         [Cite as Johnson v. Hisle, 2018-Ohio-3693.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO


ELIJAH JOHNSON,                                   :            APPEAL NO. C-170717
                                                               TRIAL NO. 14CV-10749
        Plaintiff-Appellee,                       :

  vs.                                             :             O P I N I O N.

PAULETTE HISLE,                                   :

    Defendant-Appellant.                          :




Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is:            Reversed, Default Judgment Vacated, and Complaint
                                      Dismissed

Date of Judgment Entry on Appeal: September 14, 2018


Mark S. Maddox, for Plaintiff-Appellee,

Barry Levy and Stuart W. Penrose, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS


M ILLER , Judge.

        {¶1}   Defendant-appellant Paulette Hisle appeals the decision of the Hamilton

County Municipal Court denying her motion to vacate the default judgment entered

below. We vacate the judgment and dismiss the action because plaintiff-appellee

Elijah Johnson’s instruction for the clerk to attempt service of a complaint that was

filed more than a year prior functioned as a notice of dismissal of his claims. Sisk &

Assoc., Inc. v. Commt. to Elect Timothy Grendell, 123 Ohio St.3d 447, 2009-Ohio-

5591, 917 N.E.2d 271. Accordingly, all court actions after the effective dismissal were

void.

                         Procedural Posture and Facts

        {¶2}   Johnson filed a complaint for negligent entrustment and personal

injuries stemming from an automobile accident between Johnson and Jermella Figs.

Johnson alleges vehicle-owner Paulette Hisle negligently entrusted her vehicle to Figs.

        {¶3}   In 2012, Johnson initially filed his original complaint against Hisle

and Figs. In 2013, the original suit was dismissed without prejudice for want of

prosecution.

        {¶4}   In May 2014, Johnson filed an identical complaint in the instant case.

Johnson obtained a default judgment against Hisle in August 2014. In February

2015, the trial court vacated the default judgment, finding that service was not

proper because certified mail service had failed and ordinary mail service was made

to the wrong address. Johnson timely appealed from the order vacating the default

judgment, but later voluntarily dismissed his appeal. See Johnson v. Hisle, 1st Dist.

Hamilton No. C-150076 (Sept. 10, 2015).

        {¶5}   The case lay dormant for four months. On January 6, 2016, 19 months

after the complaint was filed, Johnson filed a praecipe for alias summons, asking the



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clerk of court to serve the complaint on Hisle via certified mail to the correct address.

On January 27, 2016, the summons and complaint were returned unclaimed. The

court docket entry on that date indicates that ordinary mail service was then issued

to the same address, with an answer and appearance deadline of February 24, 2016.

Seemingly, service was completed upon this entry, see Civ.R. 4.6(D), but neither

party addresses this issue.

       {¶6}   On February 29, 2016, Johnson filed a notice that Hisle was personally

served with the complaint via a private process server on February 6, 2016, and

argues that this was the effective date of service. Hisle disputes receiving personal

service, claiming that she was not home at the time.

       {¶7}   In March 2016, Johnson moved for a default judgment against Hisle,

which was granted in June 2016. Hisle timely moved to vacate the default judgment.

Hisle initially appealed from the trial court’s order granting a default judgment in the

appeal numbered C-160587. However, her appeal was ultimately dismissed under

App.R. 18(C) for failing to file an appellate brief within the time allowed.

       {¶8}   In December 2017, the trial court denied Hisle’s motion to vacate the

default judgment against her. Hisle now appeals.

                                Standard of Review

       {¶9}   We review the denial of a motion to vacate under an abuse-of-

discretion standard. Hoffman v. Hoffman, 1st Dist. Hamilton No. C-170640, 2018-

Ohio-3029.    However, a trial court’s determination of whether it has personal

jurisdiction over a defendant is a question of law that we review de novo. (Internal

citations omitted.) CommuniCare Health Servs., Inc. v. Murvine, 9th Dist. Summit

No. 23557, 2007-Ohio-4651, ¶ 13.




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                                      Analysis

       {¶10} In her sole assignment of error, Hisle contends that the trial court

erred in denying her motion to vacate the default judgment against her for lack of

personal jurisdiction. Hisle claims that she was not served with the complaint in

accordance with Civ.R. 4.1(B), the trial court lacked jurisdiction to enter a default

judgment where service of process had failed, and the trial court should have held an

evidentiary hearing before rejecting her contention that personal service had failed.

Johnson argues that our dismissal of Hisle’s 2016 appeal on procedural grounds is

res judicata, barring any argument that Hisle would have raised, or, in the

alternative, that service was perfected upon Hisle via personal service.

       {¶11} Before examining the arguments of the parties, we note that it is

patent that the court below lacked jurisdiction to enter the default judgment.

“[O]nce a plaintiff voluntarily dismisses all claims against a defendant, the court is

divested of jurisdiction over those claims.” State ex rel. Fifth Third Mtge. Co. v.

Russo, 129 Ohio St.3d 250, 2011-Ohio-3177, 951 N.E.2d 414, ¶ 17. “A jurisdictional

defect cannot be waived.” (Internal citation omitted.) State ex rel. Jones v. Suster,

84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998). “If a court acts without jurisdiction,

then any proclamation by that court is void.” Id., citing Patton v. Diemer, 35 Ohio

St.3d 68, 70, 518 N.E.2d 941 (1988); see Maryhew v. Yova, 11 Ohio St.3d 154, 156-

159, 464 N.E.2d 538 (1984).

            Failure of Commencement Pursuant to Civ.R. 3(A)

       {¶12} Johnson failed to commence his civil action against Hisle within the

one-year period prescribed by Civ.R. 3(A). If a plaintiff fails to obtain service of

process within one year, then a court may dismiss the action. Maryhew at 157; see

Apostolouski v. Sharp, 10th Dist. Franklin No. 04AP-1105, 2005-Ohio-2559, ¶ 26.



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                     OHIO FIRST DISTRICT COURT OF APPEALS


“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 * * *.” Civ.R.

3(A). “A principal purpose of Civ.R. 3(A) is ‘to promote the prompt and orderly

resolution of litigation, as well as eliminating the unnecessary clogging of court

dockets caused by undue delay.’ ” Sisk & Assoc., Inc., 123 Ohio St.3d 447, 2009-

Ohio-5591, 917 N.E.2d 271, at ¶ 5, quoting Saunders v. Choi, 12 Ohio St.3d 247, 250,

466 N.E.2d 889 (1984); see Fetterolf v. Hoffmann-LaRoche, Inc., 104 Ohio App.3d

272, 277, 661 N.E.2d 811 (11th Dist.1995) (construing Saunders and holding that no

extension of time to perfect service can be granted after the one-year limitations

period for the commencement of an action has run).

       {¶13} Controlling, in this case, “an instruction to the clerk of courts to

attempt service outside the one-year period in Civ.R. 3(A) is ‘equivalent to a refiling

of the complaint.’ ” Sisk & Assoc., Inc. at ¶ 8, quoting Goolsby v. Anderson Concrete

Corp., 61 Ohio St.3d 549, 575 N.E.2d 801 (1991), paragraph one of the syllabus. “The

attempt to serve the second complaint more than one year after it was filed is

equivalent, then, to a refiling of the complaint, which necessarily implies that the

second complaint had been dismissed by notice * * *.” Id. Thus, when a plaintiff

files an instruction for a clerk of court to attempt service of a complaint that was filed

more than a year prior, the instruction, by operation of law, is a notice of dismissal of

the claims. Id. at ¶ 9. “The notice of voluntary dismissal is self-executing and

completely terminates the possibility of further action on the merits of the case upon

its mere filing, without the necessity of court intervention.”        (Internal citations

omitted.) State ex rel. Fifth Third at ¶ 17.

       {¶14} Here, Johnson filed a praecipe for alias summons on January 6, 2016,

asking the clerk of court to serve the complaint filed on May 15, 2014.              This




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instruction for service more than one year after the filing of the complaint operated

as a notice of dismissal of Johnson’s claims. The case ended at that point based on

the plaintiff’s failure to commence it, and the court lacked jurisdiction to grant the

default judgment against Hisle. See Page v. Riley, 85 Ohio St.3d 621, 623, 710

N.E.2d 690 (1999) (“When a trial court unconditionally dismisses a case or a case

has been properly voluntarily dismissed pursuant to Civ.R. 41(A)(1), the trial court

patently and unambiguously lacks jurisdiction to proceed * * *.”); State ex rel. Fogle

v. Steiner, 74 Ohio St.3d 158, 164, 656 N.E.2d 1288 (1995) (any judgment entered

post dismissal is a nullity). The trial court’s judgment entered on Johnson’s claim is

therefore void.

       {¶15} Finally, Johnson argues that because Hisle’s appeal in the case

numbered C-160587 was dismissed pursuant to App.R. 18(C), we must overrule her

sole assignment of error here under the law-of-the-case doctrine. A dismissal under

App.R. 18(C) is not an affirmance of the lower court’s judgment, see, e.g., Fed. Ins.

Co. v. Fredericks, 2015-Ohio-694, 29 N.E.3d 313, ¶ 79 (2d Dist.), nor does it vest the

trial court with jurisdiction over a case that was terminated.

                                     Conclusion

       {¶16} In conclusion, we sustain the sole assignment of error, reverse the trial

court’s judgment denying Hisle’s motion to vacate the default judgment, vacate the

trial court’s entry of a default judgment, and hereby dismiss Johnson’s complaint

with prejudice.


                                                                  Judgment accordingly.

M OCK , P.J., and C UNNINGHAM , J., concur.
Please note:
       The court has recorded its own entry on the date of the release of this opinion.



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