[Cite as Carter Jones Lumber Co. v. Kerr, 2016-Ohio-5169.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


The Carter Jones Lumber Co. dba                              Court of Appeals No. WD-14-039
Carter Lumber Co.
                                                             Trial Court No. 02-CVF-01038
        Appellee

v.

Jeremy Kerr dba Kerr Construction                            DECISION AND JUDGMENT

        Appellant                                            Decided: July 29, 2016

                                                 *****

        Jeremy Kerr, pro se.

                                                 *****

        PIETRYKOWSKI, J.

        {¶ 1} This is an accelerated appeal from the judgment of the Bowling Green

Municipal Court.1 Appellant, Jeremy Kerr, contests the trial court’s denial of his motion

for relief from judgment. For the following reasons, we affirm.



1
 On May 1, 2015, we stayed this matter pending appellant’s bankruptcy proceedings.
Those proceedings are now completed, and the bankruptcy stay has been lifted.
      On July 12, 2002, appellee, The Carter-Jones Lumber Co., filed a complaint

against appellant alleging that he had passed four bad checks. Appellant was personally

served with the complaint on August 7, 2002. On September 27, 2002, appellee moved

for default judgment. The trial court granted the motion on October 8, 2002, and entered

judgment for appellee in the amount of $4,445.25. Thereafter, collection proceedings

were undertaken for the better part of the next decade, with minimal success.

      On March 5, 2012, appellant filed a “Motion to Vacate Default Judgment,” in

which he argued that he was not the proper defendant. Instead, he argued that the checks

were written by a limited liability corporation named “Kerr Construction,” of which he

was the member and manager. The trial court denied this motion on May 21, 2012.

Appellant did not appeal.

      On April 11, 2014, appellant filed a “Motion to Vacate Void Av (sic) Initio

Judgment.” Appellant’s motion invoked Civ.R. 60(B), but he also argued that the

judgment was void because he was not a proper defendant. On May 19, 2014, the trial

court entered its judgment denying appellant’s motion to vacate, finding that appellant

failed to demonstrate any of the requirements under Civ.R. 60(B) and that he was

improperly attempting to use Civ.R. 60(B) as a substitute for appeal.

      Appellant has timely appealed the trial court’s May 19, 2014 judgment, and now

asserts one assignment of error for our review:

             1. The trial court erred by applying the prerequisite (sic) of Civ.R.

      60 to a void ab initio judgment.




2.
                                          Analysis

       In his brief, appellant reasserts the argument that the trial court lacked jurisdiction

over him because he was not the proper defendant. Thus, appellant concludes that the

judgment is void ab initio, and consequently the requirements of a Civ.R. 60(B) motion

are not applicable.

       In support of his argument, appellant cites Owners Ins. Co. v. Blakemore, 6th Dist.

Lucas No. L-01-1342, 2002 Ohio App. Lexis 220, 2002-Ohio-239 (Jan. 25, 2002), in

which we held that because the trial court lacked personal jurisdiction over the appellant,

Timothy Blakeman, the judgment was void ab initio and he was not compelled to

establish the requirements of Civ.R. 60(B)(5).

       We find Blakemore to be distinguishable. In that case, we found that the trial

court lacked personal jurisdiction over Blakeman because the complaint named Timothy

Blakemore as the defendant and was never amended to properly name Timothy

Blakeman. Id. at *7-8. Here, however, the trial court properly had jurisdiction over

appellant. “[Personal jurisdiction] may be acquired either by service of process upon the

defendant, the voluntary appearance and submission of the defendant or his legal

representative, or by certain acts of the defendant or his legal representative which

constitute an involuntary submission to the jurisdiction of the court.” Maryhew v. Yova,

11 Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). In this case, jurisdiction over appellant

was acquired by the personal service of the complaint in which he was the named

defendant. See Civ.R. 3(A) (“A civil action is commenced by filing a complaint with the




3.
court, if service is obtained within one year from such filing upon a named defendant

* * *.”); Civ.R. 4.1(B). Unlike Blakemore, this is not a situation where appellant was not

the named defendant because his name was misspelled. Therefore, because the trial court

had personal jurisdiction over appellant, the trial court’s default judgment is not void ab

initio.

          Since the judgment is not void, in order to obtain relief from the judgment,

appellant must comply with the requirements of Civ.R. 60(B). That is, he must

demonstrate

          (1) the party has a meritorious defense or claim to present if relief is

          granted; (2) the party is entitled to relief under one of the grounds

          enumerated in Civ.R. 60(B)(1) through (5); and (3) the motion is made

          within a reasonable time, and, where the grounds for relief are Civ.R.

          60(B)(1), (2), or (3), not more than one year after the judgment, order, or

          proceeding was entered or taken. GTE Automatic Elec., Inc. v. ARC

          Industries, Inc., 47 Ohio St.2d 146, 150-151, 351 N.E.2d 113 (1976).

“These requirements are independent and in the conjunctive; thus the test is not fulfilled

if any one of the requirements is not met.” Strack v. Pelton, 70 Ohio St.3d 172, 174, 637

N.E.2d 914 (1994).

          Upon our review of the record, we hold that the trial court did not abuse its

discretion in denying appellant’s motion to the extent that it invoked Civ.R. 60(B). See

Moore v. Emmanuel Family Training Ctr., Inc., 18 Ohio St.3d 64, 66, 479 N.E.2d 879




4.
(1985) (An appellate court applies an abuse of discretion standard in reviewing the trial

court’s ruling on a motion for relief from judgment under Civ.R. 60(B).). First,

appellant’s motion is barred by res judicata. “When a motion for relief from judgment

has been denied, res judicata precludes relief on successive, similar motions raising issues

which were or could have been raised originally.” Caron v. Manfresca, 10th Dist.

Franklin No. 98AP-1399, 1999 Ohio App. LEXIS 4395, *12 (Sept. 23, 1999), citing

McCann v. Lakewood, 95 Ohio App.3d 226, 237, 642 N.E.2d 48 (8th Dist.1994). Here,

appellant’s argument that Kerr Construction, not himself individually, was the proper

defendant was raised in his initial “Motion to Vacate Default Judgment.” The trial court

rejected appellant’s argument, and appellant did not appeal. Thus, res judicata precludes

appellant from raising the argument again now.

       Second, even if res judicata did not apply, we cannot say that the trial court’s

denial of his Civ.R. 60(B) motion was an abuse of discretion where it was untimely filed

nearly 12 years after the default judgment was entered, and after a decade of collections

proceedings.

       Accordingly, appellant’s assignment of error is not well-taken.

                                        Conclusion

       For the foregoing reasons, we find that substantial justice was done the party

complaining, and the judgment of the Bowling Green Municipal Court is affirmed.

Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.


                                                                         Judgment affirmed.



5.
                                                        The Carter Jones Lumber Co. dba
                                                        Carter Lumber Co. v. Kerr dba
                                                        Kerr Constr.
                                                        C.A. No. WD-14-039




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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