COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71142 GOMERSALL & ASSOCIATES, INC. : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION APRIL M. AMARI, ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 5, 1997 CHARACTER OF PROCEEDING: Civil appeal from Garfield Heights Municipal Court Case No. 94-CVF-782 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: JOHN J. MILLER, ESQ. THOMAS J. INTILI, ESQ. 24600 Detroit Road, Suite 240 120 West Third Street, Suite 350 Westlake, Ohio 44145 Dayton, Ohio 45402-1867 - 2 - DYKE, J. Appellant, Thomas J. Intili, appeals from the judgment of the Garfield Heights Municipal Court granting judgment against him and in favor of plaintiff-appellee, Gomersall & Associates, Inc. (Gomersall). For the following reasons, the decision of the trial court is reversed and remanded. Gomersall, an accounting firm, performed work in conjunction with the divorce of defendant, April Amani, in March, 1992. Defendant Thomas J. Intili Co., L.P.A. ("TJI") represented Amani in the divorce proceeding. Gomersall claimed defendants were jointly and severally liable in the amount of $3,385.58 for the accounting services. Amani settled with Gomersall for $1,000, and was dismissed from the action. Initially, TJI was represented by Attorney Coyne. Coyne withdrew. Thomas Intili, "pro se," appeared for TJI at trial. Intili is the president and sole shareholder of TJI. On December 14, 1995, a bench trial was held, of which no transcript was taken. Judgment was rendered against TJI in the amount of $2,385.58. This judgment was appealed, in case no. 70160, but the appeal was dismissed for failure to file a record. At the time of the first appeal, Intili informed plaintiff that the corporate charter of TJI was cancelled by the State of Ohio on April 1, 1994. Intili also informed plaintiff that all the assets had been distributed, and the corporation was in the process of winding up its affairs. On April 20, 1995, Intili had submitted - 3 - an affidavit to the trial court stating that he was president and sole shareholder of TJI, and TJI was an Ohio legal professional corporation. According to the trial court's opinion, Intili testi- fied at trial that TJI was a "valid corporation". After the appeal was dismissed, the trial court held a hearing on plaintiff's Civ. R. 60(B) motion, to grant judgment against Thomas Intili personally. Intili was never served with process, although he was notified of the hearing. Intili did not appear at the hearing. The trial court granted plaintiff-Gomersall's Civ. R. 60(B) motion. The court entered judgment against Thomas Intili person- ally, in the amount of $2,385.58. The court also imposed Civ. R. 11 sanctions, because Thomas Intili intentionally deceived and defrauded the court by signing the affidavit and testifying that TJI was a valid corporation. The court ordered Intili to pay $5,692 in attorney fees plus prejudgment interest, for a total judgment of $9,077.58. I. Thomas Intili's first assignment of error states: THE JUDGMENT AGAINST APPELLANT, WHO WAS NOT A PARTY TO AND DID NOT APPEAR IN THE TRIAL COURT ACTION, IS VOID, BECAUSE IT VIOLATES APPELLANT'S DUE PROCESS RIGHTS. A trial court is without jurisdiction to render judgment or make findings against a person who was not served sum- mons, did not appear, and was not a party in the court proceedings. A person against whom such judgment and findings are made is entitled to have the judgment vacated. - 4 - State ex rel. Ballard v. O'Donnell (1990), 50 Ohio St.3d 182. Ser- vice upon a corporation does not constitute service on a share- holder. Id. In this case, Intili was not served. The fact that the corporation was served did not constitute service on Intili. Intili appeared on behalf of the corporation, and never appeared in the action on his own behalf. Intili was not afforded due process and the judgment against him is void. Appellee-Gomersall asserts that Boehmke v. Northern Ohio Traction Co. (1913), 88 Ohio St. 156, and its progeny, operates to allow a judgment to be rendered against Intili. Boehmke holds that if the wrong defendant is made a party by mistake or misnomer, and the correct defendant is aware of the action and aware that the action should have been brought against him, then the plaintiff may amend the complaint to include the correct defendant, even if the statute of limitations has run as to that defendant. This holding has been incorporated into Civ. R. 15(C). See Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627. In this case, however, the plaintiff knew that Intili was the sole owner of TJI, and was not mistaken in naming TJI corporation. Rather the plaintiff seeks to assert a new claim against Intili individually by piercing the corporate veil, without filing and serving a complaint against Intili. See Andre v. Chillicothe Jeep Sales, Inc. (Dec. 8, 1983), Franklin App. No. 83AP-780, unreported. Moreover, Civ. R. 15(C) allows an amended complaint to be filed to substitute a party after the statute of limitations has run, but - 5 - does not provide for a waiver of filing and serving a complaint. See Id. Civ. R. 15(C) does not operate to permit a judgment against Intili when a complaint was not filed or served on Intili. See Id. Appellee argues that appellant was afforded due process because he was given notice of the hearing on the Civ. R. 60(B) motion, and a hearing was held. Due process requires the defendant must be served or make an appearance. State ex rel. Ballard, supra. Appellant was not served pursuant to Civ. R. 4 - 4.6, and appellant did not appear. Furthermore, no complaint was filed alleging facts concerning piercing the corporate veil. Notice of the hearing and the hearing, which Intili did not attend, did not afford due process. Accordingly, appellant's first assignment of error is sustained. II. Appellant's second assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING RULE 11 SANCTIONS AGAINST APPELLANT WITHOUT A FACTUAL BASIS FOR DOING SO. Civ. R. 11 allows for the imposition of sanctions against a pro se individual who files a pleading or other document with the court, when the individual knew there were not good grounds to support the allegations or arguments in the document. Civ. R. 11, See Riley v. Langer (1994), 95 Ohio App.3d 151, 161. In this - 6 - case, sanctions could be imposed on Intili as pro se representative of TJI corporation. Civ. R. 11 sanctions were imposed against Intili for (1) filing an allegedly frivolous affidavit, and (2) Intili's statement at trial, that the corporation was valid. Civ. R. 11 sanctions can only be imposed for a frivolous pleading or other document. See Civ. R. 11, Gordon Food Service, Inc. v. Hot Dog John's, Inc. (1991), 76 Ohio App.3d 105, 113. In this case, Civ. R. 11 sanc- tions could not be imposed for Intili's statements at trial. Although sanctions could possibly be appropriate under some other statute or law, plaintiff only requested sanctions pursuant to Civ. R. 11, and the court ordered sanctions based only on Civ. R. 11. The trial court erred and abused its discretion by awarding Civ. R. 11 sanctions based on a party's testimony at trial, and not based on a pleading, motion or other document. We will now consider whether the trial court abused its discretion by imposing sanctions based on the affidavit. See State ex rel. Fant v. Sykes (1987), 29 Ohio St.3d 65 (abuse of discretion standard). The affidavit stated TJI was a legal professional corporation, and Intili was TJI's president. These sworn statements were supported by good grounds. Although the corporation was winding up, it still existed as a legal profes- sional corporation. R.C. 1701.88(A), 1785.08. At least, the affidavit was not made willfully and in bad faith. Sanctions can only be imposed for willful violations. Kemp, Schaeffer & Rowe Co., - 7 - L.P.A. v. Frecker (1990), 70 Ohio App.3d 493, 497. As the statements made in the affidavit were true, and there was no evidence of willfulness, the trial court's award of sanctions against Intili was unreasonable and unconscionable. The trial court abused its discretion in awarding Civ. R. 11 sanctions. Accordingly, this assignment of error is sustained. III. Appellant's third assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED APPELLANT'S DUE PROCESS RIGHTS BY IMPOSING RULE 11 SANCTIONS UPON APPELLANT OUT OF MALICE AND WITHOUT HOLDING AN EVIDENTIARY HEARING ON THE RECORD. This assignment of error is moot, given our disposition of appellant's second assignment of error. The decision of the trial court is reversed and remanded for further proceedings consist with this opinion. - 8 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellee their costs herein. It is ordered that a special mandate be sent to said 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. SWEENEY, C.J., AND DAVID T. MATIA, J., CONCUR. ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .