Kent State Univ. v. Manley

[Cite as Kent State Univ. v Manley, 

.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

KENT STATE UNIVERSITY,                                 :

                Plaintiff-Appellee,                    :
                                                           No. 111483
                v.                                     :

ERICA E. MANLEY,                                       :

                Defendant-Appellant.                   :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: DISMISSED
                RELEASED AND JOURNALIZED: December 15, 2022


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-20-931391


                                            Appearances:

                Keith D. Weiner & Associates Co., LPA, and Suzana
                Pastor, for appellee.

                Erica E. Manley, pro se.


EILEEN T. GALLAGHER, J.:

                Defendant-appellant, Erica E. Manley (“Manley”), pro se, appeals a

money judgment rendered against her and in favor of plaintiff-appellee, Kent State

University (“Kent”), in the amount of $16,517.68. She claims the following errors:

        1. The trial court erred and abused its discretion, to the prejudice of
        appellant, by denying the appellant’s motion to dismiss and awarding
      judgment for unrendered educational services which was not
      supported by the facts, evidence, or law.

      2. The trial court abused its discretion and erred to the prejudice of
      appellant by denying insufficiency of service defense and entering
      judgment on a complaint in which it lacked jurisdiction over the
      appellant contrary to Ohio law and the Fourteenth Amendment to the
      U.S. Constitution.

      3. Kent failed to join a necessary and indispensable party, Higher One,
      Inc. under Civ.R. 19 and 12(b)(7) and, therefore, the trial court erred
      and abused its discretion, to the prejudice of appellant, by denying the
      appellant’s motion to dismiss and awarding judgment which by law
      should have been dismissed in its entirety.

      4. Trial court erred and abused its discretion in granting summary
      judgment in favor of Kent because the case presented genuine issues of
      material fact which demanded trial resolution, Kent was not entitled to
      judgment as a matter of law, and the decision was against the manifest
      weight of the evidence.

      5. Trial court erred to the prejudice of appellant by issuing a
      continuance of the pretrial scheduled for September 29, 2020, after
      appellee failed to attend the pretrial without notice, and without
      judiciable reason.

             After careful review of the record and law, we dismiss the case for lack

of a final, appealable order.

                        I. Facts and Procedural History

             Kent accepted Manley into the School of Library and Information

Science in 2013 and offered Manley the opportunity to earn credits toward a degree.

Manley accepted the offer, enrolled in courses at Kent for the Spring 2015 semester,

and received an award of federal financial aid to pay for the courses. As part of the

financial aid package, Kent, through its agent, Higher One, Inc., issued a check
payable to Manley in the amount of $9,013.00. The check was cashed on April 17,

2015. (Plaintiff’s motion for summary judgment, ex. B1-B2, G.)

            Manley did not attend the courses in which she enrolled. Having

withdrawn from classes, Manley was required, under Title IV of the Higher

Education Act of 1965 (“Title IV”), to return the funds to the United States

Department of Education. Kent returned $9,013.00 of its own funds to the United

States Department of Education on Manley’s behalf and sought repayment from

Manley, who failed to repay the funds.

            After unsuccessfully attempting to collect the debt from Manley, Kent

filed a complaint against her in March 2020, asserting claims for the balance due on

Manley’s account and for unjust enrichment. In its prayer for relief, Kent requested

the sum of $17,049.40, plus interest at a rate of five percent from March 19, 2020,

and court costs. Manley filed an answer and counterclaim, alleging that Kent and

its attorney violated certain consumer and fair-debt collection laws. She also sought

(1) a declaratory judgment, declaring that Kent engaged in unconscionable

practices; and (2) an injunction, enjoining Kent from violating consumer and

fair-debt laws. Manley later filed a motion for leave to amend the counterclaim to

remove Kent as a party-defendant, and the trial court denied the motion.

            Manley also filed a motion to dismiss the complaint, arguing, among

other things, that Kent never properly served Manley with the complaint. Manley

raised failure of service as an affirmative defense in her answer. Nevertheless, the

trial court overruled her motion to dismiss.
            Kent filed a motion to dismiss Manley’s counterclaims and a motion for

summary judgment on its claims against Manley. In a judgment entry dated

November 10, 2020, the court granted Kent’s motion for summary judgment and

entered judgment against Manley for $16,517.68, plus interest at the statutory rate

from March 19, 2020. (See judgment entry dated 11/10/20.) Manley appealed, but

the appeal was dismissed for lack of a final, appealable order because Manley’s

counterclaims had not been properly resolved. Manley appealed the dismissal of

her appeal to the Ohio Supreme Court in June 2021. While the appeal was pending

in the Supreme Court, the trial court issued a nunc pro tunc judgment, dated August

4, 2021, stating, among other things, that “each and every counterclaim asserted

and/or stated by the defendant in her answer and counterclaim are dismissed.”

            The Ohio Supreme Court declined to accept jurisdiction over Manley’s

appeal on August 31, 2021, and the case was remanded to this court, which

remanded it to the trial court. In a judgment entry dated September 17, 2021, the

administrative judge of the common pleas court stated that the case was being

returned to the assigned judge. Following remand, the trial court entered judgment

stating, in relevant part: “The court granted plaintiff’s motion for summary

judgment on 09-14-20. Thereafter, on 08-04-21, this court dismissed all remaining

claims. Case disposed.” This timely appeal followed.

                             II. Law and Analysis

            The Ohio Constitution limits appellate jurisdiction to the review of final

judgments. Article IV, Section 3(B)(2), Ohio Constitution. “If an order is not final
and appealable, then an appellate court has no jurisdiction to review the matter and

the appeal must be dismissed.” Assn. of Cleveland Firefighters, # 93 v. Campbell,

8th Dist. Cuyahoga No. 84148, 

. A trial court order is final and

appealable only if it meets the requirements of R.C. 2505.02 and, if applicable,

Civ.R. 54(B). Madfan, Inc. v. Makris, 8th Dist. Cuyahoga No. 102179, 2015-Ohio-

1316, ¶ 6, citing Chef Italiano Corp. v. Kent State Univ., 

, 

 (1989).

              Under R.C. 2505.02(B)(1), an order is a final order if it “affects a

substantial right in an action that in effect determines the action and prevents a

judgment.” To determine the action and prevent a judgment, the order “must

dispose of the whole merits of the cause or some separate and distinct branch thereof

and leave nothing for the determination of the court.” Hamilton Cty. Bd. of Mental

Retardation & Dev. Disabilities v. Professionals Guild of Ohio, 

, 

 (1989).

             If a case involves multiple parties or multiple claims, the court’s order

must also meet the requirements of Civ.R. 54(B) to qualify as a final, appealable

order. Madfan at ¶ 7; Chef Italiano Corp. at 88. Civ.R. 54(B) provides:

      When more than one claim for relief is presented in an action whether
      as a claim, counterclaim, cross-claim, or third-party claim, and whether
      arising out of the same or separate transactions, or when multiple
      parties are involved, the court may enter final judgment as to one or
      more but fewer than all of the claims or parties only upon an express
      determination that there is no just reason for delay. In the absence of
      a determination that there is no just reason for delay, any order or other
      form of decision, however designated, which adjudicates fewer than all
      the claims or the rights and liabilities of fewer than all the parties, shall
      not terminate the action as to any of the claims or parties, and the order
      or other form of decision is subject to revision at any time before the
      entry of judgment adjudicating all the claims and the rights and
      liabilities of all the parties.

              Absent the mandatory language that “there is no just reason for delay,”

an order that does not dispose of all claims is subject to modification and is not final

and appealable. U.S. Bank Trust, N.A. v. Osborne, 4th Dist. Scioto No. 20CA3930,

, citing Noble v. Colwell, 

, 

 (1989); see also Deutsche Bank Natl. Co. v. Caldwell, 

,

, 

 (8th Dist.).

              The purpose of Civ.R. 54(B) is to balance the policy against piecemeal

appeals with the possible injustice created by the delay of appeals “as well as to

insure that parties to such actions may know when an order or decree has become

final for purposes of appeal[.]” Pokorny v. Tilby Dev. Co., 

,

 (1977).

              This court dismissed Manley’s first appeal for lack of a final,

appealable order because the trial court failed to adequately address the 11 counts in

the counterclaim, which included a claim for declaratory judgment. Ordinarily,

“‘when a trial court enters judgment in a declaratory judgment action, the order

must declare all of the parties’ rights and obligations in order to constitute a final,

appealable order.’” Klocker v. Zeiger, 8th Dist. Cuyahoga No. 92044, 2009-Ohio-

3102, ¶ 13, quoting Stiggers v. Erie Ins. Group, 8th Dist.Cuyahoga No. 85418, 2005-

Ohio-3434.
              The trial court’s judgment, dated August 24, 2020, never specifically

addressed Manley’ claim for declaratory judgment. Following this court’s dismissal

of the appeal for lack of a final, appealable order, the trial court entered a “nunc pro

tunc” judgment entry, dated August 4, 2021, stating that “each and every

counterclaim asserted and/or stated by the defendant in her answer and

counterclaim are dismissed.”       However, again, this judgment entry did not

specifically address Manley’s claim for declaratory judgment. Moreover, the case

was pending in the Ohio Supreme Court at the time the trial court entered the

August 4, 2021 judgment entry.

              The procedural posture of this case raised several questions whether

the judgment under review is a final, appeal order. We, therefore, asked the parties

to file briefs answering the following questions: (1) whether the trial court’s August

4, 2021 judgment is void for lack of jurisdiction; (2) whether the trial court’s entries

adequately address the counterclaim for declaratory judgment; (3) whether

Manley’s filings relating to her amended complaint dismissed the claim for

declaratory judgment; (4) whether the April 7, 2022 entry invoking the August 4,

2021 entry dismissed the counterclaims; and (5) whether the April 7, 2022 judgment

is a final, appealable order.

                       1. August 4, 2021 Judgment Entry

              In Manley’s brief, she contends the August 4, 2021 judgment entry was

void, not because the case was pending in the Ohio Supreme Court, but because she
was never served with Kent’s complaint and that, therefore, the trial court lacked

personal jurisdiction over her.

              “[I]n order to render a valid personal judgment, a court must have

personal jurisdiction over the defendant.” Maryhew v. Yova, 

,

 (1984).       A court may acquire personal jurisdiction over the

defendant “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.” 

 Whether the trial court had personal jurisdiction

over the defendant is a question of law subject to de novo review. Fraley v. Estate

of Oeding, 

, 

, 

.

              Manley asserted the defense of lack of service in her answer and

moved to dismiss Kent’s complaint, in part, due to lack of service.               (See

memorandum in support of defendant’s partial motion to dismiss the plaintiff’s

complaint dated Sept. 11, 2020.) If the affirmative defense of insufficiency of service

of process is properly raised in the answer, the party’s active participation in the

litigation does not constitute a waiver of that defense. Gliozzo v. Univ. Urologists of

Cleveland, Inc., 

, 

, 

, syllabus.

Thus, Manley preserved the affirmative defense of insufficiency of service of process.

              Kent’s complaint was sent, by certified mail, to Manley’s address and

someone signed for it. Civ.R. 4.1(A) provides that service of process may be made

by certified mail “‘evidenced by return receipt signed by any person * * * .’” Matteo
v. Principe, 8th Dist. Cuyahoga No. 92894, 

, ¶ 10, quoting Civ.R.

4.1(A); see also Belovich v. Crowley, 8th Dist. Cuyahoga No. 109523, 2021-Ohio-

2039, ¶ 31.

              “‘There is a rebuttable presumption of proper service when the civil

rules governing service are followed.’” Belovich at ¶ 31, quoting Roscoe v. Delfraino,

7th Dist. Mahoning No. 19 MA 0038, 

, citing Draghin v. Issa,

8th Dist. Cuyahoga No. 98890, 

. The presumption of proper

service can be rebutted, however, where a defendant presents sufficient evidentiary-

quality information demonstrating that service was not accomplished. McWilliams

v. Schumacher, 8th Dist. Cuyahoga Nos. 98188, 98288, 98390 and 98423, 2013-

Ohio-29, ¶ 51, citing Thompson v. Bayer, 5th Dist. Fairfield No. 2011-CA-00007,

.

              Manley does not dispute that service by certified mail was sent to her

home address. She contends she was not served with the complaint because

someone fraudulently signed her name on the certified mail receipt. However,

Manley did not present any evidence other than her own self-serving assertion that

her signature was forged by someone. “‘[A] party’s self-serving statement that he

[or she] did not receive service is generally insufficient to rebut the presumption of

service.’” Foster v. Benson, 8th Dist. Cuyahoga No. 107366, 

,

quoting Castanias v. Castanias, 12th Dist. Warren No. CA2009-11-152, 2010-Ohio-

4300, ¶ 11. See also Alcorso v. Correll, 8th Dist. Cuyahoga No. 110218, 2021-Ohio-

3351, ¶ 29 (same).
              Manley nevertheless contends we should find lack of service because

any lay person comparing the signature on the certified mail receipt with Manley’s

signature on her pleadings would conclude that they were not signed by the same

person. She cites Hook v. Collins, 8th Dist. Cuyahoga No. 104825, 

,

and Midland Funding, L.L.C. v. Cherrier, 8th Dist Cuyahoga No. 108595, 2020-

Ohio-3280, in support of her argument.

              In Hook and Midland Funding, we held:

       [T]he rebuttable presumption of proper service may be rebutted by
       evidence that the defendant did not reside, nor received mail, at the
       address to which such ordinary mail service was addressed. * * *

       “Where the defendant files a motion to vacate judgment, and swears
       under oath that he or she did not reside at the address to which process
       was sent, the presumption is rebutted, and it is incumbent upon the
       plaintiff to produce evidence demonstrating that defendant resided at
       the address in question.”

, quoting Watts v. Brown, 8th Dist. Cuyahoga No. 45638, 

, 14-15 (Aug. 4, 1983), citing Schumacher, 8th Dist. Cuyahoga Nos.

98188, 98288, 98390, and 98423, 2013-Ohio 29, at ¶ 51; See also Midland Funding

at ¶ 12.

              However, the plaintiffs in both Hook and Midland Funding attempted

to serve the defendants by certified mail, and the certified mail was returned to the

clerk as “unclaimed.” 

; Midland Funding at ¶ 3. Thereafter, the clerk

sent service to the defendants by ordinary mail, and the mailings were not returned.

In both cases, the plaintiffs obtained default judgments against the defendants, and

the defendants moved for relief from judgment pursuant to Civ.R. 60(B) claiming
lack of service.    The initial failure of service by certified mail in each case

corroborates the defendants’ subsequent testimony that they were never served

because they did not reside at the address where service was attempted. They

apparently had no knowledge of either case until after judgment had been rendered

against them.

                By contrast, Manley does not dispute that service was sent to the

address where she was living, and she filed an answer to the complaint in less than

two weeks from the date of service, despite the alleged failure of service. Therefore,

Hook and Midland Funding are distinguishable from the facts of this case, and we

find Belisle Constr. Inc. v. Perry, 3d Dist. Crawford No. 3-17-11, 

,

more on point.

                In Belisle Constr., the defendant attempted to rebut the presumption

of proper service by claiming that the signature on the certified mail receipt was not

his signature and that he was never served with the complaint. Like Manley, he did

not dispute the fact that service was attempted at the address where he was living.

Rather, he presented affidavits from himself and his ex-wife, averring that neither

of their signatures appeared on the signed certified mail receipt. Id. at ¶ 27. The

defendant also presented live testimony to that effect. The trial court rejected the

affidavits and testimony as “self-serving” and found that the defendant failed to

rebut the presumption of proper service. The Third District affirmed the trial court’s

judgment. Id. at ¶ 29-32.
              Self-serving testimony is insufficient to rebut the presumption of

proper service for obvious reasons; any party could change his or her signature in

order to claim lack of service. To allow parties to avoid service with self-serving

testimony would encourage abuse of the process and make it difficult to obtain

service. Manley did not provide any evidence, other than her own self-serving

testimony, to establish lack of service.        Therefore, she failed to rebut the

presumption of proper service, and the trial court had personal jurisdiction over

Manley.

              Kent argues the August 4, 2021 judgment entry was not void because

the administrative judge of the common pleas court entered a judgment on June 14,

2021, indicating that the case had been remanded from the court of appeals and was

being returned to the docket of the assigned judge. Kent further asserts that Manley

should have appealed from the August 4, 2021 judgment instead of the April 7, 2022

judgment entry, which would have made the filing of Manley’s notice of appeal on

May 4, 2022 untimely. However, Kent ignores the fact that the case was pending in

the Ohio Supreme Court at the time the administrative judge issued the June 14,

2021 judgment entry, purporting to return the case to the assigned judge.

              During the pendency of an appeal, the trial court is without

jurisdiction to proceed on the merits of any remaining claims until the case is

remanded to it by the higher court. Story v. Price-Story, 8th Dist. Cuyahoga No.

94085, 

, ¶ 7.         “An adjudication entered by a court without

jurisdiction is a nullity and is void.” 

 citing Fifth St. Realty Co. v. Clawson, 9th
Dist. Lorain No. 94CA005996, 

 (June 14, 1995);

Lambda Research v. Jacobs, 

, 

, 

 (1st Dist.).

               Manley appealed to the Ohio Supreme Court on June 11, 2021. The

Ohio Supreme Court declined jurisdiction over Manley’s appeal on August 31, 2021.

See Kent State Univ. v. Manley, 

, 

, 

. Therefore, the August 4, 2021 judgment entry is void for lack of jurisdiction

because it was entered while the case was pending in the Ohio Supreme Court.

                    2. Counterclaim for Declaratory Judgment
                          and Final, Appealable Order

               Manley argues the trial court adequately addressed the counterclaim

for declaratory judgment for purposes of determining whether there is a final,

appealable order because the court granted Kent’s motion to dismiss all of her

counterclaims. Kent similarly asserts that because the court dismissed all of the

counterclaims, it adequately disposed of the counterclaim for declaratory judgment.

However, as previously stated, “‘[W]hen a trial court enters a judgment in a

declaratory judgment action, the order must declare all of the parties’ rights and

obligations in order to constitute a final, appealable order.’” Klocker, 8th Dist.

Cuyahoga No. 92044, 

, at ¶ 13, quoting Stiggers, 8th Dist. No.

85418, 

.

               The trial court did not declare any of the parties’ rights or obligations

in disposing of Manley’s counterclaim for declaratory judgment. In its motion to
dismiss the counterclaim, Kent argued that the trial court lacked jurisdiction to

consider any of Manley’s claims because the Ohio Court of Claims has exclusive

jurisdiction over all civil suits brought against the state.

         R.C. 2743.03(A)(2) provides that when a claim for a declaratory
         judgment, injunctive relief, or other equitable relief against the state
         arises out of the same circumstances giving rise to a civil action over
         which the Court of Claims otherwise would have jurisdiction, the Court
         of Claims has exclusive, original jurisdiction to hear and determine that
         claim.

Interim Healthcare of Columbus, Inc. v. Ohio Dept. of Adm. Servs., 10th Dist.

Franklin No. 07AP-747, 

, citing Friedman v. Johnson, 

, 

 (1985).

                Because the court of claims has exclusive jurisdiction over any claims

Manley may have against Kent, one could infer that the trial court dismissed her

claim for declaratory judgment due to lack of subject-matter jurisdiction. However,

the lack of jurisdiction is not evident from the face of the November 10, 2020 order,

the August 4, 2021 order, or the April 7, 2022 order from which Manley appealed.

Moreover, neither party articulates whether the April 7, 2022 judgment entry

properly disposed of Manley’s counterclaims or whether it is a final, appealable

order.

                Manley did not address the question of whether her amended

counterclaim dismissed her previously filed counterclaim for declaratory judgment.

Kent argues, that Manley’s amended counterclaim, which did not include a claim for

declaratory judgment, replaced her previously filed counterclaim and disposed of
her claim for declaratory judgment. However, the trial court denied Manley’s

motion for leave to file an amended counterclaim. (See judgment entry dated Nov.

10, 2020.) Therefore, the amended counterclaim was never accepted by the court,

and the original counterclaim remained pending.

               As previously stated, the August 4, 2021 nunc pro tunc judgment entry

was a nullity because the trial court entered the judgment without jurisdiction while

the case was pending in the Ohio Supreme Court. The April 7, 2022 judgment entry

states, in relevant part:

      The court granted plaintiff’s motion for summary judgment on 09-14-
      20. Thereafter, on 08-04-21, the court dismissed all remaining
      pending claims.

      Case disposed.

              Because the August 4, 2021 judgment entry is a nullity, it did not

dismiss any “remaining claims,” and Manley’s counterclaims remained unresolved.

Since the August 4, 2021 judgment entry failed to dispose of the counterclaims, the

April 7, 2021 judgment entry’s reference to it is nothing more than a reiteration of a

nullity. And because the April 7, 2021 fails in its own right to adequately address

Manley’s counterclaims, those claims remain pending. Therefore, there is no final,

appealable order.

               Appeal dismissed.

      It is ordered that appellee recover from appellant costs herein taxed.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

ANITA LASTER MAYS, P.J., and
EMANUELLA D. GROVES, J., CONCUR