2013 Ohio 5383
Ohio Ct. App.2013Background
- Hayes sued A. Bonamase Contracting, Scott Bonamase, and David Bonamase (plus City Concrete) for breach of a 2008 contract; summonses were sent by certified mail.
- Service to David was returned as "not deliverable as addressed; unable to forward," and the clerk notified plaintiff's counsel of failed service. No further service attempts were made.
- A motion for an extension to plead was filed that referenced Scott in the caption/text but bore a signature area showing David’s name; David denies signing or filing it.
- An answer was filed in January 2011 that referenced the corporation; various court notices sent to David’s listed address were returned as undeliverable. No one appeared for the Bonamase defendants at mediation.
- Plaintiff moved for default judgment; the trial court entered default judgment jointly and severally against Scott, David, and the corporation. David timely appealed and separately moved to vacate as void for lack of personal jurisdiction. The trial court denied the motion; appeals were consolidated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether entry of default judgment against David was proper despite failed service | Hayes argued David effectively appeared (via the extension motion) and failed to defend, justifying default | David argued he was never served, did not waive service, and did not appear or sign the extension motion | Court held service was not perfected and the extension request did not waive personal jurisdiction; default judgment vacated |
| Whether denial of relief from judgment under Civ.R. 60(B) was proper (voidness for lack of jurisdiction) | Implicitly that judgment was valid because defendants failed to defend | David argued the judgment was void for lack of personal jurisdiction and thus subject to vacatur without 60(B) analysis | Court treated the judgment as void for lack of personal jurisdiction and vacated it; Civ.R. 60(B) analysis unnecessary |
Key Cases Cited
- Westmoreland v. Valley Homes Mut. Hsg. Corp., 42 Ohio St.2d 291 (1975) (courts have inherent power to vacate void judgments lacking personal jurisdiction)
- Maryhew v. Yova, 11 Ohio St.3d 154 (1984) (requests for extensions to plead do not waive personal jurisdiction under Civ.R. 12)
- Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61 (1956) (judgment is void where personal jurisdiction is lacking due to defective service of process)