Salmons v. Salmons

[Cite as Salmons v. Salmons, 2018-Ohio-1442.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY

LISA S. SALMONS,

PLAINTIFF-APPELLEE, CASE NO. 2-17-20

v.

GREG K. SALMONS,

DEFENDANT-APPELLEE,
-and-
OPINION
JP MORGAN CHASE BANK, N.A.,

THIRD-PARTY DEFENDANT-
APPELLANT.

Appeal from Auglaize County Common Pleas Court
Domestic Relations Division
Trial Court No. 2014-DR-143

Judgment Affirmed

Date of Decision: April 16, 2018

APPEARANCES:

Daniel C. Gibson for Appellant

Robert B. Fitzgerald for Appellee Lisa S. Salmons
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WILLAMOWSKI, J.

{¶1} This appeal was brought by Defendant-Appellant J.P. Morgan Chase

Bank (“the Bank”) from the judgment of the Court of Common Pleas of Auglaize

County denying its motion to vacate a judgment. For the reasons set forth below,

the judgment is affirmed.

{¶2} On December 29, 2014, Plaintiff-Appellee Lisa Salmons (“Lisa”) filed

a complaint for divorce without children naming Greg Salmons (“Greg”) as the

defendant. Doc. 1. Greg filed his answer on January 8, 2015. Doc. 25. On February

25, 2015, a continuance of a hearing was granted after Greg’s attorney withdrew.

Doc. 46. At that hearing, Lisa indicated to the trial court that certain mortgage

holders would need to be joined as parties. Id. On May 1, 2015, Lisa filed a motion

to join the Bank as a defendant in the case as the successor in interest to the original

holder of a mortgage and note on the marital property. Doc. 63. The reason alleged

for the necessity of the joinder was that Lisa indicated that she had not signed the

note or mortgage and that her signature on the documents had been forged. Id. Lisa

also filed a motion for leave to file an amended complaint naming the Bank as a

defendant. Doc. 68. The trial court granted the motion on May 27, 2015. Doc. 75.

The amended complaint was filed on that same day. Doc. 78. Also on that same

day, the trial court granted Lisa’s motion to join the Bank and issued an order of

joinder. Doc. 79 and 80. On June 2, 2015, Lisa filed a praecipe for service of a

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summons, the amended complaint and the order of joinder to the Bank. Doc. 83.

The clerk of courts then sent a copy of the complaint and the order of joinder to the

Bank by certified mail. Doc. 84. The docket is silent as to whether a summons was

also sent, as was requested by the praecipe. The return receipt was filed on June 8,

2015, indicating that the Bank received what was sent by the clerk of courts on June

5, 2015. Doc. 85. The Bank did not file an answer or any response and did not

object to jurisdiction.

{¶3} On September 2, 2015, the clerk of courts sent out a notice of a final

hearing on the case. Doc. 87. Notice of the final hearing was sent to the Bank. Id.

The first part of the final hearing was held on November 16, 2015. Doc. 93.

Although Greg and Lisa were present, the Bank was not present. Id. Lisa rested

her case, but the hearing was continued until December 22, 2015, for Greg to present

his case. Id. Notice of the second day of the hearing was ordered sent to all parties,

including the Bank. Id. On November 19, 2015, Greg filed a motion to call

additional witnesses to show that Lisa had knowledge of the note and mortgage on

the marital real estate. Doc. 99. Since the record did not show that Lisa had received

notice of the motion, the trial court set the motion for hearing prior to the start of

the remainder of the case and sent notice of this to Lisa, Greg, and the Bank. Doc.

101.

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{¶4} The final hearing was concluded on December 22, 2015. Doc. 116. In

its orders on divorce, the trial court noted that the Bank had been added as a party

to the proceedings, was served, but had chosen not to appear. Id. at 1. The trial

court then found that Greg had admitted that he had forged Lisa’s signatures and

had them notarized by a friend without the consent or knowledge of Lisa about the

note and mortgage.1 Id. at 2. The trial court then awarded the marital residence to

Lisa subject to the home equity loan from Superior Credit Union. Id. at 3. However,

the trial court ordered that the note and mortgage were not valid as to Lisa. Id. at 2.

The trial court also noted that although it had made such a determination, that if Lisa

failed to pay the mortgage she would likely be sued for foreclosure and incur legal

expenses to defend the suit.2 Id. at 4. The clerk of courts was ordered to serve a

copy of the entry on all parties. Id. The journal entry was filed on March 16, 2016.

The clerk of courts did send a copy of the final judgment to the Bank on March 17,

2016. Doc. 117. Greg filed a pro se notice of appeal from this judgment, but the

appeal was dismissed for lack of prosecution. Doc. 121 and 128. The Bank was

sent a copy of the notice of appeal by the clerk of courts on April 15, 2016. Doc.

123.

1
Although a transcript of the final hearings was not submitted, Greg’s deposition was filed with the trial
court. In his deposition, Greg admitted on multiple occasions that Lisa did not know about the note and
mortgage and had not signed them. Greg admitted that he had signed her name and then had a friend notarize
the signatures. Greg’s Dep. at 22, 32, 38-40
2
Greg was still liable on the mortgage and note, but given his legal troubles resulting from convictions for
theft and forgery, along with his prior financial misconduct, the trial court was aware that his payment was
not a certainty.

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{¶5} On July 6, 2016, Lisa filed a motion to have Greg’s interest in the real

estate transferred to her after Greg refused to sign the quit claim deed as ordered by

the trial court. Doc. 132. A praecipe was filed requesting service upon Greg in

prison and upon the Bank at both its main location in Cleveland and its local branch

in Wapakoneta. Doc. 137. Return of service was received by the clerk of courts

from the Bank on July 11, 2016, indicating that service was received by both offices

of the Bank. Doc. 140 and 141. The trial court granted the motion on August 9,

2016. Doc. 142. A copy of the order was sent to the Bank. Doc. 143.

{¶6} On April 12, 2017, the Bank filed a motion to “vacate void default

judgment for lack of personal jurisdiction”. Doc. 154. The Bank argued that since

it had never received a summons, the trial court lacked personal jurisdiction, so the

judgment is void. Id. Certificate of service on the motion was sent to counsel for

Lisa and Greg. Id. Lisa filed her response to the motion on April 20, 2017. Doc.

164. A hearing was held on the motion on September 11, 2017. Doc. 175. The

Bank presented no evidence at the hearing. Doc. 184. The trial court issued its

judgment denying the motion of the Bank on the grounds that although the Bank

may not have received a summons, it had received the amended complaint, a copy

of the order of joinder making it a party to the case, notice of all the hearings, and

notice of all the judgment entries. Id. The trial court noted that the judgment

challenged by the Bank was not one of default, but occurred after being fully

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litigated. Id. The trial court distinguished the cases cited by the Bank and found

that the Bank had properly been made a party and had actual notice of the

proceedings. Id. The court also noted that the Bank had waited over a year to

challenge the final judgment of divorce even though it had been served a copy of

that judgment in March of 2016 and the Bank admitted that everything was properly

sent to its statutory agent. Id. The trial court also noted that even if the Bank had

appeared, it would not likely have affected the outcome since Greg admitted that

Lisa’s name on the loan and mortgage were forged by him without her consent. Id.

The Bank filed its notice of appeal from that judgment. Doc. 178. On appeal, the

Bank raises the following assignment of error:

The trial court erred in denying [the Bank’s] motion to vacate
void default judgment for lack of personal jurisdiction.

{¶7} In this case, the Bank claims that because it did not receive a summons,

the trial court lacked personal jurisdiction. This court notes that the Bank does not

claim any other basis for a lack of personal jurisdiction other than the failure to issue

the summons. The Bank also does not deny that it received a copy of the complaint,

a copy of the order of joinder, notices of hearings, and all orders of the trial court.

The only issue raised by the Bank on appeal is whether the trial court may obtain

personal jurisdiction if the clerk of court fails to send a summons.

{¶8} Pursuant to the Civil Rules of Ohio, the clerk shall issue a summons

upon the request of the plaintiff against any defendant. Civ.R. 4(A). “Courts will

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presume service to be proper in cases where the civil rules are followed unless the

defendant rebuts the presumption by sufficient evidence.” W2 Properties, L.L.C. v.

Haboush, 196 Ohio App.3d 194, 2011-Ohio-4231, ¶ 15, 962 N.E.2d 858 (1st Dist.).

“The presumption of proper service by certified mail applies where the record

contains a signed return receipt for the envelope delivered that should have

contained the summons and complaint.” Id. at ¶ 17.

{¶9} In this case, the record is clear that Lisa filed a praecipe requesting that

the clerk send the Bank a copy of the complaint, a copy of the order of joinder, and

a summons. Doc. 83. The record shows that the clerk attempted service by certified

mail. Doc. 84. The record shows that a signed receipt was received by the clerk of

courts indicating that the Bank received what was sent. Doc. 85. Thus, a

presumption of proper service exists by virtue of the Bank’s receipt of documents

requested through Lisa’s praecipe. Doc. 137. The Bank challenged this

presumption with an affidavit indicating that after looking through the records, the

statutory agent did not find a copy of the summons. Based upon this affidavit, the

trial court held a hearing on the issue. At that hearing, the Bank presented no

additional evidence to show that service was not proper. Neither the affiant or the

clerk of courts was called to testify as to whether a summons was issued. However,

the trial court never ruled on whether the service was perfected or not. The trial

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court instead concluded that the Bank had been made a party to the case in another

manner.

{¶10} “The purpose of a summons is to give notice to the defendant that

claims have been filed against him and that he is required to appear and answer.”

Chaffin v. Shrontz, 5th Dist. Guernsey No. 13-CA-25, 2014-Ohio-1495, ¶ 21.

It is rudimentary that in order to render a valid personal
judgment, a court must have personal jurisdiction over the
defendant. This may be acquired either by service of process
upon the defendant, the voluntary appearance and submission of
the defendant or his legal representative, or by certain acts of the
defendant or his legal representative which constitute an
involuntary submission to the jurisdiction of the court.

Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). The trial court

in this case determined that the Bank submitted to the jurisdiction of the court by its

inaction when it admitted that it had received the complaint and order of joinder and

chose not to take any action. The Bank presents several cases in its argument as to

why the trial court is incorrect. Upon review of the case law, we agree with the trial

court.

{¶11} The Bank initially cites to the above holding in Maryhew to show why

it was not subject to the jurisdiction of the trial court. In Maryhew the plaintiff

requested on November 6, 1980, that service be sent to the defendant by certified

mail. Id. at 155. However, the plaintiff was notified by the clerk of courts on

November 12, 1980, that the certified letter was returned by the post office marked

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“unknown”. Id. The plaintiff then took no further action to obtain service of

process. Id. On December 1, 1981, the defendant filed a motion to dismiss the

complaint based upon the fact that the action was barred by the statute of limitations,

lack of personal jurisdiction over the defendant, and insufficiency of service of

process. Id. Although the trial court found that the defendant may have engaged in

“legal gamesmanship”, the failure of the plaintiff to obtain service of process once

notified that the original attempt had failed meant that there was no service of

process within one year which required the dismissal of the case. Id. at 159. Since

the statute of limitations had run, the case was dismissed with prejudice. Id.

{¶12} The facts in Maryhew are clearly distinguishable from the facts in this

case. In Maryhew, the plaintiff was notified that service had not been perfected and

took no steps to remedy the situation. There was no presumption that service was

proper. Here, the praecipe requested a summons along with the complaint and the

order of joinder, the clerk was required by the civil rules to send the summons, an

envelope was sent, the Bank admittedly signed for the envelope, and the Bank never

contacted anyone at the court or Lisa to inquire about the situation or indicate that

there was an issue. The return receipt was filed in the docket. Lisa had a right to

presume that service was proper.

{¶13} The Bank also argues that the trial court was required to vacate the

prior judgment because it was void ab initio since it lacked personal jurisdiction. In

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support of that argument the Bank cites to State ex rel. Ballard v. O’Donnell, 50

Ohio St.3d 182, 553 N.E.2d 650 (1990). Ballard involved a case where punitive

damages were awarded against a person who was not served a summons, did not

appear, and was not made a party to the proceedings. The Supreme Court of Ohio

held that due process requires that one receive notice and an opportunity for a

hearing prior to being deprived of life, liberty or property. Id. at 183. In Ballard,

the plaintiffs’ filed suit against various parties for breach of contract, including the

attorney who prepared the documentation. Id. at 182. The record contained no

indication that the attorney was ever “served with a summons, ever appeared before

the trial court, or was joined as a defendant in the court proceedings.” Id. The

plaintiffs were awarded punitive damages against the attorney even though he was

not a part of the suit in any way. The Supreme Court of Ohio held that since the

attorney had never been served or otherwise made a party to the proceedings, he

was entitled to a writ of mandamus vacating the judgment against him. Id. at 183-

184.

{¶14} The facts of Ballard are distinguishable from the facts in this case. In

Ballard, the defendant received no notice and was not joined as a party. Here, the

Bank indisputably received notice that they were a party by the service of the

complaint and by the service of the order of joinder. Additionally, the Bank was

served with notice of all hearings and copies of all judgments. The Bank admits

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that it received all of these items and took no action, not even when the judgment

entry affected their interest in the property or when Lisa took steps to enforce the

judgment. The Bank did not even object when Lisa filed a motion to order the

transfer of Greg’s interest in the real estate. The record shows that the Bank received

notice of this motion and did not object to the motion. Unlike the attorney in

Ballard, the Bank continuously received notice of all filings and hearings, including

an order of joinder.

{¶15} The Bank also claims that the trial court’s decision is wrong pursuant

to a holding of the 9th District Court of Appeals of Ohio in Schumacher v.

Schumacher, 9th Dist. Summit No. 25411, 2011-Ohio-581. In Schumacher, the wife

filed a motion to join Intec as a party-defendant so that she could obtain an interest

in her husband’s stock. Id. at ¶ 4. The trial court granted the motion to join Intec.

Id. The only documents served upon Intec were her motions to enforce the judgment

entry and the motion to join Intec. Id. at ¶ 12. No summons was requested and

Intec was never notified of the scheduled hearings. Id. The appellate court

determined that because Intec had never been made a party to the case in any way,

the judgment against Intec was void. Id. at ¶ 15.

{¶16} Unlike the situation in Schumacher, Lisa took steps to properly join

the Bank. Lisa requested that a summons, a copy of the amended complaint, and a

copy of the order of joinder be sent to the Bank. The Bank admits that it received

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everything except the summons. The Bank also admits that it received notice of all

hearings. Thus the facts of this case distinguish it from Schumacher.

{¶17} This Court notes that there is no question that a summons was

requested. There is also no question that the Bank was served with a copy of the

amended complaint, the order of joinder, notices of all hearings, and copies of all

judgment entries. The record shows that the final judgment entry was entered on

March 16, 2016. The Bank did not indicate that there was a problem till more than

a year later, even though it had knowledge of the judgment. Between the final

judgment and the motion to vacate the judgment, there was an appeal taken and

actions taken to enforce the judgment. The Bank had notice of these and did not

object to the enforcement of the judgment, including the motion to terminate Greg’s

interest in the real estate.

{¶18} In April of 2017, the Bank filed its motion to vacate the final judgment

of divorce. The Bank claimed that the judgment was a default judgment and was

void due to a lack of a summons. In support, the Bank submitted an affidavit which

claimed that a review of business records did not reveal they had received a

summons. Upon receiving the motion, the trial court scheduled a hearing on the

motion. At the hearing, the Bank had the burden of proof, but chose to rely solely

upon the affidavit. The Bank did not call anyone to testify regarding the business

records and did not call the clerk of courts to testify as to whether a summons was

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or was not sent. The trial court determined that the Bank’s inaction was a voluntary

submission to jurisdiction and that the Bank did not meet its burden of proof that it

had not been made a party to the case. We agree.

{¶19} Upon review, we note that the original judgment was not a default

judgment, but occurred after the issues were fully litigated at a hearing. Although

the Bank chose not to take part in that litigation, Greg, as the other defendant, did

litigate the issues. The record shows that Lisa requested a summons be sent, along

with the amended complaint and the order of joinder, in her praecipe. Upon the

return receipt from the Bank being placed on the docket, Lisa was entitled to a

presumption that service was complete. The Bank did present evidence that it did

not receive a summons, but the trial court was free to believe or disbelieve that

evidence.

{¶20} Additionally, even if the trial court determined that no summons was

issued, the trial court could determine that the Bank involuntarily submitted to the

jurisdiction of the court by the actions of the party or its legal representative.

Maryhew, supra at 156. In this case, the Bank had actual notice not only of the

proceedings, but of the order joining them as a party and actual notice of all

hearings. The Bank has admitted this. The Bank also admitted that it had received

copies of all judgments. At oral argument, counsel admitted that a reasonable

person would likely have taken some action upon receiving all of these filings and

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hearings. However, the Bank chose not to take any actions for more than one year,

despite numerous notices and opportunities to do so. These choices were actions

from which it could be determined that the Bank involuntarily submitted to the

jurisdiction of the trial court. Therefore, the trial court did not err in finding that it

had jurisdiction over the Bank and by denying the motion to vacate the final

judgment for lack of jurisdiction. The assignment of error is overruled.

{¶21} Having found no prejudice in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Auglaize County, Domestic Relations

Division, is affirmed.

Judgment Affirmed

ZIMMERMAN and PRESTON, J.J., concur.

/hls

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