [Mr.] Hawley

and his wife still reside at 390 [sic] County Road 40, Sullivan, Ohio.” Mr. Runyon also attached

printouts dated April 13, 2017 from the Ashland County Auditor’s office which showed that

between 2004 and 2017, Mr. Hawley and his wife owned real estate located at 309 County Road
                                               9


40. These printouts reflect that on April 13, 2017, the billing address for Mr. Hawley and his

wife, for purposes of the real estate taxes, was 309 County Road 40, Sullivan, Ohio 44880.

        {¶24} Mr. Runyon’s evidence did not refute the affidavit of Mr. Hawley that he did not

receive service of process because he resided in Kentucky and not Sullivan, Ohio during the time

service was attempted and completed. Mr. Runyon’s affidavit and the property tax records only

indicated that Sullivan, Ohio was Mr. Hawley’s mailing address as of April 13, 2017. Mr.

Runyon has not presented any evidence as to Mr. Hawley’s residence or address during March,

April, and May of 2016, the relevant time period in question for the service of process. Mr.

Runyon’s affidavit, evidence, and brief in opposition failed to point to any direct evidence

contradicting the averments by Mr. Hawley regarding his Kentucky residence during the period

of service of process and his lack of receipt of the complaint. See Wood at ¶ 10. Instead, Mr.

Runyon’s competing affidavit suggested that Mr. Hawley should have received the complaint.

See id. at ¶ 9.

        {¶25} Moreover, Mr. Runyon did not request a hearing to elicit contradictory testimony

from Mr. Hawley as to the issue of where Mr. Hawley was residing. See Wood at ¶ 10. Instead,

Mr. Runyon argued that no hearing was necessary. Upon review of Mr. Runyon’s evidence and

affidavit, and in conjunction with his affirmative decision to decline a hearing, Mr. Runyon

failed to refute the affidavit of Mr. Hawley regarding the validity of the service of process.

Accordingly, the affidavit of Mr. Hawley was uncontradicted.

        Mr. Runyon’s attempt to refute Hawley Motors, L.L.C.’s Affidavit

        {¶26} In addition to the foregoing arguments, Mr. Runyon also relies upon R.C. 1705.06

to refute the affidavit of Hawley Motors, L.L.C. regarding the validity of the service of process

to Sullivan, Ohio upon the business.
                                                    10


        {¶27} With respect to limited liability companies, R.C. 1705.06 provides that the

company “shall maintain continuously in this state an agent for service of process on the

company” and that “[a]ny legal process, notice, or demand required or permitted by law to be

served upon a limited liability company may be served * * * [on] the agent * * * by delivering a

copy of the process, notice, or demand to the agent.” R.C. 1705.06(A), (H)(1)(a).

        {¶28} Mr. Runyon asserts that Mr. Hawley “still resides” in Sullivan, Ohio and the

Secretary of State’s records reflect that Hawley Motors, L.L.C. is an active business using Mr.

Hawley as its statutory agent at the Sullivan, Ohio address. Based on those facts, Mr. Runyon

argues that Hawley Motors, L.L.C. had a “statutory responsibility” “to accept service at any time

at its agent’s address” and Hawley Motors, L.L.C. acted at its “own peril” when it failed to

appoint a new statutory agent after Mr. Hawley moved outside of Ohio.

        {¶29} Mr. Runyon contends a limited liability company cannot challenge the

presumption of service issued to the agent’s address based upon the agent’s address being

incorrect or the agent having “temporarily left the state.” Neither of the cases cited by Mr.

Runyon supports his argument that R.C. 1705.06 creates an unrebuttable presumption of service.

        {¶30} In Denittis v. Aaron Constr., Inc., 11th Dist. Geauga No. 2011-G-3031, 2012-

Ohio-6213, the Eleventh District specifically identified the defendant’s failure to rebut the

presumption of service upon the statutory agent as the basis to affirm the denial of the

defendant’s motion to vacate. Id. at ¶ 41. Additionally, S & S Quality Remodeling v. Phoenix

Remediation, 2d Dist. Montgomery No. 26091, 2014-Ohio-4609, is distinguishable from this

case in that the Second District addressed the grant of a default judgment based upon certified

mail service to the statutory agent and not a grant of a motion to vacate based upon ordinary mail

service to the statutory agent. Id. at ¶ 13, 7, fn. 2.
                                                  11


       {¶31} Further, this Court finds Lauver v. Ohio Valley Selective Harvesting, LLC, 12th

Dist. Clermont No. CA2016-11-076, 2017-Ohio-5777, to be contrary to Mr. Runyon’s position.

In Lauver, the Twelfth District found the presumption of service upon a statutory agent in

accordance with R.C. 1705.06 to be rebutted by an affidavit and testimony at an evidentiary

hearing. Id. at ¶ 5, 7, 20-22.

       {¶32} Mr. Runyon’s evidence and reliance upon R.C. 1705.06 failed to refute the

affidavit testimony that Hawley Motors, L.L.C.’s statutory agent did not receive the service of

process because the agent resided out of state. Hawley Motors, L.L.C., through Mr. Hawley,

averred that its statutory agent resided in Kentucky, and not Ohio, during May of 2016 when the

ordinary mail service was completed. While Hawley Motors, L.L.C.’s affidavit served as an

admission that it violated the statute which required it to continuously maintain an agent in Ohio

for service of process, there is no provision in R.C. 1705.06 that interprets a violation of the

statute as creating an unrebuttable presumption of service.

       {¶33} Upon review of Mr. Runyon’s evidence, his position opposing a hearing, and his

reliance upon R.C. 1705.06, Mr. Runyon failed to refute the affidavit of Hawley Motors, L.L.C.

regarding the validity of the service of process upon the business. Accordingly, the affidavit of

Hawley Motors, L.L.C. was also uncontradicted.

The Effect of an Uncontradicted Affidavit

       {¶34} Mr. Runyon contends that the trial court abused its discretion when it vacated the

default judgment based on Mr. Hawley and Hawley Motors, L.L.C.’s “self-serving affidavit

without other evidence.” Mr. Runyon relies on case law from other districts to argue that an

affidavit alone is insufficient to rebut the presumption of service. Mr. Runyon’s reliance on the

other Ohio districts is misplaced, because there is a split in the districts regarding the effect of an
                                                12


affidavit to rebut the presumption of service. Regardless, this Court has consistently held that an

uncontradicted affidavit attesting that the defendant did not receive service of the complaint is

sufficient to rebut the presumption of proper service. See, e.g., Wood, 2010-Ohio-1339, at ¶ 9-

12; First Data Merchant Servs. Corp. v. Wright, 9th Dist. Summit No. 26622, 2013-Ohio-2791,

¶ 15-16.

       {¶35} Additionally, this Court has applied this position to cases where the defendant

specifically averred the address used for the service of process was invalid. See Jacobs, 2006-

Ohio-1312, at ¶ 15-18 (service sent to defendant’s parents’ house, but defendant and his parents

filed affidavits saying he did not live there); Medina, 2011-Ohio-4465, at ¶ 8-9 (defendant’s

affidavit averred that she had moved from the address used for service); Eisel, 2010-Ohio-3458,

at ¶ 12-13 (defendant’s affidavit averred that he did not live at the service address); Daily, 1976

Ohio App. LEXIS 6283, at *3-5 (defendant’s affidavit averred that he did not live at the service

address). In accordance with this Court’s precedent, the trial court did not err in relying upon the

uncontradicted affidavit of Mr. Hawley and Hawley Motors, L.L.C. to conclude that they “never

received proper service of the [c]omplaint.”

Actual Notice

       {¶36} Mr. Runyon argues that “[t]he trial court abused its discretion when it vacated the

default judgment in this case based upon [Mr. Hawley and Hawley Motor, L.L.C.’s] claim that

they did not receive actual notice of the summons.” This statement by Mr. Runyon is not

supported by the record. The trial court did not address, nor grant the motion to vacate based

upon a lack of receipt of “actual notice of the summons,” but instead upon a lack of receipt of

“proper service of the [c]omplaint.” Because Mr. Runyon’s actual notice argument is based

upon an incorrect factual premise, this Court overrules this argument without further discussion.
                                                13


       {¶37} Based on the foregoing, the trial court did not err in finding that the trial court

lacked personal jurisdiction due to improper service of process and vacating the default judgment

against Mr. Hawley and Hawley Motors, L.LC.

       {¶38} Mr. Runyon’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING THE
       MOTION [] TO VACATE THE DEFAULT JUDGMENT WITHOUT A
       HEARING.

       {¶39} Regarding the issue of improper service, Mr. Runyon argues that the trial court

abused its discretion when it accepted Mr. Hawley’s affidavit and did not “afford[ Mr.] Runyon

an opportunity to cross-examine and rebut [the affidavit] at [a] hearing.” Mr. Runyon’s

contention lacks merit.

       {¶40} A trial court’s decision regarding whether to grant an evidentiary hearing on a

motion to vacate is reviewed under an abuse of discretion standard. State v. Navedo, 9th Dist.

Lorain No. 10CA009923, 2011-Ohio-5003, ¶ 6, citing Coulson v. Coulson, 5 Ohio St. 3d 12, 14-

16 (1983). “A trial court will be found to have abused its discretion when its decision is contrary

to law, unreasonable, not supported by evidence, or grossly unsound.” (Quotation marks and

citations omitted.) Tustin v. Tustin, 9th Dist. Summit No. 27164, 2015-Ohio-3454, ¶ 21.

       {¶41} Relying upon cases from the Fifth District, Mr. Runyon argues that a trial court

must hold an evidentiary hearing when the plaintiff issues service of process to a correct address

and the defendant submits a self-serving affidavit that he did not receive service of process. See

LaSalle Bank, NA v. Tirado, 5th Dist. Delaware No. 2009-CA-22, 2009-Ohio-2589, ¶ 45,

quoting Ohio Civ. Rights Comm. v. First Am. Properties, Inc., 113 Ohio App. 3d 233, 238 (2d

Dist.1996); Graham Dealerships, CI v. Chavero, 5th Dist. Richland No. 2007-CA-0098, 2008-
                                                 14


Ohio-2966, ¶ 12. Mr. Runyon’s reliance on these cases is misplaced because they concern

service issued to a correct address and there is a split in the districts as to the effect of the

defendant’s affidavit and when to conduct a hearing. See Tirado at ¶ 40-48, quoting First Am.

Properties, Inc. at 237-238 and citing Chavero at ¶ 10-12.

       {¶42} This Court has stated that a plaintiff opposing a motion to vacate, premised upon

the defendant’s failure to receive service and supported by a sworn statement, may request a

hearing to solicit contradictory testimony.      Wood, 2010-Ohio-1339, at ¶ 10.         The record,

however, reflects that Mr. Runyon took a position contrary to Wood. Instead of requesting a

hearing, Mr. Runyon specifically argued that no hearing was required. In his brief in opposition,

Mr. Runyon asserted twice that the motion to vacate “should be denied without [a] hearing[,]”

because the motion was “meritless” and “controverted by [his brief in opposition] and the

attached affidavit.” When a plaintiff actively opposes a hearing, it is not an abuse of discretion to

rule on the motion without holding a hearing. See Clellan v. Lancoine, 10th Dist. Franklin No.

16AP-677, 2017-Ohio-1460, ¶ 13, fn. 5.

       {¶43} Further, Mr. Runyon chose this legal strategy and cannot now contend that the

trial court abused its discretion in not holding a hearing. “Under the invited-error doctrine, a

party will not be permitted to take advantage of an error that he himself invited or induced the

trial court to make.” State ex rel. Beaver v. Konteh, 83 Ohio St. 3d 519, 521 (1998). See Velvet

Ice Cream-Ringold v. Hatfield, 4th Dist. Ross No. 93CA1970, 1994 Ohio App. LEXIS 1991,

*19-20 (May 4, 1994), overruled in part on other grounds in Detty v. Yates, 4th Dist. Ross No.

13CA3390, 2014-Ohio-1935, ¶ 15, fn. 2 (“[A]ppellant[/movant] represented to the court that no

evidentiary hearing was necessary on his Civ.R. 60(B) motion. Thus, error, if any, in failing to

hold an evidentiary hearing was invited error.”).
                                                15


       {¶44} Mr. Runyon’s third assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT VACATED THE
       DEFAULT JUDGMENT UNDER OHIO CIV.[]R. 60(B) FINDING THAT
       DEFENDANTS “HAVE SATISFIED EACH PRONG OF THE GTE TEST”
       WITHOUT SUPPORTING EVIDENCE OF FRAUD.

       {¶45} In his second assignment of error, Mr. Runyon contends that the trial court abused

its discretion when it granted the motion to vacate on the basis of fraud. This Court disagrees.

       {¶46} On appeal, Mr. Runyon acknowledges that Mr. Hawley and Hawley Motors,

L.L.C. alleged “improper service and fraud” as the bases for granting relief from the default

judgment.    Mr. Runyon argues that Mr. Hawley and Hawley Motors, L.L.C. improperly

presented their claim of a fraud upon the court under Civ.R. 60(B)(3), instead of Civ.R. 60(B)(5).

Mr. Runyon further argues that Mr. Hawley and Hawley Motors, L.L.C. “failed to offer any

evidence that would establish fraud as contemplated by either [Civ.R. 60(B)(3) or (B)(5)]” and

instead their allegations of fraud “‘amounted to a claim or defense in the case’ and is not

cognizable under [Civ.R.] 60(B)(3).”

       {¶47} None of these arguments are properly before this Court. A review of Mr.

Runyon’s brief in opposition to the motion to vacate reflects that he did not put forth any of these

arguments to the trial court. “Arguments that were not raised in the trial court cannot be raised

for the first time on appeal.” Burden, 2014-Ohio-2746, at ¶ 12.

       {¶48} Moreover, while Mr. Hawley and Hawley Motors, L.L.C. presented a fraud

argument to the trial court, the trial court did not address that argument. Instead, the trial court

vacated the default judgment solely on the issue of service. In light of the absence of a ruling by

the trial court as to fraud, the record does not support Mr. Runyon’s claimed error.

       {¶49} Mr. Runyon’s second assignment of error is overruled.
                                                16


                                                III.

       {¶50} Mr. Runyon’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT




TEODOSIO, P. J.
CARR, J.
CONCUR.
                                        17


APPEARANCES:

JONATHAN E. ROSENBAUM, Attorney at Law, for Appellant.

BARRY R. MURNER, Attorney at Law, for Appellees.