COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74547 STATE OF OHIO EX REL. : GERALD O. STROTHERS, JR. : PETITION FOR WRIT OF MANDAMUS : RELATOR : MOTION NOS. 98236 AND 97920 : v. : JOURNAL ENTRY AND OPINION : DENNIS MADDEN, : BOARD OF COUNTY COMMISSIONERS : : RESPONDENT : DATE OF JOURNALIZATION: OCTOBER 22, 1998 JUDGMENT: DISMISSED. APPEARANCES: For Relator: Gerald O. Strothers, pro se P.O. Box 35182 Cleveland, OH 44135 For Respondent: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Carol Shockley, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 -2- TIMOTHY E. McMONAGLE, J.: Relator, Gerald O. Strothers, Jr., filed, pro se, a Petition for Writ of Mandamus and Brief against respondent, Dennis Madden. Relator claims Mr. Madden has denied him access to public records. Respondent moved to dismiss the petition pursuant to Civ.R. 12(B)(2), (4) and (5), i.e., lack of jurisdiction over the person, insufficiency of process and insufficiency of service of process, respectively. For the reasons that follow, we grant respondent's motion. Proper service of process is an essential component in the acquisition of personal jurisdiction over a party. Holm v. Smilowitz(1992), 83 Ohio App.3d 757, 615 N.E.2d 1047. Service of a petition or complaint in an extraordinary writ action, in the absence of the granting of an alternative writ, is to be made as in any civil action under the Ohio Rules of Civil Procedure. Loc.App.R. 8(B)(1). Service of process is deemed proper when the civil rules governing service are followed, unless rebutted by sufficient evidence. In re Estate of Popp (1994), 94 Ohio App.3d 640, 641 N.E.2d 739. If service of process has not been accomplished, or otherwise waived, any judgment rendered would be void ab initio. See Sampson v Hooper Holmes, Inc. (1993), 91 Ohio App.3d 538, 632 N.E.2d 1338. The duty to perfect service of process under the civil rules is upon the party instituting the action, Civ.R. 4.6(E); Maryhew v. Yova (1984), 11 Ohio St.3d 154, 159, 464 N.E.2d 538, and pro se civil litigants are bound by the -3- same rules and procedures as parties who retain counsel, Meyers v. First National Bank (1981), 3 Ohio App.3d 209, 444 N.E.2d 412. The civil rules provide for service by certified or express mail unless the party instituting suit files a written request for personal or residence service. Civ.R. 4.1; see, also, Civ.R. 4.4 (service by publication). In the case sub judice, the record indicates that the clerk of court issued a summons to the sheriff for service on respondent. Personal service is accomplished by locating the person to be served and tendering a copy of the process and accompanying documents to the person to be served. Civ.R. 4.1(B), see Civ.R. 4.2. The return of service indicates that the deputy sheriff served the petition and brief on May 26, 1998, on Dennis Madden by leaving the document c/o female. The return of service does not give any name or address of the female with whom the document was left. There is no indication of even the possibility that respondent would receive the documents. On its face, we deem this attempted personal service insufficient and not in compliance with the civil rules. Even if we presumed this attempted personal service to be sufficient, respondent has rebutted any presumption of service by testifying in his affidavit1 that he was outside the state of Ohio on May 26, 1998, and that [a]t no time during the week of May 24, 1998, or at any other time, including May 26, 1998, was [he] ever 1The civil rules do not require the conversion of a Civ.R. 12(B)(1)-(5) motion to dismiss with evidentiary material attached into a Civ.R. 56 motion for summary judgment. See Civ.R. 12(B); Grossi v. Presbyterian University Hospital (1980), 4 Ohio App.3d 51, 446 N.E.2d 473. -4- personally served summons by the sheriff or any of his deputies or any other person, on a complaint or lawsuit against [him] by Gerald Strothers. Motion to Dismiss, Ex. 3. In surrebuttal relator argues that the presentation of this defense is weak since respondent obviously has knowledge of the lawsuit because he raised a defense in the proceeding. Actual knowledge of the lawsuit is irrelevant in determining the sufficiency of service of process. Bell v. Midwestern Educational Services, Inc. (1993), 89 Ohio App.3d 193, 624 N.E.2d 196. If such were not the case, the defense of lack of jurisdiction over the person or insufficiency of process could never be asserted by a defendant in an answer or a motion, as allowed now by Civ.R. 12(B), because the mere assertion of such defenses would prove that the defendant knew about the pendency of the action and thus all rules relating to service of process would be nullities. Id. at 203. Relator also contests the motion to dismiss with his own affidavit wherein he testified that he spoke with the deputy sheriff responsible for serving process on respondent and the deputy sheriff told him that the document was delivered to respondent's office. This testimony by relator is hearsay, and is not based upon the personal knowledge of relator as is required for the submission of affidavit testimony. See Johnson v. Morris (1995), 108 Ohio App.3d 343, 670 N.E.2d 1023. We thus grant respondent's motion to strike the inadmissible portions of relator's affidavit (Motion No. 98236). Consequently, relator has provided no competent evidence, such as the affidavit of the deputy -5- sheriff, to challenge the evidence in support of respondent's motion to dismiss. Moreover, although relator has the duty to perfect service of process, Civ.R. 4.6(E), relator has not provided the clerk of court with any follow-up instructions, of which we were made aware, regarding service of process, even in light of respondent's current challenge. Accordingly, respondent's motion to dismiss (Motion No. 97920) is granted. Case dismissed. Costs to relator. TIMOTHY E. McMONAGLE, JUDGE .