COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59621 LORAIN ROAD AUTOBODY & : FRAME, INC. : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION RICK GAINES : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Civil appeal from Rocky River Municipal Court Case No. 89-CVH-1463 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: SHIA N. SHAPIRO, ESQ. THOMAS A. SAMPLINER, ESQ. 1401 Rockefeller Building 601 Rockefeller Ave., #402 614 Superior Avenue, N.W. Cleveland, Ohio 44114 Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant, Lorain Road Autobody and Frame Inc., brought suit against appellee, Rick Gaines, for monies due for work performed on appellee's automobile. The complaint was served on appellee through certified mail at "27101 East Oviatt, Bay Village" but was returned "unclaimed." Subsequently, the complaint was successfully served, through ordinary mail, at the same address. Appellee sent appellant's counsel a letter, dated November 24, 1989, (attached to appellant's motion to vacate) which had typed on it "27101 East Oviatt, Cleveland" as a return address. In the letter appellee stated that "[i]n response to your claim" he wished to make an offer of settlement but "[i]f this proposal does not appeal to your client, we will retain counsel and fight your claim." Appellee failed to answer or otherwise appear and appellant's motion for a default judgment was granted on January 22, 1990. On February 6, 1990 appellee filed a Civ. R. 60(B) motion for relief from judgment which attached appellant's affidavit stating that he never received the summons and complaint. After a hearing on the motion the default judgment was vacated. On appeal appellant assigns the following error for review: ONCE SERVICE IS COMPLETED ON A DEFENDANT, WHO THEREAFTER FAILS TO ENTER ANY APPEARANCE, CAN SUCH DEFENDANT, AFTER A RENDERING OF A DEFAULT JUDGMENT, PREVAIL ON A MOTION TO VACATE SUCH JUDGMENT BASED ON A PURPORTED FAILURE OF SERVICE. - 2 - Appellant argues that the address on appellee's letter is the same address to which the complaint was sent. However, the complaint was addressed to "Bay Village" and the letter said "Cleveland." Appellant also contends that in the letter appellee acknowledges the claim. We note that the affidavit states as follows: 1. I used to live at 27101 East Oviatt Street having moved late this fall. 2. I have had trouble with mail not being forwarded despite my having proper forwarding cards in file with the post office. 3. I never received the summons and complaint in this case. 4. I was plaintiff in a small claims case and became aware of this case being on file only by a lucky coincidence. 5. I believed that my letters to Attorney Shapiro (enclosed as exhibits) were an acceptable way to set forth my position and defend myself. 6. I did not know that failure to file the original or something with the clerk could result in a judgment if I was writing to the attorney for plaintiff. 7. I believe I had both a valid defense and counterclaim because the work promised was defective and plaintiff damaged my car in excess of the value of their claim for services. Appellant also attached two letters which concerned the disputed claim and which were exchanged by appellee and appellant's counsel after the dispute arose but before the complaint was filed. In a letter of August 18, 1989 appellant put "P.O. Box 40323, Cleveland" as his address. In reply - 3 - appellant's counsel sent his letter of August 31, 1989 to P.O. Box 40323, Cleveland and yet served the complaint on 27101 East Oviatt, Bay Village. "[A] judgment rendered without proper service or entry of appearance is a nullity and void." State, ex rel. Ballard v. O'Donnell (1990), 50 Ohio St. 3d 182, 183 citing The Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio St. 61. "The authority to vacate a void judgment is not derived from Civ. R. 60(B) but rather constitutes an inherent power possessed by Ohio courts." Patton v. Diemer (1988), 35 Ohio St. 3d 68 (paragraph four of the syllabus). Therefore, "[t]he requirements of Civ. R. 60(B) do not apply where a party attacks a judgment for want of personal jurisdiction." Dairyland Ins. Co., et al. v. Forgus (1989), 58 Ohio App. 3d 78 (paragraph one of the syllabus)./1\ Appellant's motion to vacate the void judgment for lack of personal jurisdiction alleged that he had not been served and his affidavit stated that he had never received the summons and complaint. He may have become aware of the fact that a claim had been filed but not of the details or the requirements and deadline for an answer. Whether appellant improperly served the complaint on the East Oviatt address (given his prior reply to the post office box) or, if it were a proper address, the /1\ Even if the requirements of Civ. R. 60(B) had to be met appellant did so by demonstrating in a timely motion that he had a meritorious defense and was entitled to relief under Civ. R. 60(B)(1). GTE Automatic Electric Inc. v. ARC Industries (1976), 47 Ohio St. 2d 146. - 4 - complaint was simply lost in the mail, the result is the same. Appellant must be served as required. The motion to vacate the void judgment was properly granted. Judgment affirmed. - 5 - It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Rocky River Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, J., AND *SPELLERBERG, J., CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .