Lofty Holding 656 E. 126th St., L.L.C. v. 656 E. 126th, Ltd.

[Cite as Lofty Holding 656 E. 126th St., L.L.C. v. 656 E. 126th, Ltd., 2026-Ohio-1200.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

LOFTY HOLDING 656 EAST 126TH
ST LLC,                                                 :

                 Plaintiff-Appellee,                    :
                                                                              No. 115529
                 v.                                     :

656 EAST 126TH LTD, ET AL.,                             :

                 Defendants-Appellants.                 :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: April 2, 2026


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                                 Case No. CV-23-987080


                                             Appearances:

                 Armand DiNardo, pro se.

MARY J. BOYLE, P.J.:

                   Defendant-appellant Armand DiNardo (“DiNardo”), pro se, appeals

the trial court’s order granting default judgment in favor of plaintiff-appellee Lofty

Holding 656 East 126th ST LLC (“Lofty”). He raises the following single assignment

of error for review:

        The trial court committed reversible error in failing to vacate its
        judgment and dismiss [Lofty’s] complaint for lack of personal
        jurisdiction[.]
               For the reasons set forth below, we affirm.

I. Facts and Procedural History

               In October 2023, Lofty filed a complaint against DiNardo and 656

East 126th Ltd (collectively “defendants”). According to Lofty, it purchased real

estate from 656 East 126th Ltd on March 10, 2022 for $74,280. Following the

transfer of the property to Lofty, Lofty discovered that 656 East 126th Ltd failed to

remedy an existing lead hazard prior to transferring the property. Lofty alleges that

656 East 126th Ltd and DiNardo, as member, manager, and principal of 656 East

126th Ltd, had actual knowledge of the lead hazard prior to executing the purchase

agreement. Lofty further alleges that, as a result of defendants’ breach, it suffered

damages in excess of $25,000, including costs for lead abatement, loss of rental

income, and attorney fees. Lofty set forth the following four counts in its complaint:

Count One — breach of contract against 656 East 126th Ltd; Count Two —

fraudulent misrepresentation against DiNardo and 656 East 126th Ltd; Count Three

— declaratory relief; Count Four — corporate veil piercing against DiNardo and 656

East 126th Ltd.1

               Following the filing of its complaint, Lofty attempted service on

DiNardo several times, including certified mail in October 2023 that was returned

unclaimed; ordinary mail in November 2023; certified mail in November 2023 that

was returned as “vacant”; service by sheriff in December 2023, which was


      1 We note that 656 East 126th Ltd is not a party to this appeal, and as of the date of

this opinion, has not filed a notice of appeal. Our discussion herein focuses solely on
DiNardo.
unsuccessful. On December 29, 2023, a case-management conference was held

where the court noted that service has not yet been perfected on DiNardo and

provided Lofty with additional time to perfect service. In January 2024, Lofty

attempted service by certified mail on DiNardo at three additional addresses. These

attempts were returned as either “not deliverable” or “attempted not known.” Then,

Lofty made another service attempt by certified mail on DiNardo in March 2024 to

450 Kenwood Drive, Apt. B in Euclid, Ohio that was returned as “unclaimed.” Also

in March 2024, the court held another case-management conference where it again

noted that that service has not yet been perfected on DiNardo and provided Lofty

with additional time to perfect service. The court further noted that Lofty “shall

perfect service, or show good cause in writing why service could not be perfected, by

04/23/2024, or this case shall be dismissed, without prejudice, pursuant to

Civ.R. 4(E).” (Journal entry, Mar. 22, 2024.)

              Following this case-management conference, Lofty requested service

by ordinary mail to the 450 Kenwood Drive address in Euclid on April 2, 2024.

Summons was issued on April 3, 2024 and indicates an answer date of April 30,

2024. The docket entry states:

      04/03/2024 D2 SR           SUMS COMPLAINT (53459336) SENT BY

                                 REGULAR MAIL SERVICE. TO: ARMAND
                                 DINARDO 450 KENWOOD DRIVE, APT B
                                 EUCLID, OH 44123-0000 ANSWER DATE:
                                 04/30/2024

              DiNardo never filed a response. Then on June 17, 2024, Lofty filed a

motion for default judgment. According to Lofty, it was entitled to default judgment
because DiNardo failed to answer or otherwise respond to its complaint within 28

days of service — by April 30, 2024. Lofty requested judgment in the amount of

$97,710. Eight days later, on June 25, 2024, a notice of limited appearance on behalf

of the defendants was filed for the limited purpose to contest jurisdictional issues as

it pertains to the defendants.2 DiNardo’s counsel also filed a motion for a ten-day

extension to respond to Lofty’s default-judgment motion. The trial court granted

the motion and gave DiNardo until July 5, 2024 to respond.

               On July 5, DiNardo responded to Lofty’s motion for default judgment.

DiNardo argued that he was not lawfully served because he never resided or

conducted business at the Kenwood address. Additionally, he contended that he has

not owned that property since 2019 because the Kenwood property was foreclosed

upon and sold at the sheriff’s sale in July 2019. Lofty filed a reply, contending that

it properly served DiNardo and the allegations in his opposition are false. The court

denied Lofty’s motion for default judgment, and the matter was set for a case-

management conference in August 2024. At that time, the court noted that “all

parties appeared through counsel. A review of the docket reflects that all defendants

have been served pursuant to the Ohio Rules of Civil Procedure.” (Journal entry,

Aug. 30, 2024.) Afterwards, a slew of motions were filed by both parties, including

a renewed motion for default judgment by Lofty and a motion for clarification by

DiNardo. The court then set a hearing for January 14, 2025, where DiNardo “should



      2 Counsel amended this notice on July 5, 2024, clarifying that the notice of

appearance is limited to DiNardo only.
expect to present evidence and witness(es) regarding [DiNardo’s] assertion that

[Lofty] has failed to serve [DiNardo] with the complaint.” (Journal entry, Dec. 9,

2024.) It is unclear from the docket if the hearing proceeded on January 14, 2025,

and DiNardo did not file a transcript of this proceeding. From what we can discern,

the trial court issued the following journal entry regarding service:

      This court has now before it [DiNardo’s] motion for clarification as to
      how this court determined service was perfected on [DiNardo] in its
      entry of 08/30/24. The docket already speaks with clarity as to service
      upon [DiNardo]. [DiNardo’s] motion is not the appropriate means to
      address [his] alleged continued denial of service.

      This court grants leave to [DiNardo] to file [his] answer, response or
      otherwise plead within 14 days of this entry. [Lofty’s] motion for
      default, filed 10-28-24, is held in abeyance until the 14-day answer
      period expires. Should [DiNardo’s] fail to file an answer, response or
      otherwise plead, this court will proceed upon[Lofty’s] motion for
      default.

(Journal entry, Feb. 4, 2025.)

              Following this entry, DiNardo’s counsel filed a motion to withdraw,

which the court granted. DiNardo filed a pro se motion for extension to retain

counsel or file an answer to Lofty’s complaint, which the court granted until March

19, 2025. DiNardo did not file an answer or notice of appearance by March 19. On

March 21, 2025, the trial court granted Lofty’s motion for default judgment, in part,

as to liability and set the matter for a hearing on damages on April 30, 2025. In

response, DiNardo filed a pro se common law motion to vacate void judgment and

dismiss for lack of personal jurisdiction arguing that service was never perfected,

which Lofty opposed.
               At the onset of the damages hearing, the court, out of an abundance

of caution, “and in light of the Ohio Court of Appeals for the Eighth District’s

decision in [Smith] v. White, 2024-Ohio-737 . . . set th[e] matter for a further hearing

on the question of service on [DiNardo] as an individual.”3 (Tr. 6.) The court issued

a journal entry advising the parties that a hearing was set on May 29, 2025 “on the

issue of perfection of service upon [DiNardo]. Parties should expect to present

evidence of same at the hearing. Hearing on damages on [Lofty’s] motion for default

against [DiNardo] is held in abeyance until further notice by this court.” (Journal

entry, May 2, 2o25.)

               This hearing was continued until June 2025, at which time DiNardo

failed to appear or otherwise notify the court of his absence. The court found that,

pursuant to White, Lofty perfected service upon DiNardo.              The court denied

DiNardo’s common law motion to vacate void judgment and dismiss for lack of

personal jurisdiction and set a hearing for damages in July 2025. DiNardo did not

appear at the damages hearing. Following the conclusion of this hearing, the court

granted judgment in favor of Lofty and against DiNardo in the amount of

$68,529.50.




      3 In White, there were competing statements as to whether service was perfected

on the defendant, and without additional information, it was impossible to assess the
credibility of the competing affidavits between the defendant and a nonparty witness. As
a result, we vacated the default judgment rendered against the defendant and remanded
the matter for “a hearing to determine if personal service was perfected” on the defendant.
Id. at ¶ 27.
               It is from this order that DiNardo appeals, raising one assignment of

error for review.4

II. Law and Analysis

               DiNardo argues the trial court erred in failing to vacate the default

judgment and dismiss Lofty’s complaint for lack of personal jurisdiction because

service by ordinary mail was improper. DiNardo’s argument concerns personal

jurisdiction and challenges the court’s authority to render judgment against him.

Maryhew v. Yova, 11 Ohio St.3d 154, 156 (1984) (“[I]n order to render a valid

personal judgment, a court must have personal jurisdiction over the defendant.”).

And while DiNardo sought to vacate the default judgment pursuant to Civ.R. 60(B),

we note that “[t]he authority to vacate a void judgment is not derived from

Civ.R. 60(B) but, rather, constitutes an inherent power possessed by Ohio courts.”

Id., at paragraph four of the syllabus, citing Lincoln Tavern, Inc. v. Snader, 165 Ohio

St. 61 (1956), paragraph one of the syllabus, and Westmoreland v. Valley Homes

Mut. Hous. Corp., 42 Ohio St. 2d 291, 294 (1975). Indeed, “[a] judgment rendered

by a court lacking subject matter jurisdiction is void ab initio.” (Emphasis in

original.) Patton v. Diemer, 35 Ohio St.3d 68 (1988), paragraph three of the

syllabus. Therefore, a defendant is entitled to have default judgment vacated if the

trial court rendered default in the absence of service on the defendant. Broadvox,



      4 We note that the original appeal, No. 115458, was dismissed for lack of a final

appealable order because attached to the trial court’s entry granting default judgment was
a “proposed order” as to the damages, which is not a final determination. DiNardo then
filed the instant appeal after the trial court issued a corrected judgment entry.
L.L.C. v. Oreste, 2009-Ohio-3466, ¶ 12 (8th Dist.), citing State ex rel. Ballard v.

O’Donnell, 50 Ohio St.3d 182 (1990), syllabus. As a result, we must determine

whether the trial court had personal jurisdiction over DiNardo.

               A court acquires personal jurisdiction over the defendant “either 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.” Maryhew at 156. Personal jurisdiction is waivable by the defendant’s

voluntary submission to the court’s jurisdiction. State v. Mbodji, 2011-Ohio-2880,

¶ 10, citing State v. Holbert, 38 Ohio St.2d 113 (1974).

               Whether the trial court has personal jurisdiction over a defendant is

a question of law subject to de novo review. Kauffman Racing Equip., L.L.C. v.

Roberts, 2010-Ohio-2551, ¶ 27. “In a de novo review, we review the merits of the

case independently, without any deference to the trial court.” White, 2024-Ohio-

737 at ¶ 17, citing Sosic v. Stephen Hovancsek & Assocs., Inc., 2021-Ohio-2592, ¶ 21

(8th Dist.).

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

rules governing service are followed.”’ Belovich v. Crowley, 2021-Ohio-2039, ¶ 31

(8th Dist.), quoting Roscoe v. Delfraino, 2019-Ohio-5253, ¶ 25 (7th Dist.), citing

Draghin v. Issa, 2013-Ohio-1898, ¶ 10 (8th Dist.); see Grant v. Ivy, 69 Ohio App.2d

40, 42 (10th Dist. 1980) (Ordinary mail service following unclaimed certified mail

service is sufficient to vest jurisdiction in the trial court under Civ. R. 4.6(D).); Koziol
v. Refe, 1993 Ohio App. LEXIS 5925, *8 (11th Dist. Dec. 10, 1993). “[T]he ordinary

mail service following an unsuccessful attempt at certified mail service must have

been sent to the address of the defendant or at least to an address where there is a

reasonable expectation that it will be delivered to the defendant.” Grant at 42. We

recognize that the presumption of proper service can be rebutted if the defendant

presents sufficient “evidentiary-quality information demonstrating” that service

was not accomplished. McWilliams v. Schumacher, 2013-Ohio-29, ¶ 51 (8th Dist.),

citing Thompson v. Bayer, 2011-Ohio-5897, ¶ 23 (5th Dist.).

                 Civ.R. 4.1 governs the methods of service, including certified mail.

Here, Lofty attempted to serve DiNardo first by certified mail at the Kenwood

address as provided in Civ.R. 4.1, but it was returned as “unclaimed.” Lofty then

attempted service by ordinary mail as provided in Civ.R. 4.6(D), which states in

relevant part:

      If attempted service using United States certified or express mail . . .
      within . . . the state is returned with an endorsement stating that the
      envelope was unclaimed or a similar endorsement indicating the item
      was unclaimed, the clerk shall forthwith notify the attorney of record
      . . . and enter the fact and method of notification on the appearance
      docket. If the attorney . . . 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, 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.

               In this case, an April 3, 2024 entry on the docket indicates that the

complaint was served on DiNardo by ordinary mail on April 2, 2024, with April 30,

2024, as the answer date. This entry was accompanied with a filing of the summons

addressed to DiNardo at the Kenwood address. This service by ordinary mail was

never returned as undelivered. DiNardo, however, relying on caselaw, including

Gen. Motors Acceptance Corp. v. Kollert, 33 Ohio App.3d 274 (9th Dist.1986) (9th

Dist. 1986), argues that the civil rules governing service were not followed because

“[t]here is no evidence in the record that the clerk complied with [Civ.R.] 4.6(D) as

there is no certificate of mailing to evidence service was attempted by ordinary mail.”

(DiNardo’s appellate brief, p. 7.)

               In Gen. Motors, the Ninth District Court of Appeals found that

improper service was made under Civ.R. 4.6(D). According to the Gen. Motors

Court, a “‘certificate of mailing’ contemplates a confirmation of mailing by the

United States Postal Service.” Id. at 275, citing Staff Notes to Civ. R. 4.6(D). In Gen.

Motors, the defendant’s affidavit stated that he did not receive service, and the

record demonstrated that the clerk sent a letter to the plaintiff stating that the

summons, with a new answer date, had been resent by ordinary mail. The undated

letter, however, “was placed in the court file but no filing stamp appears thereon.”

Id. at 274. Therefore, the court concluded that a letter filed by the clerk of courts
stating that the summons was sent was not sufficient to overcome the defendant’s

affidavit. Id. at 275.

               The matter before us is distinguishable. Here, DiNardo does not

dispute notice of the complaint, but rather that service by ordinary mail at the

Kenwood address was not valid because there was no evidence the clerk of courts

complied with Civ.R. 4.6(D). Contrary t0 DiNardo’s assertion, the record in this

case demonstrates that the clerk in this case complied with Civ.R. 4.6(D). The clerk

notated on the docket that service was attempted via ordinary mail, included the

filing with the summons issued to DiNardo at the Kenwood address, and the

ordinary mail envelope was not returned by the post office with an endorsement

showing failure of delivery. Therefore, we find that DiNardo’s argument and

reliance on Gen. Motors is misplaced.

               Having found that service by ordinary mail was proper under the civil

rules, the burden now shifts to DiNardo to present sufficient “evidentiary-quality

information demonstrating” that service was not accomplished. McWilliams, 2013-

Ohio-29 at ¶ 51 (8th Dist.), citing Thompson, 2011-Ohio-5897 at ¶ 23 (5th Dist.).

This court has found sufficient evidence to rebut the presumption in instances where

the “party seeking a motion to vacate makes an uncontradicted sworn statement that

she never received service of a complaint . . . even if her opponent complied with

Civ.R. 4.6 and had service made at an address where it could reasonably be

anticipated that the defendant would receive it.” Rafalski v. Oates, 17 Ohio App.3d

65, 66 (8th Dist. 1984), citing Cox v. Franklin, No. 32982 (8th Dist. Jan. 10, 1974).
However, “[i]f another witness had given testimony which contradicted her upon

essential points, or if she had contradicted herself, or had made admissions which

tended to support the claim of residence . . . a wholly different situation would be

presented.” Hayes v. Kentucky Joint Stock Land Bank, 125 Ohio St. 359, 365 (1932)

               Here, we find a “wholly different situation.” Id. The record is clear —

the complaint sent via ordinary mail to the Kenwood address was not returned as

undelivered. Additionally, the trial court took many steps and generously provided

DiNardo with several extensions to answer Lofty’s complaint and address the service

issue he raised. In fact, the court gave DiNardo over a year after Lofty’s complaint

was served to answer or otherwise respond, but DiNardo did not utilize the

opportunities the court afforded. The trial court even held a hearing in June 2025,

out of an abundance of caution, to determine if service on DiNardo was perfected.

DiNardo failed to appear at this hearing.

               At the hearing, Lofty maintained that service was perfected by virtue

of the ordinary mail attempt to the Kenwood address that was not returned,

resulting in an answer date of April 30, 2024. Lofty contended that the parties had

stipulated to service early on in this case. Lofty referenced the August 26, 2024 case-

management conference where “all counsel agreed that service was perfected.”

(Tr. 11.) Lofty reasoned that “[t]his was documented in the journal entry dated

August 30, 2024[, where] the Court expressly stated that service was completed.”

(Tr. 11.) According to Lofty, “that sentence was included in this journal entry for a

very specific reason. In fact, that was at the request of the defendant’s counsel so he
had something to be able to show the defendant that the service issue was a dead

issue.” (Tr. 11-12.)

               Then on February 4, 2025, the court issued a journal entry reiterating

that service was, in fact, completed after reviewing DiNardo’s motion to clarify the

court’s determination that service was perfected. Additionally, the court gave

DiNardo 14 days to file an answer. At that point in time, approximately ten months

had passed since the April 2024 answer date.

               Lofty also presented evidence regarding DiNardo’s contention that he

could not be served at the Kenwood address because that property was foreclosed

on in 2019.5 Lofty submitted evidence of a garnishment case that was filed in the

Cuyahoga County Court of Common Pleas where service was perfected upon

DiNardo by certified mail at the Kenwood address in February 2024. DiNardo’s

“signature appears on the last page where he did accept service of process by

certified mail on February 7, 2024[.]” (Tr. 14.) According to Lofty, “[t]hat’s about a

month after we attempted service by certified mail in this case and about a little less

than two months after we perfected service by regular mail.” (Tr. 13.)

               In reaching our conclusion, we are mindful that “[t]he purpose of

summons is to notify a defendant of proceedings and afford such defendants the


       5 Interestingly, we note that in Lofty’s reply in support of default judgment, it

maintained that five days after filing its complaint, Lofty’s counsel received an email from
an individual named “‘William Wesley, attempting to extort the undersigned with the
threat of a disciplinary complaint if the undersigned proceeded to prosecute this case.”
Upon further investigation, Lofty’s counsel discovered that Wesley and DiNardo “jointly
owned the Kenwood property, and are associated with the same companies.” (Lofty’s
reply in support of default judgment July 26, 2024.)
opportunity to appear and defend and is therefore valid when the defendant is

accorded a fair opportunity to be apprised of the proceedings.” Black v. Barany,

1982 Ohio App. LEXIS 12131, *21 (8th Dist. Sept. 30, 1982), citing Krabill v. Gibbs,

14 Ohio St. 2d 1 (1968); Baldine v. Klee, 14 Ohio App.2d 181 (11th Dist. 1968.) That

is exactly what happened in this case. DiNardo was afforded multiple opportunities,

but chose not to appear or respond. Additionally, Lofty presented evidence that the

service by ordinary mail was sent to an address where there was a reasonable

expectation that it would be delivered to DiNardo.

              Thus, based on the foregoing, we find that Lofty perfected service on

DiNardo and the trial court’s grant of default judgment was proper.

              Therefore, the sole assignment of error is overruled.

              Judgment is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      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.


___________________________
MARY J. BOYLE, PRESIDING JUDGE

DEENA R. CALABRESE, J., and
EILEEN A. GALLAGHER, J., CONCUR