DiDomenico v.Valentino

[Cite as DiDomenico v.Valentino, 2012-Ohio-5992.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JOSEPH DiDOMENICO, et al. ) CASE NO. 11 MA 175
)
PLAINTIFFS-APPELLEES )
)
VS. ) OPINION
)
JOHN VALENTINO, et al. )
)
DEFENDANTS-APPELLANTS )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Area County Court
No. 4 of Mahoning County, Ohio
Case No. 2007 CVF 01478
JUDGMENT: Vacated.
APPEARANCES:
For Plaintiffs-Appellees: Atty. Scott R. Cochran
19 East Front Street
Youngstown, Ohio 44503
For Defendants-Appellants: Atty. James R. Wise
Betras, Kopp & Harshman, LLC
6630 Seville Drive
Canfield, Ohio 44406
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: December 14, 2012
[Cite as DiDomenico v.Valentino, 2012-Ohio-5992.]
WAITE, P.J.
{¶1} John Valentino and J&V Roofing and Home Improvements, Inc.
(Appellants) are appealing the judgment of the Mahoning County Area Court No. 4.
This case began as a breach of contract dispute. Appellee Joseph DiDomenico filed
the complaint in 2007, but failed to perfect service of process on Appellants within
one year as required by Civ.R. 3(A). The trial court initially dismissed the complaint,
but reopened the case in 2009 to allow DiDomenico thirty more days to effect
service. He missed this deadline, but did serve the complaint on Appellants two
months later, and the matter eventually went to trial. The court granted judgment to
DiDomenico, leading to this appeal. Appellants have not waived their right to
challenge personal jurisdiction, and it is evident from the record that the action was
never properly “commenced,” as that word is defined in Civ.R. 3. Thus, any
judgment issued in the action is void. Appellee did not file a brief on appeal, and as
there are no arguments to the contrary, the judgment of the trial court is vacated and
the complaint is hereby dismissed under Civ.R. 3(A).
Background
{¶2} On September 25, 2007, Appellee filed a breach of contract complaint
against both Appellants in Mahoning County Area Court No. 4. It was given Case
No. 2007 CVF 01478 AUS. Service of the complaint was attempted on both
Appellants by certified mail. The letters were returned with a note that the forwarding
addresses had expired.
{¶3} On October 27, 2008, the trial court dismissed the complaint due to the
plaintiff's failure to appear and prosecute the case.
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{¶4} On March 19, 2009, Appellee filed a motion to vacate judgment,
arguing that he and/or his counsel were confused by the fact that he had another
case pending against the same defendants, and that he thought the two had been
consolidated. He also argued that his secretary caused the error resulting in failure
of service on the defendants, or that Appellants' counsel or the court caused this
error.
{¶5} On April 27, 2009, the court issued an order continuing the case 30
days for service of process. This order had no effect since the case had already
been dismissed on October 27, 2008, and service had not been effected within one
year as required by Civ.R. 3(A). As an aside, Appellee did not actually attempt
service within 30 days.
{¶6} On June 30, 2009, Appellee effected service of process on Appellants,
and they filed an answer on July 27, 2009. Appellants raised the defenses of lack of
jurisdiction and failure of service and process.
{¶7} On July 1, 2010, Appellants filed a motion to dismiss on the grounds
that service had not been made within one year as required by Civ.R. 3(A), and that
the plaintiff had also failed to perfect service within six months as required by Civ.R.
4(E). On October 15, 2010, a magistrate overruled the motion to dismiss. Appellants
filed objections, and these were also overruled by the trial court on December 8,
2010. A bench trial to a magistrate was held on June 17, 2011, granting judgment to
Appellee. Appellants filed objections, which were overruled. Final judgment in favor
of Appellee was entered on August 24, 2011. This timely appeal followed. Appellee
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has not filed an appellee's brief, and under App.R. 18(C), we “may accept the
appellant's statement of the facts and issues as correct and reverse the judgment if
appellant's brief reasonably appears to sustain such action.”
ASSIGNMENT OF ERROR NO.1
THE TRIAL COURT ERRED IN OVERRULING
DEFENDANTS/APPELLANTS’ MOTION TO DISMISS FOR FAILING
TO PERFECT SERVICE PURSUANT TO THE OHIO RULES OF CIVIL
PROCEDURE.
{¶8} Appellants argue that service of process was not properly perfected in
this case in conformity with the Ohio Rules of Civil Procedure, and that the trial court
had no jurisdiction over them. They argue that the complaint was properly dismissed
on October 27, 2008 for failure of service. Appellants are correct.
{¶9} R.C. 2305.17 and Civ.R. 3(A) govern the commencement of a civil
action. R.C. 2305.17 states: “An action is commenced * * * by filing a petition in the
office of the clerk of the proper court together with a praecipe demanding that
summons issue or an affidavit for service by publication, if service is obtained within
one year.”
{¶10} Civ.R. 3(A) states: “A civil action is commenced by filing a complaint
with the court, if service is obtained within one year from such filing upon a named
defendant * * *.”
{¶11} An action is commenced only when effective service of process is
obtained. Lash v. Miller, 50 Ohio St.2d 63, 65, 362 N.E.2d 642 (1977).
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{¶12} Absent proper service of process on a defendant, a trial court lacks
jurisdiction to enter a judgment against that defendant, and if the court nevertheless
renders a judgment, the judgment is a nullity and is void ab initio. Lincoln Tavern,
Inc. v. Snader, 165 Ohio St. 61, 64, 133 N.E.2d 606 (1956); Tuckosh v. Cummings,
7th Dist. No. 07HA9, 2008-Ohio-5819, ¶17. “Failure of proper service is not a minor,
hypertechnical violation of the rules. Such failure is in direct contravention of the
Rules of Civil Procedure.” Cleveland v. Ohio Civil Rights Comm., 43 Ohio App.3d
153, 157, 540 N.E.2d 278 (8th Dist.1989). A judgment rendered without proper
jurisdiction over the action or the defendant is void. Patton v. Diemer, 35 Ohio St.3d
68, 70, 518 N.E.2d 941 (1988); Rokakis v. Estate of Thomas, 8th Dist. No. 89944,
2008-Ohio-5147, ¶7. If a judgment is void, the trial court has the inherent power to
vacate the judgment, and a party need not seek relief under Civ.R. 60(B) in order to
have the judgment vacated. Patton, supra at 70, 518 N.E.2d 941; see also, Ross v.
Olsavsky, 7th Dist. No. 09 MA 95, 2010-Ohio-1310, ¶11.
{¶13} Appellee did not perfect service within one year, and the court had no
jurisdiction to continue prosecuting the case unless Appellants waived service of
process. It is clear from the record that Appellants did not waive proper service of
process, as they raised it as an affirmative defense in their first filing with the trial
court. The Ohio Supreme Court has held that when the affirmative defense of
insufficiency of service of process is properly raised and preserved, a party's active
participation in the litigation does not constitute a waiver of that defense. Gliozzo v.
Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d
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714, syllabus. The defense is preserved even after trial has begun, all the evidence
has been presented, and the defendant then files a motion to dismiss for insufficiency
of service of process. First Bank of Marietta v. Cline, 12 Ohio St.3d 317, 466 N.E.2d
567 (1984).
{¶14} The record indicates that Appellee filed a Civ.R. 60(B)(1) motion to
vacate the dismissal of his complaint on grounds of excusable neglect, and the court
effectively granted the motion by extending the time for service of process for 30
days. This motion was filed five months after the complaint was properly dismissed,
and more than a year and half after the complaint was initially filed. By the time this
motion was filed, the one year time limit in Civ.R. 3(A) had long expired. The action
never “commenced,” because service was not made within one year. Hence, the
action was never properly before the trial court. The trial court had no jurisdiction to
take any action other than to dismiss Appellee’s Civ.R. 60(B) motion for an extension
of time to complete service, since no complaint was actually pending before the court
when the motion was filed. Every action taken by the trial court after the dismissal on
October 27, 2008, was a nullity.
{¶15} Appellants present other arguments in support of this appeal, but it is
clear from the record that the judgment against them is void and that the judgment
should be vacated and the complaint dismissed. Appellant’s first assignment of error
is, therefore, sustained.
ASSIGNMENT OF ERROR NO.2
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THE TRIAL COURT ERRED BY HOLDING DEFENDANT JOHN
VALENTINO PERSONALLY RESPONSIBLE FOR THE
CORPORATIONS [SIC] ALLEGED BREACH OF CONTRACT.
{¶16} Appellants argue that defendant John Valentino should not have been
held to be personally liable on a corporate contract. This assignment of error is moot
based on the resolution of assignment of error number one.
{¶17} In conclusion, the final judgment of the trial court issued on August 24,
2011, is vacated and the complaint dismissed on the grounds that service of process
was not perfected within one year under Civ.R. 3(A).
Vukovich, J., concurs.
DeGenaro, J., concurs.