I respectfully dissent from the opinion of the majority.
With respect to the first assignment of error, neither the majority nor the trial court considered whether appellee had waived any issue of personal jurisdiction. The limited record before this court indicates that the first challenge to the trial court's jurisdiction did not in any way relate to the propriety of service at a business address; nor did it relate to the failure of service at that business address.
The original motion challenging jurisdiction requested the trial court to vacate the judgment based on the single issue of the lack of territorial jurisdiction of the county court. Appellee's sole argument was that "defendant has no residence, place of business, or any other connection with a place within the territorial jurisdiction of this court, pursuant to ORC Section 1907.15." There is not a single allegation in that motion alleging that there was no personal jurisdiction achieved, either due to improper service at appellee's business address or due to a failure of service at appellee's business address.
Civ.R. 12(H)(1) states:
"A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (a) if omitted from a motion in the circumstances described in subdivision (G), or (b) if it is neither *Page 347 made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(A) to be made as a matter of course."
Civ.R. 12(G) provides:
"A party who makes a motion under this rule must join with it the other motions herein provided for and then available to him. If a party makes a motion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, he shall not thereafter assert by motion or responsive pleading, any of the defenses or objections so omitted, except as provided in subdivision (H) of this rule."
Civ.R. 12(B) provides, "A motion making any of these defenses shall be made before pleading if a further pleading is permitted."
That was not done here. The record indicates that at the beginning of the hearing on appellee's motion, the trial court essentially dispensed with the issue of territorial jurisdiction by indicating that the issue raised was really a matter of venue, although the court did not use that particular word.
Following the trial court's commentary, appellee's attorney made the following statement: "Your Honor, I think that as long as we are here we would like to put on a bit of evidence as to the issue of service." That is first mention of any potential problem with the actual service in this entire proceeding. It was certainly never raised in any pleadings or written motion. As a result, the issue was waived.
In the alternative, even if that defect were somehow overcome, there was no evidence to support a finding of no service.
On direct examination, counsel asked appellee:
"Q. Did you personally receive the service of summons in this case?"
Appellee answered that question in the negative. However, the meaning of his response was clarified when his attorney then asked him:
"Q. Did you become aware of the service of summons prior to the default judgment in this case?"
"A. I believe that I did. I believe that it was buried in the papers down at the Courthouse and right about that time I had some health problems and I wasn't there. So it is vague in my mind as to whether, or when I first saw that pleading because I was hospitalized for-inaudible-, I don't know the exact date that it occurred, it was right about that time. The first time that I became very conscious of this matter was really after judgment was entered and there was a garnishee of my checking account." *Page 348
Thus, appellant's initial negative response was qualified to mean that no, he did not sign for it, but yes, he did receive it prior to the default hearing.
At that point, appellee's counsel retreated and began to question him about what defenses he would have asserted against the claim. Appellant's counsel objected to the issue of service being raised for the first time, although he did not expressly argue Civ.R. 12 waiver. Appellant's counsel pointed out that the address for the service was, in fact, correct.1 The questioning further went on to show that someone clearly had signed for the receipt, although appellee denied that he had signed for the receipt. At that point, appellant's counsel asked the question:
"Q. Did you say on direct examination Judge that you were in fact aware of the default hearing?"
"A. I believe that I may have been, I am not sure because I was stricken and I went to the hospital at that time and the sequence of events I can't be positive. The only thing that I am, that I can be certain of is that there was some communication between Mr. Thomas and I in which I told him about the damage of the carpet and told him that I would be sending him a check after I went over the thing."
The rest of the dialogue was primarily about the reasons for the withholding of the security deposit and appellee's claim that he did not have an address for Thomas to send him notice regarding the security deposit. Again, on cross-examination, appellant's attorney asked: "At what point did you receive a copy of the pleadings naming you as the defendant in this lawsuit?" The response was: "I really don't know." After some other dialogue, appellant's counsel again asked: "Where did you find the pleadings to this case?" Appellee's answer was: "They were delivered to me at my house while I was convalescing." At the end of the hearing, the trial court stated:
"[T]here is too great a likelihood that it [the pleading] is not going to get where it is supposed to get. Plus he has got an illness there, a signature that I can't make out whose signature that is, I don't think it was covered, but it is not his signature. He is honest enough to say that he doesn't really know if he got it or not, at some point he got it. I am going to grant the 60(B) motion. Judgment is hereby vacated on the basis that there is a failure, that I am not convinced that there was proper service."
The facts do not support that analysis. Even if the issue of waiver of personal jurisdiction did not control the outcome, appellee's own testimony indicated that *Page 349 although he himself did not sign the receipt, it got to his courtroom and ultimately got to him, minimally prior to the default hearing.
At the hearing, appellee also raised the defense of excusable neglect due to health problems for the first time. However, even if the motion for vacating the judgment had, in fact, been properly based upon excusable neglect (which it was not), under Civ.R. 60(B)(1) there was absolutely no evidence supporting the timeliness of the motion. Even under the excusable-neglect theory, a motion still has to be made within a reasonable time, and in no case can such a motion be filed more than one year after the judgment was entered. There was no evidence that the motion was made within a reasonable time.
Based on the foregoing analysis, I believe that the trial court was incorrect in vacating the default judgment based on inadequate service of process on appellee. Given my belief that appellant's first assignment of error has merit, his second assignment of error would be moot under App.R. 12(A)(1)(c). Accordingly, I would reverse the judgment of the trial court and remand the matter for that court to reinstate its previously entered default judgment against appellee.
1 This court takes judicial notice of the fact that Daniel Corrigan's courtroom is listed as 23B in the 1999 Ohio Legal Directory. Thus, it matched the address used for the service of process. *Page 350