2004 Ohio 3943 | Ohio Ct. App. | 2004
{¶ 3} In this assignment of error, Ms. Neiswinter contends that the trial court abused its discretion when it granted National Union's motion to vacate the default judgment, as National Union failed to demonstrate "excusable neglect" or "that [it] timely filed [its] [m]otion to [v]acate."
{¶ 4} Initially, we note that a trial court does not have jurisdiction to render a judgment against a defendant "where effective service of process has not been made upon the defendant and the defendant has not appeared in the case or otherwise waived service." Rite Rug Co., Inc. v. Wilson (1995),
{¶ 5} Ms. Neiswinter claims that the trial court improperly granted National Union's motion to vacate the default judgment because National Union did not show excusable neglect or that it timely filed its motion in accordance with Civ.R. 60(B). However, a motion to vacate a default judgment for lack of personal jurisdiction constitutes a direct attack upon the judgment and need not satisfy the requirements of Civ.R. 60(B). Leroy JenkinsEvangelistic Assn., Inc. v. Equities Diversified, Inc. (1989),
{¶ 6} R.C.
"§
"Any foreign insurance company desiring to transact business by an agent in this state shall file with the superintendent of insurance a signed and sealed written instrument that will:
"(A) Authorize any of its agents in this state to acknowledge service of process for the company;
"(B) Consent that service of process * * * upon any agent shall be as valid as if served upon the company according to the laws of this or any other state or country, and waive all claim of error by reason of such acknowledgement of service[.]"
{¶ 7} In this case, Ms. Neiswinter procured service of process on National Union by serving Ronald Buzek ("Buzek"), who was "an independent agent * * * for National Union[.]" Additionally, Ms. Neiswinter notified the trial court of the applicability of R.C.
{¶ 8} This Court finds that Buzek's mere statement that he "was [not] the authorized statutory agent for purposes of service of process" will not negate the statutory language, as R.C.
{¶ 9} When reviewing a trial court's decision on a Civ.R. 60(B) motion, we may not overturn the trial court unless it abused its discretion. Rose Chevrolet, Inc. v. Adams (1988),
{¶ 10} In support of its Civ.R. 60(B) motion and showing of excusable neglect under Civ.R. 60(B)(1), National Union only argues that it failed to receive effective service of process. Because we have already determined that this argument fails, we must find that National Union failed to demonstrate excusable neglect in accordance with the requirements for a Civ.R. 60(B) motion. See GTE Automatic Elec., Inc., 47 Ohio St.2d at parapraph two of the syllabus. Therefore, we conclude that the trial court's granting of National Union's motion was arbitrary and unreasonable. See Blakemore,
{¶ 11} Accordingly, Ms. Neiswinter's assignment of error is sustained.
Judgment reversed, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
Exceptions.
Whitmore, P.J., Baird, J. Concur.