Court Lacks Jurisdiction if Service is Not Perfected Within One Year

February 1, 2013 in Civil Procedure, Ohio Courts by Brad Council

Court Lacks Jurisdiction if Service is Not Perfected Within One Year

On December 14, 2012, the Ohio Seventh District Court of Appeals found that a judgment entered by the trial court was void because service was not perfected within one year of the filing of the complaint and the trial court lacked jurisdiction to take any action after that point.

Appellee Joseph Didomenico filed a breach of contract complaint against both Appellants John Valentino and J&V Roofing and Home Improvements, Inc.  What began as a breach of contract complaint was later appealed because the appellants claimed that Mr. Didomenico failed to perfect service of process on the appellants within one year as required by Civ. R. 3(A).  The Mahoning County Area Court No. 4 initially dismissed the complaint due to the plaintiff’s failure to appear and prosecute the case, but reopened the case in 2009 so as to allow Mr. DiDomenico an additional 30 days to effect service.  Mr. DiDomenico missed the deadline but did serve the complaint on the defendants two months later and thereafter a trial ensued.  Judgment was granted by the trial court if favor of Mr. DiDomenico.

Revised Code 2305.17 and Civ. R. 3(A) govern the commencement of a civil action.  R.C. 2305.17 states :  “An action is commenced… by filing a petition in the office of the clerk of the proper court together with a praecipe demanding that summons issue or an affidavit for service by publication, if service is obtained within one year.”  Civ. R. 3(A) states:  “A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant.”  Because the appellee did not perfect service of process, the appellants claimed the court had no jurisdiction to enter a judgment against them.

Absent proper service of process on a defendant, a trial court lacks jurisdiction to enter a judgment against that defendant, and if the court nevertheless renders a judgment, the judgment is a nullity and is void ab initio.  The Court stated that if service is not perfected in a year, the trial court lacks jurisdiction to continue to prosecute the case, unless service of process is waived.   Further, the court upheld the defense even after the commencement of trial, with the defendant’s participation, finding that once the defense is raised a party’s active participation in the litigation does not waive the defense.

The Court of Appeals therefore vacated the final judgment of the trial court and dismissed the complaint on the grounds that service of process was not perfected within one year as required by R.C. 2305.17  and Civ. R. 3(A).

The Full Text of the Opinion May be Found at:

http://supremecourt.ohio.gov/rod/docs/pdf/7/2012/2012-ohio-5992.pdf

 

Many thanks to Sonya Gaines for her contributions to this article.  Sonya is a paralegal with Slovin & Associates Co., L.P.A.