[Cite as Gilbert v. Midland Funding, L.L.C.,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

CAITLIN GILBERT,

PLAINTIFF-APPELLEE, CASE NO. 5-19-11

v.

MIDLAND FUNDING LLC ET AL., OPINION DEFENDANTS-APPELLANTS.

Appeal from Hancock County Common Pleas Court Trial Court No. 2015-CV-94

Judgment Reversed and Cause Remanded

Date of Decision: December 23, 2019

APPEARANCES:

H. Toby Schisler for Appellants

Ronald I. Frederick and Gregory S. Reichenbach for Appellee Case No. 5-19-11

PRESTON, J.

{¶1} Defendants-appellants, Midland Funding LLC (“Midland”), Midland

Credit Management, Inc. (“Midland Credit”), and Encore Capital Group, Inc.

(“Encore”) (collectively “the Midland parties”), appeal the March 12, 2019 order of

the Hancock County Court of Common Pleas granting plaintiff-appellee, Caitlin

Gilbert’s (“Gilbert”), motion for class certification. For the reasons that follow, we

reverse.

{¶2} The protracted history of this case begins on February 16, 2011, with a

complaint filed by Midland against Gilbert in the Findlay Municipal Court. (See

Doc. No. 1, Plaintiff’s Ex. 1). In that case, Midland asserted that Gilbert had

defaulted on an obligation to repay $1,443.29—a debt Gilbert allegedly incurred

using a credit card issued by HSBC Bank Nevada, N.A. (“HSBC”). (Id.). Midland

claimed that it had purchased Gilbert’s allegedly delinquent account from HSBC

and that Gilbert had failed to make any payment toward satisfaction of the

outstanding debt despite Midland’s demand that she do so. (Id.). Although Midland

apparently obtained proper service on Gilbert in May 2011, Gilbert failed to plead

or otherwise defend against Midland’s action. (Doc. No. 1, Plaintiff’s Ex. 4). As a

result, Midland filed a motion for default judgment, which the Findlay Municipal

Court granted on July 6, 2011. (Id.). Gilbert did not appeal the Findlay Municipal

Court’s entry of default judgment, and she did not seek (and has not sought) to have

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the default judgment set aside by the Findlay Municipal Court. Gilbert eventually

paid the sum due under the default judgment, though it is unclear whether she did

so voluntarily or under threat of garnishment. (Doc. Nos. 1, 19).

{¶3} On March 19, 2015, Gilbert filed a complaint against the Midland

parties in the Hancock County Court of Common Pleas.1 (Doc. No. 1). In her

complaint, Gilbert averred that she was a resident of Montgomery County, Ohio,

rather than Hancock County, Ohio, when Midland filed suit against her in the

Findlay Municipal Court. (Id.). She further claimed that she “did not sign any

written contract for the Alleged Debt in Hancock County.” (Id.). Gilbert alleged

that the Findlay Municipal Court therefore did not have jurisdiction to enter default

judgment against her and that the default judgment entered against her is

consequently void. (Id.). She contended that the Midland parties are not entitled to

retain the money she paid to them in satisfaction of the default judgment. (See id.).

{¶4} Gilbert asserted that the lawsuit filed against her in the Findlay

Municipal Court was but one of a number of similar suits filed by the Midland

parties. She alleged that the Midland parties “regularly file[] collection actions

against Ohio residents in [county or municipal court jurisdictions] where the

1 Although Midland was the only plaintiff named in the complaint filed against Gilbert in the Findlay Municipal Court, Gilbert alleges that Midland, Midland Credit, and Encore “operate as a de facto single business interest, and jointly plan all significant operations and business activities, including but not limited to, debt collection and litigation of collection lawsuits in Ohio * * *.” (Doc. No. 1). The Midland parties have vigorously disputed this assertion throughout the proceedings. (See Appellants’ Brief at 1).

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defendant does not live and did not sign a contract,” thus resulting “in numerous

void judgments being entered against class members in courts with no subject matter

jurisdiction.” (Id.). Gilbert claimed that the Midland parties’ actions caused the

“incorrect reporting of void judgments on class members’ credit reports” and led to

“class members’ wages, bank accounts, and other valuable property being garnished

and executed upon pursuant to void judgments, and payments by class members.”

(Id.). Accordingly, Gilbert sought to represent two classes of plaintiffs: the “Unjust

Enrichment Class” and the “Collection Suit Defense Class.”2 (Id.). Gilbert

requested that the trial court grant declaratory relief and a class-wide injunction

prohibiting the Midland parties from (1) filing suit and obtaining judgments against

class members in Ohio county and municipal court jurisdictions where class

members do not reside and did not sign the contracts underlying their alleged debts

and (2) executing on said judgments. (Id.). Gilbert also demanded (1) “[a]n order

directing [the Midland parties] to cause judgments against class members to be

vacated in the courts where the judgments were obtained, to cause certificates of

judgment to be vacated in any courts in which they were filed, and to cause class

members’ credit reports to be corrected”; (2) “[a]ctual damages, including but not

limited to, all amounts collected by [the Midland parties] on the debts of class

2 The definitions of the two classes changed between the filing of Gilbert’s complaint and the trial court’s certification of the two classes. (See Doc. Nos. 1, 48, 50). To avoid confusion, we will introduce only the definitions of the two classes as actually certified by the trial court.

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members”; and (3) “[d]isgorgement and restitution, including but not limited to, all

money garnished by [the Midland parties] on [their] judgments or otherwise

obtained by executing on void judgments.” (Id.).

{¶5} On March 19, 2015, the same day that Gilbert filed her complaint,

Gilbert filed a motion to consolidate her case with case number 2013-CV-459,

Midland Funding LLC v. Cassandra Colvin (“Colvin”). (Doc. No. 11). On April

21, 2015, the Midland parties filed their answer to Gilbert’s complaint. (Doc. No.

19). On May 21, 2015, the trial court ordered that Gilbert’s case be consolidated

with Colvin for purposes of discovery. (Doc. No. 26).

{¶6} On July 31, 2018, Gilbert filed a motion for class certification. (Doc.

No. 43). On August 21, 2018, the Midland parties filed their memorandum in

opposition to Gilbert’s motion for class certification. (Doc. No. 44). In addition to

arguing that Gilbert could not satisfy the requirements of Civ.R. 23, the Midland

parties contended that the Supreme Court of Ohio’s decision in Lingo v. State,

,

, bars the trial court from even considering

Gilbert’s claims. (Id.). The Midland parties argued that Lingo precludes the trial

court from entertaining Gilbert’s claims because “the effect of the relief sought by

Gilbert would require [the trial court] to make a determination that judgments

entered by municipal [and county] courts against putative class members are void

because those courts allegedly lacked jurisdiction to enter those judgments,” and the

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trial court, as a court of common pleas, does not have jurisdiction to effectively

vacate, as void, the judgments of municipal and county courts. (Id.).

{¶7} On August 27, 2018, Gilbert filed her reply to the Midland parties’

memorandum in opposition to her motion for class certification. (Doc. No. 45). On

December 3, 2018, the Midland parties filed their supplemental memorandum in

opposition to Gilbert’s motion for class certification. (Doc. No. 49).

{¶8} On March 12, 2019, the trial court granted Gilbert’s motion for class

certification. (Doc. No. 50). First, the trial court concluded that the Supreme Court

of Ohio’s decision in Lingo does not prohibit it from considering Gilbert’s claims.

(Id.). The trial court noted that while Gilbert’s claims “require[] [the] Court to

determine whether a judgment is void, it does not require [the] Court to actually

declare the judgment void.” (Id.). It observed that “[t]he distinction is fine, but

critical,” and it concluded that “[e]quity would authorize [it to] require [the Midland

parties] to pay for any proven damages that have arisen from collection actions taken

pursuant to void judgments or to cease collection actions against the same.” (Id.).

{¶9} The trial court then found that Gilbert met all seven requirements of

Civ.R. 23 with respect to both of her proposed classes and certified the classes. (Id.).

The first class, the “Collection Suit Defense Class,” is defined as:

[A]ll individuals who have been sued in Ohio by [the Midland parties]

at any time through the present:

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a. where [the Midland parties were] awarded a judgment or where

the suit has not been dismissed;

b. where the lawsuit was filed in a county or municipal court

jurisdiction where the defendant did not reside at the time of the filing

and did not sign the underlying contract while a resident of that county

or municipal and/or county [court] jurisdiction; and

c. where the lawsuit was filed in a municipal or county court and

not in a court of common pleas; and

d. where the lawsuit was filed in a county or municipal court

jurisdiction, where that jurisdiction was not a location where payment

was required to be made.

(Id.). The definition of the second class, the “Unjust Enrichment Class,” is identical

to the definition of the “Collection Suit Defense Class” except that the “Unjust

Enrichment Class” includes only “individuals who have been sued in Ohio by

Midland from March 18, 2009 to the present.”3 (Id.).

{¶10} On April 5, 2019, the Midland parties filed a notice of appeal. (Doc.

No. 52). The Midland parties raise three assignments of error for our review.

3 Gilbert limited membership in the “Unjust Enrichment Class” to those persons sued by the Midland parties in the six-year period preceding the date of the filing of her complaint in order to account for “Ohio’s 6-year statute of limitation for unjust enrichment claims * * *.” (Doc. No. 48). See Pomeroy v. Schwartz, 8th Dist. Cuyahoga No. 99638,

(“An unjust enrichment claim is subject to a six-year statute of limitations.”), citing Thomas v. Kramer,

,

(8th Dist.), citing R.C. 2305.07. Gilbert did not impose any such temporal limitation on the “Collection Suit Defense Class” because “jurisdiction is never waived.” (Doc. No. 48).

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Assignment of Error No. I

The trial court erred by misinterpreting the Supreme Court of Ohio’s decision in Lingo and concluding it had jurisdiction to certify a class that would require the court to determine judgments issued by other courts are void.

{¶11} In their first assignment of error, the Midland parties argue that the

trial court erred by granting Gilbert’s motion for class certification because the trial

court does not have jurisdiction to consider Gilbert’s action. In this assignment of

error, the Midland parties renew their argument that the Supreme Court of Ohio’s

decision in Lingo prohibits the trial court from adjudicating Gilbert’s action. In

response, Gilbert contends that Lingo does not bar trial courts from entertaining

permissible collateral attacks on the judgments of other courts. She maintains that

the trial court may properly consider her action because her action is a permissible

collateral attack on a judgment of the Findlay Municipal Court as well as on the

judgments of numerous other county and municipal courts.

{¶12} Before examining Lingo and applying it to the facts of this case, we

believe that it is essential that we clearly frame the issues involved in the Midland

parties’ first assignment of error. In evaluating the Midland parties’ first assignment

of error, we do not touch on the trial court’s decision to certify Gilbert’s proposed

classes, and we do not determine whether the claims alleged in Gilbert’s complaint

may properly be brought as a class action. Instead, we focus solely on Gilbert’s

individual claims against the Midland parties and the nature of these claims. Our

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reasons for doing so are simple: if the trial court lacks jurisdiction to entertain

Gilbert’s individual claims then the trial court necessarily lacks jurisdiction to

consider the claims of a class of persons with claims that are nearly identical to

Gilbert’s.

{¶13} Gilbert claims that the default judgment entered against her in the

Findlay Municipal Court is void for lack of subject-matter jurisdiction and that

because the judgment is void, it would be inequitable to permit the Midland parties

to retain the money she paid to them to satisfy the void judgment. She thus seeks a

declaration from the Hancock County Court of Common Pleas that the judgment of

the Findlay Municipal Court is void for lack of subject-matter jurisdiction, an order

directing the Midland parties to repay the money she paid to them in satisfaction of

the void judgment, an order directing the Midland parties to cause the default

judgment against her in the Findlay Municipal Court to be vacated, and other related

relief, including actual damages and the correction of her credit report. The issue is

whether, in light of Lingo, the trial court has the authority to review the judgment

of the Findlay Municipal Court in the manner requested by Gilbert and to provide

her with the relief she requests.

{¶14} Lingo arose, in part, from William Glick’s citation for weaving and for

operating a motor vehicle under the influence of alcohol.

, 2014-

Ohio-1052, at ¶ 4. Under the terms of a plea agreement, Glick pleaded guilty to

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reckless operation in the Berea Municipal Court. Id. at ¶ 4-5. In exchange, the

weaving charge was dismissed at Glick’s cost. Id. at ¶ 5. At the time, the Berea

Municipal Court utilized software that was “programmed to assess state costs once

per case and municipal and general court costs once per offense charged.” Id. at ¶

6. As a result, Glick was ordered to pay $427 in costs related to his reckless-

operation conviction and $83 in costs related to the dismissed weaving charge. Id.

at ¶ 7. Glick immediately paid the costs in cash, and although he “was puzzled that

he had been made to pay court costs for the dismissed weaving charge,” he did not

appeal his conviction or sentence. Id.

{¶15} Two months later, Glick and two other individuals4 filed a class-action

lawsuit in the Cuyahoga County Court of Common Pleas, naming the state of Ohio

as the sole defendant. Id. at ¶ 8. The complaint alleged that the plaintiffs had paid

court costs associated with traffic offenses in a number of Ohio municipal courts

and that these municipal courts had assessed such costs against the plaintiffs for

each offense instead of once per case, in violation of Ohio law. Id. The plaintiffs

“purported to bring the complaint on behalf of all persons who had paid improperly

calculated court costs in any Ohio municipal, county, or mayor’s court (‘statutory

courts’) during the ten years prior to the filing of the complaint.” Id. at ¶ 9. Glick

and the other plaintiffs requested “a declaration that court costs may be assessed

4 One of these individuals, Michael Lingo, lends his name to the case.

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only once per case rather than once per charge, that the statutory courts had

subjected the plaintiffs and members of the class to illegal assessments of costs, and

that the class had a right to receive a full refund of those costs.” Id. at ¶ 10. They

further requested that the Cuyahoga County Court of Common Pleas “permanently

enjoin the state from allowing any statutory court to collect court costs per offense

in any case” and “order the state to disgorge all illegally assessed costs.” Id.

{¶16} A year after filing their original complaint, the plaintiffs filed an

amended complaint adding the Clerk of the Berea Municipal Court and other parties

as defendants. Id. at ¶ 12. The parties then engaged in extensive motion practice,

including competing motions for summary judgment and multiple motions for class

certification. Id. at ¶ 14-23. Eventually, the Cuyahoga County Court of Common

Pleas issued an “omnibus decision” that, in relevant part, “modified the plaintiffs’ *

* * motion for class certification in order to identify Glick as the sole class

representative and to redefine the class as limited to individuals who paid

improperly charged costs to the Berea Municipal Court” and “certified the class

action as modified.” Id. at ¶ 24. After these rulings, the class represented by Glick

and the Clerk of the Berea Municipal Court were the only remaining parties to the

action. Id. at ¶ 24-27.

{¶17} The court of common pleas treated the action “as one involving the

unlawful assessment and collection of funds by the clerk of courts under the clerk’s

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own authority, acting as an administrative officer” and “compared the * * * action

to previous equitable claims for restitution of improperly collected funds by

administrative agencies * * *.” Lingo,

,

. See Santos v. Ohio Bur. of Workers’ Comp.,

,

;

Judy v. Ohio Bur. of Motor Vehicles,

,

. The

court rejected the Berea Municipal Court Clerk’s argument that Glick was

“‘essentially appealing’ a municipal court judgment,” and after finding that it had

jurisdiction to consider Glick’s action, it concluded that the Clerk was improperly

assessing costs on his own authority.

. The court further held that “‘to

the extent the Berea Municipal Court acted outside its jurisdiction in imposing costs,

the order of costs was made without subject matter jurisdiction and is void ab

initio.’”

Accordingly, the court of common pleas determined that Glick’s claim

was not barred by res judicata because “a void judgment can be challenged at any

time.”

{¶18} The court of common pleas “declared that a portion of the costs that

[the Clerk] had assessed against Glick violated [Ohio law] and that it had the

authority to order the return of funds that were improperly collected by a

governmental entity.” Id. at ¶ 27. The court thus ordered the Clerk of the Berea

Municipal Court to return $85 of the costs he had improperly collected from Glick.

Id. Finally, finding that it would “be an inefficient use of court resources to require

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defendants to file appeals in each case that the Berea Municipal Court charges costs

improperly and that the improper costs were not included in final sentencing

entries,” the court enjoined the Berea Municipal Court Clerk from assessing costs

in violation of Ohio law. Id. at ¶ 28.

{¶19} On appeal, the Eighth District Court of Appeals concluded that “the

unlawful assessment of costs presents a voidable, rather than a void, act” and that

because Glick and the other plaintiffs paid the disputed costs and never pursued

appeals, “their claims were defeated by the doctrines of res judicata and mootness.”

Id. at ¶ 30. The Eighth District thus held that the action “did not involve a live

controversy, and without a controversy, the court of common pleas had no subject-

matter jurisdiction and, ultimately, no authority to certify the class action.” Id. The

Supreme Court of Ohio granted review of the Eighth District’s decision to determine

“whether a class action may be maintained in a common pleas court seeking

declaratory and equitable relief related to unappealed municipal court sentences

alleged to be void for imposing unlawfully excessive court costs.” Id. at ¶ 1.

{¶20} The Supreme Court began its review by clarifying the nature of

Glick’s action. Lingo,

,

. The court

observed that although Glick “implied that his injury arose from an administrative

act and could only be resolved through equitable remedies,” namely disgorgement

of the money he paid to satisfy the allegedly illegal court costs, that was not the

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case. Id. at ¶ 36. The court suggested that it was the Berea Municipal Court, not

the Clerk of the court, that imposed the allegedly illegal costs as part of Glick’s

sentence. Id. at ¶ 6, 34, 39. The court concluded that “[b]y asserting error in the

imposition of costs, Glick was attacking a portion of his sentence” and that “by

requesting the return of a portion of the costs that he had paid to satisfy the municipal

court’s judgment, Glick was seeking a partial vacatur of the judgment.” Id. at ¶ 37.

Therefore, the relief Glick requested was possible “only if the common pleas court

vacate[d] some portion of the municipal court judgment pursuant to a review of its

validity, i.e., only if the court exercise[d] powers reserved exclusively for an

appellate court.” Id. at ¶ 36.

{¶21} After clarifying the nature of Glick’s action, the Supreme Court then

determined that the “court of common pleas did not have the authority to grant the

relief requested in Glick’s class-action lawsuit.” Id. at ¶ 41. Specifically, the court

held that the court of common pleas did not have the authority to grant Glick’s

request for declaratory judgment. The court observed:

[I]t is well settled that declaratory judgment is not a proper vehicle for

determining whether rights that were previously adjudicated were

properly adjudicated. For direct and collateral attacks alike,

declaratory judgment is simply not a part of the criminal appellate or

postconviction review process. Ohio’s Criminal Rules and statutes

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provide for the direct review of criminal judgments through appeal,

and collateral attacks through postconviction petitions, habeas corpus,

and motions to vacate. A declaratory-judgment action cannot be used

as a substitute for any of these remedies.

(Citations omitted.) Id. at ¶ 44. The court then offered the following summary:

[I]t is clear that the plaintiffs were not actually asking for

disgorgement of funds wrongfully held as a result of an invalid policy

promulgated by an administrative officer. Instead, they were asking

the court to partially vacate final, unappealed judgments. Regardless

of the character or severity of an error in a judgment entry, and

regardless of whether that error renders the judgment void or voidable,

the criminal appellate and postconviction review processes remain the

sole avenues for redress. Declaratory judgment was therefore

unavailable as a means of reviewing and vacating a portion of the

costs imposed as part of Glick’s sentence.

Id. at ¶ 45.

{¶22} After reaching this conclusion, the Supreme Court went on to clear up

one aspect of the Eighth District’s holding. In its decision reversing the judgment

of the Cuyahoga County Court of Common Pleas, the Eighth District, treating

Glick’s action “as if it were a postconviction motion to vacate a void judgment,”

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held that “‘whether [a judgment is] void or voidable, the remedy lies in a direct

appeal, not a collateral attack on the judgment in a different court.’” Id. at ¶ 46,

quoting Lingo v. State, 8th Dist. Cuyahoga No. 97537,

.

{¶23} The Supreme Court found that the Eighth District’s “statement that

void judgments are not open to collateral attack and that attacks on void judgments

can be defeated by the doctrine of res judicata [was] mistaken.” Lingo,

,

. The court recognized the well established

principle that “[a] void judgment is a nullity and open to collateral attack at any

time” and noted that “[a]ny court in any jurisdiction certainly has the right to decline

to recognize the validity of a void judgment of any other court.”

citing State v.

Fischer,

,

, ¶ 40 and Tari v. State,

(1927). The court emphasized, however, that “whether a void judgment

has come before a court through a proper vehicle and whether a court has the

authority to provide the relief requested against the void judgment are different

matters.”

As the court explained:

There are various scenarios in which a court might have jurisdiction

over an issue that provides the court with the opportunity to declare

the judgment of any other court to be void. For instance, in a proper

case, a court may refuse to enforce the void judgment of another court

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or prevent a party from executing upon the judgment. But a void

judgment does not by itself create a justiciable controversy that a court

may seize upon and resolve. To be subject to collateral attack, the

judgment must be relevant to the relief sought or to the enforcement

of some right in a controversy properly before the court. And the fact

that a judgment might be void certainly does not give every court the

authority to directly reverse, vacate, or modify that judgment.

(Citations omitted.) Id. at ¶ 47. Although “[a] court has the inherent authority to

vacate its own void judgments,” “the authority to vacate the void judgments of

another court is exclusively conferred by the Ohio Constitution on courts of direct

review.” Id. at ¶ 48, citing Patton v. Diemer,

(1988), paragraph

four of the syllabus. The court concluded:

Because the common pleas court was not empowered either inherently

or by Ohio’s Constitution to provide the requested review and relief,

the court lacked jurisdiction to proceed with the plaintiffs’ case. In

this context, the intent of the Eighth District’s holding is better

understood; whether an error in a criminal judgment entry causes a

portion of the judgment to be void or voidable, the remedy lies in a

direct or collateral attack before a court with the authority to vacate

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the decision, not an attack on the judgment in a different court with

no authority to vacate the decision.

Id. at ¶ 49.

{¶24} After reviewing Gilbert’s claims and her requested relief in light of the

Supreme Court’s decision in Lingo, we conclude that the Hancock County Court of

Common Pleas does not have jurisdiction to proceed with Gilbert’s case. In Lingo,

the Supreme Court concluded that the relief requested by Glick “was in substance a

request to vacate a portion of a judgment of the Berea Municipal Court.” Lingo,

,

. We believe that the same is true of

the relief requested by Gilbert. Although Gilbert requests numerous forms of relief

from the Hancock County Court of Common Pleas, she principally requests a

declaration that the judgment of the Findlay Municipal Court is void and, following

this declaration, an order directing the Midland parties to return the money she paid

to them to satisfy the judgment. Gilbert’s requested relief is akin to the relief

requested by Glick in Lingo. Id. at ¶ 37. While Gilbert notes that she is asking the

Hancock County Court of Common Pleas to simply recognize that the Findlay

Municipal Court’s judgment is void, rather than asking the court to vacate the

judgment of the Findlay Municipal Court, this distinction does not make a difference

in this case. In Lingo, Glick argued that the judgment of the Berea Municipal Court

was partially void due to the erroneous assessment of costs, and there is no

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indication that he expressly asked the court of common pleas to vacate the Berea

Municipal Court’s judgment. See id. at ¶ 17. Even without an explicit request for

the vacation of the Berea Municipal Court’s judgment or an order from the court of

common pleas specifically vacating the municipal court’s judgment, it was enough

that the relief granted to Glick by the court of common pleas had the effect of

vacating the municipal court’s judgment.

{¶25} Furthermore, the court in Lingo held that Glick’s declaratory judgment

action was not a proper vehicle to review the validity of the Berea Municipal Court’s

judgment because “the criminal appellate and postconviction review processes,”

consisting of direct appeals, postconviction petitions, petitions for writs of habeas

corpus, and motions to vacate, “remain[ed] the sole avenues” to review and vacate

criminal sentences. Id. at ¶ 44-45. Likewise, there are limited means by which a

final civil judgment can be reviewed and vacated. Of course, a party may seek

review and vacation of a judgment by means of a direct appeal. In addition, a party

may seek relief from judgment using one of the methods provided by the Rules of

Civil Procedure. “[T]he Rules of Civil Procedure specifically limit relief from

judgments to motions expressly provided for within the same Rules.” Pitts v. Ohio

Dept. of Transp.,

(1981). “[T]he Civil Rules do allow for

relief from final judgments by means of Civ.R. 50(B) (motion notwithstanding the

verdict), Civ.R. 59 (motion for a new trial), and Civ.R. 60(B) (motion for relief

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from judgment).”

Moreover, a party against whom a void judgment has been

rendered can petition the court that issued the judgment to vacate the judgment. See

Lingo at ¶ 48, citing Patton at paragraph four of the syllabus; 1970 Staff Note,

Civ.R. 60. Although the Staff Notes to Civ.R. 60 provide that “[t]he vacation of a

void judgment might be brought in the form of a motion or perhaps in the form of a

procedural device such as a declaratory judgment action,” given that this comment

is offered in the context of explaining the operation of Civ.R. 60, it is best

understood as suggesting that a void judgment might be vacated by bringing a

declaratory judgment action in the court that entered the void judgment. Therefore,

a declaratory judgment action in a court that did not issue an allegedly void

judgment is “conspicuously absent” from the list of ways that a party can seek to

have an allegedly void judgment reviewed and vacated. See

.

{¶26} Finally, though the court in Lingo acknowledged that a court might

have jurisdiction to declare the judgment of another court to be void in a proper

case, this is not such a case. As noted above, Gilbert argues that her action is a

permissible collateral attack on the judgment of the Findlay Municipal Court. We

disagree. In Lingo, the Supreme Court defined a collateral attack as “‘an attempt to

defeat the operation of a judgment, in a proceeding where some new right derived

from or through the judgment is involved.’” (Emphasis sic.) Lingo at ¶ 47, quoting

Kingsborough v. Tousley,

, 458 (1897). While Gilbert may have

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been able to defeat the operation of the Findlay Municipal Court’s judgment in a

suit brought by the Midland parties that involved some new right derived from the

judgment, e.g., the right to enforce the judgment, by arguing that the judgment is

void, she has not demonstrated that her action is based on a right derived through

the Findlay Municipal Court’s judgment and whose success requires that the

operation of the judgment be defeated. See

Instead, Gilbert appears to latch on

to the fact that the Findlay Municipal Court’s judgment is allegedly void in an effort

to invoke the jurisdiction of the Hancock County Court of Common Pleas and to

have the judgment declared void. Yet, in Lingo, the Supreme Court stated clearly

that this is impermissible.

(“[A] void judgment does not by itself create a

justiciable controversy that a court may seize upon and resolve.”).

{¶27} In conclusion, we hold that the Hancock County Court of Common

Pleas does not have jurisdiction to entertain Gilbert’s individual claims. Therefore,

the Hancock County Court of Common Pleas is necessarily without jurisdiction to

consider the claims of the classes of persons Gilbert seeks to represent.

The Midland parties’ first assignment of error is sustained.

Assignment of Error No. II

The trial court erred by determining plaintiff-appellee Gilbert had met her burden of satisfying the elements under Civ.R. 23 to certify a class.

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Assignment of Error No. III

The trial court erred by certifying a class on Gilbert’s declaratory judgment claim through the “Collection Suit Defense” class.

{¶28} Because we determined under the Midland parties’ first assignment of

error that the trial court does not have jurisdiction to proceed with Gilbert’s case,

the Midland parties’ second and third assignments of error are rendered moot, and

we decline to address them. See App.R. 12(A)(1)(c).

{¶29} Having found error prejudicial to the appellants herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

Judgment Reversed and Cause Remanded

ZIMMERMAN, P.J., concurs.

SHAW, J., concurs in Judgment Only.

/jlr

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