[Cite as U.S. Bank, N.A. v. Dowd, 2013-Ohio-3835.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


U.S. BANK, N.A.                                  :   JUDGES:
                                                 :
                                                 :   Hon. W. Scott Gwin, P.J.
        Plaintiff- Appellee                      :   Hon. John W. Wise, J.
                                                 :   Hon. Craig R. Baldwin, J.
                                                 :
-vs-                                             :
                                                 :
VICKIE L. DOWD, ET AL.                           :   Case No. 2013CA00071
                                                 :
                                                 :
        Defendants - Appellants                  :   OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No. 2012-
                                                     CV-02674




JUDGMENT:                                            Reversed and Remanded



DATE OF JUDGMENT:                                    September 4, 2013



APPEARANCES:

For Plaintiff-Appellee                               For Defendants-Appellants

STEPHEN D. WILLIGER                                  CRAIG T. CONLEY
RICHARD A. FRESHWATER                                604 Huntington Plaza
Thompson Hine LLP                                    220 Market Avenue South
3900 Key Center                                      Canton, OH 44702
127 Public Square
Cleveland, OH 44114
Stark County, Case No. 2013CA00071                                                    2

Baldwin, J.

      {¶1}    Defendants-appellants Vickie L. Dowd and Thomas F. Dowd appeal from

the April 11, 2013 Judgment Entry of the Stark County Court of Common Pleas denying

their Motion to Vacate and Dismiss.

                           STATEMENT OF THE FACTS AND CASE

      {¶2}    On August 23, 2012, appellee U.S. Bank, N.A. filed a complaint in

foreclosure and for reformation of mortgage against appellants Vickie and Thomas

Dowd, among others. Appellants, on September 6, 2012, filed an answer. Appellants,

in their answer, set forth a number of affirmative defenses, including the defenses of

insufficiency of process and/or insufficiency of service of process and lack of personal

jurisdiction over them.

      {¶3}    Entries in the trial court‘s docket dated September 18, 2012 show that

certified mail service was returned unclaimed with respect to both appellants.       As

memorialized in a Judgment Entry filed on October 4, 2012, the trial court ordered

appellee to complete service on those defendants who had not yet been served.

Docket entries dated October 15, 2012 show a failure of personal service for both

appellants.

      {¶4}    Thereafter, on October 31, 2012, appellee filed a Motion for Summary

Judgment. Appellee, in its motion, alleged that appellants had been served with a copy

of the summons and complaint on September 6, 2012. Appellants did not file a

response to such motion.

      {¶5}    Pursuant to an Entry filed on December 5, 2012, the trial court granted

appellee’s Motion for Summary Judgment and issued a Decree in Foreclosure and for
Stark County, Case No. 2013CA00071                                                         3


Reformation of Mortgage. An Order of Sale was issued to the Stark County Sheriff on

December 19, 2012.

      {¶6}    Subsequently, on March 13, 2013, appellants filed a Motion to Vacate and

Dismiss. Appellants, in their motion, alleged that they had never been served with a

copy of the summons and complaint. Appellants alleged that the trial court’s December

5, 2012 Entry should be dismissed for lack of personal jurisdiction over appellants and

that appellee’s complaint should be dismissed without prejudice for failure of service of

process within six months. A Notice of Sheriff’s Sale that was filed on March 15, 2013

stated that a Sheriff’s Sale had been set for April 8, 2013.

      {¶7}    Appellee, on March 26, 2013, filed an opposition to appellants’ Motion to

Vacate and Dismiss and appellants, on March 28, 2013, filed a reply brief. The subject

property was sold to appellee at the Sheriff’s foreclosure sale on April 8, 2013.

      {¶8}    As memorialized in a Judgment Entry filed on April 11, 2013, the trial court

denied appellants’ Motion to Vacate and Dismiss.

      {¶9}    Appellants now raise the following assignment of error on appeal:

      {¶10}   THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN ITS DENIAL

OF DEFENDANTS’/APPELLANTS’ MOTION TO VACATE AND DISMISS.

                                                 I

      {¶11}   Appellants, in their sole assignment of error, argue that the trial court erred

in denying their Motion to Vacate and Dismiss. We agree.

      {¶12}   Appellants specifically contend that the trial court erred in denying their

Motion to Vacate its December 5, 2012 Entry because the trial court never had personal

jurisdiction over them. Proper service of process is an essential component in the
Stark County, Case No. 2013CA00071                                                        4

acquisition of personal jurisdiction over a party. Holm v. Smilowitz, 83 Ohio App.3d 757,

615 N.E.2d 1047 (4th Dist. Athens 1992). A trial court may obtain personal jurisdiction

over a defendant via: (1) service of process; (2) “voluntary appearance and submission

of the defendant or his legal representative[;]” or (3) “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).

      {¶13}   As this Court held in Thompson v. Bayer, 5th Dist. Fairfield No. 2011–

CA–00007, 2011–Ohio–5897, ¶ 16:

      {¶14}   “Ohio law clearly provides that a judgment rendered without personal

jurisdiction over a defendant is void ab initio rather than voidable. See Patton v. Diemer

(1988), 35 Ohio St.3d 68, 518 N.E.2d 941 and CompuServe, Inc. v. Trionfo (1993), 91

Ohio App.3d 157, 161, 631 N.E.2d 1120. Accordingly, a judgment rendered without

proper service is a nullity and is void. Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio

St. 61, 64, 133 N.E.2d 606. The authority to vacate a void judgment is not derived from

Civ.R. 60(B), ‘but rather constitutes an inherent power possessed by Ohio courts.’

Patton, supra paragraph four of the syllabus. To be entitled to relief from a void

judgment, a movant need not present a meritorious defense or show that the motion

was timely filed under Civ.R. 60(B). Id.”

      {¶15}   A judgment without proper service is void and may be collaterally attacked

at any time. Deutsche Bank Nat’l Trust Co. v. Boswell, 192 Ohio App.3d 374, 2011-

Ohio-673, 949 N.E.2d 96 (1st Dist).

      {¶16}   In the case sub judice, the docket reveals that, contrary to appellee’s

assertion in its Motion for Summary Judgment, appellants were never served with the
Stark County, Case No. 2013CA00071                                                          5


summons and complaint.        The issue thus becomes whether or not appellants waived

their defenses. Civ.R. 12(B) provides that the defenses of insufficiency of process,

insufficiency of service of process and lack of jurisdiction over the person shall be

asserted in the responsive pleading if one is required, or may be made by motion.

Civ.R. 12(H)(1) further states that such defenses are waived if “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.”

      {¶17}   Appellants did file an answer to the complaint and, in their answer,

properly raised the affirmative defenses of insufficiency of process, insufficiency of

service of process and lack of personal jurisdiction. While appellants actively

participated in the case by filing an answer, “a party’s active participation in litigation of

a case does not constitute waiver of [the defense of insufficiency of service of process].

Civ.R. 12(H)(1) does not include a party’s participation in the case as a method of

waiver.” Gliozzo v. University Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-

Ohio-3762, 870 N.E.2d 714, paragraph 11.

      {¶18}   In short, we find that the trial court never obtained personal jurisdiction

over appellants and that appellants did not waive the same.

      {¶19}   Based on the foregoing, we find that the trial court erred in failing to vacate

its December 5, 2012 Judgment Entry because such entry was void.

      {¶20}   Appellants’ sole assignment of error is, therefore, sustained.
Stark County, Case No. 2013CA00071                                                6


      {¶21}   Accordingly, the judgment of the Stark County Court of Common Pleas is

reversed and this matter is remanded for further proceedings.


By: Baldwin, J.

Gwin, P.J. and

Hoffman, J. concur.




                                       HON. CRAIG R. BALDWIN



                                       HON. W. SCOTT GWIN



                                       HON. JOHN W. WISE




CRB/dr
[Cite as U.S. Bank, N.A. v. Dowd, 2013-Ohio-3835.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


U.S. BANK, N.A.                                      :
                                                     :
        Plaintiff - Appellee                         :
                                                     :
-vs-                                                 :     JUDGMENT ENTRY
                                                     :
VICKIE L. DOWD, ET AL.                               :
                                                     :
        Defendants - Appellants                      :     CASE NO. 2013CA00071


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is reversed and this

matter is remanded for further proceedings. Costs assessed to appellee.




                                                 HON. CRAIG R. BALDWIN



                                                 HON. W. SCOTT GWIN



                                                 HON. JOHN W. WISE
