[Cite as Shah v. Simpson, 2014-Ohio-675.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Samir A. Shah, DDS,                           :

                Plaintiff-Appellant,          :
                                                                  No. 13AP-24
v.                                            :             (C.P.C. No. 10CV-14022)

Joshua I. Simpson,                            :           (REGULAR CALENDAR)

                Defendant-Appellee.           :




                                        D E C I S I O N

                                  Rendered on February 25, 2014




                Avonte Campinha-Bacote, for appellant.


                  APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
        {¶ 1} Plaintiff-appellant, Samir A. Shah, DDS, appeals from a judgment of the
Franklin County Court of Common Pleas dismissing his complaint, without prejudice, for
lack of jurisdiction over defendant-appellee, Joshua I. Simpson, pursuant to Civ.R. 3(A)
and 41(B)(4)(a).
I. Facts and Procedural History
        {¶ 2} On September 24, 2010, plaintiff filed his complaint against defendant
alleging assault, battery, and intentional infliction of emotional distress arising out of a
physical altercation with defendant that occurred on August 29, 2010. The trial court
issued certified mail service on September 29, 2010 to the address listed on plaintiff's
No. 13AP-24                                                                              2


complaint. The return of service shows that certified mail service was made on
September 30, 2010.
       {¶ 3} On November 4, 2010, plaintiff filed a motion for default pursuant to Civ.R.
55, alleging that defendant had failed to plead or otherwise defend within the time
prescribed by Civ.R. 12. On November 29, 2010, defendant responded to the complaint
by filing a pro se "Motion For Case To Be Dismissed," wherein he denies liability and
asserts a claim of self-defense. The trial court did not rule on defendant's motion, nor did
it provide defendant with notice of the hearing upon the motion for default.
       {¶ 4} On December 6, 2010, the trial court granted judgment by default in favor
of plaintiff and scheduled a hearing before a magistrate on the issue of plaintiff's damages.
On December 13, 2010, defendant filed a pro se "Motion Appealing Default Judgment,"
wherein he claims that he was never served with the complaint and that he learned of the
litigation only after receiving a copy of the motion for default judgment from plaintiff's
counsel.
       {¶ 5} Defendant appeared at the January 24, 2011 damages hearing and testified
in his own defense. The magistrate issued a decision on January 24, 2011, recommending
judgment for plaintiff in the amount of $26,093.50, plus court costs. On February 14,
2011, the trial court adopted the magistrate's decision as its own and entered judgment for
plaintiff in the amount recommended by the magistrate. Defendant did not file an appeal
from the judgment of default.
       {¶ 6} However, on February 18, 2011, defendant, by and through counsel, filed a
motion for relief from default judgment on the asserted grounds of insufficiency of service
of process.   On October 4, 2011, the magistrate recommended the trial court grant
defendant's motion and vacate the default judgment. On December 21, 2011, the trial
court denied plaintiff's objections to the magistrate's decision and entered judgment for
defendant. Plaintiff did not appeal the trial court judgment.
       {¶ 7} Plaintiff made no further attempt to serve defendant. However, on
January 30, 2012, plaintiff filed a second motion for default judgment. Thereafter, on
June 13, 2012, plaintiff moved for summary judgment when defendant failed to respond
No. 13AP-24                                                                            3


to plaintiff's request for admissions. On December 12, 2012, the trial court denied the
motions and sua sponte dismissed plaintiff's complaint for failure of personal jurisdiction
of defendant. Such dismissal was without prejudice pursuant to Civ.R. 41(B)(4)(a).
        {¶ 8} Plaintiff appeals from the judgment of the Franklin County Court of
Common Pleas, asserting the following as error:
              1. The Franklin County Court of Common Pleas abused its
              discretion when it found that Defendant Joshua Simpson did
              not voluntarily submit himself to the court's jurisdiction
              and/or commit other acts that waived the defense of lack of
              personal jurisdiction.

              2. The Franklin County Court of Common Pleas erred when it
              dismissed Plaintiff's complaint for failure to perfect service
              within one year.

              3. The Franklin County Court of Common Pleas erred when it
              denied Plaintiff's unopposed motion for summary judgment.

              4. The Franklin County Court of Common Pleas erred when it
              denied Plaintiff's unopposed motion for default judgment, as
              well as all other pending motions.

              5. The Franklin County Court of Common Pleas erred in
              granting Defendant's Rule 60(B) Motion to Set Aside Default
              Judgment.

II. Standard of Review
        {¶ 9} Civ.R. 3(A) states that "[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." Where service of process is not properly made pursuant to Civ.R. 4 et seq.,
the court lacks jurisdiction to consider the complaint and any judgment on that complaint
is void ab initio. See Deutsche Bank Natl. Trust Co. v. Boswell, 192 Ohio App.3d 374,
2011-Ohio-673, ¶ 15 (1st. Dist.); Rite Rug Co., Inc. v. Wilson, 106 Ohio App.3d 59 (10th
Dist.1995). Our standard of review of a dismissal due to the lack of personal jurisdiction
is de novo. Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-
2551.
No. 13AP-24                                                                            4


III. Legal Analysis
       {¶ 10} There is no question that service of the summons and complaint was not
properly made on defendant pursuant to Civ.R. 4. The record shows that certified mail
was issued to 285 Cherrystone Dr. N., Gahanna, Ohio, the address listed on the
complaint. Defendant, however, listed his address as 258 Cherrystone Dr. N., Gahanna,
Ohio, in all papers filed with the court. Additionally, the return receipt from the United
States Post Office shows that service was made on September 30, 2011, at an address
listed only as "230," and that an individual by the name of P. Rutherford signed the
certified mail receipt.
       {¶ 11} The question raised by plaintiff's first and second assignments of error is
whether the trial court erred by dismissing his complaint for lack of personal jurisdiction
of defendant. Inasmuch as these two assignments of error are related, we will consider
them together.
       {¶ 12} Civ.R. 12(B) addresses how defenses are to be asserted as follows:
              Every defense * * * shall be asserted in the responsive
              pleading thereto if one is required, except that the following
              defenses may at the option of the pleader be made by motion:
              * * * (4) insufficiency of process.

       {¶ 13} Civ.R. 12 (G) provides that:
              A party who makes a motion under this rule must join with it
              the other motions herein provided for and then available to
              him. If a party makes a motion under this rule and does not
              include therein all defenses and objections then available to
              him which this rule permits to be raised by motion, he shall
              not thereafter assert by motion or responsive pleading, any of
              the defenses or objections so omitted, except as provided in
              subdivision (H) of this rule.

       {¶ 14} Under Civ.R. 12(H)(1):
              A defense of * * * insufficiency of service of process is waived
              (a) if omitted from a motion in the circumstances described in
              subdivision (G), or (b) if it is neither made by motion under
              this rule nor included in a responsive pleading or an
              amendment thereof permitted by Rule 15(A) to be made as a
              matter of course.
No. 13AP-24                                                                                          5



        {¶ 15} In other words, "the defense of insufficiency of service of process can be
waived in one of two ways: (1) if a motion is made raising other Civ.R. 12(B) defenses and
it is not included in that motion and (2) if there is no such motion, if it is not raised by
separate motion or included in the responsive pleading." Stewart v. Forum Health, 190
Ohio App.3d 484, 2010-Ohio-4855, ¶ 36 (7th Dist.), citing Gliozzo v. Univ. Urologists of
Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, ¶ 9.
        {¶ 16} Defendant first responded to the complaint on November 29, 2010 when he
filed a pro se "Motion For Case To Be Dismissed." We note that defendant's motion sets
forth none of the enumerated defenses in Civ.R. 12. The motion simply seeks dismissal of
the complaint based upon the claim of self-defense. Accordingly, we find that defendant's
pro se response to plaintiff's complaint is not a motion made pursuant to Civ.R. 12, and
that defendant did not waive the defense of insufficiency of service of process by failing to
assert the defense therein.
        {¶ 17} Similarly, the trial court judgment of default states that defendant "has not
answered the complaint or otherwise appeared." (R. 21-22.)1 While defendant's pro se
motion shares some of the characteristics of an answer, it is clear from the record that
defendant did not consider his response as an answer. Moreover, plaintiff has made no
argument that the November 29, 2010 motion should be treated as an answer. Thus, we
conclude that the pro se filing of November 29, 2010 is not an answer as defined under
the Ohio Rules of Civil Procedure, and that defendant did not waive the defense of
insufficiency of service of process by failing to raise the issue in a responsive pleading.
        {¶ 18} Having determined the November 29, 2010 motion did not operate as a
waiver of the defense of insufficiency of service of process, we must determine whether
defendant subsequently raised such a defense in a timely fashion. An examination of
defendant's pro se "Motion Appealing Default Judgment" filed on December 13, 2010
reveals that defendant timely raised the defense. Indeed, the body of the motion reads in


1 The November 29, 2010 motion is clearly an "appearance" for purposes of Civ.R. 55. See Wells Fargo Bank

v. Sekulovski, 10th Dist. No. 11AP-795, 2012-Ohio-5973.
No. 13AP-24                                                                                               6


relevant part: "I also was not aware of any filing against me by [plaintiff's attorney's]
office, and was NOT SERVED those charges on the date of September 24, 2010. If I would
have been aware of these charges, I would have answered this count in time." (Emphasis
sic.) (R. 23.)
        {¶ 19} It is evident to the court that defendant raised the defense of insufficiency of
service of process by his December 13, 2010 motion. Although the trial proceeded to a
hearing on plaintiff's damages, without ruling on defendant's motion, the fact remains
that defendant asserted the defense in a motion made pursuant to Civ.R. 12. Defendant
subsequently re-asserted the defense in his January 10, 2011 motion to set aside the
default judgment.2
        {¶ 20} Plaintiff contends defendant subsequently waived the defense by actively
participating in the litigation over the next two and one-half years. Plaintiff points out, for
example, that defendant appeared and gave testimony at the damages hearing on
January 24, 2011, without asserting the defense of personal jurisdiction; he hired counsel
to represent him; he appeared for a judgment debtor exam; he appeared and gave
testimony at the Civ.R. 60(B) hearing; and that he filed motions both pro se and with
counsel.3 Plaintiff claims that defendant voluntarily submitted himself to the jurisdiction
of the court by his participation in the litigation as set forth above. We disagree.
        {¶ 21} "When the affirmative defense of insufficiency of service of process is
properly raised and properly preserved, a party's active participation in the litigation of a
case does not constitute waiver of that defense." Gliozzo at ¶ 18. This is true even though
the case has been tried to conclusion without a determination of whether service was
achieved. Blount v. Schindler Elevator Corp., 10th Dist. No. 02AP-688, 2003-Ohio-


2 The January 10, 2011 motion reads, in relevant part, as follows: "Defendant respectfully advises the court
that said summons was never delivered to him, and that the Plaintiff's proof of service filed in the Clerk of
Court records indicates that a delivery was made on the date and time to a "P. Rutherford." There is only a
partial delivery address (230…) and it is apparent that the remainder of the address has been blotted out.
The Defendant's signature, and his address, 285 Cherrystone Drive North, Gahanna, Ohio, do not appear
anywhere on the proof of service."
3 The record does not support plaintiff's claim that defendant "filed numerous pleadings." (Appellant's brief,

6.) As noted above, defendant never filed an answer to the complaint, nor did he file any other "pleading" as
the term is defined in Civ.R. 7(A).
No. 13AP-24                                                                                             7


2053, ¶ 27, citing Bell v. Midwestern Educational Serv., Inc., 89 Ohio App.3d 193, 203-
04, (2d Dist.1993).4 Indeed, where service of process is not made in accordance with the
Rules of Civil Procedure, the trial court lacks jurisdiction to consider the complaint, and
any judgment on that complaint is void ab initio. See Rite Rug at 62.
        {¶ 22} Plaintiff argues further that the dismissal of his complaint was unjustified,
under the circumstances of this case, given the fact that defendant did not seek dismissal
on the grounds of personal jurisdiction during the two and one-half years of litigation.
First, we disagree with plaintiff's contention that defendant did not seek dismissal due to
the insufficiency of service of process. As noted above, defendant raised the issue in both
his December 13, 2010 and January 10, 2011 motions. Second, we note that the Supreme
Court of Ohio addressed a similar fairness argument in Gliozzo:
                Gliozzo also argues that allowing a party to file a motion to
                dismiss based on insufficient service after that party has
                defended on the merits simply encourages legal
                gamesmanship and prevents the efficient administration of
                justice. Gliozzo points out that although appellants were
                aware of the deficient service, they did not move to dismiss
                the case on that basis until after the time to perfect service had
                expired, denying him an opportunity to remedy the error. He
                also contends that because the primary objective of the rules
                relating to service of process is to provide notice, a strict
                application of the rules in this case simply elevates form over
                function.

                Regardless of how appellants' behavior is characterized, the
                Ohio Rules of Civil Procedure govern the conduct of all parties
                equally, and "we cannot disregard [the] rules to assist a party
                who has failed to abide by them." Bell v. Midwestern
                Educational Servs., Inc. (1993), 89 Ohio App.3d 193, 204,
                624 N.E.2d 196. The rules clearly declare that an action is
                commenced when service is perfected. Civ.R. 3(A).
                Furthermore, we have held, "Inaction upon the part of a
                defendant who is not served with process, even though he
                might be aware of the filing of the action, does not dispense
                with the necessity of service." Maryhew [v. Yova, 11 Ohio
                St.3d 154, 157 (1984)], 11 OBR 471, 464 N.E.2d 538. The

4 Defendant's failure to file an appeal from the default judgment entered on February 14, 2011 is of no

consequence in the analysis inasmuch as a judgment rendered without personal jurisdiction is void ab initio.
No. 13AP-24                                                                              8


                  obligation is upon plaintiffs to perfect service of process;
                  defendants have no duty to assist them in fulfilling this
                  obligation. Id. at 159, 11 OBR 471, 464 N.E.2d 538.

Id. at ¶ 15-16.

       {¶ 23} In the final analysis, plaintiff's failure to perfect service upon defendant in
this case deprived the trial court of jurisdiction over defendant and prevented a valid
judgment in plaintiff's favor, notwithstanding defendant's participation in the litigation.
Id. See also Rite Rug; Stewart; Bell. Thus, the trial court did not err when it dismissed
plaintiff's complaint due to the failure of commencement. Plaintiff's first and second
assignments of error are overruled.
       {¶ 24} Furthermore, we render moot, plaintiff's fifth assignment of error
challenging the trial court's December 21, 2011 judgment entry granting defendant's
motion for relief from default. Given our determination that the trial court did not have
personal jurisdiction of defendant, relief from such judgment was appropriate under the
common law. See Patton v. Diemer, 35 Ohio St.3d 68 (1988), paragraph four of the
syllabus; State ex rel. Ballard v. O'Donnell, 50 Ohio St.3d 182 (1990), paragraph one of
the syllabus (When a court lacks personal jurisdiction over a defendant as a result of
deficient service, that defendant is entitled to have the judgment vacated and need not
satisfy the requirements of Civ.R. 60(B)).         For similar reasons, we render moot,
appellant's third assignment of error which challenges the denial of defendant's motion
for summary judgment, and his fourth assignment of error which challenges the denial of
his second motion for default judgment.
IV. CONCLUSION
       {¶ 25} Having overruled appellant's first and second assignments of error, and
rendering moot appellant’s third, fourth, and fifth assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.
                              BROWN and DORRIAN, JJ., concur.
