[Cite as Whitright v. Whitright, 2019-Ohio-326.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


DAVID A. WHITRIGHT,                                :   OPINION

                 Plaintiff,                        :
                                                       CASE NO. 2018-G-0155
        - vs -                                     :

RODNEY WHITRIGHT, et al.,                          :

                 Defendants-Appellants,            :

GEAUGA SAVINGS BANK,                               :

                 Defendant-Appellee.               :


Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2014 M
000571.

Judgment: Affirmed.


Brian L. Bly, Ibold & O’Brien, 401 South Street, Chardon, OH 44024 (For Defendants-
Appellants).

Kurt D. Anderson, Collins, Roche, Utley & Garner, LLC, 800 Westpoint Parkway, Suite
1100, Westlake, OH 44145, and Stephen J. Crawford, Crawford Law LLC, 323 W.
Lakeside Avenue, Suite 340, Cleveland, OH 44113 (For Defendant-Appellee).


DIANE V. GRENDELL, J.

        {¶1}     Defendants-appellants, Rodney Whitright and Dorothy Whitright, aka

Dorothy Opatrny (collectively “appellants”), appeal from the judgment of the Geauga

County Court of Common Pleas, denying their Motion to Vacate the court’s entry

granting foreclosure. The issue to be determined in this case is whether a court has
jurisdiction over defendants and its judgment ruling on a cross-claim is void when the

defendants were properly served with a summons and original complaint but not with a

copy of the cross-claim. For the following reasons, we affirm the judgment of the lower

court.

         {¶2}   On July 16, 2014, plaintiff, David Whitright, filed a Complaint against his

son, Rodney and Rodney’s ex-wife, Dorothy, seeking a partition of a parcel of real

estate located in Chardon, Ohio, which the three co-owned. Geauga Savings Bank,

which held a mortgage on the real estate, was also named as a defendant.              This

Complaint was served on each of the defendants.

         {¶3}   Attorney Brian Bly filed a Notice of Appearance on behalf of Rodney on

August 20, 2014, and on the same date filed a Motion for Enlargement of Time to

Respond to Complaint.

         {¶4}   Dorothy’s counsel, attorney David McGee, filed an Answer and Cross-

claim against Rodney, seeking indemnification, on September 4, 2014.             Rodney’s

counsel filed replies to the Complaint and Cross-claim on October 7, 2014.

         {¶5}   Geauga Savings Bank filed an Answer, Counter-claim, and Cross-claim

against Defendants Rodney Whitright and Dorothy Opatrny on October 8, 2014.              It

claimed that it was entitled to a money judgment against Rodney and Dorothy on a

promissory note and foreclosure of its mortgage on the property. Regarding service,

the record indicates that, for Rodney, service was made directly to his address, the

location of the real estate upon which the foreclosure was sought. For Dorothy, service

was made to Attorney Bly, who represented Rodney but not Dorothy.

         {¶6}   Dorothy did not file a reply to Geauga Savings Bank’s Cross-claim.




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Rodney filed a reply, through counsel, on November 13, 2014, raising the affirmative

defenses of “insufficiency of process” and “insufficiency of service of process.”

       {¶7}     On December 10, 2015, Geauga Savings Bank filed a Motion for

Summary Judgment.

       {¶8}     The court issued a Judgment Entry and Decree of Foreclosure on March

21, 2016. On December 19, 2016, an Order Confirming Sheriff’s Sale was filed.

       {¶9}     Rodney and Dorothy filed a Motion to Vacate Void Judgment on

November 27, 2017, in which they argued that the foreclosure judgment was void since

they had not been properly served with Geauga Savings Bank’s Cross-claim. Geauga

Savings Bank opposed the Motion, arguing that the judgment was not void since the

court had jurisdiction over Rodney and Dorothy. The trial court denied the Motion in a

January 9, 2018 Judgment Entry, finding it had jurisdiction and the Motion lacked merit.

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

       {¶11} “The trial court erred in overruling Appellants’ Motion to Vacate Void

Judgment, when that underlying judgment was granted based on a cross-claim which

was never served on either Appellant pursuant to the Ohio Rules of Civil Procedure.”

       {¶12} Initially, appellants assert that they do not seek to have the court’s

judgment vacated under Civ.R. 60(B), a common mechanism for a motion for relief from

judgment.       Rather, they seek to have the judgment found void due to a lack of

jurisdiction.

       {¶13} “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).” Famageltto v. Telerico, 2013-Ohio-3666, 994




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N.E.2d 932, ¶ 11 (11th Dist.). This is the case because “[t]he 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 v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941

(1988), paragraph four of the syllabus. Where a court does not have jurisdiction over a

defendant, any judgment entered against him is void. Cappellino v. Marcheskie, 11th

Dist. Trumbull No. 2008-T-5322, 2008-Ohio-5322, ¶ 12; State ex rel. Ballard v.

O’Donnell, 50 Ohio St.3d 182, 183-184, 553 N.E.2d 650 (1990). Jurisdictional concerns

raise a question of law that appellate courts review de novo. Kauffman Racing Equip.,

L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, ¶ 27.

      {¶14} The appellants argue that the court did not have jurisdiction over the

cross-claim for foreclosure filed by Geauga Savings Bank because it was not properly

served upon either of them.

      {¶15} Civ.R. 5(A) requires that “every pleading subsequent to the original

complaint * * * shall be served upon each of the parties.” Regarding said service, Civ.R.

5(B)(1) requires that, “[i]f a party is represented by an attorney, service under this rule

shall be made on the attorney unless the court orders service on the party.”

      {¶16} Here, the cross-claim was served on Rodney directly, although he was

represented by counsel. Further, regarding Dorothy, the cross-claim was served on

Rodney’s counsel rather than hers.       Geauga Savings Bank does not dispute the

contention that this was improper service under Civ.R. 5(B)(1).

      {¶17} The issue, then, is whether the court obtained personal jurisdiction over

the appellants through the service of the initial summons such that it had jurisdiction to

rule on the cross-claim.




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      {¶18} In the present matter, the court obtained personal jurisdiction over the

appellants when the summons and original Complaint were properly served. It has

been held that the service of a summons is necessary in order to obtain jurisdiction over

a person. Ballard, 50 Ohio St.3d at 183-184, 553 N.E.2d 650; Maryhew v. Yova, 11

Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). Moreover, both appellants voluntarily

appeared before the court by filing answers to the Complaint.

      {¶19} The appellants argue, however, that it was necessary to obtain proper

service of the cross-claim in order to obtain jurisdiction over that particular claim. The

case law relied upon for this proposition is distinguishable from the present matter. For

example, Huntington Natl. Bank v. Dunno, 10th Dist. Franklin No. 97APE02-223, 1997

WL 381743 (July 10, 1997), is cited for the proposition that a court does not have

jurisdiction over an appellant as to a cross-claim where there is a lack of valid service.

However, in Huntington, as well as other similar cases cited in the appellants’ brief, the

court specifically notes that no judgment may be rendered on a “new or additional

claim,” such as a cross-claim, where a party “is in default of answer to the original

complaint” and no service of the new claim has been made. Id. at *2. In other words, in

those cases, there was a concern of rendering judgment on cross-claims that were

improperly served because the defendant had never appeared before the trial court and

would have no way of knowing additional claims had been filed. In the present matter,

there was no issue with default as both Dorothy and Rodney had appeared and

answered the Complaint and it is clear that counsel was fully aware of the cross-claim.

This is evident because Rodney filed a response and Dorothy’s copy of the cross-claim

was accidentally served on Rodney’s counsel but there is no genuine argument that her




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counsel was unaware of it as the cross-claim was the subject of subsequent

proceedings, including summary judgment.

      {¶20} Moreover, while appellants cite Maryhew, supra, in support of the

proposition that service is not waived even when a defendant is aware of the filing’s

existence, that case specifically relates to service of a complaint only, a matter which is

settled under the law and not relevant here.

      {¶21} The circumstances of this particular case, rather than those cited above,

are more comparable to a procedural deficiency of service. For example, in Miller v.

Nelson-Miller, 132 Ohio St.3d 381, 2012-Ohio-2845, 972 N.E.2d 568, the court noted

that, although judgments where a court lacks jurisdiction over the person are void,

judgments where jurisdictional issues are raised “due to error or irregularity” are merely

voidable. Id. at ¶ 12. This court has also found a procedural concern where the party

was provided with a summons but sent an incorrect copy of the plaintiff’s complaint,

determining the issue did not raise concerns of personal jurisdiction or render the

court’s judgment void. Sanborn v. Dean, 11th Dist. Geauga No. 92-G-1691, 1993 WL

170977, *4 (Mar. 31, 1993). In Sanborn, although initially filing a proper answer would

be impossible due to the procedural deficiency, since the defendants were brought

before the court, they had an opportunity to become aware of the real grounds for the

complaint and respond. The exact opportunity was available here, since the parties

were clearly aware of the issues being raised by Geauga Savings, unlike a party never

properly served with a summons who would have no awareness that any legal issues

were pending with the court of which he needed to be apprised.

      {¶22} Finally, although it seems evident the appellants were fully aware of the




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cross-claim against them and failed to take action, they were also not without a remedy

to correct the procedural error. When there is such an error, the trial court’s judgment

can be found voidable, and this issue could have been raised in multiple methods, such

as in a direct and timely appeal. Instead, the appellants waited to address this concern

until over a year and a half after the Decree of Foreclosure was issued and almost a

year after the order confirming the sheriff’s sale of the property. This is especially

curious in the case of Rodney, who specifically raised the issues of service in a reply

but then failed to file a motion to dismiss or contest this issue upon Geauga Savings

Bank’s Motion for Summary Judgment.         Regardless, as there was no jurisdictional

defect, this issue cannot properly be raised at this point in the proceedings. Miller at ¶

16-17 (a party cannot collaterally attack a voidable judgment). Thus, the trial court

properly denied the Motion to Vacate.

      {¶23} The sole assignment of error is without merit.

      {¶24} For the foregoing reasons, the Judgment Entry of the Geauga County

Court of Common Pleas, denying appellants’ Motion to Vacate, is affirmed. Costs to be

taxed against appellants.



TIMOTHY P. CANNON, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.



____________________________________




COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.



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      {¶25} I respectfully dissent.

      {¶26} “The trial court’s determination of whether personal jurisdiction exists over

a person is a question of law that we review de novo.” Bank of New York v. Elliot, 8th

Dist. Cuyahoga Nos. 97506 and 98179, 2012-Ohio-5285, ¶15. “Any judgment rendered

in an action where there has not been proper service is void ab initio.” Jacobs v.

Szakal, 9th Dist. Summit No. 22219, 2005-Ohio-2146, ¶8, citing Liberty Credit Services,

Inc. v. Walsh, 10th Dist. Franklin No. 04AP-360, 2005-Ohio-894, ¶13; Clark v. Marc

Glassman, Inc., 8th Dist. Cuyahoga No. 82578, 2003-Ohio-4660, ¶17.

      {¶27} Civ.R. 5(A) requires that “every pleading subsequent to the original

complaint * * * shall be served upon each of the parties.” “If a party is represented by

an attorney, service under this rule must be made on the attorney unless the court

orders service on the party.” Civ.R. 5(B)(1).

      {¶28} In this case, David’s July 16, 2014 complaint for partition was properly

served on all defendants (Rodney, Dorothy, and Geauga Savings Bank).             Geauga

Savings Bank later filed a cross-claim and properly served it on David.         However,

Geauga Savings Bank did not serve either Rodney or Dorothy with the cross-claim in

accordance with Civ.R. 5. The fact that Rodney and Dorothy were served with David’s

complaint did not dispose of the requirement that Geauga Savings Bank’s cross-claim

had to be served on them. See Civ.R. 5(A) (“[E]very pleading subsequent to the original

complaint * * * shall be served upon each of the parties.”) (Emphasis added.)

      {¶29} Regarding Rodney, at the time Geauga Savings Bank filed its cross-claim,

Rodney was represented by an attorney of record, Attorney Bly. However, counsel for

Geauga Savings Bank failed to follow Civ.R. 5(B) because it did not serve Rodney’s




                                            8
attorney of record in order to effectuate service on Rodney. Rather, Geauga Savings

Bank attempted to serve Rodney directly at the property address.         Although sheriff

service was made on Rodney himself and certified mail directed to Rodney was signed

for by the plaintiff (David, who was at that time involved in a bitter legal dispute with

Rodney over the real estate), such service made on Rodney directly does not cure

Geauga Savings Bank’s failure to comply with Civ.R. 5(B).           See Swander Ditch

Landowners’ Assn. v. Joint Bd. of Huron and Seneca Cty. Commissioners, 51 Ohio

St.3d 131, 134 (1990) (“The reasoning for the [Civ.R. 5(B)] requirement that an attorney

of record be served is that a party represented by counsel usually speaks through his

counsel.   Counsel is in a better position to understand the legal import of any

documents required to be served on his or her client and the nature of the action to be

taken.”)

       {¶30} Regarding Dorothy, at the time Geauga Savings Bank filed its cross-claim,

Dorothy was represented by an attorney of record, Attorney McGee. However, Geauga

Savings Bank made no attempt to serve the cross-claim on Dorothy’s attorney of

record, or even on Dorothy herself. Rather, in attempting to serve Dorothy, Geauga

Savings Bank served Rodney’s attorney instead, Attorney Bly.         Clearly, counsel for

Geauga Savings Bank failed to follow Civ.R. 5(B) because it did not serve Dorothy’s

attorney of record in order to effectuate service on Dorothy.

       {¶31} There is nothing in the language of Civ.R. 5 which suggests that service of

a subsequent pleading is optional. Although the trial court had personal jurisdiction over

Rodney and Dorothy as to David’s complaint for partition, it did not have personal

jurisdiction over them as to Geauga Savings Bank’s cross-claim for foreclosure. See




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Civ.R. 5; Huntington Nat. Bank v. Dunno, 10th Dist. Franklin No. 97APE02-223, 1997

WL 381743, *3 (July 10, 1997) (“Because valid service had not occurred in this case,

the court lacked personal jurisdiction over appellant as to the cross-claim.”)

       {¶32} The record reveals that neither Rodney nor Dorothy waived service.

Regarding Dorothy, she never filed any response to Geauga Savings Bank’s cross-

claim. See Maryhew v. Yova, 11 Ohio St.3d 154, 157-159 (1984) (“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. * * * [T]he duty

to perfect service of process is upon the plaintiffs under the Civil Rules[.]”) Regarding

Rodney, he did file, through counsel, a response to the cross-claim. However, the

response included the affirmative defenses of “insufficiency of process” and

“insufficiency of service of process.”     Under Ohio law, the defense was properly

preserved. See Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141,

2007-Ohio-3762, syllabus (“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.”)

       {¶33} This writer finds the decree of foreclosure granting judgment in favor of

Geauga Savings Bank on its cross-claim is void ab initio for lack of service.         The

foreclosure judgment, the resulting sheriff’s sale, and the judgment confirming the sale

are all void as they relate to Rodney and Dorothy.

       {¶34} For the foregoing reasons, appellants’ sole assignment of error is well-

taken, and the trial court’s judgment should be reversed and remanded.

       {¶35} I respectfully dissent.




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