[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.
                                                                                     -2-

         {¶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
                                                                                     -3-

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).
                                                                                      -4-

         {¶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
                                                                                     -5-

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
                                                                                   -6-

      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.
