Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nix v. Richter

Court of Appeals of Ohio, Twelfth District, Butler

November 6, 2017

NANCY E. NIX, TREASURER, BUTLER COUNTY, OHIO, Plaintiff-Appellee,
v.
ROBERT J. RICHTER, et al., Defendants-Appellants.

         CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2015-11-2532

          Michael T. Gmoser, Butler County Prosecuting Attorney, Dan L. Ferguson, for plaintiff-appellee.

          John W. Herr, for defendant-appellant, Robert J. Richter.

          Santokh Bhatti, defendant, pro se.

          OPINION

          RINGLAND, J.

         {¶ 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, ΒΆ 9. An abuse of discretion constitutes more than an error of law or judgment; it requires a finding that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.