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EID. ORl^IINIAL JUN 29?009 CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO

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ORl^IINIAL

IN THE SUPREME COURT OF OHIO

DUANE BOWERS, Appellee, -vs-JAMIE CRAVEN, Appellant. CASE NO.: ® 9°" ^ ^ 82 On Appeal from the Summit County Court of App eals, Case No. CA-24422, Ninth Appellate District

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT, JAMIE CRAVEN

Eric J. Stecz,(0067220) (Counsel of Record) BAKER, DUBLIKAR, BECK,

WILEY & MATHEWS 400 South Main Street North Canton, OH 44720 Telephone: 330) 499-6000 Telecopier: (330) 499-6423 stecz^cdbaker$rm. com Counsel for Appellant

John D. Lambert (0031656)

LAMBERT & McDONALD CO., LPA 265 South Main Street

Akron, OH 44308

Telephone: (330 434-5444 Telecopier: (330) 376-0076 'lambertneo.rr.com

Counsel orfAppellee

EID

JUN 29 ?009

CLERK OF COURT

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TABLE OF CONTENTS

Page EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC

OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL

CONSTITUTIONAL QUESTION . . . , . . . 1 STATEMENT OF THE CASE AND FACTS . . . 2 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW . . . 4 PROPOSITION OF LAW NO. 1

WHEN ITEMS ARE MISSING FROM THE RECORD ON APPEAL, THROUGH NO FAULT OF APPELLANT, AND THE MISSING DOCUMENTS ARE NOT NECESSARY TO DETERMINE THE ISSUE PRESENTED BY APPELLANT, THE MATTER SHOULD BE REVERSED AND REMANDED TO THE APPELLATE COURT FOR CONSIDERATION ON

THE MERITS ... 4

PROPOSITION OF LAW NO. 2

CIV.R. 4.6(D) REQUIRES THE CLERK OF COURTS TO FILE A CERTIFICATE OF MAILING FROM THE UNITED STATES

POSTAL SERVICE . . . 6 CONCLUSION ...9 PROOF OF SERVICE . . . 9

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EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST

The question of whether a trial court can obtain personal jurisdiction by ordinary mail service pursuant to Civ.R. 4.6(D) without a certificate of mailing from the United States Postal Service is of public or great general interest. This Court has defined "public or great general interest" as "novel questions of law or procedure (which) appeal not only to the legal profession but also to this Court's collective interest in jurisprudence." Noble v. Colwell (1989), 44 Ohio St.3d 92. Additionally, discretionary appeals involving "public or great general interest" involve substantial and complex topics of statewide interest. See DeRolnh v. State (1997), 78 Ohio St.3d 193.

In the case of compliance with Civ.R. 4.6(D), different courts in Ohio have reached different conclusions. The Ninth District Court of Appeals in this case has determined that the certificate of mailing from the United States Postal Service is not required. However, the Seventh District Court of Appeals in McIn e and Karas has held that the certificate of mailing from the United States Postal Service is required for compliance with Civ.R. 4.6(D). As such, a conflict exists between the Ninth District and Seventh District Courts of Appeal.

In addition, ordinary mail service is routinely utilized in every county throughout the State of Ohio. In order to resolve this conflict and bring clarity and uniformity to what constitutes compliance with CivR.4.6(D), it is most respectfully submitted that this case presents a case of great general interest, and therefore should be accepted on appeal.

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STATEMENT OF THE CASE AND FACTS

This case arises out of an alleged traffic accident which occurred on or about October 2, 2001. As a result of that accident, appellee, Duane Bowers ("Bowers"), filed a complaint in the Summit County Court of Common Pleas on September 30, 2002. When appellee filed his complaint, he requested that the Clerk serve the complaint upon Craven by certified mail. On October 1, 2002, the Clerk issued a summons with a copy of Bower's complaint to Craven by certified mail at 1898 Lancaster Street, Cuyahoga Falls, Ohio. That certified mail was never served upon Craven and on October 23, 2002, the Clerk notified Bowers of the failure to obtain certified mail service. On November 19, 2002, plaintiff filed instructions for certified mail service with the Clerk instructing the Clerk to send the summons and complaint by certified mail to Craven at 664 Flora Avenue, Akron, Ohio. Pursuant to that request, the Clerk issued a new summons with a copy of the complaint and

sent it to Craven by certified mail to the address specified on November 26, 2002. On December 9, 2002, notification of failure to obtain certified mail service was sent to Bowers. Bowers then requested that the Clerk serve Craven by regular mail at the 664 Flora Avenue, Akron, Ohio, address. According to the trial court's docket, the Clerk sent a summons with a copy of the complaint to Craven at the Flora Avenue address by regular mail on December 27, 2002. No certificate of mailing from the United States Postal Service was filed by the Clerk. No envelope sent by regular mail to Craven containing the summons and complaint was returned to the Clerk as undeliverable.

Appellant, Jamie Craven ("Craven"), never filed an answer. Bowers filed a motion for default judgment based upon a lack of response from Craven. Pursuant to Bowers' motion, the trial court granted Bowers default judgment on July 14, 2003 in the amount of One Hundred Thousand Dollars ($100,000.00) plus interest at the statutory rate and the cost of the proceeding.

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On December 7, 2007, Craven filed a motion to vacate default judgment supported by her affidavit. Pursuant to her affidavit, Craven was not living at the 664 Flora Avenue address in December, 2002, and she never received service of Bowers' complaint. After conducting a hearing, and despite the fact that no certificate of mailing from the United States Postal Service documenting that the summons and complaint had been sent to Craven by regular mail was filed with the Clerk, the trial court denied Craven's motion to vacate default judgment on August 21, 2008.

Craven filed her notice of appeal on September 19, 2008, and in accordance with App.R. 9(B), ordered from the court reporter the entire record and all documents and transcripts filed in the case. On October 30, 2008, the court notified Craven that the Transcript of Docket and Journal Entries had been filed.

Both parties submitted timely briefs, neither party asserting that the record was incomplete. The Ninth District Court of Appeals affirmed the decision of the trial court, not on the merits but because the Appellate Court stated the record was incomplete. A copy of the Appellate Court's Decision and Journal Entry is attached hereto as Exhibit "A". Relying on Talarek v. Miles (July 23, 1997), 9`h Dist. No. 96CA006567, the Court found the mailing in this case was evidenced by a certificate of mailing, completed by the clerk, stamped on Bowers' request for service by regular mail. The Court also found the fact of mailing was separately entered of record on December 27, 2002, and the regular mail envelope was not returned to the court, thus the presumption of completed service attached.

While the Court of Appeals recognized that presumption of completed service is rebuttable by sufficient evidence that service was not accomplished, the Court held the record in this case contains only an incomplete copy of Craven's motion to vacate the default judgment, terminating in the middle of her argument, and containing no appendix of exhibits. Therefore, without Craven's affidavit regarding service in the record, and without a transcript

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of the August 20, 2008 motion to vacate hearing, the Court presumed regularity in the trial court's proceedings and affirmed the judgment of the trial court.

Craven filed a motion to reconsider, stating that she only argued the insufficiency of the trial court's service by ordinary mail due to its failure to document that service with a certificate of mailing from the United States Postal Service. As such, the items noted as missing from the record are not necessary to determine the issue presented by appellant, and the Appellate Court had all of the information it needed to determine whether or not the trial court abused its discretion based on a failure to comply with Civ.R. 4.6(D).

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

1. When Items Are Missine from the Record on Agpeal, Throueh No Fault of Appellant, and the Missing Documents Are Not Necess to Determine the Issue Presented b y Appellant, the Matter Should Be Reversed an Remanded to the Appellate Court for Consideration on the Merits.

"Fairness and justice are best served when a court disposes of a case on the merits." In re Holmes, 104 Ohio St.3d 664, 2004-Ohio-7109, citing DeHart v. Aetna Life Ins. Co. (1982), 69 Ohio St.2d 189. Here, the appellate court determined it could not decide the case on the merits because the record was incomplete, containing only an incomplete copy of Craven's motion to vacate the default judgment, terminating in the middle of her argument, and containing no appendix of exhibits. Not only were these immaterial mistakes not the fault of appellant Craven, but she was not even made aware of them until she received the Appellate Court's decision.

As this Court stated in In re Holmes, Ohio's Rules of Appellate Procedure recognize that mistakes can be made in the filing of a record and provide ways to fix deficiencies. Id. at ¶ 12. Here, the Court of Appeals had the ability on its own initiative to direct the correction of the record prior to judgment. App.R. 9(E) provides

If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties b y stipulation, or the trial court, either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that

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omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted.

In the instant case, appellant maintains that not only were the missing documents immaterial to her assignments of error, but the documents were missing through no fault of her own. See In re Holmes, citing Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d

197. Craven filed a Praecipe to the Court Reporter to prepare and file in the Court of Appeals, Summit County, Ohio, Ninth Appellate District the entire record and all documents and transcripts filed in this case. Anything missing from the record, as indicated by the Court of Appeals in its decision was immaterial to the sole issue presented, to wit: The clerk of courts did not comply with civ. R. 4.6(d) by failing to file a certificate of mailing from the United States Postal Service. Otherwise, Craven was unaware about the deficient record until after the appellate court ruled.

Craven did not have the legal duty to stand over the trial court clerk's shoulder to ensure that all the pleadings were completely filed, along with all exhibits. The proper transmission of the record was the duty of the trial court clerk pursuant to App.R. 10(B). Craven should not have to suffer an injustice because of the malfeasance of the court reporter. Craven was seeking a reversal of a default judgment award of $100,000 and lost a chance to have his case heard on the merits because of an incomplete trial record. The trial record was incomplete through no fault of Craven. Nothing in the record suggests that Craven should have been aware of the deficiencies.

Accordingly, the appellate court's failure to employ the corrective measures set forth in App.R. 9(E) constitutes an abuse of discretion. In re Holmes, supra. Appellant respectfully requests that this Honorable Court reverse the judgment of the Court of Appeals and remand the cause to that court for a correction of the record and consideration on the merits.

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II. Civ R 4 6L) Requires the Clerk of Courts to File a Certificate of Mailing from the United States Postal Service.

As no certificate of mailing from the United States Postal Service had been filed in this case, the trial court lacked personal jurisdiction over Craven. "A default judgment rendered against a party over whom the court lacks personal jurisdiction is void". Lincoln Tavern Inc. v. Snader (1956), 165 Ohio St. 61, 64. "Personal jurisdiction can be obtained through service of process, voluntary appearance or waiver." Maryhew v. Yova (1984), 11 Ohio St.3d 154, 156. Here, it is without dispute that Craven did not enter a voluntary appearance and did not waive service of process. As such, Bowers was required to perfect service on Craven before the Court could obtain personal jurisdiction over her.

After his attempts at certified mail service failed, Bowers asked the trial court to serve Craven by regular mail. Service by regular mail is governed by Civ. R. 4.6(D) which states that:

If a certified or express 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 com laint or other document to be served to the defendant at the adpdress set forth in the caption, or at the address set forth in written instructions furnished to the clerk. The mailing shall be evidenced b a certificate of mailing which shall be completed and fled 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, 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 attotney, or serving party, by mail. (emphasis added).

As required by Civ. R.4.6(D), Bowers filed a written request for ordinary mail service with the Clerk. See, Instructions for Regular Mail Service. The Ninth District Court of Appeals has held that Civ.R. 4.6(D) requires the filing of a certificate of mailing from the United

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States Postal Service to document regular mail service. "Civ. R.4.6(D) requires that the trial court clerk file a`certificate of mailing' to show that the summons was sent by ordinary mail. A'certificate of mailing' contemplates a confirmation of mailing by the United States Postal Service. See Staff Notes to Civ.R.4.6(D)." General Motors Acceptance Corp. v. Kollert, 33 Ohio App.3d 274, 275 (9`" Dist. 1986) (emphasis added).' A letter filed by the Clerk of Courts stating that the summons was sent is not sufficient to comply with the requirements of Civ.R.4.6(D).

In addition to the Ninth District's holding in Kollert requiring a certificate of mailing from the United States Postal Service, the Seventh District Court of Appeals has held that "[i]t was error on the part of the Clerk of Courts to attempt to effect regular mail service by ordinary mail of the complaint and of the answer and cross claim and evidence such mailing by its own certificate of mailing. Federal National Mortgaae Assoc. v. Mclntvre (Aug. 28, 1996), 7tB Dist. No. 95-CO-23. The Seventh District, citing the staff notes to Civ.R.4.6(D), explained the rationale behind requiring a certificate of mailing from the postal service stating that "the clerk's mailing is evidenced by a postal service `certificate of mailing'. The certificate protects the Clerk by providing objective evidence that the summons and complaint or other document was mailed on a day certain". Karas v. Roar (March 21s` 2000), 7' Dist. No. 98 JE 4 (emphasis added). Finally, the Ninth and Seventh Districts agree that a letter or notation filed by the clerk stating that the summons and complaint were sent by regular mail is insufficient to overcome an affidavit stating that service was never received. See Kollert, McIn e and Karas, supra.

'Although the Court of Appeals did not render an opinion with regard to the issue

presented, it noted that subsequent to Kollert, it decided Talarek v. Miles (July 3, 1997), 91' Dist. No. 96CA006567, wherein it examined the plain language of Civ.R. 4.6(D) instead of the staff notes, and found that the clerk is required to evidence regular mail service by a certificate of mailing, and service is deemed complete when the fact of mailing is entered of record.

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In Kollert, service by certified mail failed. As such, the plaintiff requested service by ordinary mail. Instead of filing a certificate of mailing from the United States Postal Service, the Clerk placed an undated letter in the file indicating that the summons had been sent by ordinary mail. Kollert eventually filed a motion to vacate default judgment with a supporting affidavit in which Kollert denied receiving any notice or service of the complaint. This Court specifically stated that "[a] letter filed by the clerk of courts stating that the summons was sent is not sufficient to overcome Kollert's affidavit." Kollert, 33 Ohio App.3d at 275. The court then reversed the trial court and vacated the default judgment.

In Mcln re, regular mail service was requested upon McIntyre. The Clerk noted service by regular mail by filing its own certificate of mailing instead of one from the United States Postal Service. McIntyre eventually filed a motion to vacate default judgment with a supporting affidavit stating that she did not receive the regular mail service from the Clerk. Like the Ninth District, the Seventh District found that it was error on part of the Clerk to attempt to effect regular mail service and evidence same by its own certificate of mailing. As such, the McIntyre Court found that "[b]ased on the failure of service in this case, we find that the judgment herein is void ab initio." Mcln re, 7`h Dist. No. 95-CO-23, *4.

Similarly, the Karas Court found that regular mail service not documented by a certificate of mailing from the United States Postal Service was insufficient. The Karas Court held that ". .. in accordance with case law precedent and the plain language of the rule, [Civ.R.4.6(D)] and accompanying commentary, the lack of a certificate of mailing [from the United States Postal Service] renders the default judgment void for lack of personal jurisdiction." Karas, 7`h Dist. No. 98-JE4, *2 (emphasis added).

Here, Bowers attempted service on Craven by regular mail. However, no certificate of mailing from the United States Postal Service was ever filed. The record filed by the trial court does not include a United States Postal Service certificate of mailing. Based on the failure to comply with the Civ.R.4.6(D) requiring the filing of a certificate of mailing

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from the United States Postal Service, the Court never obtained personal jurisdiction over Craven. As such, the default judgment entered against her was void ab initio. Without objective evidence of regular mail service documented by a certificate of mailing from the United States Postal Service, the trial court was required to vacate default judgment, and its refusal to do so is an abuse of discretion. Accordingly, the Ninth District Court of Appeals should have reversed the decision of the trial court.

CONCLUSION

For the reasons discussed above, this case involves matters ofpublic and great general interest. Appellant requests that this court accept jurisdiction in this case so that the important issues presented will be reviewed on the merits.

RespectfWly submitted,

^c' Ertc J. tecz 067

BAKER, DUBLIKAR, BLVCK, WILEY & MATHEWS 400 South Main Street

North Canton, Ohio 44720 Telephone: 330-499-6000 Telecopier: 330-499-6423

E-mail: stecz ,bakerfirm.com Counsel for Appellant

PROOF OF SERVICE .

A copy of the foregoing Memorandum in Support of Jurisdiction was served this 26' day of June, 2008, upon John D. Lambert, Lambert & McDonald Co., LPA, 265 South Main Street, Akron, Ohio, 44308.

ric .i. atecz

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STATE OF OHIO COUNTY OF SUMMIT DUANE BOWERS Appellee V. JAMIE CRAVEN Appellant Dated: May 13, 2009

t,r- ^ IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT vy n.. i Y

U C. A. No. 24422 JF ^ ^^

T

APPEAL FROM JUDGMENT ENTERED IN THE

COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2002-09-5475 DECISION AND JOURNAL ENTRY

CARR, Presiding Judge.

{¶1} Appellant, Jamie Craven, appeals the judgment of the Summit County Court of Common Pleas, which denied her motion to vacate a default judgment. This Court affirms.

1.

{12} On September 30, 2002, Appellee, Duane Bowers, filed a personal injury complaint against Craven. Sunvnons and a copy of the complaint were sent by certified mail to Craven on October 1, 2002, at 1898 Lancaster Street, Cuyahoga Falls, Ohio 44221. The docket includes a notice of service failure, indicating that service failed because the forwarding order had expired for Craven at that address. Bowers' counsel then instructed the clerk to serve Craven by certified mail at 664 Flora Avenue, Akron, Ohio 44314. Summons and a copy of the complaint were sent by certified mail to that address on November 26, 2002. The docket includes a notice of service failure, indicating that the second attempt at service failed because the letter was unclaimed. Bowers' counsel then instructed the clerk to serve Craven at the Flora

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Avenue address by regular mail. The clerk's office noted in the docket that summons and a copy of the complaint were sent by regular mail to Craven on December 27, 2002.

{¶3} On April 17, 2003, the trial court issued an order directing Bowers to file a motion for default judgment within 14 days because service had been made on Craven more than 28 days prior to that order. On May 14, 2003, Bowers filed a motion for default judgment. He filed an amended motion for default judgment on May 16, 2003, including Craven's Flora Avenue address in the caption. Bowers requested a hearing on damages, and the trial court issued an order directing the clerk to send notice of the hearing. Notice was sent to Craven at the Flora Avenue address by certified mail on May 28, 2003, regarding the June 12, 2003 hearing. The trial court held the damages hearing as scheduled. Craven did not appear. On June 14, 2003, the trial court entered judgment in favor of Bowers and against Craven in the ainount of $100,000.00, plus interest and costs.

{14} Nearly four-and-a-half years later, on December 7, 2007, Craven filed a motion to vacate the default judgment. She argued that the trial court did not have personal jurisdiction over her because service of process had not been effected properly. The record contains only the first 5 pages of Craven's motion, at which point she was discussing Bowers' direction to the clerk after service on Craven at the Lancaster Street address had failed. Craven referenced 2 exhibits attached to her motion, including her affidavit. However, there are no exhibits in the record.' On December 18, 2007, Bowers filed a response in opposition to the motion to vacate. The trial court scheduled a hearing on the motion to vacate on April 4, 2008.

1 The record consists of a certified transcript of docket entries and photocopies, rather than originals, of documents filed in the trial court. It is unknown whether Craven's original inotion to vacate the default judgment was complete and contained attachments wlien she filed it with

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{15} After two continuances, the trial court held a hearing on Craven's motion to vacate the default judgment on August 20, 2008. On August 21, 2008, the trial court issued an order denying the motion. Craven filed a timely appeal, raising one assignment of error for review.

ASSIGNMENT OF ERROR

"THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION TO VACATE DEFAULT JUDGMENT."

{161 Craven argues that the trial court abused its discretion by denying her motion to vacate the default judgment. This Court disagrees.

{¶7} The trial court's ruling on a motion to vacate a default judgment, like other motions for relief from judgment pursuant to Civ.R. 60(B), is reviewed for an abuse of discretion. Chuck Oeder, Inc. v. Bower, 9th Dist. No. 23785, 2007-Ohio-7032, at ¶4. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,

219. An abuse of discretion demonstrates "perversity of will, passion, prejudice, partiality, or moral delinquency." Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. When applying the abuse of discretion standard, this Court may not substitute its judgment for that of the trial court. Id.

{Q8} Craven argues that the trial court abused its discretion by failing to vacate the default judgment because the trial court lacked personal jurisdiction over her due to ineffective service. Specifically, she argues that service was not effected pioperly pursuant to Civ.R. 4.6(D) because the record contains no confii-mation by the United States Postal Service that summons and a copy of the complaint were sent by regular mail. Civ.R. 4.6(D) states:

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"If a certified or express 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 attomey 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 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, 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."

{¶9} Craven relies on this Court's prior decision in Gen. Motors Acceptance Corp. v.

Kollert (1986), 33 Ohio App.3d 274, in support of her argument that service was defective for

lack of confirmation of mailing by the United States Postal Service. In Kollert, we relied on the then-current Staff Notes to Civ.R. 4.6(D) in holding that "[a] `certificate of mailing' contemplates a confirmation of mailing by the United States Postal Service." Id. at 275. More recently, in Talarek v. Miles (July 23, 1997), 9th Dist. No. 96CA006567, this Court examined the plain language of Civ.R. 4.6(D), rather than place undue reliance on the Staff Notes. With respect to service by ordinary mail, the plain language of Civ.R. 4.6(D) requires the clerk to evidence regular mail service by a certificate of mailing, completed and filed by the clerk. The rule further provides that service shall be deemed complete when the fact of mailing is entered of record. We recognized the insufficiency of service in the Kollert case, but stated: "Implicit in that decision was the absence of any `fact of mailing *** entered of record' as required by Civ.R. 4.6(D)." Talarek, supra. Although no certificate of mailing had been filed in the Talarek case, this Court emphasized that Civ.R. 4.6(D) provides that service is deemed complete "when the fact of mailing is entered of record," and that, because the trial court speaks only through its

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journal, "[t]he fact of mailing is determined from the record, not through certificates and letters that are not joumalized." (Emphasis in original.) Talarek, supra. We concluded that, because "the fact of mailing was entered into the record, and the ordinary mail envelope was not returned to the court *** the presumption of completed service attached." Id.

{¶10} In this case, the mailing was evidenced by a certificate of mailing, completed by the clerk, stamped on Bowers' request for service by regular mail, which is time-stamped and docketed, by the following: "DATE DEC 27 2002 SUMMONS ISSUED WITH I COPIES OF COMPLAINT BY REGULAR MAIL." The fact of mailing was then separately entered of record on December 27, 2002. Specifically, the clerk's transcript of docket entries includes an entry indicating that summons was issued with a copy of the complaint to Craven by regular mail on December 27, 2002. The regular mail envelope was not returned to the court. Accordingly, Bowers "complied with Civ.R. 4.6 in his efforts to serve [Craven], and the presumption of completed service attached." See Talarek.

{¶I1} In Talarek, we further recognized that "[e]ven when service is in compliance with the Civil Rules, and therefore presumed to be complete, this presumption is rebuttable by sufficient evidence that service was not accomplished." Id., citing Rafalski, v. Oates (1984), 17 Ohio App.3d 65, 66. This Court has already noted that the trial court's denial of the.motion to vacate will only be reversed for an abuse of discretion. Bower at 14. "Abuse of discretion will

not be presumed, but must appear from the record." Wyant v. Russell (1923), 109 Ohio St. 167, at syllabus.

{¶12} In this case, the record contains only an incomplete copy of Craven's motion to vacate the default judgment, terminating in the middle of her argument, and containing no appendix of exhibits. Therefore, Craven's affidavit regarding service is not in the record for this

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Court's review. In addition, Craven failed to request a transcript of the August 20, 2008 motion hearing.

{¶13} An appellant is responsible for providing this Court with a record of the facts, testimony, and evidentiary matters necessary to support the assignments of error. Volodkevich v.

Volodkevich (1989), 48 Ohio App.3d 313, 314. Specifically, it is an appellant's duty to transmit

the transcript of proceedings. App.R. 10(A); Loc.R. 5(A). "When portions of the transcript which are necessary to resolve assignments of error are not included in the record on appeal, the reviewing court has `no choice but to presume the validity of the [trial] court's proceedings, and affirm."' Cuyahoga Falls v. James, 9th Dist. No. 21119, 2003-Ohio-531, at ¶9, quoting Knapp

v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199.

(¶14) Because a review of the evidence, for example Craven's affidavit or the transcript of the motion hearing, is necessary for a determination of Craven's assignment of error, this Court must presume regularity in the trial court's proceedings and affirm the judgment of the trial court. See Knapp, 61 Ohio St.2d at 199. Craven's sole assignment of error is overruled.

III.

{115} Craven's assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

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7

We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNAJ.CARR

FOR THE COUR WHITMORE, J.

BELFANCE, J. CONCUR

APPEARANCES:

ERIC J. STECZ, Attomey at Law, for Appellant. JOHN D. LAMBERT, Attorney at Law, for Appellee.

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