Johnson v. HisleJohnson v. Hisle
Judgment Appealed From Is: Reversed, Default Judgment Vacated, and Complaint Dismissed
Date of Judgment Entry on Appeal: September 14, 2018
Mark S. Maddox, for Plaintiff-Appellee,
Barry Levy and Stuart W. Penrose, for Defendant-Appellant.
O P I N I O N.
{¶1} Defendant-appellant Paulette Hisle appeals the decision of the Hamilton County Municipal Court denying her motion to vacate the default judgment entered below. We vacate the judgment and dismiss the action because plaintiff-appellee Elijah Johnson‘s instruction for the clerk to attempt service of a complaint that was filed more than a year prior functioned as a notice of dismissal of his claims. Sisk & Assoc., Inc. v. Commt. to Elect Timothy Grendell, 123 Ohio St.3d 447, 2009-Ohio-5591, 917 N.E.2d 271. Accordingly, all court actions after the effective dismissal were void.
Procedural Posture and Facts
{¶2} Johnson filed a complaint for negligent entrustment and personal injuries stemming from an automobile accident between Johnson and Jermella Figs. Johnson alleges vehicle-owner Paulette Hisle negligently entrusted her vehicle to Figs.
{¶3} In 2012, Johnson initially filed his original complaint against Hisle and Figs. In 2013, the original suit was dismissed without prejudice for want of prosecution.
{¶4} In May 2014, Johnson filed an identical complaint in the instant case. Johnson obtained a default judgment against Hisle in August 2014. In February 2015, the trial court vacated the default judgment, finding that service was not proper because certified mail service had failed and ordinary mail service was made to the wrong address. Johnson timely appealed from the order vacating the default judgment, but later voluntarily dismissed his appeal. See Johnson v. Hisle, 1st Dist. Hamilton No. C-150076 (Sept. 10, 2015).
{¶5} The case lay dormant for four months. On January 6, 2016, 19 months after the complaint was filed, Johnson filed a praecipe for alias summons, asking the
{¶6} On February 29, 2016, Johnson filed a notice that Hisle was personally served with the complaint via a private process server on February 6, 2016, and argues that this was the effective date of service. Hisle disputes receiving personal service, claiming that she was not home at the time.
{¶7} In March 2016, Johnson moved for a default judgment against Hisle, which was granted in June 2016. Hisle timely moved to vacate the default judgment. Hisle initially appealed from the trial court‘s order granting a default judgment in the appeal numbered C-160587. However, her appeal was ultimately dismissed under
{¶8} In December 2017, the trial court denied Hisle‘s motion to vacate the default judgment against her. Hisle now appeals.
Standard of Review
{¶9} We review the denial of a motion to vacate under an abuse-of-discretion standard. Hoffman v. Hoffman, 1st Dist. Hamilton No. C-170640, 2018-Ohio-3029. However, a trial court‘s determination of whether it has personal jurisdiction over a defendant is a question of law that we review de novo. (Internal citations omitted.) CommuniCare Health Servs., Inc. v. Murvine, 9th Dist. Summit No. 23557, 2007-Ohio-4651, ¶ 13.
{¶10} In her sole assignment of error, Hisle contends that the trial court erred in denying her motion to vacate the default judgment against her for lack of personal jurisdiction. Hisle claims that she was not served with the complaint in accordance with
{¶11} Before examining the arguments of the parties, we note that it is patent that the court below lacked jurisdiction to enter the default judgment. “[O]nce a plaintiff voluntarily dismisses all claims against a defendant, the court is divested of jurisdiction over those claims.” State ex rel. Fifth Third Mtge. Co. v. Russo, 129 Ohio St.3d 250, 2011-Ohio-3177, 951 N.E.2d 414, ¶ 17. “A jurisdictional defect cannot be waived.” (Internal citation omitted.) State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998). “If a court acts without jurisdiction, then any proclamation by that court is void.” Id., citing Patton v. Diemer, 35 Ohio St.3d 68, 70, 518 N.E.2d 941 (1988); see Maryhew v. Yova, 11 Ohio St.3d 154, 156-159, 464 N.E.2d 538 (1984).
Failure of Commencement Pursuant to Civ.R. 3(A)
{¶12} Johnson failed to commence his civil action against Hisle within the one-year period prescribed by
{¶13} Controlling, in this case, “an instruction to the clerk of courts to attempt service outside the one-year period in
{¶14} Here, Johnson filed a praecipe for alias summons on January 6, 2016, asking the clerk of court to serve the complaint filed on May 15, 2014. This
{¶15} Finally, Johnson argues that because Hisle‘s appeal in the case numbered C-160587 was dismissed pursuant to
Conclusion
{¶16} In conclusion, we sustain the sole assignment of error, reverse the trial court‘s judgment denying Hisle‘s motion to vacate the default judgment, vacate the trial court‘s entry of a default judgment, and hereby dismiss Johnson‘s complaint with prejudice.
Judgment accordingly.
MOCK, P.J., and CUNNINGHAM, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.