[Cite as Wisniewski v. Manogg, 2012-Ohio-1081.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

MINDY WISNIEWSKI                                     JUDGES:
                                                     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                           Hon. William B. Hoffman, J.
                                                     Hon. Julie A. Edwards, J.
-vs-
                                                     Case No. 11-CA-118
PHILIP SCOTT MANOGG

        Defendant-Appellant                          OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Licking County Municipal
                                                  Court, Case No. 05 CVI 00849


JUDGMENT:                                         Reversed and Remanded


DATE OF JUDGMENT ENTRY:                           March 15, 2012


APPEARANCES:


For Defendant-Appellant                           For Plaintiff-Appellee


PHILIP S. MANOGG, PRO SE                          MINDY WISNIEWSKI, PRO SE
c/o P.O. Box 855                                  107 Rolling Meadow Court
Newark, Ohio 43058-0855                           Pickerington, Ohio 43147
Licking County, Case No. 11-CA-118                                                         2

Hoffman, J.

         (¶1)   Defendant-appellant Philip S. Manogg appeals the October 26, 2011

Judgment Entry entered by the Licking County Municipal Court which denied his Motion

to Set Aside Judgment, pursuant to CivR. 60(B).                  Plaintiff-appellee is Mindy

Wisniewski.1

                                    STATEMENT OF THE CASE2

         (¶2)   Appellee filed a Complaint against Appellant in the Small Claims Division

of the Licking County Municipal Court, seeking return of a security deposit she paid

under a lease. The Complaint was sent via certified mail to Appellant at 12 E. Locust

St., Newark, Ohio. It was returned, marked “unclaimed”.

         (¶3)   The Complaint was then sent via regular mail to the same address. There

was no indication of a failure of delivery of that mailing.

         (¶4)   Appellant failed to appear at the arbitration hearing on the Complaint

scheduled for October 25, 2005.         As a result, on October 27, 2005, the trial court

entered default judgment against Appellant in the amount of $1300.00 plus interest and

costs.

         (¶5)   Appellee initiated collection proceedings against Appellant in 2006, and

again in 2010. Service was attempted at the same address on Locust St., but was

returned and marked “unable to forward – no forwarding order on file.”

         (¶6)   Thereafter, Appellant filed a Notice of Special Appearance in the trial court

on September 19, 2011, together with a Motion for Relief from Judgment.                  The

magistrate overruled the motion on October 12, 2011.               Appellant filed objections

1
    Appellee did not file a reply brief in this appeal.
2
    A rendition of the facts is unnecessary for our resolution of this appeal.
Licking County, Case No. 11-CA-118                                                       3


thereto, which the trial court overruled via Judgment Entry filed October 26, 2011. It is

from that judgment entry, Appellant prosecutes this appeal assigning as error:

       (¶7)   “I. THE TRIAL COURT ERRED IN FAILING TO VACATE THE

JUDGMENT ENTERED AGAINST DEFENDANT-APPELLANT.

       (¶8)   “II. THE TRIAL COURT ERRED IN FAILING TO GRANT RELIEF FROM

JUDGMENT UNDER RULE 60(B) OF THE OHIO RULES OF CIVIL PROCEDURE

(VACATION OF THE JUDGMENT).”

       (¶9)   This case comes to us on the accelerated calendar governed by App.R.

11.1, which states the following in pertinent part:

       (¶10) “(E) Determination and judgment on appeal

       (¶11) “The appeal will be determined as provided by App. R. 11.1. It shall be

sufficient compliance with App. R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.

       (¶12) The decision may be by judgment entry in which case it will not be

published in any form.”

       (¶13) This appeal will be decided in accordance with the rule.

                                               I & II

       (¶14) The trial court summarily overruled Appellant’s motion for relief from

judgment, finding it was untimely filed pursuant to Civ.R. 60(B)(3).3

       (¶15) This Court held in Thompson v. Bayer, 5th Dist. 2011-CA-00007, 2011-

Ohio-5897, ¶16:



3
  Our review of Appellant’s motion reveals it requested relief pursuant to Civ.R. 60(B)(1),
(3) and (5).
Licking County, Case No. 11-CA-118                                                      4


             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.

      (¶16) Given Appellant’s claim of improper service of the original complaint, we

find a hearing is necessary for the trial court to determine that issue. As such, we find

any discussion of the merits of Appellant’s assignments of error premature.

      (¶17) The judgment of the Licking County Municipal Court is reversed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur                          s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


                                            s/ Julie A. Edwards ___________________
                                            HON. JULIE A. EDWARDS
Licking County, Case No. 11-CA-118                                                        5


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


MINDY WISNIEWSKI                            :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
PHILIP SCOTT MANOGG                         :
                                            :
       Defendant-Appellant                  :         Case No. 11-CA-118


       For the reasons stated in our accompanying Opinion, the judgment of the Licking

County Municipal Court is reversed and the matter is remanded to that court for further

proceedings in accordance with our Opinion and the law. Costs to Appellee.




                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


                                            s/ Julie A. Edwards___________________
                                            HON. JULIE A. EDWARDS
