Franks v. Reynolds
| Decision Date | 16 September 2021 |
| Docket Number | No. 21 BE 0004,21 BE 0004 |
| Citation | 177 N.E.3d 665 |
| Parties | John K. FRANKS et al., Plaintiffs-Appellees, v. Patsy L. REYNOLDS et al., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
Atty. Matthew W. Onest, Atty. Owen J. Rarric, Atty. Terry A. Moore, KRUGLIAK, WILKINS, GRIFFITHS & DOUGHERTY CO., L.P.A., 4775 Munson Street NW/P.O. Box 36963, Canton, Ohio 44735; Atty. Gregory Watts, P.A.C. Drilling O & G LLC, 1037 Lawnridge Street, Bolivar, Ohio 44612 for Plaintiffs-Appellees.
Atty. J. Benjamin Fraifogl, Atty. Jeremy D. Martin, Roetzel & Andress, LPA, 222 South Main Street, Akron, Ohio 44308, for Defendants-Appellants.
BEFORE: Carol Ann Robb, Cheryl L. Waite, David A. D'Apolito, Judges.
OPINION AND JUDGMENT ENTRY
{¶1} Appellants (who call themselves the "Huddleston Heirs") appeal the decision of the Belmont County Common Pleas Court in Case Number 14 CV 81 denying their motion to vacate a default judgment, which they filed six years after the court quieted title to the oil and gas underlying the property of Plaintiffs-Appellees John and Gerald Franks. Appellants claim the trial court lacked personal jurisdiction due to service of the complaint by publication, rendering the judgment void and subject to vacation at any time. Specifically, they allege Appellees failed to use reasonable diligence in attempting to locate addresses for four of the defendants. For the following reasons, the trial court's judgment is affirmed.
{¶2} Appellees John K. Franks and Gerald L. Franks owned 69.079 acres in Belmont County. Their predecessor in title purchased the property along with one-half of the oil and gas in 1970 from Darby L. Jones, Mildred Huddleston, Martha Lee Mitchell, and Verda Strunk. (Deed to Seaway Coal Company, 3/2/70, Vol. 516, P. 82).1
{¶3} On March 11, 2014, Appellees filed a complaint to obtain title to the oil and gas rights (originally retained by those four grantors) through declaratory judgment, quiet title, and an injunction. Nineteen defendants (plus John Does) were named, including John Wayne Huddleston, Richard Huddleston, Linda Haynes, and Nancy Payne (the four defendants at issue). These and many other defendants had been named in the will of their aunt, Martha Lee Mitchell, which was probated in 1995 in Texas. (Complaint Ex. F).
{¶4} The complaint stated the four defendants at issue could not be located with reasonable diligence and service by publication was appropriate under R.C. 2703.14 and Civ.R. 4.4(A). Appellees thereafter filed an affidavit for publication stating the addresses for the four defendants at issue (and for three other defendants) were unknown and could not be ascertained with reasonable diligence. Counsel attested to searching numerous databases containing public records, including Westlaw's People Search and Public Records, and requesting probate searches and records from probate courts in Belmont County, Ohio and Hidalgo and Kleberg Counties in Texas. (4/16/14 Aff.); .2
{¶5} Notice of the lawsuit was published weekly for six weeks in the Times Leader, a newspaper published in Belmont County. On July 25, 2014, Appellees filed a motion for default against the four defendants at issue as their answers were due July 22, 2014 (28 days after the last publication) and they did not file answers.
{¶6} On July 29, 2014, the court granted the motion for default judgment, noting the defendants failed to answer or appear after being served via publication for six consecutive weeks. The court quieted title in favor of Appellees. The judgment was recorded on August 15, 2014.
{¶7} Six years later, on September 15, 2020, a motion to vacate the default judgment was filed by the "Huddleston Heirs" who are the five appellants herein: John Wayne Huddleston; Cynthia Huddleston (she was not a defendant in the lawsuit but the wife of John, who was still alive); Richard Huddleston; Linda Hanes (whose name in the complaint was spelled Haynes as this was the spelling in her aunt's will3 ); and Billy G. Payne (the husband of Nancy Payne; she was an heir named as a defendant but died after the default judgment).
{¶8} The motion said they did not see the notification in the Ohio newspaper as it "is not available in Texas" and they had no knowledge of the judgment until January 2020. Four affidavits were attached stating the affiants were not served with any item from the court until January 2020, when they were served with a complaint in a different lawsuit.
{¶9} John Wayne Huddleston's affidavit disclosed his address in 2013, attesting he lived there with his wife since 2006. He said he never received mail at the post office box where the complaint was attempted to be served before publication.
{¶10} Richard Huddleston's affidavit listed his address at the time of the 2014 complaint and said he lived there in 2013 as well. He said the address where the complaint was attempted to be served (before publication) was an office building where he once worked but said he did not receive mail there.
{¶11} Linda Hanes attested to the address where she had been residing since 2000. She added, "It is unknown to me how anyone, in using due diligence, did not find my address * * * when at the time of the filing of the lawsuits, I had lived there for thirteen (13) years."
{¶12} Billy G. Payne's affidavit listed the address where he lived with Nancy Payne in 2013, disclosing they began residing there in 2010. He too expressed, "It is unknown to me how anyone, using due diligence, did not find our address * * *."
{¶13} While noting Civ.R. 60(B)(5) allows the court to vacate a judgment for any reason, Appellants asked the court to use its inherent authority to vacate the default judgment, claiming it was void for lack of personal jurisdiction due to the failure to perfect service. However, they cited case law unrelated to service by publication stating: when the plaintiff follows the Civil Rules governing service of process, there is a rebuttable presumption of actual service; the defendant can rebut the presumption by merely swearing he "did not reside at the address to which process was sent"; and the burden then shifts to the plaintiff to produce evidence "demonstrating that defendant resided at the address is question."
{¶14} Appellees responded by emphasizing proper service by publication does not require actual notice or publication in other states, quoting from Civ.R. 4.4(A) and R.C. 2703.14(A). They explained compliance with the Civil Rules for service by publication raised a rebuttable presumption of reasonable diligence in the address search. They urged Appellants failed to rebut the presumption as they failed to disclose what was wrong with the search or state how they could have been located.
{¶15} Additionally, Appellees provided evidence in order to alternatively satisfy any shifting burden to prove their reasonable diligence. Their attorney submitted an affidavit listing the records searched prior to submitting the affidavit in support of publication: public records, probate records in Belmont County, probate records in Hildalgo and Kleberg County, Texas, the records of the Ohio Department of Natural Resources, the subscription services of Westlaw People Search and idocket.com, and the databases of Whitepages, Google, Peoplesmart, deathrecord.com, billiongraves.com, familysearch.org, and zabasearch.com.
{¶16} Appellees noted their attorney represented other plaintiffs in other lawsuits which were filed in 2013 against the same defendants regarding other property, citing Mammone v. Reynolds , 13 CV 179 and Hein Brothers LLC v. Reynolds, 13 CV 180. Appellees said these suits were important to the service issue in this case "because the due diligence prior to publication was identical." The attorney attached to his affidavit the complaints and proof of failure of service on the two Huddleston defendants in those suits. (Aff. Ex. A & B).
{¶17} The affidavit of Appellees’ attorney incorporated a file showing some of the search efforts through early 2013, during the original search for the record holders and heirs. (Aff. Ex. C). He also attached items related to other landowners, claiming they showed two other law firms could not locate Appellants; yet, these items showed the other firms did not identify the four defendants at issue, not that they could not find their addresses. (Aff. Ex. D & E).
{¶18} Appellees alternatively raised waiver and laches, pointing out the court entered the judgment six years before the motion to vacate and Appellants waited eight months from allegedly learning of the judgment to seek vacation. Appellants replied by pointing out the timeliness of the motion was irrelevant as they were not relying on Civ.R. 60(B).
{¶19} Appellants’ reply also noted the lengthy file attached to the affidavit of Appellees’ attorney was "inclusive of all the defendants, not just the four (4) individuals filing to vacate judgment." They emphasized they did not evade service or move often but had established addresses.
{¶20} A telephone hearing was conducted on December 14, 2020. At the hearing, both sides relied on matters already argued in their filings without advancing supplemental legal or factual material. Appellants noted they were not vagrant or evading service and some lived at their residences for a substantial period of time. Appellees pointed out Appellants failed to inform the court what was lacking in Appellees’ search, such as by specifying additional locations to search or identifying records reasonably available at the time of the search that would have generated Appellants’ addresses. (3/1/20 App.R. 9(C)(1) Approved Statement of the Proceedings).
{¶21} On December 21, 2020, the trial court denied the motion to vacate the judgment and concluded it had personal jurisdiction as service by publication was properly invoked and accomplished. The court observed it was "neither surprising nor dispositive" that Appellants did not receive timely...
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