Castle Apartments, Inc. v. Allgood

Baird, J. This cause came on before the court upon the appeal by Castle Apartments, Inc. from the order of the trial court awarding damages and attorney fees to Eric Allgood. We affirm in part and reverse in part. Castle Apartments, Inc. filed a complaint for forcible entry and de-tainer against its tenant, Eric Allgood. On September 11,1986, service of process was sent by certified mail; it was returned unclaimed on September 22, 1986. On September 24, 1986, service was sent by ordinary mail. Allgood did not appear at the eviction trial; a writ of restitution was issued by the court on October 2, 1986. On October 10, 1986, Allgood’s property was set out on a nearby curb by the bailiff and employees of Castle Apartments. On October 22, 1986, the ordinary mail service was returned “moved left no address.” Subsequently Castle Apartments filed an amended complaint for back rent. Allgood answered and counterclaimed for violations of the Landlord-Tenant Act, for conversion and for punitive damages and attorney fees. After a trial Allgood was awarded damages for conversion (with a setoff for back rent) and attorney fees. Castle Apartments appeals. Assignments of Error “ 1. The trial court erred in granting judgment in favor of defendant on his counterclaim based upon incomplete service of process. ‘ ‘2. The trial court erred in granting judgment in favor of defendant on his counterclaim when the bailiff acting in obedience to a writ of possession which appeared prima facie regular and valid removes defendant’s property from the premises.” The trial court found that the judgment of eviction and consequent writ of restitution were void ab initio based on the failure of service of process. Castle Apartments claims that under Civ. R. 4.6 service was accomplished. Civ. R. 4.6(D) provides: “If a certified mail envelope is returned with an endorsement showing that the envelope was unclaimed, the clerk shall forthwith notify, by mail, the attorney of record or if there is no attorney of record, the party at whose instance process was issued. If the attorney, or serving party, after notification by the clerk, files with the clerk a written request for ordinary mail service, the clerk shall send by ordinary mail a copy of the summons and complaint or other document to be served to the defendant at the address set *165 forth in the caption, or at the address set forth in written instructions furnished to the clerk. * * * Service shall be deemed complete when the fact of mailing is entered of record, provided that the ordinary mail envelope is not returned by the postal authorities with an endorsement showing failure of delivery. If the ordinary mail envelope is returned undelivered, the clerk shall forthwith notify the attorney, or serving party, by mail.” It is undisputed that the second attempt at service was returned undelivered. Appellant urges us to consider that, at the time of the eviction, the service had not been returned. In Pittsburgh Hilton v. Reiss (1985), 22 Ohio App. 3d 134, 22 OBR 336, 489 N.E. 2d 1066, we concluded that: “Service of process under Civ. R. 4.6(D) is proper where plaintiff requests the court clerk to forward the complaint by ordinary mail to defendant’s resident address, after a certified mail delivery to defendant’s resident address is returned marked ‘unclaimed.’ ” Id. at paragraph one of the syllabus. However, in that case the ordinary mail envelope was never returned. In the case sub judice, the envelope was returned “moved left no address.” The Staff Notes to Civ. R. 4.6(D) make clear that the rule does not insure that service has been completed when it is sent by ordinary mail and delivery fails: «* * * Rule 4.6(D) does not provide for automatic completion of service, because it is not based on a knowing, conscious refusal of service of process. The party who is served by ordinary mail did not refuse the original service. The original service was merely not claimed. The return of the ordinary mail envelope with an endorsement showing failure of delivery reinforces the fact that the party served has not received notice. The possible reasons for the failure of delivery are myriad. The party sought to be served may have moved, the Postal Service employees may have made mistakes, the address furnished the clerk may have been incorrect, the clerk may have improperly addressed the ordinary mail envelope, or the party sought to be served may have artfully avoided the ordinary mail service. In any event, the ordinary mail envelope has been returned with an endorsement showing failure of delivery. Service is not complete.” Accordingly, service of the eviction complaint was never accomplished. Appellant cites Wholesale Electric & Supply, Inc. v. Robusky (1970), 22 Ohio St. 2d 181, 51 O.O. 2d 240, 258 N.E. 2d 432, for the proposition that, notwithstanding the defect in service, Castle Apartments should not have been liable for conversion as the bailiff was executing the writ which appeared valid on its face. Castle Apartments was neither a ministerial officer of a court nor one acting under him. Neither the bailiff nor those persons who actually moved the goods were found to be liable in conversion; therefore, the case cited by appellant is inap-posite. Castle Apartments converted Allgood’s property; the judgment relied upon was void, not merely voidable. Accordingly, Allgood’s collateral attack upon the judgment by way of the counterclaim for damages was appropriate. Appellant’s first two assignments of error are not well-taken. The third assignment of error states: “The trial court erred in granting defendant attorney fees.” The trial court found Castle Apartments was liable for attorney fees pursuant to R.C. 5321.15. That section of the Landlord-Tenant Act provides: “(A) No landlord of residential premises shall initiate any act, including termination of utilities or services, exclusion from the premises, or *166 threat of any unlawful act, against a tenant, or a tenant whose right to possession has terminated, for the purpose of recovering possession of residential premises, other than as provided in Chapters 1923., 5303., and 5321. of the Revised Code. a* * * “(C) A landlord who violates this section is liable in a civil action for all damages caused to a tenant, or to a tenant whose right to possession has terminated, together with reasonable attorneys fees.” It is undisputed that Castle Apartments initiated the action in order to recover the premises from Allgood. However, it is equally clear that the act which Castle Apartments initiated, the eviction procedure in forcible entry and detainer, is contained in R.C. Chapter 1923. We cannot conclude that Castle Apartments initiated any act other than as provided in R.C. Chapter 1923. As such is the case, Allgood was not entitled to an award of attorney fees under R.C. 5321.15 (C). Appellant’s third assignment of error is well-taken. Accordingly, we reverse the decision of the court as to attorney fees and affirm the judgment as modified. Judgment affirmed in part and reversed in part. Mahoney, J., concurs. Quillin, P.J., dissents.