Downey v. 610 Morrison Road, LLC

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

David J. Downey,

Plaintiff-Appellee,

No. 07AP-903

(M.C. No. 2007 CVG 040013)

(REGULAR CALENDAR)

610 Morrison Road, LLC et al.,

Defendants-Appellants.

O P I N I O N

Rendered on July 15, 2008

Smith Law, Ltd.

, and

Karen K. Fuller-Smith

, for appellee.

Strip, Hoppers, Leithart, McGrath & Terlecky Co., LPA, A.C.

Strip, Kenneth R. Goldberg and Rachel L. Steinlage

, for

appellants.

APPEAL from the Franklin County Municipal Court.

PETREE, J.

{¶1}

Defendant-appellant, 610 Morrison Road, LLC ("defendant") appeals from a

judgment of the Franklin County Municipal Court denying defendant's motion for relief

from judgment. For the following reasons, we affirm the judgment of the municipal court.

{¶2}

By complaint filed on August 29, 2007, plaintiff-appellee, David J. Downey

("plaintiff'), sued 610 Morrison Road, LLC, and all other occupants of 610 Morrison Road,

Gahanna, Ohio ("the premises"). In his complaint, plaintiff alleged, among other things,

that defendant was in breach and default of a land installment contract; defendant owed

No. 07AP-903

no less than $5,371.98 to plaintiff; a notice of forfeiture was delivered to defendant and

other occupants of 610 Morrison Road, Gahanna, Ohio; and defendant and other

occupants were unlawfully and forcibly detaining plaintiff's possession of the premises. In

addition to seeking possession of the premises, plaintiff sought monetary damages. After

plaintiff's complaint was filed, a trial was scheduled for September 19, 2007.

{¶3}

Defendant's agent, however, failed to appear for trial. Finding, among other

things, that notice to vacate the premises conformed to R.C. 1923.04; that notice was

properly served; and that plaintiff proved by a preponderance of the evidence allegations

in his complaint, a magistrate rendered judgment in favor of plaintiff. On September 20,

2007, adopting the magistrate's decision, the municipal court issued a default judgment in

favor of plaintiff for restitution of the premises and court costs.

{¶4}

Claiming that it was not properly served with plaintiff's complaint, on

October 2, 2007, defendant moved for relief from judgment pursuant to Civ.R. 60(B), and

that same day defendant also sought a stay of execution of the municipal court's default

judgment. The municipal court stayed execution of its default judgment pending

resolution of defendant's Civ.R. 60(B) motion.

{¶5}

Without holding an evidentiary hearing, the municipal court denied

defendant's Civ.R. 60(B) motion and ultimately denied defendant's motion for stay of

execution of the judgment of eviction. In its judgment, the municipal court stated:

This matter comes before the Court upon Defendant's Motion

for Stay of Execution of Judgment filed October 2, 2007. After

due consideration of the matters contained therein, the Court

hereby denies said motion. Further, the Court finds proper

service of process was perfected and denies defendant's

60(B) motion for relief from judgment.

No. 07AP-903

The Court hereby directs the Municipal Court Clerk to serve

upon all parties notice of this judgment and its date of entry

upon the journal.

(Entry filed Oct. 23, 2007.)

{¶6}

From the municipal court's judgment of October 23, 2007, defendant now

appeals and assigns six errors for our consideration:

I. ASSIGNMENT OF ERROR NO. 1:

The lower court erred in

finding that service of process was properly completed upon

Defendant-Appellant.

II. ASSIGNMENT OF ERROR NO. 2:

The lower court erred in

failing to hold a hearing on Appellant's Motion for Relief from

Judgment pursuant to Rule 60(b) [sic] of the Ohio Rules of

Civil Procedure.

III. ASSIGNMENT OF ERROR NO. 3:

The lower court erred

in allowing Plaintiff-Appellee to use eviction procedures to

terminate Defendant-Appellant's rights in the real estate.

IV. ASSIGNMENT OF ERROR NO. 4:

The lower court erred

in failing to consider whether Plaintiff-Appellee was required

to utilize foreclosure procedures, as required by Ohio Revised

Code §5313.07, due to Defendant-Appellant's substantial

equity in the real estate.

V. ASSIGNMENT OF ERROR NO. 5:

The lower court erred

in failing to address the conflict between Rule 4.2 of the Ohio

Rules of Civil Procedure and Ohio Revised Code

§1923.04(D)(2)(b) [sic] and §1705.06(H)(1).

VI. ASSIGNMENT OF ERROR NO. 6:

The lower court erred

in granting judgment in favor of Plaintiff-Appellee without

requiring Plaintiff-Appellee to provide evidence that the

requirements of the eviction statute were satisfied.

{¶7}

Defendant's six assignments of error devolve into these issues: (1) whether

the municipal court should have applied foreclosure procedures or eviction procedures to

the instant action (defendant's third and fourth assignments of error); (2) whether the

No. 07AP-903

municipal court erred by finding that service of process was perfected (defendant's first

and fifth assignments of error); (3) whether the municipal court prejudicially erred by

failing to hold a hearing concerning defendant's Civ.R. 60(B) motion (defendant's second

assignment of error); and (4) assuming that the municipal court should have applied

eviction procedures, whether the municipal court erred by failing to require plaintiff to

show that he met requirements of the eviction statute (defendant's sixth assignment of

error).

{¶8}

"[I]t is well settled that a judgment denying a motion for relief from judgment

filed pursuant to Civ.R. 60(B) is itself a final appealable order."

Colley v. Bazell

(1980), 64

Ohio St.2d 243, 245, citing

Greenspahn v. Joseph E. Seagram & Sons, Inc.

(C.A. 2,

1951), 186 F.2d 616;

Russell v. Cunningham

(C.A. 9, 1960), 279 F.2d 797; 7 Moore's

Federal Practice (2d Ed.), 430, Section 60.30(3); McCormac, Ohio Civil Rules Practice

(1980 Supp.), 101, Section 13-27.

{¶9}

Civ.R. 55(B) provides that a court may set aside a default judgment in

accordance with Civ.R. 60(B). "Where timely relief is sought from a default judgment and

the movant has a meritorious defense, doubt, if any, should be resolved in favor of the

motion to set aside the judgment so that cases may be decided on their merits."

GTE

Automatic Elec., Inc. v. ARC Industries, Inc.

(1976), 47 Ohio St.2d 146, at paragraph

three of the syllabus.

{¶10}

" 'A claim under Civ.R. 60(B) requires the court to carefully consider the two

conflicting principles of finality and perfection.' "

Cuyahoga Support Enforcement Agency

v. Guthrie

(1999), 84 Ohio St.3d 437, 441, quoting

Strack v. Pelton

(1994), 70 Ohio St.3d

172, 175. "A motion for relief from judgment under Civ.R. 60(B) is addressed to the

No. 07AP-903

sound discretion of the trial court, and that court's ruling will not be disturbed on appeal

absent a showing of abuse of discretion."

Griffey v. Rajan

(1987), 33 Ohio St.3d 75, 77.

When applying an abuse-of-discretion standard, an appellate court may not substitute its

judgment for that of the trial court.

Berk v. Matthews

(1990), 53 Ohio St.3d 161, 169;

Stockdale v. Baba,

153 Ohio App.3d 712, 2003-Ohio-4366, at ¶54, citing

Berk,

at 169;

State v. Congrove,

Franklin App. No. 06AP-1129, 2007-Ohio-3323, at ¶9.

{¶11}

" ' "The term 'abuse of discretion' connotes more than an error of law or

judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable." ' "

State v. Smith,

Franklin App. No. 03AP-1157, 2004-Ohio-4786, at

¶10, quoting

Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, quoting

State v.

Adams

(1980), 62 Ohio St.2d 151, 157. An unreasonable decision is one that is

unsupported by a sound reasoning process.

AAAA Enterprises, Inc. v. River Place

Community Urban Redevelopment Corp.

(1990), 50 Ohio St.3d 157, 161; see, also,

Dayton ex rel. Scandrick v. McGee

(1981), 67 Ohio St.2d 356, 359, citing Black's Law

Dictionary (5 Ed.) (observing that " '[u]nreasonable' means 'irrational' ");

Congrove,

at ¶9.

An arbitrary attitude, on the other hand, is an attitude that is " 'without adequate

determining principle * * * not governed by any fixed rules or standard.' "

Scandrick,

359, quoting Black's Law Dictionary (5 Ed.); see, also,

Congrove,

at ¶9.

"Unconscionable" may be defined as "affronting the sense of justice, decency, or

reasonableness." Black's Law Dictionary (8 Ed.2004) 1561.

{¶12}

"[T]o prevail on a Civ.R. 60(B) motion for relief from judgment, the movant

must establish that '(1) the party has a meritorious defense or claim to present if relief is

granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R.

No. 07AP-903

60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the

grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the

judgment, order or proceeding was entered or taken.' "

State ex rel. Richard v. Seidner

(1996), 76 Ohio St.3d 149, 151, quoting

GTE Automatic Elec., Inc.

, at paragraph two of

the syllabus. Relief under Civ.R. 60(B) "is improper if any one of the foregoing

requirements is not satisfied."

Richard

, at 151, citing

Strack v. Pelton

(1994), 70 Ohio

St.3d 172, 174. See, also,

In re McLoughlin v. McLoughlin

, Franklin App. No. 05AP-621,

2006-Ohio-1530, at ¶23, appeal not allowed, 110 Ohio St.3d 1465, 2006-Ohio-4288.

See, generally, Civ.R. 60(B).

{¶13}

Defendant's third and fourth assignments of error raise the issue of whether

the municipal court should have applied foreclosure procedures or eviction procedures to

the instant action.

{¶14}

"Foreclosure" may be defined as "[a] legal proceeding to terminate a

mortgagor's interest in property, instituted by the lender (the mortgagee) either to gain title

or to force a sale in order to satisfy the unpaid debt secured by the property." Black's Law

Dictionary (8 Ed.2004) 674.

{¶15}

Comparatively, "forcible entry and detainer" may be defined as "[a] quick

and simple legal proceeding for regaining possession of real property from someone who

has wrongfully taken, or refused to surrender, possession." Id. " 'Forcible entry and

detainer is a remedy given by statute for the recovery of possession of land and of

damages for its detention. It is entirely regulated by statute, and the statutes vary

materially in the different states.' " Id. quoting Benjamin J. Shipman,

Handbook of

Common-Law Pleading

§ 74, at 188 (Henry Winthrop Ballantine ed., 3d ed. 1923). See,

No. 07AP-903

also,

Kuhn v. Griffin

(1964), 3 Ohio App.2d 195, 199 (stating that "[t]he action of forcible

entry and detainer has long been recognized as an action of a solely possessory nature.

The gist and foundation of the action is the right to present possession and this is the sole

ultimate issue in the case").

{¶16}

Here, defendant claims that, under the parties' land installment contract,

defendant's improvements to the property amounted to 36 percent of the purchase price.

And, defendant therefore reasons that, pursuant to R.C. 5313.07, foreclosure proceed-

ings should have been employed, rather than eviction procedures.

{¶17}

R.C. 5313.07 provides in part:

If the vendee of a land installment contract has paid in

accordance with the terms of the contract for a period of five

years or more from the date of the first payment or has paid

toward the purchase price a total sum equal to or in excess of

twenty per cent thereof, the vendor may recover possession

of his property only by use of a proceeding for foreclosure and

judicial sale of the foreclosed property as provided in section

2323.07 of the Revised Code. Such action may be com-

menced after expiration of the period of time prescribed by

sections 5313.05 and 5313.06 of the Revised Code. In such

an action, as between the vendor and vendee, the vendor

shall be entitled to proceeds of the sale up to and including

the unpaid balance due on the land installment contract.

{¶18}

Accordingly, for plaintiff to have been required under R.C. 5313.07 to use

foreclosure procedures in this case, (1) plaintiff and defendant must have entered into a

land installment contract; and (2) defendant must have "paid in accordance with the terms

of the contract for a period of five years or more from the date of the first payment or has

paid toward the purchase price a total sum equal to or in excess of twenty per cent

thereof." Id.

No. 07AP-903

{¶19}

Here, the parties entered into a land installment contract in October 2005

and, according to the contract, defendant's first payment was due on December 1, 2005.

Because the land installment contract was executed less than five years ago, at the time

of defendant's alleged default, defendant had not paid in accordance with the terms of the

contract for a period of five years or more from the date of the first payment.

{¶20}

Defendant maintains, however, that it had paid toward the purchase price a

total sum equal to or in excess of 20 percent. Defendant, therefore, reasons that,

pursuant to R.C. 5313.07, plaintiff could recover possession of his property only by use of

a proceeding for foreclosure and judicial sale of the foreclosed property as provided in

R.C. 2323.07.

{¶21}

Here, the purchase price of the property under the land installment contract

was $767,000. Twenty percent of the purchase price of $767,000 is an amount equaling

$153,400. Thus, under R.C. 5313.07, if defendant had paid $153,400 in accordance with

the terms of the contract, or in excess of this amount, plaintiff could have recovered

possession of his property only by use of a proceeding for foreclosure and judicial sale of

the foreclosed property as provided in R.C. 2323.07.

{¶22}

The parties do not dispute that defendant paid $50,000 as a down payment

upon execution of the land installment contract. Defendant maintains, however, that

"[s]ince the execution of the Land Contract, [defendant] has made Monthly Payments

totaling One Hundred Thirty-Two Thousand Eight Hundred and 08/100 Dollars

($132,814.08)." (Defendant's merit brief, at 2.) If this were true, and assuming that

defendant paid in accordance with the terms of the contract, defendant would have paid

No. 07AP-903

$182,814.08,

an amount in excess of 20 percent of the purchase price of the land

installment contract ($153,400).

{¶23}

However, defendant's assertion that, since execution of the land installment

contract, it paid additional monthly payments totaling $132,814.08 is unsupported by any

evidence in the record.

Absent any evidentiary support, defendant's claim of having

made additional monthly payments totaling $132,814.08 is of no value. See, e.g.,

Van

Jackson v. Check 'N Go of Illinois, Inc.

(N.D.Ill, 2000), 193 F.R.D. 544, 546 (observing

that "undeveloped arguments are waived and bald assertions are worthless"); see, also,

E. Ohio Gas Co. v. Walker

(1978), 59 Ohio App.2d 216 (finding, among other things, that

unsworn allegations of operative facts in a Civ.R. 60[B] motion or in a supporting brief

attached to such a motion is insufficient evidence upon which to grant a Civ.R. 60[B]

motion).

{¶24}

"It is fundamental that the appellant bears the burden of affirmatively

demonstrating error on appeal."

Wray v. Parsson

(1995), 101 Ohio App.3d 514, 518,

appeal not allowed, 73 Ohio St.3d 1413, reconsideration denied, 73 Ohio St.3d 1455,

citing

Pennant Moldings, Inc. v. C & J Trucking Co.

(1983), 11 Ohio App.3d 248, 251.

Moreover, an "[a]ppellant also has the responsibility of providing the reviewing court with

a record of the facts, testimony, and evidentiary matters which are necessary to support

$50,000 (down payment) plus $132,814.08 (total amount allegedly paid toward purchase price of the land

contract following execution of land contract) equals $182,814.08. $182,814.08 (total sum allegedly paid

toward the purchase price of the land installment contract in accordance with terms of the contract) is

23.83% of $767,000.

Prior to oral argument, in a joint motion for an extension of time that was later granted by this court, the

parties represented to the court that an extension of time was necessary so that defendant could "obtain

and submit to the Court the transcript of the eviction hearing relevant to this matter." (Joint Motion for

Extension for Plaintiff-Appellee's Reply Brief, filed on December 17, 2007.) No transcript, however, was

filed with this court. See, generally, App.R. 9.

No. 07AP-903

the appellant's assignments of error."

Wray

, at 518, citing

Volodkevich v. Volodkevich

(1989), 48 Ohio App.3d 313, 314, dismissed, 47 Ohio St.3d 705.

{¶25}

Here, absent any evidence in the record to support defendant's assertion

that it paid additional monthly payments totaling $132,814.08, we must conclude that

defendant, as the appellant in the instant appeal, has failed to demonstrate that it had

paid an amount equal to or in excess of 20 percent of the purchase price of the land

installment contract at the time plaintiff brought his action against defendant. We also

must conclude that defendant also has failed to affirmatively demonstrate its claim that

the plaintiff was required under R.C. 5313.07 to use foreclosure procedures to recover

possession of the property.

{¶26}

And, because defendant has failed to affirmatively demonstrate its claim

that the plaintiff was required under R.C. 5313.07 to use foreclosure procedures to

recover possession of the property, and because there is no evidence in the record to

support defendant's claim that it had paid an amount equal to or in excess of 20 percent

of the purchase price of the land installment contract, we therefore cannot conclude that

the municipal court erred by not requiring plaintiff to proceed in a manner required by R.C.

5313.07. See

State ex rel. Fulton v. Halliday

(1944), 142 Ohio St. 548, 549, citing

Makranczy v. Gelfand

(1924), 109 Ohio St. 325 (stating that "[t]he proceedings of a trial

court are deemed correct unless error affirmatively appears on the face of the record.").

{¶27}

Accordingly, for the reasons set forth above, we reject defendant's claim in

its third assignment of error that the municipal court erred by allowing plaintiff to use

eviction procedures, and we also reject defendant's claim in its fourth assignment of error

No. 07AP-903

that the municipal court erred by failing to consider whether plaintiff was required to utilize

foreclosure procedures. Defendant's third and fourth assignments of error are overruled.

{¶28}

We also reject defendant's sixth assignment of error, wherein defendant

asserts that the municipal court prejudicially erred because it failed to require plaintiff to

provide evidence that requirements of the eviction statute were satisfied.

{¶29}

Here, in the magistrate's decision, which the municipal court adopted, the

court, through the magistrate, found, among other things, that, based on the evidence

presented, the notice to vacate "conform[ed] to R.C. 1923.04 and was properly served,

and that plaintiff has proven non-payment of rent and the allegations set forth in the

complaint by a preponderance of the evidence." (Sept. 20, 2007 Magistrate's Decision.)

{¶30}

"The burden of showing error rests upon the party claiming error on appeal.

In the absence of such an affirmative showing, this court is bound to presume that the

court below reached a proper result."

Pennant Moldings, Inc.

, at 251, citing

Fulton

, at 53;

Claycraft Co. v. Lowe

(C.P.1952), 72 Ohio Law Abs. 225; see, also,

Hartt v. Munobe

(1993), 67 Ohio St.3d 3, 7, rehearing denied, 67 Ohio St.3d 1457 (stating that "[a]n

appellate court reviewing a lower court's judgment indulges in a presumption of regularity

of the proceedings below. * * * A party asserting error in the trial court bears the burden to

demonstrate error by reference to matters made part of the record in the court of

appeals"). (Citations omitted.)

{¶31}

Here, defendant fails to affirmatively show that the magistrate's finding that

plaintiff's notice to vacate conformed to R.C. 1923.04 is erroneous and also fails to

affirmatively show that the magistrate's finding that plaintiff's notice was properly served is

erroneous. Absent such an affirmative showing, and presuming the regularity of the

No. 07AP-903

proceedings below, we cannot conclude that the municipal court's adoption of the

magistrate's finding was error.

{¶32}

For the reasons set forth above, we therefore overrule defendant's sixth

assignment of error.

{¶33}

By its fifth assignment of error, defendant claims the municipal court

prejudicially erred by failing to address defendant's claim that Civ.R. 4.2 conflicts with

former R.C. 1923.06(D)(2)(b)

and 1705.06(H)(1).

{¶34}

"When two statutory provisions are alleged to be in conflict, R.C. 1.51

requires [a court] to construe them, where possible, to

give effect to both.

Gahanna-

Jefferson Loc. School Dist. Bd. of Edn. v. Zaino

(2001), 93 Ohio St.3d 231, citing

Schindler Elevator Corp. v. Tracy

(1999), 84 Ohio St.3d 496, 499. (Emphasis sic.) See,

also,

Johnson's Markets, Inc. v. New Carlisle Dept. of Health

(1991), 58 Ohio St.3d 28,

35, citing

Couts v. Rose

(1950), 152 Ohio St. 458 (stating that "[a court] in the

interpretation of related and co-existing statutes must harmonize and give full application

to all such statutes unless they are irreconcilable and in hopeless conflict").

{¶35}

R.C. Chapter 1923 concerns forcible entry and detainer actions. Former

R.C. 1923.06 provided in part:

(A) Any summons in an action, including a claim for

possession, pursuant to this chapter shall be issued, be in the

form specified, and be served and returned as provided in this

section. Such service shall be at least seven days before the

day set for trial.

* * *

After plaintiff brought his lawsuit against defendants, R.C. 1923.06 was amended by (2007) Sub.H.B. No.

56, effective October 18, 2007.

No. 07AP-903

shall mail any summons by ordinary mail, along with a copy of

the complaint, document, or other process to be served, to the

defendant at the address set forth in the caption of the

summons and to any address set forth in any written

instructions furnished to the clerk. The mailing shall be

evidenced by a certificate of mailing which the clerk shall

complete and file.

In addition to this ordinary mail service, the clerk also shall

cause service of that process to be completed under division

(D) or (E) of this section or both, depending upon which of

those two methods of service is requested by the plaintiff

upon filing the complaint to evict.

(D)(1) If requested, the clerk shall deliver sufficient copies of

the summons, complaint, document, or other process to be

served to, and service shall be made by, one of the following

persons:

(a) The sheriff of the county in which the premises are located

when the process issues from a court of common pleas or

county court;

(b) The bailiff of the court for service when process issues

from a municipal court;

not a party, and who has been designated by order of the

court to make service of process when process issues from

any of the courts referred to in divisions (D)(1)(a) and (b) of

this section.

(2) The person serving process shall effect service at the

premises that are the subject of the forcible entry and detainer

action by one of the following means:

(a) By locating the person to be served at the premises to

tender a copy of the process and accompanying documents

to that person;

(b) By leaving a copy of the summons, complaint, document,

or other process with a person of suitable age and discretion

found at the premises if the person to be served cannot be

No. 07AP-903

found at the time the person making service attempts to serve

the summons pursuant to division (D)(2)(a) of this section;

premises if service cannot be made pursuant to divisions

(D)(2)(a) and (b) of this section.

(3) Within five days after receiving the summons, complaint,

document, or other process from the clerk for service, the

person making service shall return the process to the clerk.

The person shall indicate on the process which method

described in division (D)(2) of this section was used to serve

the summons. The clerk shall make the appropriate entry on

the appearance docket.

(E) If requested, the clerk shall mail by certified mail, return

receipt requested, a copy of the summons, complaint,

document, or other process to be served to the address set

forth in the caption of the summons and to any address set

forth in any written instructions furnished to the clerk.

(F) Service of process shall be deemed complete on the date

that any of the following has occurred:

(1) Service is made pursuant to division (D)(2)(a) or (b) of this

section.

(2) Both ordinary mail service under division (C) and service

by posting pursuant to division (D)(2)(c) of this section have

been made.

(3) For service performed pursuant to division (E) of this

section, on the date of mailing, if on the date of the hearing

either of the following applies:

(a) The certified mail has not been returned for any reason

other than refused or unclaimed.

(b) The certified mail has not been endorsed, and the ordinary

mail has not been returned.

(G)(1) The claim for restitution of the premises shall be

scheduled for hearing in accordance with local court rules, but

in no event sooner than the seventh day from the date service

is complete.

No. 07AP-903

(2) Answer day for any other claims filed with the claim for

possession shall be twenty-eight days from the date service is

deemed complete under this section.

{¶36}

Here, a court-appointed process server executed service by leaving a copy

of the summons and complaint with a party who presumably was defendant's employee.

(See Affidavit of Alice Fuller dated October 11, 2007.) Absent any evidence to the

contrary in the record, such service seemingly comports with the requirements of former

R.C. 1923.06(D)(1)(c) and (D)(2)(b).

{¶37}

Defendant maintains, however, that service provisions in former R.C.

1923.06 conflict with R.C. 1705.06(H)(1), which concerns service of process upon a

limited liability company.

Defendant further maintains that service provisions in former

R.C. 1923.06 conflict with service requirements under Civ.R. 4.2(H).

{¶38}

R.C. 1705.06 provides in part:

(H)(1) Any legal process, notice, or demand required or

permitted by law to be served upon a limited liability company

may

be served upon the company as follows:

(a) If the agent described in division (A) of this section is an

In re ICLNDS Notes Acquisition, LLC

(Bkrtcy.N.D.Ohio, 2001), 259 B.R. 289, the United States

Bankruptcy Court for the Northern District of Ohio explained:

Under Ohio law, as elsewhere, an LLC [limited liability company] is neither

a corporation nor a partnership, as those concepts are commonly

understood. Instead, an LLC is a hybrid in that it: is a form of legal entity

that has attributes of both a corporation and a partnership but is not

formally characterized as either one. Generally, an LLC offers all of its

members, including any member-manager, limited liability as if they were

shareholders of a corporation but treats the entity and its members as a

partnership for tax purposes.

Broyhill v. DeLuca (In re DeLuca),

194 B.R.

65, 71 (Bankr.E.D.Va.1996) (quoting Thomas F. Blakemore,

Limited

Liability Companies and the Bankruptcy Code: A Technical Overview,

Am. Bankr.Inst. J. 12 (1994)). See also Jason C. Blackford, Blackford

Business Organizations § 3.10 (1992). * * *

Id. at 292-293.

No. 07AP-903

individual, by delivering a copy of the process, notice, or

demand to the agent;

(b) If the agent is a corporation, by delivering a copy of the

process, notice, or demand to the address of the agent in this

state as contained in the records of the secretary of state.

* * *

(J) This section does not limit or affect the right to serve any

process, notice, or demand upon a limited liability company in

any other manner permitted by law.

(Emphasis added.)

{¶39}

"Although it is true that in some instances the word, 'may,' must be

construed to mean 'shall,' and 'shall' must be construed to mean 'may,' in such cases the

intention that they shall be so construed must clearly appear. Ordinarily, the word, 'shall,'

is a mandatory one, whereas 'may' denotes the granting of discretion."

Dennison v.

Dennison

(1956), 165 Ohio St. 146, 149.

{¶40}

Construing "[a]ny legal process, notice, or demand required or permitted by

law to be served upon a limited liability company may be served upon the company as

follows" in R.C. 1705.06(H)(1), with R.C. 1705.06(J)'s prescription that R.C. 1705.06

"does not limit or affect the right to serve any process, notice, or demand upon a limited

liability company in any other manner permitted by law," we cannot conclude that this is

such an occasion where it clearly appears that the General Assembly intended in R.C.

1705.06(H)(1) for "may" to be construed to mean "shall."

{¶41}

Accordingly, defendant's claim that R.C. 1705.06(H)(1) requires plaintiff to

have served defendant's statutory agent, an individual, by delivering a copy of the

process, notice, or demand to its statutory agent, rather than by some other permissible

No. 07AP-903

method of service of process, is not supported by the plain language of R.C. 1705.06.

See

Bd. of Edn. of Pike-Delta-York Loc. School Dist. v. Fulton Cty. Budget Comm.

(1975), 41 Ohio St.2d 147, 156, citing

Sears v. Weimer

(1944), 143 Ohio St. 312;

Cleveland Trust Co. v. Eaton

(1970), 21 Ohio St.2d 129;

State ex rel. Wallace v. Celina

(1972), 29 Ohio St.2d 109 (stating that "[c]ourts do not have the authority to ignore, in the

guise of statutory interpretation, the plain and unambiguous language in a statute").

{¶42}

We also disagree with defendant's contention that plaintiff's service of the

complaint and summons by a process server as provided in former R.C. 1923.06 conflicts

with Civ.R. 4.2(H).

{¶43}

Civ.R. 4.2 provides in part:

Service of process, except service by publication as provided

in Civ.R. 4.4(A), pursuant to Civ.R. 4 through 4.6 shall be

made as follows:

* * *

(H) Upon an unincorporated association by serving it in its

entity name by certified or express mail at any of its usual

places of business or by serving an officer of the

unincorporated association[.]

{¶44}

Unincorporated associations are governed by R.C. Chapter 1745. See,

e.g., R.C. 1745.01 (providing that "[a]ny unincorporated association may contract or sue

in behalf of those who are members and, in its own behalf, be sued as an entity under the

name by which it is commonly known and called"). Limited liability companies, on the

other hand, are governed by R.C. Chapter 1705. Unincorporated associations and

limited liability companies are therefore governed by different and separate provisions

within the Revised Code.

No. 07AP-903

{¶45}

Because unincorporated associations and limited liability companies are

governed by different and separate provisions within the Revised Code, and because

Civ.R. 4.2(H) unambiguously and specifically refers to "unincorporated associations," and

not "limited liability companies," we cannot necessarily conclude that, for purposes of

construing Civ.R. 4.2(H), "unincorporated association" includes limited liability companies

within its purview, as defendant suggests. See, generally, 1970 Staff Notes to Civ.R. 4.2

(stating that "[s]ervice of process upon an unincorporated association, such as a labor

union, under Rule 4.2(8) is similar to service of process upon an unincorporated

association as set forth in [former] § 1745.03, R.C."); 1 Klein & Darling, Baldwin's Ohio

Practice, Civil Procedure (2 Ed.2004) 296, Section 4.2:17.

{¶46}

And, absent any finding of ambiguity, we have no reason to interpret the

unambiguous language of Civ.R. 4.2(H) to include applicability of this rule to limited

liability companies under the guise of interpretation. See, e.g.,

Bd. of Edn. of Pike-Delta-

York Local School District

, at 156.

{¶47}

Furthermore, a plain reading of Civ.R. 4.2 produces a conclusion that,

under Civ.R. 4.2, different methods of service of process have been created for, among

other things, a partnership or limited partnership association, Civ.R. 4.2(G), a professional

association, Civ.R. 4.2(I), and corporations, Civ.R. 4.2(F). Under Civ.R. 4.2, however, no

different method of service of process has been created for a limited liability company.

See, generally,

State ex rel. Paluf v. Feneli

(1994), 69 Ohio St.3d 138, 143, citing

Harris

v. Atlas Single Ply Sys., Inc.

(1992), 64 Ohio St.3d 171, 173;

Vincent v. Zanesville Civ.

Serv. Comm.

(1990), 54 Ohio St.3d 30, 33, at fn. 2 (stating that "[

]

xpressio unius est

No. 07AP-903

exclusio alterius

is an interpretative maxim meaning that if certain things are specified in a

law, contract, or will, other things are impliedly excluded").

{¶48}

Accordingly, because, as a matter of law, service of process provisions in

former R.C. 1923.06 do not conflict with requirements for service of a limited liability

under R.C. 1705.06(H)(1), and because we cannot conclude that, as a matter of law,

plaintiff's service of the complaint and summons by a process server as provided in

former R.C. 1923.06 conflicts with Civ.R. 4.2(H), we therefore conclude that the municipal

court did not prejudicially err by failing to address defendant's claim that Civ.R. 4.2

conflicts with former R.C. 1923.06(D)(2)(b) and 1705.06(H)(1).

{¶49}

For the reasons set forth above, defendant's fifth assignment of error is

therefore overruled.

{¶50}

Because defendant's remaining assignments of error are interrelated, we

shall jointly consider them. By its first assignment of error, defendant asserts that the

municipal court prejudicially erred by finding that service of process was properly

completed upon defendant. By its second assignment of error, defendant claims the

municipal court prejudicially erred by failing to hold an evidentiary hearing to consider

defendant's Civ.R. 60(B) motion.

{¶51}

Here, in an affidavit in support of defendant's Civ.R. 60(B) motion, John

Yazdani, defendant's authorized statutory agent, averred that he received a copy of the

summons and complaint after the matter was heard at trial and a default judgment was

issued. (Affidavit of John Yazdani, dated October 2, 2007, at paragraphs 1, 3 and 5.) Mr.

Yazdani further averred that "[i]f delivery of the Summons and Complaint was made at the

Premises, they were given to a person who was not a member of 610 Morrison Road,

No. 07AP-903

LLC." Id., at paragraph 4. See, generally, R.C. 1705.01(G) (defining "member" as

"mean[ing] a person whose name appears on the records of the limited liability company

as the owner of a membership interest in that company"). In a reply brief, defendant

expressly requested an evidentiary hearing.

{¶52}

"An affidavit is a written declaration under oath, made without notice to the

adverse party." R.C. 2319.02. "An affidavit