[Cite as Bozsik v. West, 2017-Ohio-7781.]


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

STEVEN A. BOZSIK                                        C.A. No.      16CA010924

        Appellant

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
TIMOTHY WEST, et al.                                    COURT OF COMMON PLEAS
                                                        COUNTY OF LORAIN, OHIO
        Appellees                                       CASE No.   15CV186625

                                 DECISION AND JOURNAL ENTRY

Dated: September 25, 2017



        CARR, Judge.

        {¶1}     Plaintiff-Appellant Steven A. Bozsik appeals, pro se, from the judgment of the

Lorain County Court of Common Pleas dismissing his complaint. We affirm in part, reverse in

part, and remand this matter for further proceedings.

                                                 I.

        {¶2}     In May 2015, Bozsik, a vexatious litigator, was granted leave to file, and in June

2015 filed, a defamation action against Defendants-Appellees Timothy and Todd West

(collectively “the Wests”), who are brothers. All parties to the litigation are prison inmates.

Bozsik asserted in his complaint that, in October 2014, the Wests filed a statement with the

Institutional Investigator at the Richland Correctional Institution alleging that Bozsik was

extorting money from them through the Wests’ mother.               Bozsik was interviewed by the

Institutional Investigator and denied the allegations but admitted to purchasing commissary for

Todd West. Todd West later denied that he had inmates purchase commissary. Bozsik alleged
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that the Wests were subsequently issued conduct reports. He further alleged that, because of the

statements made against him, he was “placed in segregation for fifteen (15) days under

disciplinary control and thirty (30) days under local control,” resulting in lost pay and the

issuance of a conduct report in his record. Additionally, Bozsik claimed he suffered “great pain

and mental anguish[]” resulting in damages.          Bozsik maintained that the statements were

defamatory and were made with actual malice. He further asserted that the Wests knew that the

statements that he was extorting money were false.

       {¶3}    The Wests, also appearing pro se, filed a joint answer. The last paragraph of the

answer requested that the complaint be dismissed with prejudice. The attached certificate of

service failed to indicate the manner of service and was not signed. A few weeks later, the trial

court, noting that pleadings and motions of pro se litigants should be liberally construed, opted to

“consider [the Wests’] request that the ‘Court dismiss the Complaint against them with

prejudice’ as a motion to dismiss pursuant to Civ.R. 12(B).”

       {¶4}    Bozsik then filed a motion for default judgment against each of the brothers

asserting that the Wests had failed to plead or appear. Bozsik pointed out that, even though the

Wests filed a joint answer, the certificate of service was not endorsed and thus could not be

considered by the trial court. Additionally, Bozsik alleged that Todd West’s signature was a

forgery. Neither of Bozsik’s motions for default judgment contained a certificate of service.

       {¶5}    That same day, Bozsik also filed a motion to vacate or reconsider the trial court’s

decision which treated a portion of the Wests’ answer as a motion to dismiss. Bozsik argued that

the trial court could not consider the answer because the certificate of service was not endorsed

and Bozsik was never served with the document. Bozsik requested that the trial court vacate its

entry and strike the Wests’ answer. The trial court summarily denied the motions.
                                                 3


       {¶6}     Bozsik then filed a memorandum in opposition to the joint motion to dismiss

arguing that his complaint stated a cause of action for defamation against each brother. The trial

court ultimately granted the motion to dismiss. In so doing, the trial court concluded that

       [Bozsik’s] complaint alleges that[,] based upon the statements of Defendants
       West, Richland Correctional Institution investigated the claim that [Bozsik] was
       extorting money for them. Based upon the results of the investigation, the
       institution disciplined [Bozsik] by placing him in segregation for a period of time
       and by taking his state pay. Accepting these allegations in the complaint as true,
       the Court can only conclude that [Bozsik] would not have been disciplined
       without the investigator determining that the statements made by defendants West
       were true. Based upon the outcome of the internal investigation by Richland
       Correctional Institution, [Bozsik] can prove no set of facts showing that he is
       entitled to recovery.

       {¶7}     Bozsik filed leave to appeal, which was subsequently granted. Bozsik now raises

four assignments of error for our review, which will be addressed out of sequence to facilitate

our analysis.

                                                 II.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS
       DISCRETION OR COMMITTED PREJUDICIAL ERROR WHEN IT DENIED
       BOZSIK’S MOTION TO STRIKE AND RECONSIDER THE ORDER THAT
       SUA SPONTE CONVERTED THE WEST BROTHERS[’] JOINT ANSWER
       INTO A JOINT MOTION TO DISMISS.

       {¶8}     Bozsik argues in his third assignment of error that the trial court erred in denying

his motion to strike or reconsider the order that sua sponte treated a portion of the Wests’ answer

as a motion to dismiss. Specifically, Bozsik argues that the trial court could not consider the

Wests’ answer because the certificate of service was not endorsed and it was never served upon

him.

       {¶9}     Civ.R. 5(A), by its plain language, requires that “every order required by its terms

to be served, every pleading subsequent to the original complaint * * *, every written motion
                                                4


other than one which may be heard ex parte, and every written notice, appearance, demand, offer

of judgment, and similar paper shall be served upon each of the parties.” Civ.R. 5(A); see also

Pla v. Wivell, 9th Dist. Summit No. 25814, 2011-Ohio-5637, ¶ 14. “The served document shall

be accompanied by a completed proof of service which shall state the date and manner of

service, specifically identify the division of Civ.R. 5(B)(2) by which the service was made, and

be signed in accordance with Civ.R. 11. Documents filed with the court shall not be considered

until proof of service is endorsed thereon or separately filed.” Civ.R. 5(B)(4) (equivalent to

former Civ.R. 5(B)(3), which was applicable at the time of the trial court proceedings). “This

Court has recognized that the language of the Civil Rules regarding service of process is

mandatory, and, even in the context of a pro se litigant, a trial court may not consider a

[document] if the [document] failed to comply with the rules regarding service of process.” Pla

at ¶ 14; see also Ohio Receivables, L.L.C. v. Rivera, 197 Ohio App.3d 694, 2012-Ohio-216, ¶ 8;

First Resolution Invest. Corp. v. Salem, 9th Dist. Summit No. 24049, 2008-Ohio-2527, ¶ 8.

       {¶10} This Court, on more than one occasion, has cited and relied upon the logic of

Erie Ins. Co. v. Bell, 4th Dist. Lawrence No. 01CA12, 2002-Ohio-6139. See First Resolution

Invest. Corp. at ¶ 7-8; Martin v. Wayne Cty. Natl. Bank Trust, 9th Dist. Wayne No. 03CA0079,

2004-Ohio-4194, ¶ 15-16. In Erie, the defendant, acting pro se, filed a document that was

construed as an answer but which did not contain a certificate of service. See id at ¶ 7. No proof

of service was separately filed. Id. at ¶ 24. The plaintiffs filed a motion for default judgment

asserting that the answer failed to comply with Civ.R. 5; the trial court denied the motion and the

case proceeded to trial. Id. at ¶ 8-9. On appeal, the court of appeals concluded that, “because no

certificate of service was ever filed with the trial court, it could not have properly considered

[defendant’s] answer[.]” Id. at ¶ 25.
                                                5


       {¶11} In the instant matter, the Wests’ answer contained a page labeled as a certificate

of service; however, that page was not signed and failed to list the manner of service. See Civ.R.

5(B)(4); former Civ.R. 5(B)(3). Further, nothing in the record reflects that a proof of service was

separately filed. See Civ.R. 5(B)(4); former Civ.R. 5(B)(3). As this Court has held that the

language of the Civil Rules regarding service is mandatory, the trial court erred in considering

the answer. See Pla at ¶ 14; see also Patel v. Lambrecht, 4th Dist. Athens No. 13CA3, 2014-

Ohio-2953, ¶ 22-23; Harleman v. Harleman, 2d Dist. Montgomery Nos. 24704, 24722, 2012-

Ohio-205, ¶ 23 (noting that a court could not consider a document with a certificate of service

that fails to state the date on which the filing was served). Consequently, the trial court also

could not consider the answer as a motion to dismiss for similar reasons.

       {¶12} Upon remand, the trial court can determine the appropriate remedy. See Civ.R.

11 (authorizing courts to strike documents that are not signed); Civ.R. 5(B)(4) and former Civ.R.

5(B)(3) (“Documents filed with the court shall not be considered until proof of service is

endorsed thereon or separately filed.”) (Emphasis added.); Civ.R. 4.6(B) (stating that “[t]he court

within its discretion and upon such terms as are just, may at any time allow the amendment of

any process or proof of service thereof, unless the amendment would cause material prejudice to

the substantial rights of the party against whom the process was issued.”); Harleman at ¶ 22.

       {¶13} To the extent that Bozsik has argued that the trial court erred in considering the

Wests’ answer, we sustain his third assignment of error.

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS
       DISCRETION OR COMMITTED PREJUDICIAL ERROR WHEN IT
       GRANTED THE WEST BROTHERS[’] JOINT MOTION TO DISMISS WHEN
       FACTS ARE AVAILABLE IN THE COMPLAINT THAT BUTTRESS BOZSIK
       IS ENTITLED TO THE RELIEF REQUESTED.
                                                 6


       {¶14} Bozsik argues in his fourth assignment of error that the trial court erred in

granting the Wests’ motion to dismiss.

       {¶15} In light of our conclusion above that the trial court could not consider the Wests’

answer/motion to dismiss, we agree that the trial court erred in granting the motion to dismiss.

       {¶16} Bozsik’s fourth assignment of error is sustained solely on that basis.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
       BOZSIK’S MOTION FOR DEFAULT JUDGMENT PURSUANT TO CIV.R.
       55.

       {¶17} Bozsik argues in his first assignment of error that the trial court erred in failing to

grant his motions for default judgment because the trial court could not consider the answer filed

by the Wests.

       {¶18} We conclude that the trial court did not err in denying Bozsik’s motions for

default judgment as the record does not reflect that either motion included a certificate of service

or a separately filed proof of service. See Civ.R. 5(B)(4); former Civ.R. 5(B)(3). Thus, the trial

court could not consider the motions. See Pla, 2011-Ohio-5637, at ¶ 14. Further, we note that

even though the trial court could not consider the Wests’ answer/motion to dismiss as an answer

or motion to dismiss, as discussed above, other districts have considered similar filings to

constitute appearances for purposes of Civ.R. 55(A). See CitiMortgage, Inc. v. Bumphus, 197

Ohio App.3d 68, 2011-Ohio-4858, ¶ 34-36 (6th Dist.); Plant Equip., Inc. v. Nationwide Control

Serv., Inc., 155 Ohio App.3d 46, 2003-Ohio-5395, ¶ 8; Hall v. Parcels of Land Encumbered with

Delinquent Tax Liens¸10th Dist. Franklin No. 96APE11-1552, 1997 WL 328827, *1 (June 5,

1997) (holding “that Plaza did ‘appear’ through the filing of its answer, although the manner by

which Plaza appeared rendered its answer technically defective[]”); see also Discover Bank v.
                                                 7


Crocker, 9th Dist. Wayne No. 15AP0021, 2016-Ohio-2759, ¶ 8-9 (noting that courts have

construed the word appeared broadly and concluded filing a notice of appearance was an

appearance for purposes of Civ.R. 55(A)). If the Wests were determined to have appeared in the

action, the trial court could not grant default judgment absent sufficient notice and a hearing. See

Regions Bank v. Sabatino, 9th Dist. Summit No. 25907, 2012-Ohio-4254, ¶ 10.

       {¶19} In light of the foregoing, Bozsik has not demonstrated that the trial court erred in

denying the motions for default judgment. Bozsik’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION, COMMITTING
       PREJUDICIAL ERROR, WHEN IT SUA SPONTE CONVERTED THE WEST
       BROTHERS[’] JOINT ANSWER INTO A JOINT MOTION TO DISMISS.

       {¶20} Bozsik argues in his second assignment of error that the trial court erred in

converting the Wests’ answer into a motion to dismiss.

       {¶21} In light of our resolution of the foregoing assignments of error, this assignment of

error has been rendered moot, and we decline to address it. See App.R. 12(A)(1)(c).

                                                III.

       {¶22} Bozsik’s third and fourth assignments of error are sustained to the extent

discussed above. Bozsik’s first assignment of error is overruled, and we decline to address his

second assignment of error as it has been rendered moot. The judgment of the Lorain County

Court of Common Pleas is affirmed in part, reversed in part, and the matter is remanded for

proceedings consistent with this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.
                                                 8




       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 Lorain, 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 equally to both parties.




                                                     DONNA J. CARR
                                                     FOR THE COURT



SCHAFER, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

STEVEN A. BOZSIK, pro se, Appellant.

TIMOTHY WEST, pro se, Appellee.

TODD WEST, Pro se, Appellee.
