COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59842 : DENNIS SCHLEKI, dba : APPROVED PLUMBING & CABINET CO. : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : JIM BEVERLY, dba : STANCE ENTERPRISES : : Defendant-Appellee : : DATE OF ANNOUNCEMENT MARCH 19, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Parma Municipal Court Case No. 89-CVF-593 JUDGMENT: Modified, and Affirmed as Modified. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: PAUL T. KIRNER JIM BEVERLY, pro se KIRNER & BOLDT COMPANY 4308 Everett Road, #A 8025 Corporate Circle Richfield, Ohio 44286-9523 North Royalton, Ohio 44133 -2- PATRICIA A. BLACKMON, J.: Plaintiff-Appellant Dennis Schleki dba Approved Plumbing & Cabinet Company ("Appellant") sued Defendant-Appellee Jim Beverly dba Stance Enterprises ("Appellee") for money owed on an account for services rendered by him to Appellee. The trial court entered judgment for Appellant, however, the journal entry provided that the judgment was against "Stance Enterprises, Inc." Stance Enterprises, Inc. was not a named party in the lawsuit. After an unsuccessful attempt to reverse the trial court's judgment, Appellant timely appeals the decision of the trial court and argues that the trial court erred in not granting him a judgment against Jim Beverly, individually and in his personal capacity. For the reasons set forth below, we affirm the judgment for Appellant and against Appellee; however, pursuant to App. R. 12(B), we modify the judgment to reflect and read that the default judgment is against "Jim Beverly dba Stance Enterprises." A careful review of the complaint reveals that the only named defendant is Appellee, "Jim Beverly dba Stance Enterprises". The complaint does not name Jim Beverly in his personal capacity, nor does it name "Stance Enterprises, Inc." Therefore, the trial court, sub judice, is without jurisdiction to enter judgment against Stance Enterprises, Inc. as well as Jim Beverly, in his personal capacity. While the trial court's default judgment against Stance Enterprises, Inc. is void, it is clear from the record that -3- Appellant is entitled to a default judgment against Appellee, Jim Beverly dba Stance Enterprises, as the named defendant. See Civ. R. 55(A). The invoice, which is attached to the complaint, clearly indicates that Jim Beverly, on behalf of Stance Enterprises incurred a debt of $2,113.85 for the services rendered by Appellant. The record also reveals that Appellee failed to plead or otherwise defend against this allegation. The facts, which support these conclusions, are as follows: On February 28, 1989, Appellant filed a complaint against Appellee for monies owed on an account for services rendered and prayed for compensation in the amount of Two Thousand, One Hundred Thirteen Dollars and Eighty-Five Cents ($2,113.85), plus interest from December 6, 1988, and costs. Neither Appellee nor a representative of Stance Enterprises answered the complaint. On April 19, 1989, Appellant filed a motion for default judgment. A default hearing was set for June 7, 1989. At the hearing, the trial court requested additional information. On August 14, 1989, Appellant provided the trial court with a reply from the Secretary of the State of Ohio and the City of Broadview Heights, which purported to define the corporate status of Stance Enterprises. On October 30, 1989, Appellant filed a motion for trial. On November 6, 1989, the trial court granted judgment for Appellant against "Stance Enterprises, Inc." only. Thereafter, the trial court scheduled a trial date for March 16, 1990 to resolve Appellants' claim against Appellee for damages in his individual capacity. On March 16, 1990, the trial -4- court heard Appellant's evidence. Appellee failed to appear or to defend. On April 17, 1990, the trial court found that Appellant had failed to sustain his burden of proof in order to obtain a judg- ment against Appellee, personally. Pursuant to Appellant's timely request for findings of fact and conclusions of law, the trial court found that Appellant's evidence consisted of: (1) An invoice from Plaintiff to Defendant as "(Jim Beverly) Stance Enterprises." (2) An "Application for License" made to City of Broadview Heights, indicating applicant "J. S. Beverly as authorized representative of Stance Enterprises, Inc." (3) Insurance certificate from State Farm applicable to James Beverly dba Stance Enterprises, Inc. (4) An unsigned and unidentified "printout" referring to "Stance Enterprises, Inc." (5) Oral testimony of Plaintiff. Based on the above evidence the trial court concluded that its November 6, 1989 default judgment against Stance Enterprises, Inc. remained in full force and effect. The trial court further maintained the evidence was insufficient to sustain a judgment against Appellee, personally. Appellant's sole assignment of error states: THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE APPELLANT BY FAILING TO RENDER JUDGMENT AGAINST THE APPELLEE, AS AN INDIVIDUAL, WHICH WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the evidence establishes that there is no corporation, and the trial court's default judgment against -5- Stance Enterprises, Inc., which is reaffirmed by the trial court's judgment on November 6, 1989, is reversible error. Before we address this issue we must respond to the larger question, which is whether the trial court may grant a judgment against a corporation when corporate capacity is not alleged or established in the original complaint. Appellant filed suit against Jim Beverly dba Stance Enterprises. Appellant did not sue "Stance Enterprises, Inc." and did not allege or plead corporate capacity. Therefore, the original default judgment against Stance Enterprises, Inc. is error. A trial court lacks jurisdiction to enter a judgment against a person who is not a party to a civil action. See, O.B. Corp. v. Cordell (1988), 47 Ohio App. 3d 170. We now address Appellant's assignment of error. Since Appellant did not sue Jim Beverly individually and in his personal capacity, the trial court's decision denying Appellant's motion is correct. In this case Appellant sued Jim Beverly dba Stance Enterprises. Appellee, Jim Beverly dba Stance Enterprises, did not answer or otherwise defend. Therefore, the default judgment is affirmed; however, we modify the journal entry accordingly to reflect that the judgment is against Appellee Jim Beverly dba Stance Enterprises. Judgment modified, and affirmed as modified. This cause is modified, and affirmed as modified. -6- It is ordered that Appellant recover of Appellee its 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 Parma 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. Exceptions. ANN MCMANAMON, P.J., and KRUPANSKY, J., CONCUR (See Concurring Opinion, Krupansky, J., Attached). PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59842 DENNIS SCHLEKI, dba : APPROVED PLUMBING & CABINET CO. : CONCURRING : Plaintiff-Appellant : : OPINION vs. : : JIM BEVERLY, dba : STANCE ENTERPRISES : : : Defendant-Appellee : : DATE: MARCH 19, 1992 KRUPANSKY, J., CONCURS: I concur in the judgment of the majority entering final judgment against "Jim Beverly, dba Stance Enterprises," but write separately to clarify that such judgment may be enforced against Jim Beverly personally. It is obvious from the record Jim Beverly is a sole proprietorship doing business as Stance Enterprises and was served as such. Jim Beverly was named in the complaint and served as an individual doing business as "Stance Enterprises." The record demonstrates Jim Beverly personally owns and operates the business as a sole proprietorship under the fictitious and unregistered name of "Stance Enterprises." See, Countywide -8- Heating and Cooling, Inc. v. Horton (1982), 8 Ohio App. 3d 174. The fact that Jim Beverly operates the business under a fictitious name does not mean the business is a separate and distinct legal entity from Jim Beverly or that Jim Beverly is not personally liable for the debts incurred by the business. Jim Beverly remains liable as sole proprietor for the debts incurred by "Stance Enterprises" and plaintiff may execute on the judgment in the case sub judice against the personal assets of Jim Beverly. .