Motion for Leave in KRISTEN M. SCALISE VS VENTURE CAPITOL HOLDINGS LLC, TRUSTEE| Trellis.Law

On June 30, 2017 a Motion,Ex Parte was filed involving a dispute between Scalise, Kristen, and Occupants, Piscazzi Enterprises Llc, Venture Capitol Holdings Llc, Trustee, for FORECLOSURE in the District Court of Summit County.

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CV-2017-06-2716 MLEA 10/13/2017 13:57:05 PM CROCE, CHRISTINE Page 1 of 30

IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY
STATE OF OHIO

KRISTEN SCALISE, as Fiscal Office of ) Case No. CV-2017-06-2716
Summit County, Ohio, )
) Judge: CHRISTINE CROCE
Plaintiff, )
) 1. MOTION FOR LEAVE TO FILE
-vs.- ) ANSWER BY DEFENDANT
) VENTURE CAPITOL HOLDINGS
VENTURE CAPITOL HOLDINGS LLC, ) LLC, TRUSTEE OF THE 810
TRUSTEE OF THE 810 FESS LAND ) FESS LAND TRUST
TRUST, et al., )
) 2. EXHIBITS A – I
Defendants. )
) 3. CERTIFICATE OF SERVICE
)

Now comes, VENTURE CAPITOL HOLDINGS LLC, TRUSTEE OF THE 810 FESS

LAND TRUST, Defendant herein, by and through its attorney, Robert C. Meeker, of Blakemore,

Meeker & Bowler Co., L.P.A., and hereby moves this Honorable Court for leave to file answer to

the Amended Complaint, filed by KRISTEN SCALISE, as Fiscal Office of Summit County, Ohio,

Plaintiff herein. This motion is made pursuant to Rules 4.1, 4.4, 4.6 and 6 of the Ohio Rules of Civil

Procedure (Civ.R.), Local Rule 7.13 of the Local Rules of the General Division of the Court of

Common Pleas, Summit County, Ohio (L.R.), the Due Process Clause of the Fourteenth Amendment

to the United State Constitution and memorandum, below.

MEMORANDUM IN SUPPORT OF MOTION

A. PROCEDURAL BACKGROUND

The complaint in this case was filed on June 30, 2017. On June 30, 2017, Plaintiff caused

service of the summons and complaint, through the Summit County Clerk of Courts, upon

Defendant, via certified mail, with Tracking ID No. 92148901577446000000396900, and regular

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mail to c/o Don and Donald B. Hallowes, respectively, at 6100 East Main Street, Ste. 108,

Columbus, Ohio 43213. (See Service online page of the website of the Summit County Clerk of

Courts, attached as Exhibit A) The attempted service, via certified mail, was returned to the Clerk

of Courts, the sender, on August 3, 2017 because, according to the U. S. Postal Service (USPS), it

was not deliverable as addressed. (See copy of online receipt retrieved from the USPS website,

attached as Exhibit B)

In the meantime, Plaintiff amended her complaint on July 11, 2017. On the same day,

Plaintiff filed an amended instructions for service, requesting the Summit County Clerk of Courts

to serve Defendant with the summons and amended complaint, via certified mail and regular mail.

(See copy of instructions for service, filed July 11, 2017, attached as Exhibit C) The Clerk of Courts

issued summons on July 14, 2017. The summons, however, was for service of the “Complaint” and

not the Amended Complaint. (See copy of Summons, filed July 14, 2017, attached as Exhibit D)

The Clerk of Courts attempted to serve Defendant with the summons and “Complaint,” via certified

mail, with Tracking ID No. 92148901577446000000404308, and regular mail to c/o Gary Thomas,

71 Cotter Avenue, Akron, Ohio 44305. (Exhibit A) On July 20, 2017, the certified mail could not

be delivered because there was a “problem with [the] address.” (See copy of online receipt retrieved

from the USPS website, attached as Exhibit E) Despite the problem with the address, according to

USPS, the certified mail was refused on August 3, 2017. Id. The certified mail was returned to the

Clerk of Courts on August 9, 2017. Id. The record does not indicate the identity of the individual

who refused the certified mail.

On July 20, 2017, Plaintiff’s counsel, Peter Nischt, filed an Affidavit for Service by

Publication. The affidavit states, in part:

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Peter Nischt, Assistant Prosecuting Attorney, being first duly sworn according to law,
deposes and says that he is the attorney for Plaintiff Kristen M. Scalise, as Summit County
Fiscal Officer, that service of summons cannot be made upon the Defendant(s) Venture
Capitol Holdings LLC., Trustee of the 810 Fess Land Trust, . . . the address(es) of said
Defendant(s) is/are unknown to the affiant and cannot, with reasonable diligence, be
ascertained. In compliance with the provision of ORCP section 4.4 (a) stating that “all of
the efforts made on behalf of the party to ascertain the residence of the defendant”, the
affiant submits the following as a description of the efforts made to ascertain Defendant’s
address:

Summit County Fiscal Officer’s Tax Records

Summit County Clerk of Courts computer

Akron Municipal Court website

Barberton Municipal Court website

Clear Public Records search

Summit County Probate Records.

This notice should be published once a week for three (3) consecutive weeks, pursuant to
O.R.C. 5721.18(A).

(See Affidavit for Service by Publication, filed July 20, 2017, attached as Exhibit F)

On September 7, 2017, Proof of Publication was filed with the Court by the Akron Legal

News, the publisher in this case, which states, in part:

The undersigned, being first duly sworn, says that he/she is employed by The Akron Legal
News, a daily newspaper, and of general circulation in Summit County, Ohio; that he/she
checks the legal notices published in said newspaper; that the annexed notice was published
in said AKRON LEGAL NEWS, once each week for;

3 consecutive weeks, beginning on the

8TH day of AUGUST, 2017

and that each insertion of said notice in said newspaper was on the same day of each week.

***

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Venture Capitol Holdings LLC, Trustee of the 810 Land Trust, . . . whose addresses cannot
with the exercise of reasonable diligence be ascertained and upon whom service of summons
cannot be had in the State of Ohio, will take notice that on June 30, 2017, Kristen M. Scalise,
Summit County Fiscal Officer, Plaintiff, filed a Complaint in the Common Pleas Court of
Summit County, Ohio, being Case Number: CV2017 06 2716, to foreclose the tax liens on
permanent parcel number 67-43916. ***

***

The defendants are hereby required to answer and set up any claim that they may have in
said premises or be forever barred, that the Plaintiff be found to have a first and best lien on
said premises for the amount so owing.

Said above named defendants will further take notice that they are required to answer the
Complaint on or before 19th day of September, 2017.

(See Proof of Publication, filed September 7, 2017, attached as Exhibit G)

On September 30, 2017, pursuant to L.R. 7.13, Defendant filed a request for leave to plead

to file its answer to the Amended Complaint. On October 2, 2017, this Court struck Defendant’s

request for leave on the ground that it was untimely. The Court found, as follows:

Defendant was served by publication as of August 22, 2017. Pursuant to Civ. R. 12(A)(1),
Defendant had 28 days after August 22, or until September 19, 2017, to file an Answer or
otherwise plead in this matter. Defendant’s Request for Leave to Plead is therefore
untimely, and the same is stricken from the record.

The Court erred in striking Defendant’s request for leave to plead. Further, to this day,

Defendant has not been properly served with process. As such, this Court lacks personal jurisdiction

over Defendant.

B. LAW AND ANALYSIS

1. Service by Certified Mail and Ordinary Mail

Civ.R. 4.1, Process: Methods of Service, states, in part:

All methods of service within this state, except service by publication as provided in Civ.R.
4.4(A), are described in this rule. ***

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(A) Service by clerk.

(1) Methods of service.

(a) Service by United States certified or express mail. Evidenced by
return receipt signed by any person, service of any process shall be
by United States certified or express mail unless otherwise permitted
by these rules. The clerk shall deliver a copy of the process and
complaint or other document to be served to the United States Postal
Service for mailing at the address set forth in the caption or at the
address set forth in written instructions furnished to the clerk as
certified or express mail return receipt requested, with instructions to
the delivering postal employee to show to whom delivered, date of
delivery, and address where delivered.

***

(2) Docket entries; Return. The clerk shall forthwith enter on the
appearance docket the fact of delivery to the United States Postal Service for
mailing . . ., and make a similar entry when the return receipt is received. If
the return shows failure of delivery, the clerk shall forthwith notify the
attorney of record . . . and enter the fact and method of notification on the
appearance docket. The clerk shall file the return receipt or returned
envelope in the records of the action.

Civ.R. 4.6, Process: Limits; Amendment; Service Refused; Service Unclaimed, states, in part:

***

(C) Service refused. If attempted service of process by United States certified or
express mail . . . within or outside the state is refused, and the certified or express
mail envelope . . . shows such refusal, . . ., the clerk shall forthwith notify the
attorney of record . . . and enter the fact and method of notification on the appearance
docket. 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 United States
ordinary mail a copy of the summons and complaint or other document to be served
to the defendant at the address set forth in the caption, or at the address set forth in
written instructions furnished to the clerk. The mailing shall be evidenced by a
certificate of mailing which shall be completed and filed by the clerk. Answer day
shall be twenty-eight days after the date of mailing as evidenced by the certificate of
mailing. The clerk shall endorse this answer date upon the summons which is sent
by ordinary mail. Service shall be deemed complete when the fact of mailing is
entered of record. Failure to claim United States certified or express mail . . . is not
refusal of service within the meaning of this division. This division shall not apply

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if any reason for failure of delivery other than “Refused” is also shown on the United
States certified or express mail envelope.

In this case, Plaintiff, who is responsible for effecting proper service of process upon a

defendant, failed to comply with the requirements of Civ.R. 4.1 and Civ.R. 4.6. Plaintiff attempted

service of the initial complaint upon Defendant, via certified mail, on July 3, 2017. Before this

service could be accomplished under Civ.R. 4.1 and Civ.R. 4.6, Plaintiff amended her complaint on

July 11, 2017. As a result, the amended complaint superseded the initial complaint. See Hidey v.

Ohio State Highway Patrol, 116 Ohio App.3d 744, 748 ( 10th Dist. 1996), citing Abram & Tracy,

Inc. v. Smith (1993), 88 Ohio App.3d 253, 263; Steiner v. Steiner (1993), 85 Ohio App.3d 513, 519.

[Parallel cites omitted.] Thus, the initial complaint is treated as if it did not exist. See Morris v.

Morris, 189 Ohio App.3d 608, ¶32 (10th Dist. 2010), citing Carlock v. Coleman, No. 89 C.A. 121,

1990 WL 121874 (7th Dist. 1990), quoting 75 Ohio Jurisprudence Pleading, 343, Section 469 (“‘it

is hornbook law that an amended pleading supersedes the original, the latter being [treated]

thereafter as nonexistent’”). No proper service was effected on the initial complaint.

Plaintiff then attempted service of the Amended Complaint, via certified mail and ordinary

mail on July 14, 2017. The Clerk of Courts issued summons. However, the summons refers to a

“Complaint,” rather than “Amended Complaint.” Thus, the record indicates that, although Plaintiff

requested that the Amended Complaint be served upon Defendant, the Clerk of Courts was

attempting to serve the original complaint, which had been superseded by the Amended Complaint.

Further, the Clerk of Courts was effecting service, via certified mail and ordinary mail on

the same day. The certified mail was refused. Plaintiff was notified of this refusal on August 10,

2017. (See copy of online Docket of the Summit County Clerk of Courts, attached as Exhibit H)

Upon notification of such refusal, to perfect service, Plaintiff was required to issue instructions to

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the Clerk of Courts to serve Defendant by ordinary mail. Plaintiff did not. Accordingly, service

upon Defendant, pursuant to Civ.R. 4.1 and Civ.R. 4.6, was defective.

Although Plaintiff requested service by regular mail on the same day, this procedure is

improper, as contemplated by Civ.R. 4.1 and Civ.R. 4.6. Civ.R. 4.1 and Civ.R. 4.6 provide

sequential steps to follow in the event that the Plaintiff selects the Clerk of Courts to effect service

by certified or express mail. Pursuant to Civ.R. 4.6(C), or subsection (D), if the certified mail is

returned “unclaimed,” Plaintiff or her counsel must first be notified of the failure of service by

certified mail prior to requesting service by ordinary mail. On August 10, 2017, Plaintiff was

notified of the failure of service by certified mail. The record does not show that Plaintiff followed

up with an instruction for service by ordinary mail. Therefore, no service of process was made on

the “complaint” or “amended complaint.”

2. Service by Publication

On July 20, 2017, Plaintiff’s counsel filed an Affidavit for Service by Publication. The

affidavit essentially indicates that publication is the only necessary means to effectuate service

because “all . . . efforts [were] made on behalf of the party to ascertain the residence of the

defendant.” Accordingly, the affidavit suggests that Defendant’s address could not be found.

Search for Defendant’s address were made in and at the following areas:

1. Summit County Fiscal Officer’s Tax Records.

2. Summit County Clerk of Courts computer.

3. Akron Municipal Court website.

4. Barberton Municipal Court website.

5. Clear Public Records search.

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6. Summit County Probate Records.

Civ.R. 4.4, Process: Service by Publication, states, in part:

(A) Residence unknown.

(1) Except in an action governed by division (A)(2) of this rule, if the residence
of a defendant is unknown, service shall be made by publication in actions
where such service is authorized by law. Before service by publication can
be made, an affidavit of a party or his counsel shall be filed with the court.
The affidavit shall aver that service of summons cannot be made because the
residence of the defendant is unknown to the affiant, all of the efforts made
on behalf of the party to ascertain the residence of the defendant, and that the
residence of the defendant cannot be ascertained with reasonable diligence.

***

(B) Residence known. If the residence of a defendant is known, and the action is one
in which service by publication is authorized by law, service of process shall be
effected by a method other than by publication as provided by:

(1) Rule 4.1, if the defendant is a resident of this state,

(2) Rule 4.3(B) if defendant is not a resident of this state, or

(3) Rule 4.5, in the alternative, if service on defendant is to be effected in a
foreign country.

If service of process cannot be effected under the provisions of this subdivision or
Rule 4.6(C) or Rule 4.6(D), service of process shall proceed by publication.

In this case, a brief search of Google’s internet search engine reveals the address of

Defendant. Google directs the searcher to the website of Ohio Corporates – Company Profiles of

Ohio. The website of Ohio Corporates – Company Profiles of Ohio provides the address of

Defendant’s agent, Gary Thomas. Mr. Thomas’s address is located at 71 Cotter Avenue, Akron,

Ohio 44305. (See copy of the websites page of Ohio Corporates – Company Profiles of Ohio,

showing Defendant’s agent’s address, attached as Exhibit I) Indeed, Plaintiff located and had

knowledge of this address, as it attempted to serve Defendant with the alleged amended complaint

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to Gary Thomas, at 71 Cotter Avenue, Akron, Ohio 44305. Because the address of Defendant is

known in this case, service by publication is unavailable for Plaintiff to effectuate service of process.

As recent as July 31, 2017, Judge Mary Margaret Rowlands vacated the service by

publication initiated by the Plaintiff herein because it was conducted prematurely, in that Plaintiff

failed to comply with Civ.R. 4.1 and Civ.R. 4.6. See Kristen M. Scalise v. MGR Construction LC,

et al., Summit County Court of Common Pleas, Case No. CV-2017-07-2729, Order entered on July

31, 2017. Also, on August 24, 2017, the service by publication initiated by Plaintiff herein was

vacated by Judge Alison McCarty on similar ground. See Kristen M. Scalise v. Marcia Realty, LLC,

et al, Summit County Court of Common Pleas, Case No. CV-2017-07-2728, Order entered on

August 24, 2017. Here, Plaintiff sought service by publication before receiving the notice of failure

of service by certified mail. Further, Plaintiff has failed to demonstrate that Defendant cannot be

served at 71 Cotter Avenue, Akron, Ohio. Service by publication under the circumstances of this

case was, and is, not only premature, but also unavailable.

3. Fourteenth Amendment to the U. S. Constitution

Assuming arguendo, without admitting, that service by publication was available to Plaintiff.

Defendant’s constitutional right to due process was violated. The Fourteenth Amendment to the U.

S. Constitution states, in part:

[No] shall . . . State deprive any person of life, liberty, or property, without due process of
law[.]

Civ.R. 12(A)(1) provides the process that is due with regard to responsive pleadings, upon service

of the summons and complaint or service by publication. It states:

The defendant shall serve his answer within twenty-eight days after service of the summons
and complaint upon him; if service of notice has been made by publication, he shall serve
his answer within twenty-eight days after the completion of service by publication.

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The first clause of Civ.R. 12(A)(1) is inapplicable because Defendant was not properly served under

Civ.R. 4.1 and Civ.R. 4.6. As to the second clause, Defendant’s constitutional rights were violated

because, pursuant to Civ.R. 12(A)(1), and Civ.R. 4.4, it was not provided with the full 28 days in

which to answer the complaint.

This action, in rem, is brought pursuant to Sections 323.25 and 5721.18(A) of the Ohio

Revised Code (R.C.). R.C. §5721.18(A) states, in part:

(A) This division applies to all foreclosure proceedings not instituted and prosecuted
under section 323.251 of the Revised Code or division (B) or (C) of this section. The
foreclosure proceedings shall be instituted and prosecuted in the same manner as is
provided by law for the foreclosure of mortgages on land, except that, if service by
publication is necessary, such publication shall be made once a week for three
consecutive weeks instead of as provided by the Rules of Civil Procedure, and the
service shall be complete at the expiration of three weeks after the date of the first
publication. * * *2

Here, the Proof of Publication submitted by Akron Legal News states that publication

commenced on August 8, 2017 for three consecutive weeks. The Proof of Publication also states

that the defendants must “answer the Complaint on or before 19th day of September, 2017.”

Defendant in this case had not been provided with 28 days in which to file an answer, since the

expiration of three weeks after the date of the first publication was August 29, 2017. The 28th day

from August 29, 2017 falls on September 26, 2017. Requiring Defendant to file the answer on or

1
Because Plaintiff has brought this action under R.C. §323.25, there is a question whether R.C. §5721.18(A)
applies.
2
The last sentence of the first paragraph of R.C. §5721.18(A) states:

In any proceeding prosecuted under this section, if the prosecuting attorney determines that service upon a
defendant may be obtained ultimately only by publication, the prosecuting attorney may cause service to be
made simultaneously by certified mail, return receipt requested, ordinary mail, and publication.

Although service may be made simultaneously by certified mail, return receipt requested, ordinary mail, and publication,
this procedure is unavailable because service can be made upon Defendant under Civ.R. 4.1 and Civ.R. 4.6.

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before September 19, 2017 was a violation of its constitutional right to due process.

C. CONCLUSION

Based on the above, it was error for the Court to strike Defendant’s request for leave to plead

as untimely. Indeed, the circumstances provide that it may have been filed prematurely. Further,

this Court does not have personal jurisdiction over Defendant for failure of service of process.

Dated: Akron, Ohio, October 13, 2017.

Respectfully submitted,

/s/ Robert C. Meeker
ROBERT C. MEEKER (#0013019)
Blakemore, Meeker, Bowler, Co., L.P.A.
495 Portage Lakes Drive
Akron, Ohio 44319
330-253-3337 [voice]
330-253-4131 [facsimile]

Attorney for Defendant
VENTURE CAPITOL HOLDINGS LLC,
TRUSTEE OF THE 810 FESS LAND
TRUST

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CERTIFICATE OF SERVICE

A true and accurate copy of the document(s) attached hereto was/were filed electronically

on the date indicated below. Notice and service of this filing will be sent by and through the

operation of the Court’s electronic filing system to all parties participating in the Court’s electronic

filing system, pursuant to Rule 5(B)(2) of the Ohio Rules of Civil Procedure. Parties may access

a copy of this filing through the Court’s system.

Dated: Akron, Ohio, October 13, 2017.

Respectfully submitted,

/s/ Robert C. Meeker
ROBERT C. MEEKER (#0013019)
Blakemore, Meeker, Bowler, Co., L.P.A.
495 Portage Lakes Drive
Akron, Ohio 44319
330-253-3337 [voice]
330-253-4131 [facsimile]

Attorney for Defendant
VENTURE CAPITOL HOLDINGS LLC,
TRUSTEE OF THE 810 FESS LAND
TRUST

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Sandra Kurt, Summit County Clerk of Courts
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Case Detail PM CROCE, CHRISTINE Page 13 of 30
Summit County Clerk of Courts

KRISTEN M. SCALISE VS VENTURE CAPITOL HOLDINGS LLC, TRUSTEE
Case Number: CV-2017-06-2716 File Date: 06/30/2017 Case Type: FORECLOSURE Judge: CHRISTINE CROCE

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Issued Writ Service Service
Party Name Status Tracking ID Document
Date Type Date Type
OCCUPANTS
Certified Document
810 FESS AVENUE AKRON OH 07/03/2017 Unclaimed 92148901577446000000396887
Mail 1
44307-
OCCUPANTS Certificate Document
07/03/2017 Mailed n/a
810 Fess Avenue Akron OH 44307 of Mailing 2

PISCAZZI ENTERPRISES LLC
C/O JOSEPH PISCAZZI 2860 Certified Document
07/03/2017 07/07/2017 Served 92148901577446000000396894
MARCIA BLVD. CUYAHOGA Mail 3
FALLS OH 44223-
PISCAZZI ENTERPRISES LLC
Certificate Document
c/o Joseph Piscazzi 2860 Marcia 07/03/2017 Mailed n/a
of Mailing 4
Blvd. Cuyahoga Falls OH 44223
VENTURE CAPITOL HOLDINGS
LLC, TRUSTEE
OF THE 810 FESS LAND TRUST, Not Delv. Certified Document
07/03/2017 92148901577446000000396900
C/O DON 6100 EAST MAIN As Addr. Mail 5
STREET, STE. 108 COLUMBUS
OH 43213-
VENTURE CAPITOL HOLDINGS
LLC, TRUSTEE
of the 810 Fess Land Trust, c/o Not Delv. Certificate Document
07/03/2017 n/a
Donald B. Hallowes 6100 East As Addr. of Mailing 6
Main Street, Ste. 108 Columbus
OH 43213
OCCUPANTS
Certified Document
810 FESS AVENUE AKRON OH 07/14/2017 07/21/2017 Served 92148901577446000000404285
Mail 7
44307-
PISCAZZI ENTERPRISES LLC
C/O JOSEPH PISCAZZI 2860 Certified Document
07/14/2017 Unclaimed 92148901577446000000404292
MARSHA BLVD. CUYAHOGA Mail 8
FALLS OH 44223-
VENTURE CAPITOL HOLDINGS
LLC, TRUSTEE Certified Document
07/14/2017 Refused 92148901577446000000404308
C/O GARY THOMAS 71 COTTER Mail 9
AVE AKRON OH 44305-
OCCUPANTS Certificate Document
07/14/2017 Mailed n/a
810 Fess Avenue Akron OH 44307 of Mailing 10

PISCAZZI ENTERPRISES LLC
Certificate Document
c/o Joseph Piscazzi 2860 Marsha 07/14/2017 Mailed n/a
of Mailing 11
Blvd. Cuyahoga Falls OH 44223
VENTURE CAPITOL HOLDINGS
LLC, TRUSTEE Certificate Document
07/14/2017 Mailed n/a
C/O GARY THOMAS 71 COTTER of Mailing 12
AVE Akron OH 44305

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CHRISTINE CROCE Track Judge’s New Case

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Document Filed Date

October 13, 2017

Case Filing Date

June 30, 2017

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Motion,Ex Parte: KRISTEN M. SCALISE VS VENTURE CAPITOL HOLDINGS LLC, TRUSTEE

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