[Cite as Ice Miller L.L.P. v. Advanced Diagnostics, Inc., 2017-Ohio-8850.]


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

ICE MILLER, LLP fka SCHOTTENSTEIN,                          C.A. No.         28584
ZOX & DUNN, CO., LPA

        Appellee
                                                            APPEAL FROM JUDGMENT
        v.                                                  ENTERED IN THE
                                                            COURT OF COMMON PLEAS
ADVANCED DIAGNOSTICS INC.                                   COUNTY OF SUMMIT, OHIO
                                                            CASE No.   CV-2016-02-0948
        Appellant

                                 DECISION AND JOURNAL ENTRY

Dated: December 6, 2017



        HENSAL, Presiding Judge.

        {¶1}     Advanced Diagnostics, Inc. appeals from the judgment of the Summit County

Court of Common Pleas. We reverse and remand.

                                                       I.

        {¶2}     The factual background of this case is not relevant for purposes of this Court’s

disposition of this appeal. We, therefore, will focus our analysis on the procedural history and

motion practice that precipitated this appeal.

        {¶3}     Ice Miller LLP, fka Schottenstein, Zox & Dunn Co., LPA (“Ice Miller”), filed a

complaint against Advanced Diagnostics, Inc. (“Advanced Diagnostics”) in February 2016. In

April 2016, Ice Miller moved for default judgment on the basis that Advanced Diagnostics failed

to file a responsive pleading to Ice Miller’s complaint. One week later, and without any response

from Advanced Diagnostics, the trial court granted Ice Miller’s motion.
                                                2


       {¶4}    Nine months later, Advanced Diagnostics filed a “Motion for Relief from

Judgment; Motion to Vacate or Set Aside Judgment[,]” and then filed an amended motion

shortly thereafter. In it, Advanced Diagnostics argued that it never received proper service of the

complaint, and that it only learned of the default judgment through its statutory agent months

after the trial court’s order. Advanced Diagnostics argued that it was entitled to relief under

Civil Rule 60(B)(1) and (5), which allow a court to grant relief from a judgment in the event of

mistake, inadvertence, surprise, or excusable neglect, or for any other reason justifying relief

from judgment. Advanced Diagnostics also argued that, in the alternative, the trial court should

vacate the judgment on the basis of lack of jurisdiction. Importantly, both arguments were

predicated upon the alleged lack of service.

       {¶5}    The trial court summarily denied Advanced Diagnostics’ motion, stating that it

did so based “[u]pon consideration of the motion in light of Civ.R. 60(B) and GTE Automatic

Elec., Inc. v. ARC Industries, Inc. * * *.” The trial court provided no further analysis of its

decision. Advanced Diagnostics has appealed that decision, raising two assignments of error for

our review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING ADVANCED
       DIAGNOSTIC[S’] CIV.R. 60(B) MOTION FOR RELIEF FROM JUDGMENT
       GIVEN THE EVIDENCE SUBMITTED TO THE COURT FULFILLED THE
       REQUIREMENTS OF CIVIL RULE 60(B).

       {¶6}    In its first assignment of error, Advanced Diagnostics argues that the trial court

abused its discretion when it denied its motion for relief from judgment under Rule 60(B). As

explained below, we decline to address the merits of this argument.
                                                3


       {¶7}    As previously noted, the crux of Advanced Diagnostics’ argument below was

that, since it never received proper service of the complaint, it was entitled to relief from

judgment under Rule 60(B), or to have the trial court vacate the judgment on the basis of lack of

jurisdiction. As the Ohio Supreme Court has stated, “a judgment rendered without proper

service or entry of appearance is a nullity and void.” (Emphasis added.) Cincinnati School Dist.

Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 87 Ohio St.3d 363, 367 (2000), quoting Lincoln

Tavern, Inc. v. Snader, 165 Ohio St. 61, 64 (1956). Rule 60(B), however, governs voidable, as

opposed to void, judgments. This Court has explained that:

       a party that argues that a judgment is void “should not file a Civ.R. 60(B) motion
       for relief from judgment in order to have [it] vacated or set aside, since Civ.R.
       60(B) motions apply only to judgments that are voidable rather than void.” * * *
       “This is because ‘[t]he power to vacate a void judgment does not arise from
       Civ.R. 60(B), but rather, from an inherent power possessed by the courts in this
       state.’” * * * Instead, “a common law motion to vacate is the appropriate means
       by which to challenge a judgment that is void.”

(Citation omitted.) Lorain Natl. Bank v. Corna, 9th Dist. Lorain No. 13CA010472, 2015-Ohio-

432, ¶ 7. We further explained that, if “a party incorrectly seeks relief under Civ.R. 60(B) in an

attempt to vacate a void judgment, a court will treat the motion as a common law motion to

vacate or set aside the judgment * * *.” (Citation omitted.) Id. This is significant because “a

common law motion to vacate a void judgment need not meet the standards applicable to a

Civ.R. 60(B) motion.” State ex rel. DeWine v. 9150 Group L.P., 9th Dist. Summit No. 25939,

2012-Ohio-3339, ¶ 7.

       {¶8}    Here, both of Advanced Diagnostics’ arguments relied upon the alleged lack of

proper service, which renders a judgment void, not merely voidable. Cincinnati School Dist. Bd.

of Edn. at 366-367. Thus, a Rule 60(B) motion was not the appropriate means by which to

challenge the trial court’s judgment. Corna at ¶ 7. Notwithstanding, the trial court should have
                                                4


considered Advanced Diagnostics’ argument in that regard as a common law motion to vacate.

Id. Instead, the trial court denied Advanced Diagnostics’ motion under the auspices of Rule

60(B). Additionally, there is no indication that the trial court considered Advanced Diagnostics’

alternative argument that the trial court should grant its motion to vacate on the basis of lack of

jurisdiction. We, therefore, reverse and remand the matter in order for the trial court to consider

Advanced Diagnostics’ motion – in its entirety – as a common law motion to vacate. Corna at ¶

9. Advanced Diagnostics’ first assignment of error is sustained on that basis.

                                 ASSIGNMENT OF ERROR II

       THE COURT ABUSED ITS DISCRETION AND/OR ERRED IN NOT
       GRANTING ADVANCED’S MOTION TO VACATE OR SET ASIDE THE
       JUDGMENT FOR LACK OF JURISDICTION.

       {¶9}    In light of our disposition of the previous assignment of error, we decline to

address the merits of Advanced Diagnostics’ second assignment of error on the basis that it is

now moot. App.R. 12(A)(1)(c).

                                               III.

       {¶10} Advanced Diagnostics’ first assignment of error is sustained. We decline to

address the merits of Advanced Diagnostics’ second assignment of error on the basis that it is

moot. The judgment of the Summit County Court of Common Pleas is reversed, and the cause is

remanded for further proceedings consistent with this decision.

                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.
                                                 5


       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.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



SCHAFER, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

RONALD T. GATTS, Attorney at Law, for Appellant.

MARK J. SHERIFF, Attorney at Law, for Appellee.
