COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72616 THE OHIO LEITINA COMPANY : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION VANDRA BROTHERS CONSTRUCTION, : INC. : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 12, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 307,851 JUDGMENT : REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: OWEN C. NEFF Attorney at Law Snyder, Neff & Chamberlin 1648 Hanna Building 1422 Euclid Avenue Cleveland, Ohio 44115-2001 For defendant-appellee: PATRICK F. ROCHE Attorney at Law Davis and Young 1700 Midland Building 101 Prospect Avenue, W. Cleveland, Ohio 44115-1027 KENNETH A. ROCCO, J.: -2- Appellant Ohio Leitina Company alleges the trial court erred when it granted the motion to vacate default judgment filed by appellee Vandra Brothers Construction Inc. Since appellant had not obtained service over appellee at the time the default judgment was granted and appellee had not otherwise waived service, the trial court was without jurisdiction to enter judgment against appellee and did not err when it granted the motion to vacate. I. Appellant Ohio Leitina Company filed a complaint on May 1, 1996 against several defendants, including appellee Vandra Brothers Construction, Inc. The complaint alleged appellant suffered damages as the result of an alleged trespass by the defendants. On May 23, 1996, appellant filed an amended complaint. Appellant filed a motion for default judgment on September 19, 1996 seeking judgment against appellee. The trial court set a hearing date of November 17, 1996 on appellant's motion. On that date, appellant appeared and produced an affidavit in support of its motion for default judgment. The trial court granted default judgment against appellee in the amount of $203,288.28. The docket reflects that prior to the default hearing date, two attempts at service on appellee via certified mail had been returned; thus, at the time the trial court granted appellant's motion for default judgment, service had not yet been perfected on appellee. -3- On November 25, 1996, appellee filed a motion for relief from default judgment. The court granted the motion on February 4, 1997, and on February 18, 1997, appellee filed its answer to appellant's amended complaint. Also on February 18, 1997, appellant filed a motion captioned Motion for Relief from Vacating Default Judgment and Motion to Vacate Order of February 4, 1997 and for New Trial Under Civil Rule 60(B). The trial court subsequently vacated its February 4, 1997 order, noting that it had been issued in error.1 On May 8, 1997, the trial court granted appellee's motion for relief from default judgment and reinstated the case to its active docket. Appellant thereafter voluntarily dismissed the remaining defendants pursuant to Civ.R. 41(A) and timely filed its notice of appeal of the May 8, 1997 order.2 Appellant states five assignments of error. Appellant's first assignment of error states: THE VACATION OF THE DEFAULT JUDGMENT IS WHOLLY CONTRARY TO LAW AND ACCORDINGLY AN ABUSE OF DISCRETION. It is appellant's position that the trial court erred when it granted appellee's motion for relief from judgment since appellee failed to assert a meritorious claim or defense and, thus, failed 1 Appellant had also filed an appeal of the February 4 order. This court dismissed the appeal pursuant to Civ.R. 54(B) and remanded the matter to the trial court. 2 Appellee previously filed a motion to dismiss the appeal on the ground that appellant incorrectly used Civ.R. 41(A) to dismiss parties to the action. This court in an en banc decision denied appellee's motion. -4- to conform with the requirements for a successful Civ.R. 60(B) motion.3 Appellant's contention is incorrect. A motion to vacate judgment for want of personal jurisdiction constitutes a direct attack on the judgment and need not satisfy the requirements of Civ.R. 60(B). Rite Rug Co., Inc. v. Wilson (1995), 106 Ohio App.3d 59, 62, citing Leroy Jenkins Evangelistic Assn., Inc. v. Equities Diversified, Inc. (1989), 64 Ohio App.3d 82, 89; Patterson v. Patterson (Mar. 1, 1994), Franklin App. No. 93AP-708, unreported, 1994 WL 64261. Whether styled as a Civ.R. 60(B) motion or as a motion to vacate, the movant need not set forth a meritorious defense. Rite Rug at 62-63, citing Patterson; Patton v. Diemer (1988), 35 Ohio St.3d 68. At the time the trial court granted the default judgment, service had not been obtained on appellee. It is axiomatic that for a court to acquire jurisdiction there must be a proper service of summons or an entry of appearance, and a judgment rendered without proper service or entry of appearance is a nullity and void. Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio St. 61, 64, 59 O.O. 74, 75-76, 133 N.E.2d 606, 610. It is thus well-settled that a decision rendered by a court without jurisdiction is unauthorized by law and amounts to usurpation of judicial power. 3 Civ.R. 60(B) requires that the movant demonstrate that: 1) the party has a meritorious claim or defense to present if relief is granted; 2) the party is entitled to relief under one of the grounds enumerated in Civ.R. 60(B)(1) through (5); and 3) the motion is made within a reasonable time and where the grounds for relief are 60(B)(1), (2), or (3), not more than one year after the judgment, order or proceeding was entered. GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St.2d 146, 150; citing Universal Film Exchanges v. Lust (C.A. 4, 1973), 479 F.2d 573; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97; Brenner v. Shore (1973), 34 Ohio App.2d 209. -5- State, ex rel Osborn v. Jackson (1976), 46 Ohio St.2d 41, 52, 75 O.O.2d 132, 138, 346 N.E.2d 141, 148. State, ex rel Ballard v. O'Donnell (1990), 50 Ohio St.3d 182, 183- 184. Thus, a court lacks jurisdiction to enter a judgment against a defendant where effective service of process has not been made and the defendant has not appeared in the case or otherwise waived service. Rite Rug Co. at 62. The docket indicates that service on appellee had not been perfected at the time the trial court entered the default judgment. Service was twice attempted by certified mail from the clerk's office of the court of common pleas and returned, and appellant failed to attempt to serve appellee via ordinary mail as provided by Civ.R. 4.6(C) and 4.6(D).4 Moreover, appellee had not yet filed an entry of appearance at the time the default judgment was entered.5 Since Civ.R. 60(B)(5) relies upon the inherent power of the court to prevent the unfair application of a judgment, relief has been granted under Civ.R. 60(B)(5) for failure of service. Rite Rug, at 62, citing Rogers v. United Presidential Life Ins. Co. 4 Appellant also contends that it relied on the trial court's representation that the court, itself, would attempt to obtain service prior to the November 17, 1996 default hearing date; however, Civ.R. 4.6(E) provides that [t]he attorney of record or the serving party shall be responsible for determining if service has been made and shall timely file written instructions with the clerk regarding completion of service ***. 5 In his appellate brief, appellant acknowledges that [t]he first entry of appearance by Vandra herein was on November 26, 1996, by motion under Civil Rule 60(B) to vacate the judgment entered on November 18, 1996. -6- (1987), 36 Ohio App.3d 126; Nationwide Ins. Co. v. Mahn (1987), 36 Ohio App.3d 251; Newark Orthopedics, Inc. v. Brock (1994), 92 Ohio App.3d 117. In the absence of proof that appellee had otherwise waived service, the trial court was without jurisdiction to enter judgment against it. The trial court correctly granted appellee's motion to vacate the default judgment. Appellant's first assignment of error is overruled. Appellant's second, third and fourth assignments or error may be considered together since they all relate to the issue of waiver of service. II. SERVICE HEREIN HAS EITHER BEEN WAIVED OR AT LEAST IS NO LONGER IN ISSUE, THERE BEING NO FACTS UPON WHICH FAILURE OF SERVICE MAY BE PREDICATED. III. THE MOVANT IS BARRED BY THE DOCTRINE OF ESTOPPEL AND BY WAIVER. IV. SERVICE OF PROCESS IS NOT AN ISSUE IN THIS APPEAL. IF IT EVER WAS, THE DEFENDANT IS PREVENTED FROM RAISING THE ISSUE AND/OR HAS WAIVED SAME BY ITS OWN ACT. Appellant first argues that appellee's filing of its motion to vacate and its answer to appellant's amended complaint effectively constituted a general appearance, thus making the issue of service moot.6 However, appellee's motion to vacate the default judgment was filed on November 26, 1996, after the court had entered the default judgment. Appellee's subsequent appearance is irrelevant 6 Appellant contends appellant made a general appearance. This court notes that, pursuant to the Rules of Civil Procedure, there is no longer a distinction between a special appearance and a general appearance. See, e.g., Maryhew v. Yova (1984), 11 Ohio St.3d 154, 156. -7- for purposes of determining whether appellant had obtained service on appellee at the time the trial court entered the default judgment. Appellant also contends that appellee's actions served to waive the requirement of service of process. Appellant first argues that appellee has waived service by its failure to comply with R.C. 1701.07. In pertinent part, R.C. 1701.07 provides: (A) Every corporation shall have and maintain an agent, sometimes referred to as the statutory agent, upon whom any process, notice, or demand required or permitted by statute to be served upon a corporation may be served. *** (E) Unless the change is reported on the annual report filed with the department of taxation, if the agent changes the agent's address from that appearing on the record in the office of the secretary of state, the corporation shall forthwith file with the secretary of state, on a form prescribed by the secretary of state, a written statement setting forth the new address. Appellant submits evidence to demonstrate that it had attempted service via certified mail and had forwarded copies of the notice of the default hearing and of the amended complaint to appellee's statutory agent at the address that was on file with the secretary of state. The address on file was incorrect; therefore, appellant maintains appellee's failure to file a corrected address waived the requirement of proper service. However, R.C. 1701.07(H) provides: Any process, notice or demand required or permitted by statute to be served upon a corporation may be served upon the corporation -8- by delivering a copy of it to its agent, if a natural person, or by delivering a copy of it at the address of its agent in this state, as the address appears upon the record in the office of the secretary of state. If (1) the agent cannot be found, or (2) the agent no longer has that address, or (3) the corporation has failed to maintain an agent as required by this section, and if in any case the party desiring that the process, notice, or demand be served, or the agent or representative of the party, shall have filed with the secretary of state an affidavit stating that one of the foregoing conditions exist and stating the most recent address of the corporation that the party after diligent search has been able to ascertain, then service of process, notice, or demand upon the secretary of state, as the agent of the corporation, may be initiated by delivering to the secretary of state or at the secretary of state's office quadruplicate copies of such process, notice, or demand and by paying to the secretary of state a fee of five dollars. The secretary of state shall forthwith give notice of the delivery to the corporation at its principal office as shown upon the record in the secretary of state's office and at any different address shown on its last franchise tax report filed in this state, or to the corporation at any different address set forth in the above mentioned affidavit, and shall forward to the corporation at said addresses, by certified mail, with request for return receipt, a copy of the process, notice or demand; and thereupon service upon the corporation shall be deemed to have been made. * * * (N) Upon the failure of a corporation to appoint another agent or to file a statement of change of address of an agent, the secretary of state shall give notice thereof by certified mail to the corporation at the address set forth in the notice of resignation or on the last franchise tax return filed in this state by the corporation. Unless the default is cured within thirty days after the mailing by the secretary of state of the notice or within any further period of time that the secretary of state grants, upon the -9- expiration of that period of time from the date of mailing, the articles of the corporation shall be canceled without further notice of action by the secretary of state. * * * (Emphasis added.) Thus, the statute provides an alternative method to perfect service when the address of the agent of the corporation has changed.7 Since appellant failed to avail himself of the procedures provided in the statute to obtain service on the agent of a corporation when the address had changed, appellant cannot claim appellee's actions waived the requirement for service of process. Moreover, the statute also provides the penalty that will be imposed when the change of address is not filed with the secretary of state. There is no provision in the statute that implies that failure to comply with the requirements for filing a change of address would serve as a waiver of service. Appellant also alleges that appellee must be estopped from asserting failure of service because it knew of the default hearing date and still failed to appear. However, there is no evidence in the record to indicate that appellee knew of the hearing date and chose not to attend. Mere allegations contained in an appellate brief cannot be considered by an appellate court since they lack evidentiary value. Zashin, Rich, Sutula & Monastra Co., L.P.A. v. Offenberg (1993), 90 Ohio App.3d 436, citing State v. Ishmail 7 This court also questions how diligent a search appellant performed since appellee's correct address was listed in the 1994- 1995, 1995-1996, and 1996-1997 Cleveland PagesPlus White Pages. -10- (1978), 54 Ohio St.2d 402; Mancino v. Lakewood (1987), 36 Ohio App.3d 219. Finally, appellant maintains that appellee is estopped from denying the trespass at issue in this case because it has asserted inconsistent positions; in appellee's answer to appellant's amended complaint, appellee denies that it trespassed on the premises in question while an affidavit later filed by appellee admits that a trespass did occur. However, appellant appealed only the trial court's granting of appellee's motion to vacate the default judgment. The merits of the case, i.e. the issue of trespass, have not yet been addressed by the lower court. This court will not address issues that arise for the first time on appeal. See e.g., Cerney v. Norfolk & W.Ry. Co. (1995), 104 Ohio App.3d 482, 488. Appellant's second, third and fourth assignments of error are overruled. Appellant's final assignment of error argues: THE PLAINTIFF WAS ENTITLED TO DISCOVERY AND THE COURT PREVENTED IT. Appellant's final contention is that the record is clear that the attempt of [appellant] to engage in discovery was frustrated. In spite of this contention, however, appellant fails to cite to any specific incidents in which the court denied discovery. App.R. 12(A)(2) permits this court to disregard an assignment of error -11- where the party raising it fails to identify in the record the error upon which the assignment of error is based. Assuming, arguendo, that appellant had properly identified the ruling of which he complains, it is well-settled that the trial court has broad discretion in controlling the discovery process. Feichtner v. Cleveland (1994), 95 Ohio App.3d 388, 397, citing Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78. Our review of the record fails to indicate that the trial court abused its discretion when making any of the discovery rulings. Appellant's final assignment of error is overruled. Appellant's appeal is not well taken. It is hereby remanded to the trial court for further proceedings. This cause is remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its 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. JAMES D. SWEENEY, J. CONCURS TERRENCE O'DONNELL, P.J. CONCURS IN JUDGMENT ONLY (See attached opinion) JUDGE KENNETH A. ROCCO 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72616 THE OHIO LEITINA COMPANY : -1- : Plaintiff-Appellant : CONCURRING : IN vs. : JUDGMENT : ONLY VANDRA BROTHERS CONSTRUCTION, INC. : : Defendant-Appellee : : DATE: NOVEMBER 12, 1998 JUDGE TERRENCE O'DONNELL CONCURS IN JUDGMENT ONLY: While I recognize the value of the En Banc procedure to bring uniformity to judgments in the Eighth Appellate District, nonetheless, I believe the correct legal resolution is as I stated in my dissenting opinion regarding the Motion to Dismiss which is reproduced and attached hereto and incorporated by reference in this opinion concurring in judgment only. COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72616 THE OHIO LEITINA COMPANY : : Plaintiff-Appellant : DISSENTING : vs. : OPINION : VANDRA BROTHERS CONSTRUCTION, INC. : TO : Defendant-Appellee : MOTION TO DISMISS : DATE: SEPTEMBER 3, 1998 JUDGE TERRENCE O'DONNELL, DISSENTING: I agree with the En Banc procedure to achieve uniformity in Eighth Appellate District rulings, but I respectfully dissent from that effort in this case because the majority bases its decision on court guidelines which have not been properly promulgated and, hence, have no legal or authoritative value because they conflict with the Ohio Constitution, the Ohio Revised Code, the Ohio Rules of Civil Procedure, and published case authority. In my view, the Ohio Supreme Court has already determined what constitutes a final appealable order, and our court cannot through its guidelines enlarge its jurisdiction to hear appeals of non-final orders. The guidelines, although proposing an arguably practical solution to a difficult problem, have never been promulgated as part of the Ohio Rules of Appellate Procedure or the Local Rules of the Eighth Appellate District. Hence, because they have neither -2- been s Sup Court, the guidelines have no legal effect when compared with an officially published opinion of this district.ubmitted to the Rules Com At a minimum, it is apparent that today's decision runs contra to Ruiz v. Caraballo (1997), 117 Ohio App.3d 388, Lee v. Gross Lumber Co. (1989), 57 Ohio App.3d 52, and Reagan v. Ranger Transp., Inc. (1995), 104 Ohio App.3d 15, and further ignores the concepts set forth in Noble v. Colwell (1989), 44 Ohio St.3d 92. Today's determination of what constitutes a final appealable order in the Eighth Appellate District complicates the practice of law for trial lawyers who recognize the difference between unofficially published opinions and opinions reported in the Ohio Official Reports, as set forth in Rule 2(G) of the Supreme Court Rules for the Reporting of Opinions, and who recognize that any appeal taken to or through the Eighth District Court of Appeals pursuant to the guidelines, involving multiple claims or multiple parties, is always subject to challenge on jurisdictional grounds because the guidelines do not and cannot confer jurisdiction on our court to review an interlocutory court order. This practice cannot instill any confidence in a decision rendered on such a case by an appellate court which considered it without jurisdiction to do so.8 8Of course, any trial court judge could render an interlocutoryorder final and appealable by adding the language of Civ.R. 54(B), no just reason for delay, if that court wanted to make its order a final appealable order. The Civ.R. 41(A) voluntary dismissal of an action does not give this same power to trial lawyers. While a trial lawyer has the ability to dismiss an entire action pursuant to Civ.R. 41(A), that rule does not authorize voluntary dismissal of a single claim or a single party. -3- Therefore, I respectfully dissent from today's decision an ld , Article IV, Section 3(B)(2) conferring jurisdiction to review final orders of courts, R.C. 2501.02 defining a final appealable order, Civ.R. 54(B) and Civ.R. 41(A), the Ohio Rules of Appellate Procedure, the Local Rules of the Eighth Appellate District, anddwou adhere t the reported cases of Ruiz v. Caraballo, Lee v. Gross Lumber Co., and Reagan v. Ranger Transp., Inc. which applied that law. It is my view that trial judges are reluctant to add the Civ.R. 54(B) language because the Ohio Supreme Court does not permit trial judges to consider such orders as final in their monthly case report to the court and many hard-working judges do not want to clutter their dockets with these cases while appellate courts consider them on appeal. This problem could be remedied if the Ohio Supreme Court would authorize trial judges to delete from their dockets cases appealed pursuant to Civ.R. 54(B) and to simply .