Wisniewski v. Manogg , 2012 Ohio 1081 ( 2012 )

[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/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS