2020 Ohio 3290
Ohio Ct. App.2020Background:
- In 2005 the City of Columbus obtained a default judgment against Brian L. Yockey (and American Refrigeration & Heating) for unpaid withholding taxes.
- In August 2018 the City filed a motion to revive the dormant 2005 judgment and the clerk attempted certified-mail service to Yockey at a Joshua Lane address; the clerk later docketed that service was undeliverable.
- A conditional order of revivor was entered September 16, 2018 and set a non-oral hearing for October 2; after the hearing date the clerk sent ordinary mail copies to two addresses and later docketed failure of service for those mailings.
- The trial court entered a final revived judgment on October 8, 2018; the City later used that revived judgment to record a judgment lien.
- Yockey filed a common-law motion to vacate the revived judgment in April 2019, arguing the revived judgment was void for lack of personal jurisdiction because he was not properly served and was denied an opportunity for a hearing.
- The trial court denied the motion, concluding Yockey’s remedy was to pursue Civ.R. 60(B) relief or appeal; Yockey appealed and this Court reversed and remanded.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defendant may use a common-law motion to vacate to attack a revived judgment for lack of personal jurisdiction | City: revived judgment is within the original action and therefore challengeable only under Civ.R. 60(B) or appeal | Yockey: a judgment rendered without personal jurisdiction is void and may be vacated by common-law motion without meeting Civ.R. 60(B) merits/timeliness rules | Held: Common-law motion to vacate is proper for attacking a void revived judgment for lack of personal jurisdiction |
| Whether the trial court had personal jurisdiction over Yockey for the revival proceeding based on prior service in the original 2005 action | City: prior service in original action conferred jurisdiction; revival is not a new action | Yockey: revival statutes and Civ.R. 4(F) require new notice/service and opportunity to be heard for revivor | Held: Revival statutes require notice and an opportunity to show cause; because the docket shows service of the revival motion/conditional order was not perfected, the revived judgment was void for lack of jurisdiction |
| Whether statutory and rule procedures (R.C. 2325.15/2325.17 and Civ.R.4(F)) require a hearing/28-day response period before revival | City: implied that original jurisdiction sufficed; revival is procedural within original action | Yockey: Civ.R.4(F) gives 28 days to respond to revival summons; R.C.2325.17 requires opportunity to show cause at hearing | Held: Civ.R.4(F)’s 28-day response period and R.C.2325.17’s hearing/notice requirement are applicable; the court entered conditional revivor before the response period elapsed and without proper service |
| Appropriate remedy when revival occurs without proper service or hearing | City: challenge via Civ.R.60(B) only | Yockey: motion to vacate a void judgment is effective and timeliness/merit under Civ.R.60(B) not required | Held: Trial court erred in denying common-law motion to vacate; judgment reversed and case remanded for proceedings consistent with statutory service/notice requirements |
Key Cases Cited
- Maryhew v. Yova, 11 Ohio St.3d 154 (Ohio 1984) (a judgment rendered without personal jurisdiction is void)
- Leroy Jenkins Evangelistic Assn., Inc. v. Equities Diversified, Inc., 64 Ohio App.3d 82 (10th Dist. 1989) (R.C. 2325.17 requires opportunity to show cause before revivor)
- Columbus Check Cashers v. Cary, 196 Ohio App.3d 132 (10th Dist. 2011) (revivor of a dormant judgment is a statutory proceeding requiring notice/hearing)
- Bartol v. Eckert, 50 Ohio St. 31 (Ohio 1893) (seeking to revive a judgment is a special proceeding within the original action)