Wisniewski v. Manogg

2012 Ohio 1081

Opinion

[Cite as Wisniewski v. Manogg, 2012-Ohio-1081.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

MINDY WISNIEWSKI JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Julie A. Edwards, J. -vs- Case No. 11-CA-118 PHILIP SCOTT MANOGG

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case No. 05 CVI 00849

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: March 15, 2012

APPEARANCES:

For Defendant-Appellant For Plaintiff-Appellee

PHILIP S. MANOGG, PRO SE MINDY WISNIEWSKI, PRO SE c/o P.O. Box 855 107 Rolling Meadow Court Newark, Ohio 43058-0855 Pickerington, Ohio 43147 Licking County, Case No. 11-CA-118 2

Hoffman, J.

(¶1) Defendant-appellant Philip S. Manogg appeals the October 26, 2011

Judgment Entry entered by the Licking County Municipal Court which denied his Motion

to Set Aside Judgment, pursuant to CivR. 60(B). Plaintiff-appellee is Mindy

Wisniewski.1

STATEMENT OF THE CASE2

(¶2) Appellee filed a Complaint against Appellant in the Small Claims Division

of the Licking County Municipal Court, seeking return of a security deposit she paid

under a lease. The Complaint was sent via certified mail to Appellant at 12 E. Locust

St., Newark, Ohio. It was returned, marked “unclaimed”.

(¶3) The Complaint was then sent via regular mail to the same address. There

was no indication of a failure of delivery of that mailing.

(¶4) Appellant failed to appear at the arbitration hearing on the Complaint

scheduled for October 25, 2005. As a result, on October 27, 2005, the trial court

entered default judgment against Appellant in the amount of $1300.00 plus interest and

costs.

(¶5) Appellee initiated collection proceedings against Appellant in 2006, and

again in 2010. Service was attempted at the same address on Locust St., but was

returned and marked “unable to forward – no forwarding order on file.”

(¶6) Thereafter, Appellant filed a Notice of Special Appearance in the trial court

on September 19, 2011, together with a Motion for Relief from Judgment. The

magistrate overruled the motion on October 12, 2011. Appellant filed objections

1 Appellee did not file a reply brief in this appeal. 2 A rendition of the facts is unnecessary for our resolution of this appeal. Licking County, Case No. 11-CA-118 3

thereto, which the trial court overruled via Judgment Entry filed October 26, 2011. It is

from that judgment entry, Appellant prosecutes this appeal assigning as error:

(¶7) “I. THE TRIAL COURT ERRED IN FAILING TO VACATE THE

JUDGMENT ENTERED AGAINST DEFENDANT-APPELLANT.

(¶8) “II. THE TRIAL COURT ERRED IN FAILING TO GRANT RELIEF FROM

JUDGMENT UNDER RULE 60(B) OF THE OHIO RULES OF CIVIL PROCEDURE

(VACATION OF THE JUDGMENT).”

(¶9) This case comes to us on the accelerated calendar governed by App.R.

11.1, which states the following in pertinent part:

(¶10) “(E) Determination and judgment on appeal

(¶11) “The appeal will be determined as provided by App. R. 11.1. It shall be

sufficient compliance with App. R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.

(¶12) The decision may be by judgment entry in which case it will not be

published in any form.”

(¶13) This appeal will be decided in accordance with the rule.

I & II

(¶14) The trial court summarily overruled Appellant’s motion for relief from

judgment, finding it was untimely filed pursuant to Civ.R. 60(B)(3).3

(¶15) This Court held in Thompson v. Bayer, 5th Dist. 2011-CA-00007, 2011-

Ohio-5897, ¶16:

3 Our review of Appellant’s motion reveals it requested relief pursuant to Civ.R. 60(B)(1), (3) and (5). Licking County, Case No. 11-CA-118 4

Ohio law clearly provides that a judgment rendered without

personal jurisdiction over a defendant is void ab initio rather than voidable.

See Patton v. Diemer (1988), 35 Ohio St.3d 68, 518 N.E.2d 941 and

CompuServe, Inc. v. Trionfo (1993), 91 Ohio App.3d 157, 161, 631 N.E.2d

1120. Accordingly, a judgment rendered without proper service is a nullity

and is void. Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio St. 61, 64,

133 N.E.2d 606. The authority to vacate a void judgment is not derived

from Civ.R. 60(B), “but rather constitutes an inherent power possessed by

Ohio courts.” Patton, supra paragraph four of the syllabus. To be entitled

to relief from a void judgment, a movant need not present a meritorious

defense or show that the motion was timely filed under Civ.R. 60(B). Id.

(¶16) Given Appellant’s claim of improper service of the original complaint, we

find a hearing is necessary for the trial court to determine that issue. As such, we find

any discussion of the merits of Appellant’s assignments of error premature.

(¶17) The judgment of the Licking County Municipal Court is reversed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN

s/ Julie A. Edwards ___________________ HON. JULIE A. EDWARDS Licking County, Case No. 11-CA-118 5

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

MINDY WISNIEWSKI : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : PHILIP SCOTT MANOGG : : Defendant-Appellant : Case No. 11-CA-118

For the reasons stated in our accompanying Opinion, the judgment of the Licking

County Municipal Court is reversed and the matter is remanded to that court for further

proceedings in accordance with our Opinion and the law. Costs to Appellee.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS