2005 Ohio 3008 | Ohio Ct. App. | 2005
{¶ 3} On May 1, 2000, Motorcars sold its assets to another corporation who began doing business as Infiniti of Bedford at the same 18122 Rockside Road location. In September 2002, Motorcars was dissolved as an Ohio corporation.
{¶ 4} On November 1, 2001, appellees traded their vehicle in at Bedford Nissan and represented the mileage as 96,935, which was the odometer reading at the time. Bedford Nissan gave appellees a trade-in value based on the 96,935 miles. Subsequently, Bedford Nissan contacted appellees to inform them of the mileage discrepancy. On January 9, 2003, appellees brought an action against Motorcars claiming fraudulent misrepresentation and violations of R.C.
{¶ 5} Motorcars did not answer appellee's complaint, and on April 11, 2003, appellees filed a motion for default judgment. A copy of this motion was sent to the Rockside Road address and a representative from Bedford Nissan forwarded it to Hoyt. Once again, Hoyt forwarded a copy of this motion to JMA Insurance Group. On August 8, 2003, the court granted appellee's motion for default judgment, after determining that Motorcars failed to answer or appear and that appellees provided proof of service and damages. Hoyt claims that it was not until December 17, 2003 that he learned about the default judgment the court granted against Motorcars. Hoyt contacted JMA Insurance and was informed that the individual he forwarded the complaint and motion to was no longer employed by JMA, and the agency had no record of the claim. Apparently the information was never forwarded to Motorcars' insurance carrier, Clarendon National Insurance Company. On February 26, 2004, Motorcars filed a motion to vacate the default judgment or, in the alternative, for relief of judgment. On July 1, 2004, Motorcars' motion was denied.
{¶ 7} Civ.R. 4.2(F) governs service of process on a corporation, and it states a corporation can be properly served in the following three ways: "by serving the agent authorized by appointment or by law to receive service of process; or by serving the corporation by certified or express mail at any of its usual places of business; or by serving an officer or a managing or general agent of the corporation." In general, the test for determining whether a party was properly served is whether service of process was "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."Akron-Canton Regional Airport Authority v. Swinehart (1980),
{¶ 8} The standard of review for an appellate court addressing a motion to vacate a default judgment is abuse of discretion. See Doddridgev. Fitzpatrick (1978),
{¶ 9} In the instant case, appellees served Motorcars at the business address where they purchased their vehicle. However, Motorcars argues that it was a dissolved corporation at the time of service, it did not have a usual place of business, and appellees were required, but failed, to serve process on Motorcars' statutory agent or an officer. Swinehart lends us additional guidance on this issue, stating "it is not necessary that service be attempted through the most likely means of success * * *; it is sufficient that the method adopted be `reasonably calculated' to reach its intended recipient." Id. We find that the court did not abuse its discretion when it ruled that service was proper because "there is evidence indicating that the summons and complaint were received by defendant Motorcars." More specifically, Hoyt, who received the complaint and forwarded it to the insurance carrier, was a former director at Motorcars.
"[E]ven if a corporation is dissolved it may still be sued, andsatisfaction or performance of any judgment obtained may be enforcedagainst such corporation. Service upon a dissolved corporation may beaccomplished `by delivering a copy to an officer, director, liquidator,or person having charge of its assets or, if no such person can befound, to the statutory agent.' Ohio Rev. Code §
{¶ 10} Bob's Beverage, Inc. v. Acme, Inc. (N.D. Ohio 1999),
{¶ 11} Accordingly, the court had jurisdiction to enter a default judgment against Motorcars and the first assignment of error is overruled.
{¶ 13} The Ohio Supreme Court set forth a three-prong test used to evaluate whether a party is entitled to relief from judgment.
"To prevail on his motion under Civ.R. 60(B), the movant mustdemonstrate that: (1)the party has a meritorious defense or claim topresent if relief is granted; (2) the party is entitled to relief underone of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) themotion is made within a reasonable time, and where the grounds of reliefare Civ.R. 60(B)(1), (2) or (3), not more than one year after thejudgment, order or proceeding was entered or taken."
GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976),
{¶ 14} In the instant case, when the court denied Motorcars' motion for relief from judgment, it ruled that "[t]he issues of whether defendant Motorcars Infiniti has a meritorious defense to selling a vehicle with an improper odometer reading and that of timeliness will not be addressed as defendant does not meet the second prong of Civil Rule 60(B)." The court reasoned that Motorcars' conduct did not amount to excusable neglect, relying on our holding in Associated Estates Corp. v.Fellows (1983),
{¶ 15} According to the record, when Hoyt received the documents from appellees, he forwarded them to Motorcars' insurance agent. In April 2003, Hoyt "followed up" with the agency regarding the status of the claim. There is no evidence of Hoyt, or other Motorcars' representatives, taking any other proactive steps toward defending appellees' lawsuit against them until after the default judgment was granted. Even assuming arguendo that Motorcars has a meritorious defense to appellees' claims and the motion was filed within a reasonable time, we cannot say that the trial court abused its discretion in determining this was not excusable neglect under Civ.R. 60(B)(1).
{¶ 16} Additionally, Motorcars argues that under Civ.R. 60(B)(5), it is justified in receiving relief from judgment because appellees' damages award was excessive. In appellees' motion for default judgment, they made the following claim for damages: $10,000 in compensatory damages, which can be trebled according to R.C.
Judgment affirmed.
It is ordered that appellees recover of appellants their costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas 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.
Karpinski, P.J., and Gallagher, J., concur.