COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72269 BROTHERHOOD OF LOCOMOTIVE : ENGINEERS : : Plaintiff-Appellee : : JOURNAL ENTRY v. : AND : OPINION ROBERT A. DIXON, ET AL. : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JULY 23, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-206447 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: PAUL P. PSOTA, ESQ. DAN A. MORRELL, ESQ. 1350 Euclid Avenue MICHAEL D. BRENNAN, ESQ. Suite 1400 250 Spectrum Office Bldg. Cleveland, Ohio 44115 6060 Rockside Woods Blvd. For Defendant, William L. Summers: ROBERT BERK, ESQ. 75 Public Square, Suite 400 Cleveland, Ohio 44113 For Defendant, Norman A. Fox: NORMAN A. FOX, ESQ. 24340 Sperry Drive Westlake, Ohio 44145 -2- KARPINSKI, J.: Defendant-appellant Robert Dixon appeals from an order of the trial court denying his motion for relief from judgment. On February 29, 1991, plaintiff-appellee Brotherhood of Locomotive Engineers Building Association ( Engineers Association ) filed this action against the law firm partnership of Summers, Fox & Dixon, as well as Dixon, William Summers, and Norman Fox, individually and as partners of the law firm. The Engineers Association, as landlord, sought to recover unpaid rent due under a written lease agreement, executed by Summers and Fox on behalf of the tenant partnership of Summers, Fox & Dixon. Dixon notarized the signatures of Summers and Fox on the lease. Service of the complaint and summons was completed on Fox individually and in his capacity as partner of the law firm, but service was returned uncompleted on Summers, Dixon, and the law firm partnership separately. No further attempts at service were made. Nevertheless, Fox, as Attorney for Defendant, filed a stipulation for leave to plead to provide the Defendants an extension of time to respond. Thereafter, attorney John Hildebrand filed answers on behalf of the partnership and Fox and Summers individually. No answer was filed on behalf of Dixon in his individual capacity. The pretrial statement filed by Hildebrand clarified he was not representing Dixon in his individual capacity. On October 25, 1991, however, attorney Hildebrand as Attorney for Defendants, executed an agreed judgment on behalf of all -3- defendants, including Dixon individually. The judgment recited that $40,071.00 was the amount due and owing and established a payment schedule so that payment would be completed in approximately one year. There were no further proceedings until approximately five years later on November 4, 1996, when the Engineers Association filed a motion for examination of judgment debtor. On December 30, 1996, Dixon filed an eleven-page motion for relief from judgment under Civ.R. 60(B)(5) and for a protective order. Dixon's motion argued that the original judgment was improperly entered against him personally because he never entered an appearance and was not represented by counsel in the case. The motion also argued that Dixon was not liable as a partner of the law firm partnership Summers, Fox & Dixon because he was merely an associate employee. The motion, which explained that he had no prior notice of the judgment, was supported by numerous exhibits. The Engineers Association filed a brief in opposition which argued that Dixon failed to satisfy the requirements for relief from judgment under Civ.R. 60(B)(5). The landlord's brief was not supported by any additional evidence. It argued that the leave to plead executed by Fox entered an appearance on behalf of Dixon in his individual capacity, and that attorney Hildebrand as attorney for defendants subsequently agreed to the entry of judgment against Dixon individually. The brief also argued that Dixon was liable as a partner of the law firm partnership of Summers, Fox & -4- Dixon because he was an income partner and permitted the partnership to use and sign the lease in his name. The trial court denied Dixon's motion for relief from judgment and for a protective order. Dixon timely appeals raising the following sole assignment of error: THE LOWER COURT ABUSED ITS DISCRETION AND ERRED IN OVERRULING APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 60(B)(5). This assignment is well taken. Dixon argues the trial court improperly denied his motion for relief from judgment, particularly because it failed to conduct an evidentiary hearing. The trial court judgment was entered against Dixon individually and against the partnership Summers, Fox & Dixon. Dixon challenges each aspect of the judgment. Specifically, Dixon argues that the trial court improperly entered judgment against him in his individual capacity, because the record shows that he was not properly served a summons and complaint. Dixon further argues that the judgment entered against the partnership is not enforceable against him. Dixon Individually It is well established that trial courts lack jurisdiction to enter judgments against persons who are not served and do not appear or waive proper service. State ex rel. Ballard v. O'Donnell (1990), 50 Ohio St.3d 182, syllabus paragraph one; Rite Rug Co., Inc. v. Wilson (1995), 106 Ohio App.3d 59; O.B. Corp. v. Cordell (1988), 47 Ohio App.3d 170. Because an in personam judgment entered without jurisdiction over the party as in this case is void -5- ab initio, the party seeking to vacate such a judgment against him is not even required to comply with the requirements of Civ.R. 60(B). The record shows that certified mail service directed to Dixon at a successor partnership operated by Summers, Fox and others was returned, unserved, stamped addressee unknown. Despite uncom- pleted service by certified mail, the Engineers Association made no further attempt of any kind to serve Dixon in any capacity. It has cited no authority that service on one partner constitutes service on another partner of the same partnership for claims against the latter in his personal capacity. Nor does the record contain any evidence that Dixon appointed the law firm partnership or any of the other partners as his agent for service of process on claims against him in his individual capacity. The Engineers Association contends that the stipulation for leave to plead for the Defendants executed by Fox is an adequate substitute for valid service on Dixon. This argument lacks merit. It is well established that the filing of a request for an extension of time to plead does not waive proper service of process. This is true even when, unlike the case at bar, the request is made by counsel actually retained by the party to be served. Maryhew v. Yova (1984), 11 Ohio St.3d 154; King v. Hazra (1993), 91 Ohio App.3d 534. In this case, it is undisputed that neither Fox nor Hildebrand was engaged to represent Dixon. Although the judgment entered against Dixon personally must be vacated for lack of personal jurisdiction, there is an additional -6- ground for relief from this judgment under the circumstances of this case. Even if Dixon is liable as a partner of the law firm as the Engineers Association argues, it is well established that individual partners are not liable for contract obligations incurred by their partnership until partnership assets are exhausted. Wayne Smith Construction Co., Inc. v. Wolman, Duberstein & Thompson (1992), 65 Ohio St.3d 383; Arbor Village Condominium Assn. v. Arbor Village, Ltd., L.P. (1994), 95 Ohio App.3d 499, 511-513. Because the record shows that the Engineers Association did not follow this sequence and Dixon did not waive this requirement, the failure to do so raises additional grounds for relief from the judgment against Dixon personally in this case. In summary, contrary to the argument of the Engineers Association, neither the stipulation for leave to plead nor the judgment against the partnership is a proper substitute for timely and valid service on a claim arising from a partnership debt asserted against Dixon personally. Partnership Dixon also sought relief from the agreed judgment entry against the partnership which provided the basis for the claim against him in his personal capacity. The Engineers Association argued to the contrary that the agreed judgment entry filed constitutes a valid judgment against the partnership enforceable against Dixon. -7- When Fox was served as a general partner, the partnership was properly served. Service on Fox as a general partner constituted service on the partnership. Civ.R. 4(7). Thus, the subsequent agreed judgment entry against the law firm partnership, approved by Fox and Summers, is valid. We are unpersuaded by Dixon's contention that the agreed judgment entry against the partnership in this case constitutes a judgment entered by confession which was invalid because it was not made by agreement of all the partners. R.C. 1775.08(C)(4); Farm Bureau v. Dicke (1972), 29 Ohio App.2d 1. Settlement agreements and judgments by confession are fundamentally different. The law favors negotiation and voluntary settlement of litigation after lawful commencement of the proceedings and an opportunity to defend on the merits. Heightened scrutiny is reserved for disposition by confessed judgment when the right to appear and defend is waived before the litigation is commenced. It is not clear from the record whether the amount of the negotiated judgment in this case equaled the entire balance claimed by the Engineers Association to be due under the lease as it would in the case of a judgment by confession. However, the agreed judgment in this case was nevertheless clearly more favorable than a judgment by confession. The agreed judgment specifically provided a schedule for periodic future partial payments to be made over the course of approximately one year, whereas the entire balance of a judgment by confession would have been immediately due and payable when entered. The agreed judgment entry against the -8- partnership in this case was not a judgment by confession which required agreement of all the partners. Whether or not Dixon was a partner, the agreed judgment against the partnership did not require his agreement to be enforceable against the partnership and, as discussed above, ultimately against persons liable as partners. Nevertheless,the trial court should have conducted a hearing on Dixon's claim that he was not liable as a partner on the judgment against the partnership. Although the judgment against the partnership is valid, the record contains conflicting evidence concerning whether Dixon was in fact a partner, or is estopped to deny that he was a partner, of the partnership. Among other evidence, Dixon has submitted affidavits stating that he was not a partner and that the IRS concluded he was not a partner for federal income tax purposes in other litigation. Fox submitted a similar affidavit stating that Dixon was not a full partner, but a limited income partner and that the Engineers Association was informed of his status as is evidenced by the lease which Dixon did not also execute. Arguing to the contrary, the Engineers Association claims that Dixon held himself out as a partner by permitting his name to be used in the law firm's name of Summers, Fox & Dixon and that the Engineers Association relied on his potential liability when it entered into the lease. Under the circumstances, because Dixon's motion was timely filed, raised sufficient grounds, invoked a meritorious defense, and was supported by some evidence, the trial court should have conducted -9- a hearing to resolve these competing claims. See Berger v. Dare (1994), 99 Ohio App.3d 103. For these reasons, the trial court's summary dismissal of Dixon's motion for relief from judgment is hereby reversed. Judgment reversed and remanded for further proceedings consistent with this opinion. Judgment accordingly. -10- This cause is reversed and remanded. It is, therefore, ordered that appellant(s) recover of appellee their costs herein taxed. 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. TERRENCE O'DONNELL, P.J., CONCURS; JAMES D. SWEENEY, J., CONCURS IN JUDGMENT ONLY. DIANE KARPINSKI 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 .