Court of Appeals of Ohio, Twelfth District, Butler
NANCY E. NIX, TREASURER, BUTLER COUNTY, OHIO, Plaintiff-Appellee,
ROBERT J. RICHTER, et al., Defendants-Appellants.
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No.
Michael T. Gmoser, Butler County Prosecuting Attorney, Dan L.
Ferguson, for plaintiff-appellee.
W. Herr, for defendant-appellant, Robert J. Richter.
Santokh Bhatti, defendant, pro se.
1} Defendant-appellant, Robert Richter, appeals a
decision of the Butler County Court of Common Pleas denying
his motion for relief from judgment. For the reasons detailed
below, we affirm.
2} On November 3, 2015, the Butler County Prosecutor
filed a delinquent tax foreclosure complaint against Robert
and Rita Richter, any alleged unknown spouses of the two, and
the Mercantile Savings Bank. Appellant was served with the
complaint by certified mail. The certified mail was returned
unclaimed on December 7, 2015 and the state then served
appellant by ordinary mail on December 17, 2015.
3} Appellant failed to respond or appear for any
proceedings and a default judgment and decree of foreclosure
was entered against appellant on June 6, 2016. The trial
court entered a judgment entry confirming the sale of the
property on September 15, 2016.
4} On February 8, 2017, appellant moved to vacate
the judgment and tax sale. Appellant claimed that the decree
of foreclosure and judgment entry confirming the sale of the
property were void because the County failed to complete
service of process by publication in the action. The trial
court denied appellant's motion. Appellant now appeals
the decision of the trial court, raising a single assignment
of error for review:
5} THE TRIAL COURT, BECAUSE OF [sic] IT FAILED TO
RECOGNIZE THAT THE PENDING CAUSE OF ACTION IS ONE IN REM FOR
WHICH THE MANDATE FOR SERVICE OF PROCESS BY PUBLICATION SET
FORTH IN R.C. 5721.18(B) IS APPLICABLE ON THE FACE OF THE
COMPLAINT, ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN
OVERRULING HIS MOTION TO VACATE AS VOID AB INITIO
THE JUDGMENT ENTRY DECREE OF FORECLOSURE AND THE JUDGMENT
ENTRY CONFIRMING SALE.
6} In his sole assignment of error, appellant argues
that the trial court erred by overruling his motion to vacate
judgment. Appellant's argument is without merit.
7} "In order to render a valid judgment, a
court must have jurisdiction over the defendant in the
action." Beachler v. Beachler, 12th Dist.
Preble No. CA2006-03-007, 2007-Ohio-1220, ¶ 12. A trial
court lacks jurisdiction to enter a default judgment against
a defendant if a plaintiff fails to perfect service on the
defendant and the defendant has not appeared in the action or
waived service. Bendure v. Xpert Auto, Inc., 10th
Dist. Franklin No. 11AP-144, 2011-Ohio-6058, ¶ 16.
8} A trial court's ability to vacate a void
judgment does not arise from Civ. R. 60(B), but rather, from
an inherent power possessed by the courts in this state.
Ohio State Aerie Fraternal Order of Eagles v. Alsip,
12th Dist. Butler No. CA2013-05-079, 2013-Ohio-4866, ¶
10. Thus, when a party claims a trial court lacked personal
jurisdiction due to improper service of process, the
appropriate method to challenge such void judgment is through
a common law motion to vacate. Third Fed S. &. L
Assn. v. Taylor, 10th Dist. Franklin No. 17AP-254,
2017-Ohio-7620, ¶ 11; Chuang Dev. LLC. v.
Raina, 10th Dist. Franklin Nos. 15AP-1062 and 16AP-500,
2017-Ohio-3000, ¶ 29.
9} An appellate court reviews the denial of a motion
to vacate under an abuse-of-discretion standard. Bank of
New York Mellon v. Maxfield, 12th Dist. Butler No.
CA2016-01-004, 2016-Ohio-2990, ¶ 9. An abuse of
discretion constitutes more than an error of law or judgment;
it requires a finding that ...