Talarek v. Miles

In Talarek v. Miles (July 23, 1997), 9th Dist. No. 96CA006567, 1997 Ohio App, the 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. The Court 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 journal, "the fact of mailing is determined from the record, not through certificates and letters that are not journalized." Talarek, supra. The Court 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.