[Cite as Timber Top Apts. v. Klinkiewicz, 2018-Ohio-1608.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
TIMBER TOP APARTMENTS C.A. No. 28860
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KAREN KLINKIEWICZ AKRON MUNICIPAL COURT
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 16 CVG 08970
DECISION AND JOURNAL ENTRY
Dated: April 25, 2018
HENSAL, Judge.
{¶1} Karen Klinkiewicz appeals from the judgment of the Akron Municipal Court. We
affirm.
I.
{¶2} Timber Top Apartments (“Landlord”) filed a forcible-entry-and-detainer action
against Karen Klinkiewicz (“Tenant”) based upon her failure to pay rent for the apartment
located at 1879B Moonlit Trail in Akron (the “Premises”). In addition to the cause of action for
eviction, Landlord brought a second cause of action for unpaid rent. The docket reflects that the
Clerk of Court issued the summons and complaint “via Federal Express, Regular Mail and
Bailiff Service[.]” The docket also reflects that service by Federal Express was returned as
undeliverable, but there is no indication that service by regular mail was similarly returned.
Further, as it relates to service by posting, the record reflects that a bailiff posted the summons
and complaint in a “conspicuous place” at the Premises.
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{¶3} A magistrate held a hearing on the matter, which Tenant did not attend. The
magistrate determined that Landlord served Tenant with the eviction cause of action via posting,
but determined that Landlord had not perfected service relative to the second cause of action
(i.e., for unpaid rent). The magistrate recommended that a writ of restitution be issued with
respect to the eviction action, and that the second cause of action be transferred to the
administrative docket until Landlord perfected service. The trial court adopted the magistrate’s
decision and subsequently dismissed Landlord’s second cause of action for unpaid rent.
{¶4} Several months later, Tenant filed a common-law motion to vacate the forcible-
entry-and-detainer judgment issued against her. Tenant argued that the judgment was void ab
initio because Landlord failed to properly serve her and, therefore, the trial court lacked personal
jurisdiction. In support of her motion, Tenant submitted an affidavit wherein she averred, in
part, that she never received a copy of the summons and complaint, that she did not otherwise
have notice of the action, and that she only became aware of the action when another landlord
denied her rental application based upon the underlying eviction. In response, Landlord argued
that it perfected service on its eviction action by both regular mail and posting in accordance
with Revised Code Section 1923.06. The trial court agreed, holding that Landlord complied with
the statutory requirements for service under Section 1923.06(G)(2) because the Clerk of Court
issued the summons and complaint via regular mail, and a bailiff subsequently posted service in
a conspicuous place at the Premises. The trial court, therefore, denied Tenant’s motion. Tenant
has appealed that decision, raising one assignment of error for our review.
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II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
DENIED THE TENANT’S MOTION TO VACATE THE JUDGMENT
AGAINST HER.
{¶5} In her assignment of error, Tenant argues that the trial court erred when it denied
her motion to vacate. We disagree.
{¶6} Section 1923.06 governs service of process for eviction proceedings. It provides,
in relevant part, that “[t]he clerk of the court in which a complaint to evict is filed shall mail any
summons by ordinary mail * * *.” R.C. 1923.06(C). It also provides that, “[i]n addition to this
ordinary mail service, the clerk also shall cause service of that process to be completed” under
one of three divisions, including division (D). R.C. 1923.06(C)(1) & (2). Division (D) provides
that, if the person serving process cannot locate the tenant at the premises, or cannot leave a copy
of the summons and complaint with anyone of “suitable age and discretion” at the premises, then
the person serving process shall effect service “[b]y posting a copy in a conspicuous place on the
subject premises * * *.” R.C. 1923.06(D)(2)(a) – (c). If service under both division (C) and
(D)(2)(c) is made, then “[s]ervice of process shall be deemed complete * * *.” R.C.
1923.06(G)(2).
{¶7} As previously noted, in its decision denying Tenant’s motion to vacate, the trial
court determined that the requirements for service under Section 1923.06(G)(2) had been met
because the Clerk of Court is statutorily required to serve the summons and complaint via regular
mail under R.C. 1923.06(C), and because the record reflected that a bailiff posted the summons
and complaint in a conspicuous place at the Premises. On appeal, Tenant argues that there is no
docket entry indicating that service via regular mail was accomplished. She also argues that,
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although the docket indicates that service was posted, there is no indication that it was posted in
a conspicuous place. She further argues that her uncontroverted affidavit establishes that she
never received service of process, and otherwise had no knowledge of the underlying action
before the trial court issued its judgment against her.
{¶8} Tenant’s arguments lack merit. Regarding service by regular mail, service “is
presumed complete when a certificate of mailing is entered in the record, provided that the
ordinary mail envelope is not returned for failure of delivery.” Don Ash Props. v. Dunno, 10th
Dist. Franklin No. 03AP-375, 2003-Ohio-5893, ¶ 11 (addressing service of process in an eviction
action). Here, the docket specifically indicates that the clerk issued service by regular mail, and
there is nothing in the record indicating that the envelope was returned. Regarding service by
posting, the “Return of Service” document in the record indicates that service was posted in a
“conspicuous place at the premises[.]” Thus, Tenant’s argument that there is no indication that
service was posted in a conspicuous place is not supported by the record. Lastly, although she
argues that she never received service of process, Section 1923.06(G)(2) provides that service is
deemed complete if service is issued via regular mail and posting, which occurred in this case.
To the extent that Tenant relies upon the Eighth District’s decision in Corley v. Sullivan-Busman
for the proposition that a tenant is entitled to have a judgment vacated if the tenant submits an
uncontroverted affidavit averring that she never received service, that case involved a personal
judgment for unpaid rent, not an eviction. 8th Dist. Cuyahoga No. 99420, 2013-Ohio-3909, ¶ 4
(“After presentation of testimony and other evidence, the magistrate granted judgment to [the
landlord] in the amount [of] $3,000 for unpaid rent[, and] * * * the trial court adopted and
approved the magistrate’s decision.”). We, therefore, find Corley inapplicable under these facts.
{¶9} In light of the foregoing, Tenant’s assignment of error is overruled.
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III.
{¶10} Ms. Klinkiewicz’s assignment of error is overruled. The judgment of the Akron
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Akron Municipal
Court, County of Summit, 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.
JENNIFER HENSAL
FOR THE COURT
TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.
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APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
DEAN KONSTAND, Attorney at Law, for Appellee.