COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69363 : CLEVELAND ELECTRIC ILLUMINATING : COMPANY : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : WILLIAM R. FINESILVER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 25, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 268515 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: SCOTT S. WELTMAN, ESQ. JOSEPH G. STAFFORD, ESQ. Weltman, Weinberg & Assoc. JOHN J. DYER, ESQ. Lakeside Place Stafford and Associates 323 Lakeside Avenue, West 100 Courthouse Square Cleveland, Ohio 44113 310 Lakeside Avenue, W. Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J.: William Finesilver, defendant-appellant, appeals a default judgment for Cleveland Illuminating Co. (CEI), plaintiff-appellee, for $16,470.16. The $16,470.16 was for electrical services provided to Esther Marie Nursing Center. The Center's application to CEI for services listed Finesilver as project manager. CEI served Finesilver at Metropolitan Construction Company; however, Finesilver did not sign for the service, and he showed at the time of service he was residing in Arizona. Finesilver moved to void the default judgment because of the lack of notice. The trial court disagreed. Finesilver assigns the following errors for our review: I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING MR. FINESILVER'S MOTION TO VACATE VOID JUDGMENT WHEN THE UNCONTROVERTED TESTIMONY OF MR. FINESILVER SUBMITTED TO THE TRIAL COURT SHOWS THAT MR. FINESILVER NEVER RECEIVED THE COMPLAINT OF C.E.I., OR NOTICE OF THE PROCEEDINGS IN THE TRIAL COURT. II. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO HOLD A HEARING ON MR. FINESILVER'S MOTION TO VACATE VOID JUDGMENT WHEN MR. FINESILVER TESTIFIED THAT HE NEVER RECEIVED NOTICE OF THE ACTION FILED BY C.E.I. III. THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING MR. FINESILVER RECEIVED SERVICE OF THE COMPLAINT WHEN C.E.I. DID NOT OBTAIN SERVICE OF PROCESS AS REQUIRED BY THE OHIO CIVIL RULES. IV. THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT MR. FINESILVER WAS SERVED AT A PROPER BUSINESS ADDRESS WHEN MR. FINESILVER HAD LEFT THE STATE AND NO LONGER MAINTAINED ANY PHYSICAL PRESENCE AT SAID BUSINESS ADDRESS. -3- After reviewing the record and the arguments of the parties, we reverse the decision of the trial court. The apposite facts follow. On April 7, 1994, CEI filed a complaint against Finesilver seeking $16,490.16 for electrical services provided for a construction project. A Service Installation Charge Application was attached to the complaint dated November 23, 1992. The application listed Esther Marie Nursing Center at 60 West Street in Geneva, Ohio as the place where electrical service would be provided. The application provided the invoice should be sent to Finesilver at Chase Builders at 27925 Belgrave Road in Cleveland, Ohio. The application was signed by Finesilver as project manager. A summons dated April 11, 1994 was mailed by certified mail to Finesilver at 23550 Commerce Park Road in Beachwood, Ohio. A return receipt listing April 15, 1994 as the date of delivery was returned to the Clerk of Courts with an illegible signature. On May 23, 1994, CEI moved for a default judgment against Finesilver after he failed to respond to the complaint. The trial court granted the default judgment on August 12, 1994 for $16,490.16. A copy of the motion for default judgment was sent by regular mail to Finesilver at 36 Olive Street in Chagrin Falls, Ohio. On April 17, 1995, Finesilver filed a Motion to Vacate the judgment on the grounds that the judgment was void for lack of in personam jurisdiction. Finesilver asserted he resided in Mesa, Arizona as of March 1, 1994, and he did not receive the summons and complaint or the motion for default judgment. CEI opposed the -4- motion, arguing service of the summons and complaint had been perfected under the civil rules, and Finesilver failed to demonstrate grounds for relief under Civ.R. 60(B). Attached to CEI's motion in opposition to Finesilver's motion to vacate the void judgment was a February 2, 1995 printout from the Information America Network listing Finesilver as the statutory agent for Metropolitan Construction Company. The printout specified that it was current through January 9, 1995 and listed Finesilver's address as 23550 Commerce Park in Cleveland. Finesilver's May 15, 1995 Reply to the Brief in Opposition which included a request for an oral hearing was stricken by the trial court on June 28, 1995. On that same date, the trial court denied Finesilver's motion. On July 12, 1995, Finesilver filed a Motion for New Trial. CEI filed a motion to strike the motion for new trial or, alterna- tively, a brief in opposition to the motion for new trial. The record contains no evidence of a ruling on the motion for new trial. Thereafter, this appeal followed. Finesilver asserts, in his four assignments of error, the trial court abused its discretion when it failed to vacate the default judgment, which is void for lack of notice. CEI argues it served Finesilver at Metropolitan Construction, a place reasonably calculated for Finesilver to have received it; thus, raising for us the issue whether Finesilver's uncontroverted evidence of lack of notice is sufficient to rebut the presumption of service as claimed by CEI. -5- It is axiomatic in Ohio that whenever possible, cases should be decided on their merits. Peroti v. Ferguson (1983), 7 Ohio St.3d 1, 2. Rafalski v. Oates (1984), 17 Ohio App.3d 65. Thus, a motion to vacate a default judgment should be granted when there is an uncontradicted sworn statement by the appellant that he did not receive service of the complaint even though the appellee demonstrates it followed Civ.R. 4.6. Rafalski v. Oates p.67 In this case, CEI did not present any evidence to establish that Finesilver had actually received the service. In fact, the return receipt bore an illegible signature, and the record contained no indication of the identity of the person who signed the return receipt. The evidence did not establish that the person who signed was connected with Finesilver's company. On the other hand, Finesilver signed an affidavit averring that he had not conducted business at the address in question since February 28, 1994. He stated he resided in Mesa, Arizona since March 1, 1994. Furthermore, he averred he never received the complaint and summons. "Where there is no service of process the court is without jurisdiction to render judgment. Any judgment which is rendered, where no process has been served, is void ab initio." Newark Orthopedics, Inc. v. Brock (1994), 92 Ohio App.3d 117, 124. Accordingly, we reverse the trial court's judgment and remand this case for further proceedings consistent with this opinion. Judgment reversed and remanded. -6- This cause is reversed and remanded. It is, therefore, considered that said Appellant recover of said Appellee his costs herein taxed. It is ordered that a special mandate be sent to said Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. SPELLACY, C.J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .