AUTO OWNERS INSURANCE CO. v. TRUCK LINE DISPATCH, INC.
C.A. No. 26581
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
July 10, 2013
[Cite as Auto Owners Ins. Co. v. Truck Line Dispatch, Inc., 2013-Ohio-2988.]
APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 11 CVF 07084
Dated: July 10, 2013
CARR, Judge.
{¶1} Appellant, Truck Line Dispatch, Inc., appeals the judgment of the Akron Municipal Court. This Court affirms.
I.
{¶2} Appellee, Auto Owners Insurance Company, filed a complaint against Truck Line on August 11, 2011, for money due as payment for insurance coverage provided by Auto Owners to Truck Line. On August 16, 2011, an agent of Truck Line signed the certified mail receipt for the complaint. Truck Line failed to answer and, on October 4, 2011, Auto Owners filed a motion for default judgment. The trial court granted the motion and entered judgment in favor of Auto Owners against Truck Line in the amount of $7,848.99, plus interest and costs.
{¶3} Subsequently, at Auto Owners’ request, the Akron Municipal Clerk of Courts issued a certificate of judgment lien and the trial court issued an order in aid of execution, directing the owner and statutory agent of Truck Line to appear for a debtor’s examination. An
{¶4} On June 26, 2012, Truck Line filed a motion for relief from judgment pursuant to
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT GRANTED DEFAULT JUDGMENT AGAINST TRUCK LINE DISPATCH IN FAVOR OF THE APPELLEE AUTO OWNERS INSURANCE CO. IN THE AMOUNT OF $7964.99 IN SPITE OF THE FACT THE APPELLEE HAS NOT PROVED IN RESPONSE TO THE TRUCK LINE DISPATCH CIVIL RULE 60(B)(5) MOTION THAT APPELLANT WAS VALIDLY SERVED WITH CIVIL ACTION PROCESS.
{¶5} Truck Line argues that the trial court erred by denying its motion for relief from default judgment because it was not properly served with the complaint. This Court disagrees.
{¶6} The decision to grant or deny a motion for relief from judgment pursuant to
{¶7}
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
{¶8} To prevail on a
(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in
Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief areCiv.R. 60(B)(1) , (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken.
GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus.
{¶9} In this case, Truck Line argued that it was entitled to relief from judgment on the basis of
{¶10}
{¶11} Auto Owners attached a statement of account to its complaint. The statement of account indicated that it provided insurance to Truck Line at the following business address: “429 N Hawkins Ave Apt 414 Akron OH 44313-6175“. The Akron Municipal Court Clerk‘s Office served Truck Line at that address. An agent of Truck Line signed the certified mail receipt on August 16, 2011, indicating that the complaint had been served on the company at one of its usual places of business. Accordingly, the record demonstrates that Truck Line was properly served.
{¶12} In his affidavit appended to his
{¶13} To the extent that Truck Line argues that the trial court erred by failing to hold an evidentiary hearing on its motion, the argument is not well taken. This Court has long recognized that “[a] party moving for relief from judgment under
{¶14} In this case, Truck Line submitted Mr. Popoiu‘s affidavit in support of Truck Line‘s motion. The affidavit contained no operative facts to demonstrate that service was not properly effected on the corporation at one of its usual places of business by certified mail. Accordingly, the trial court did not err by denying the motion without first conducting an evidentiary hearing.
{¶15} For the reasons stated above, Truck Line‘s assignment of error is overruled.
III.
{¶16} Truck Line‘s sole assignment of error is overruled. The judgment of the Akron Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Akron Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
MOORE, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
MICHAEL T. CONWAY, Attorney at Law, for Appellant.
JEFFREY L. KOBERG, Attorney at Law, for Appellee.