[Cite as Wells Fargo Bank, N.A. v. Washington, 2013-Ohio-773.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




WELLS FARGO BANK, N.A.,                               :

        Plaintiff-Appellee,                           :          CASE NO. CA2011-11-211

                                                      :               OPINION
   - vs -                                                              3/4/2013
                                                      :

RANDY P. WASHINGTON, et al.,                          :

        Defendants-Appellants.                        :



            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              Case No. CV2010-03-1153



Thompson Hine LLP, Scott A. King, Terry W. Posey, Jr., Austin Landing I, 10050 Innovation
Drive, Suite 400, Dayton, Ohio 45342-4934, for plaintiff-appellee

Dann, Doberdruk & Wellen LLC, Marc E. Dann, Grace Doberdruk, 4600 Prospect Avenue,
Cleveland, Ohio 44103, for defendants-appellants, Randy P. & Artiffany A. Washington

Household Realty Corp., 1300 East Ninth Street, Suite 1010, Cleveland, Ohio 44114,
defendant, pro se

Kenneth R. Reed, 241 Elm Street, Ludlow, KY 41016, for defendant, Foxborough Home
Owners Assn.

Kelly Williams, 620 Main Street, Suite 500, Cincinnati, Ohio 45202, for defendant, Credit
Acceptance Corp.



        RINGLAND, J.

        {¶ 1} Defendants-appellants, Randy Washington and Artiffany Washington, appeal
                                                                         Butler CA2011-11-211

from the foreclosure and confirmation of sale of their real estate by the Butler County Court

of Common Pleas.

        {¶ 2} On March 10, 2010, plaintiff-appellee, Wells Fargo Bank, N.A., filed a complaint

in foreclosure against appellants. On April 20, 2010, appellee filed a notice of voluntary

dismissal pursuant to Civ.R. 41(A)(1). On April 28, 2010, appellee filed a motion to vacate

the dismissal, stating that it was inadvertently dismissed due to mistake and error. The trial

court granted appellee's motion to vacate the dismissal on May 4, 2010. Upon motion by

appellee, the trial court issued a judgment and decree in foreclosure on June 14, 2010.

Appellant's home was subsequently sold on September 1, 2011, with the trial court

confirming the sale on October 12, 2011.

        {¶ 3} Appellants now appeal the foreclosure and confirmation of sale of their real

estate, raising a single assignment of error for our review.

        {¶ 4} Assignment of Error No. 1:

        {¶ 5} THE TRIAL COURT ABUSED ITS DISCRETION BY CONFIRMING THE SALE

WHEN APPELLANT ARTIFFANY WASHINGTON WAS NEVER PROPERLY SERVED.

        {¶ 6} Within this assignment of error, appellants raise two issues. First, appellants

argue that "[a]ppellant Artiffany Washington was never served with the complaint which

rendered the judgment of foreclosure void ab initio for lack of personal jurisdiction * * *."

Second, they argue that the trial court lacked jurisdiction to render a judgment following

appellees filing of a notice of voluntary dismissal pursuant to Civ. R. 41(a). We address

appellant's second argument first as our resolution of that issue renders the first argument

moot.

        {¶ 7} The Ohio Supreme Court has held that, "[t]he plain import of Civ.R. 41(A)(1) is

that once a plaintiff voluntarily dismisses all claims against a defendant, the court is divested

of jurisdiction over those claims. 'It is axiomatic that such dismissal deprives the trial court of
                                                -2-
                                                                          Butler CA2011-11-211

jurisdiction over the matter dismissed. After its voluntary dismissal, an action is treated as if it

had never been commenced.' Zimmie v. Zimmie (1984), 11 Ohio St.3d 94, 95, 11 OBR 396,

464 N.E.2d 142." State ex rel. Fifth Third Mtge. Co. v. Russo, 129 Ohio St.3d 250, 2011-

Ohio-3177, ¶ 17.

       {¶ 8} Appellants contend that any judgment journalized after the date of the filing of

the voluntary dismissal by appellee is a nullity. Kosier v. Lucas, 6th Dist. No. L-12-1019,

2012-Ohio-6243, ¶ 4. Appellants therefore contend that the trial court erred in vacating the

voluntary dismissal as its jurisdiction over the case was extinguished. In turn, appellee

argues that: (1) appellants' argument is waived as they failed to raise it below; (2) the proper

remedy was not to appeal, but rather to file for an equitable writ; (3) the time for seeking an

equitable writ has long since passed; and (4) even if an appeal were available, it would have

been from the default judgment, not from the confirmation of sale.

       {¶ 9} As to appellee's first argument, we note that “[a] jurisdictional defect cannot be

waived. Painesville v. Lake Cty. Budget Comm., 56 Ohio St.2d 282 (1978). This means that

the lack of jurisdiction can be raised at any time, even for the first time on appeal. See In re

Byard, 74 Ohio St.3d 294, 296 (1996). This is because jurisdiction is a condition precedent

to the court's ability to hear the case.        If a court acts without jurisdiction, then any

proclamation by that court is void. Patton v. Diemer, 35 Ohio St.3d 68 (1988).” State ex rel.

Jones v. Suster, 84 Ohio St.3d 70, 75 (1998).

       {¶ 10} With respect to appellee's second and third assignments, while appellants

could have attacked the decision granting the motion to vacate dismissal through writs of

mandamus and prohibition, their failure to do so does not waive their right to appeal on

jurisdictional grounds. Accordingly, it is also irrelevant whether the time to seek an equitable

writ has passed. Finally, appellants' appeal from the confirmation of sale is neither an

attempt to circumvent an untimely appeal of the foreclosure judgment, nor is it an effort to
                                                -3-
                                                                     Butler CA2011-11-211

gain another bite at the apple on issues that were previously raised or could have been

raised. As stated above, lack of jurisdiction may be raised on appeal at any time, and any

proclamations made by the court without jurisdiction are void. Therefore, appellants could

have rightfully appealed from either the foreclosure judgment or the confirmation of sale

stemming from that judgment as they did in the present case.

      {¶ 11} We find that the trial court was divested of jurisdiction following appellee's

voluntarily dismissal of its complaint. Appellants' first assignment of error is therefore

sustained.

      {¶ 12} Judgment reversed and vacated for lack of jurisdiction, as are all judgments,

orders and decrees issued by the trial court after the April 20, 2010 voluntary dismissal.


      HENDRICKSON, P.J., and S. POWELL, J., concur.




                                             -4-
