[Cite as J. Bowers Constr. Co., Inc. v. Vinez, 2012-Ohio-1171.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

J. BOWERS CONSTRUCTION CO., INC.                            C.A. No.   25948

        Appellee

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
KATHERINE VINEZ, et al.                                     COURT OF COMMON PLEAS
                                                            COUNTY OF SUMMIT, OHIO
        Appellants                                          CASE No.   CV 2009-12-8829

                                  DECISION AND JOURNAL ENTRY

Dated: March 21, 2012



        BELFANCE, Judge.

        {¶1}      Defendant-Appellant Deutsche Bank National Trust Company, as Trustee for

Soundview Home Loan Trust 2006-3 (“the Bank”) appeals from the decision of the Summit

County Court of Common Pleas. For the reasons set forth below, we vacate the judgment and

remand for proceedings consistent with this opinion.

                                                       I.

        {¶2}      In December 2009, Plaintiff-Appellee J. Bowers Construction Company, Inc. (“J.

Bowers”) filed a complaint for breach of contract, on account, quantum meruit, and conversion

against Katherine Vinez and the Bank, seeking $22,044.13 in damages related to repair work

performed on a house owned by Ms. Vinez. J. Bowers requested the clerk serve the parties by

certified mail.

        {¶3}      The clerk of courts proceeded to serve Ms. Vinez and the Bank via Federal

Express. The Bank was served c/o Wells Fargo Bank N.A. at an address in South Carolina.
                                                 2


Service to Ms. Vinez via Federal Express was unsuccessful on two occasions; thereafter, service

was completed via regular mail.

       {¶4}    On April 22, 2010, an attorney filed a notice of appearance for the Bank and

indicated that “[a]ll pleadings and papers served herein should be served upon[]” the attorney at

an address in Cincinnati. Also, on April 22, 2010, the Bank filed a motion for a more definite

statement.

       {¶5}    On April 23, 2010, J. Bowers filed a motion for default judgment against the

Bank, asserting it had failed to appear. The Bank opposed the motion and asserted that the trial

court lacked personal jurisdiction over the Bank and that J. Bowers had not effectuated service

upon the Bank as J. Bowers had served an out-of-state non-party, namely, Wells Fargo.

       {¶6}    On May 27, 2010, the trial court granted the Bank’s motion for a more definite

statement. On May 28, 2010, J. Bowers moved for default judgment against Ms. Vinez. On

June 4, 2010, J. Bowers filed an amended complaint. On June 17, 2010, the Bank filed a motion

to dismiss the amended complaint asserting it failed to state a claim against the Bank and again

asserted that the trial court lacked jurisdiction and that the Bank had not been properly served. J.

Bowers filed a response in opposition. The Bank filed a reply specifically asserting that the

Bank had never been properly served with the original complaint and, thus, the amended

complaint could not be served via regular mail. On July 7, 2010, the trial court granted a default

judgment against Ms. Vinez in the amount $22,044.13 plus interest. On July 29, 2010, the trial

court denied the Bank’s motion to dismiss. On August 9, 2010, the Bank filed an answer to the

amended complaint. In it, the Bank asserted the affirmative defenses of lack of subject matter

jurisdiction, lack of personal jurisdiction, and of lack of service of process and insufficiency of

service of process.
                                                 3


         {¶7}   Following an initial pretrial, on October 22, 2010, the trial court issued an order

indicating that service may not have been made on the proper party and that the Bank must

provide a proper service address to the trial court by October 26, 2010. Thereafter, on October

26, 2010, the Bank submitted an address in California as being the appropriate address. J.

Bowers requested that the complaint be served via Federal Express on the Bank at the address in

California and additionally served the same via regular mail on the Bank’s counsel and Ms.

Vinez.

         {¶8}   On February 3, 2011, J. Bowers filed a motion for default stating that the

amended complaint was served on the Bank on October 28, 2010, and the Bank failed to answer

or otherwise respond. The Bank filed a motion in opposition or, in the alternative, a motion for

leave to file an answer. J. Bowers filed a reply. On February 22, 2011, the trial court granted

default judgment against the Bank in the amount of $22,044.13 plus interest.

         {¶9}   On March 18, 2011, the Bank moved for reconsideration of the trial court’s

default entry or, in the alternative, to vacate a void judgment or from relief from judgment

pursuant to Civ.R. 60(B). J. Bowers responded in opposition and the Bank filed a reply. On

April 25, 2011, the trial court denied the Bank’s motion.

         {¶10} The Bank has appealed, raising two assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR I

         THE COURT OF COMMON PLEAS ERRED IN DENYING THE MOTION TO
         VACATE JUDGMENT.

         {¶11} The Bank asserts in its first assignment of error that the trial court erred in

denying its motion to vacate the default judgment against it as service was insufficient and

because the trial court could not enter a default judgment after the Bank had filed an answer.
                                                  4


       {¶12} The Bank first argues that service was not accomplished in accordance with the

Civil Rules, as service on the Bank could not be completed by means of Federal Express.

       “[I]n order to render a valid personal judgment, a court must have personal
       jurisdiction over the defendant.” Maryhew v. Yova * * *, 11 Ohio St.3d 154, 156
       [(1984)] * * * . “‘This may be acquired 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.’” Asset
       Acceptance, L.L.C. v. Allen, 9th Dist. No. 24676, 2009-Ohio-5150, [] ¶ 3, quoting
       Maryhew, 11 Ohio St.3d at 156 * * * . “The latter may more accurately be
       referred to as a waiver of certain affirmative defenses, including jurisdiction over
       the person under the Rules of Civil Procedure.” Maryhew, 11 Ohio St.3d at 156
       ***.

Kennedy v. Kennedy, 9th Dist. No. 09CA009645, 2010-Ohio-404, ¶ 7. “‘Challenges to a trial

court’s jurisdiction present questions of law and are reviewed by this Court de novo.’” Id. at ¶ 6,

quoting Lorain Cty. Treasurer v. Schultz, 9th Dist. No. 08CA009487, 2009-Ohio-1828, ¶ 10.

       {¶13} We note that throughout the litigation the Bank maintained that it had not been

properly served. Examples of the Bank’s non-concession to the allegedly insufficient service

include the Bank’s filing of a motion to dismiss and the inclusion of insufficient service and lack

of service as affirmative defenses in its answer. See Gliozzo v. Univ. Urologists of Cleveland,

Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, ¶ 9. Thus, the Bank’s active participation in the

litigation cannot constitute a waiver of this argument. See Id. at syllabus (“When the affirmative

defense of insufficiency of service of process is properly raised and properly preserved, a party’s

active participation in the litigation of a case does not constitute waiver of that defense.”).

       {¶14} The Supreme Court has stated that “[t]he obligation to perfect service of process

is placed only on the plaintiff, and the lack of jurisdiction arising from want of, or defects in,

process or in the service thereof is ground for reversal.” LaNeve v. Atlas Recycling, Inc., 119

Ohio St.3d 324, 2008-Ohio-3921, ¶ 22.           Thus, “it is an established principle that actual
                                                 5


knowledge of a lawsuit’s filing and lack of prejudice resulting from the use of a legally

insufficient method of service do not excuse a plaintiff’s failure to comply with the Civil Rules.”

Id. “In this regard, the Civil Rules are not just a technicality, and we may not ignore the plain

language of a rule in order to assist a party who has failed to comply with a rule’s specific

requirements. The Civil Rules are a mechanism that governs the conduct of all parties equally.”

(Internal citations omitted.) Id. at ¶ 23.

        {¶15} The Bank, an out-of-state entity, argues on appeal that service by Federal Express

was insufficient as it failed to comply with the requirements of Civ.R. 4.3(B)(1).            Civ.R.

4.3(B)(1) states that:

        Evidenced by return receipt signed by any person, service of any process shall be
        by certified or express mail unless otherwise permitted by these rules. The clerk
        shall place a copy of the process and complaint or other document to be served in
        an envelope. The clerk shall address the envelope to the person to be served at
        the address set forth in the caption or at the address set forth in written
        instructions furnished to the clerk with instructions to forward. The clerk shall
        affix adequate postage and place the sealed envelope in the United States mail as
        certified or express mail return receipt requested with instructions to the
        delivering postal employee to show to whom delivered, date of delivery, and
        address where delivered.

        The clerk shall forthwith enter the fact of mailing on the appearance docket and
        make a similar entry when the return receipt is received.

(Emphasis added.) Thus, the plain language of the rule, as illustrated by the italicized language

above, does not anticipate or permit service by Federal Express.             See also 1994 Ohio

Atty.Gen.Ops. No. 94-055, at 2 (noting that former Civ.R. 4.1(1), which contains similar

language to Civ.R. 4.3(B)(1), except that it did not allow for service by express mail, “expressly

requires the clerk to use the United States mail[]”); 1997 Staff Note, Civ.R. 4.3 (“Prior to the

1997 amendment, service of process under this rule was permitted only by certified mail. It

appears that service of process by express mail, i.e. as that sort of mail is delivered by the United
                                                 6


States Postal Service, can always be obtained return receipt requested, and thus could accomplish

the purpose of notification equally well as certified mail. Therefore, the amendment provides for

this additional option for service.”). This is not to say that service via a commercial carrier such

as Federal Express is not an effective or efficient means of effectuating service.     Notably, the

2012 proposed amendments to Civ.R. 4.1(A) and 4.3(B) would allow service by commercial

carrier. However, given the proposed amendment, it is logical to conclude that such service is

not currently acceptable under the rules as no amendment would be necessary if such service

were already acceptable under the current rules. 2012 Staff Note, Civ.R. 4.1-4.6, 30, 73.

       {¶16} We note that J. Bowers requested initial service by certified mail, in compliance

with the rule. However, it appears the clerk’s office routinely orders service via Federal Express,

notwithstanding other instructions by plaintiffs. Nonetheless, it seems the parties and the trial

court were in agreement that initial service was not made to the appropriate entity at the

appropriate address. When J. Bowers requested service after obtaining the correct address, J.

Bowers requested service by Federal Express, an option not permitted under the current rules.

       {¶17} It seems even the General Division of the Summit County Court of Common

Pleas is aware that service by Federal Express does not constitute proper service as contemplated

by Civ.R. 4.1(A) or 4.3(B)(1), as the court entered a standing order on June 23, 2009, which

purports to appoint Federal Express and all of its employees, age 18 or older, as standing process

servers for the General Division of the Summit County Court of Common Pleas. See In re:

Appointment of Standing Process Server, Misc. No. 325 (June 23, 2009). This seems to indicate

that the court of common pleas believes that service by Federal Express can constitute personal

service as contemplated by Civ.R. 4.1(B) and 4.3(B)(2). However, assuming without deciding

that the court of common pleas could properly institute such a practice, and that service by
                                                 7


Federal Express could constitute personal service, Civ.R. 4.3(B)(2) states that a “person” as

contemplated by Civ.R. 4.3(A) can be personally served “[w]hen ordered by the court[.]” There

is no evidence in the record that the trial court ever ordered personal service upon the Bank. In

light of the foregoing, this Court concludes that proper service was not made upon the Bank.

Therefore, the trial court did not establish personal jurisdiction over the Bank, and its default

judgment against the Bank must be vacated. See State v. Young, 9th Dist. No. 04CA008446,

2004-Ohio-4328, ¶ 13 (“A default judgment rendered against a party over whom the court lacks

personal jurisdiction is void.”); Kennedy, 2010-Ohio-404, at ¶ 7.         Although a defendant’s

continued insistence on precise technical compliance with the Civil Rules pertaining to service

may seem to be a dilatory tactic designed to unnecessarily prolong the litigation, as noted in

Gliozzo, perfection of service of process is the plaintiff’s responsibility and a “defendant[] ha[s]

no duty to assist [plaintiff] in fulfilling this obligation.” Gliozzo, 114 Ohio St.3d 141, 2007-

Ohio-3762, at ¶ 16.

       {¶18} As we have sustained the first portion of the Bank’s first assignment of error, the

second portion has become moot, and we decline to address it. App.R. 12(A)(1)(c).

                                  ASSIGNMENT OF ERROR II

       THE COURT OF COMMON PLEAS ERRED IN DENYING THE MOTION
       FOR RELIEF FROM JUDGMENT.

       {¶19} The Bank’s second assignment of error has been rendered moot by our disposition

of the first assignment of error. Therefore, we decline to address it. App.R. 12(A)(1)(c).
                                                 8


                                                III.

       {¶20} In light of the foregoing, we vacate the default judgment entered by the Summit

County Court of Common Pleas and remand the matter for proceedings consistent with this

opinion.

                                                                               Judgment vacated
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT



WHITMORE, P. J.
MOORE, J.
CONCUR.
                                          9


APPEARANCES:

SCOTT A. KING and TERRY W. POSEY, JR., Attorneys at Law, for Appellant.

THOMAS C. LOEPP, Attorney at Law, for Appellee.
