DISCOVER BANK v. SUSAN C. WELLS, nka PAUL, et al.
Appellate Case No. 2018-CA-44
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
November 16, 2018
2018-Ohio-4637
Triаl Court Case No. 2003-CVF-457 (Civil Appeal from Municipal Court)
Rendered on the 16th day of November, 2018.
VINCENT E. THOMAS, Atty. Reg. No. 0038714, 16 West Fourth Street, Newport, Kentucky 41071 Attorney for Plaintiff-Appellee
REGINA ROSEMARY RICHARDS, Atty. Reg. No. 0079457, 4 West Main Street, Suite 707, Springfield, Ohio 45502 Attorney for Defendants-Appellants
TUCKER, J.
I. Facts and Procedural History
{¶ 2} Susan Wells was the holder of a Discover Bank credit card prior to her 1992 marriage to John Wells.1 After the marriage, Wells was added to the credit card account as an authorized user. During the marriage, both parties made charges to the account. The parties were divorced in August 1996. The judgment аnd decree of divorce made Wells responsible for payment of the Discover credit card debt existing at the time of the divorce.2
{¶ 3} On January 24, 2003, Discover filed a complaint against both Paul and Wells, seeking payment of $8,456.83 which it alleged was due on the credit card account. Service was made by certified mail, but was returned as unclаimed. Service was then effected by regular mail. Neither party filed a responsive pleading. On April 21, 2003, Discover filed a motion seeking default judgment, which was sustained by the trial court. Default judgment was rendered on April 22, 2003, against Paul and Wells both jointly and severally, with interest at a rate of 19.8%.
{¶ 4} Discover made attempts to collect on the judgment by initiating garnishment
{¶ 5} In October 2017, Paul filed a
{¶ 6} Aftеr the hearing, the trial court overruled both motions. Wells appeals.
{¶ 7} Wells asserts the following three assignments of error:
THE TRIAL COURT ERRED WHEN IT DENIED JOHN WELLS’[S] MOTION FOR RELIEF FROM A FIFTEEN-YEAR-OLD DEFAULT JUDGMENT, LACKING A PROVABLE SUM AB INITIO, ON A TWENTY-YEAR-OLD ACCOUNT THAT JOHN TESTIFIED THAT HE PAID OFF IN 1997 AND IS OTHERWISE NOT EQUITABLE AND SHOULD HAVE NO PROSPECTIVE APPLICATION.
IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE FOR THE TRIAL COURT TO DENY HIS REQUEST FOR RELIEF FROM THE DEFAULT JUDGMENT WHERE HE TESTIFIED TO THE BEST OF HIS RECOLLECTION THAT HE ARRANGED A PAY-OFF TO DISCOVER IN 1997 BY EXECUTING AND RECORDING A $6,000 MORTGAGE TO HIS FATHER, JACK WELLS, TO PAY OFF THE ACCOUNT AND NEVER RECEIVED ANY MORE BILLS FROM DISCOVER, OR ANY NOTICES UNTIL 2017 WHEN SUSAN SUED HIM FOR CONTEMPT IN DOMESTIC RELATIONS COURT FOR ALLEGEDLY VIOLATING THE 1996 DECREE ASSIGNING HIM THE DEBT.
APPELLANT SUBMITS THAT THE TRIAL COURT ABUSED ITS DISCRETION AS A COURT OF EQUITY BY NOT VACATING THE DEFAULT JUDGMENT AGAINST HIM WHERE DISCOVER FAILED TO: SHOW A PROVABLE SUM OR ACCOUNT AGREEMENT IN THE
ORIGINAL COMPLAINT, PERFECT SERVICE ON HIM, AND TWICE REVIVED A DEFAULT JUDGMENT OVER THE COURSE OF FIFTEEN YEARS TO CAPITALIZE AND COLLECT INTEREST AT A RATE OF 19.8% ON AN ACCOUNT IT FAILED TO CLOSE OR MITIGATE SINCE 1996.
{¶ 8} While Wells’s arguments are somewhat abstruse, they center on his assertions that the trial court erred by denying his
{¶ 9} Wells first claims that the trial court lacked personal jurisdiction over him. Though not clear, the argument appears to be two-fold: (1) that Discover failed to perfect service on him when it initiated the lawsuit, thus rendering the default judgment void; and (2) that Discover’s subsequent actions to revive the judgment were also void due to a failure to perfect service.
{¶ 10} We begin by nоting that Wells’s motion was premised upon a request for relief as provided by the provisions of
{¶ 11} A trial court must have personal jurisdiction over a defendant in order to render a valid judgment. Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). Personal jurisdiction may only be acquired by service of process upon the defendant, thе voluntary appearance of the defendant or his legal representative, or by an appearance that waives service. Id. at 156-157.
{¶ 12} In 2003,
{¶ 13} This court has held that when process was sent to a defendant at the defendant‘s correct address and the defendant has only his self-serving testimony that he did not receive service of process, the court must hold a hearing to determinе whether service was proper. Sec. Natl. Bank & Trust Co. v. Murphy, 2d Dist. Clark No. 2552, 1989 WL 80954, *2 (July 20, 1989). Upon hearing testimony on the matter, the trial court is permitted to find that the defendant‘s testimony is not credible, and the court is not required to find that the presumption of service of process has been satisfactorily rebutted. Id.
{¶ 15} Wells’s claim that he was not served with process is based upon his assertion and testimony that he did not reside at the Middle Urbana Road address. However, the trial court specifically noted that it found Wells’s testimony lacking in credibility and insufficient to overcome the presumption of service.
{¶ 16} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of fact to resolve. Merriman v. Merriman, 2d Dist. Darke No. 2010-CA-09, 2011-Ohio-128, ¶ 16, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). We have stressed that this court will not substitute its judgment for that of the trier of fact on the issue of witness credibility unless it is patently apparent that the trier of fact lost its way in arriving at its verdict. Id. at ¶ 18, citing State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510 (Oct. 24, 1997). The trial cоurt, as the trier of fact, was free to credit some, all or none of Wells’s testimony.
{¶ 17} The testimony makes it clear that, although Wells claimed to have moved out of the Middle Urbana Road address, he did not remember exactly when he moved out of the home. His testimony did establish that the alleged payment of the Discover debt, made in accord with the divorce decree, could have been made as late as 2000,
{¶ 18} We next turn to the claim that Discover failed to properly effect service upon Wells when it filed for reviver of the default judgment. Wells’s argument in this regаrd necessarily requires, as its starting point, a finding that the default judgment was dormant. In other words, the reviver of a judgment is unnecessary unless the judgment has become dormant and unenforceable.
{¶ 19} Dormant judgments, and the revivor thereof, are governed by statute. Columbus Check Cashers v. Cary, 196 Ohio App.3d 132, 2011-Ohio-1091, 962 N.E.2d 812, ¶ 4 (10th Dist.).
(B)(1) A judgment that is not in favor of the state is dormant and shall not operate as a lien аgainst the estate of the judgment debtor unless one of the following occurs within five years from the date of the judgment or any renewal of the judgment, whichever is later:
(a) An execution on a judgment is issued.
(b) A certificate of judgment for obtaining a lien upon lands and tenements is issued and filed, as provided in sections
2329.02 and2329.04 of the Revised Code.(c) An order of garnishment is issued or is continuing, or until the last garnishment payment is recеived by the clerk of courts or the final report is filed by the garnishee, whichever is later.
(d) A proceeding in aid of execution is commenced or is continuing.
{¶ 20} “[U]pon becoming dormant, the judgment may not be enforced, and is thus without legal effect, unless the judgment is revived in accordance with
{¶ 21} In this case, there is nothing in the record to support a finding that the judgment was ever dormant. The record shows that Discover obtained a certificate of judgment in 2003, 2008 and 2015. Discover also obtained an order of garnishment in 2013 against Wells. Thus, at no time did five years elapse between the times that Discover took the appropriate steps to keep the judgment active. It appears that Wells has conflated revivor with the methods of preventing a judgment from becoming dormant. There is no need for a revivor action so long as the judgment creditor utilizes the methods set forth
{¶ 22} We conclude that the record does not suppоrt a finding that the default judgment was dormant as defined by
{¶ 23} We next address Wells’s motion for
{¶ 24} The grounds for relief enumerated in
{¶ 25} Again,
{¶ 26} The standard of review of a trial сourt‘s decision on a
{¶ 27} We begin by noting that Wells waited more than fourteen years after the entry of default judgment to file his
{¶ 28} Wells claims that he was entitled to relief under
{¶ 29} Wells first contends that the credit card debt was paid off as required by the divorce decree. However, the trial court concluded that Wells’s testimony on this issue was not credible, and we cannot conclude that the trial court erred in reaching this conclusion. At no time did Wells testify that he had actual knowledge that his father had
{¶ 30} Next, Wells contends that it was inequitable to permit the judgment to have prospective application. The prospective application of
Although this Court found no Ohio case law that has directly еxplained the meaning of the term “prospective application” in
Civ.R. 60(B)(4) , its federal counterpart has been interpreted extensively.Fed.R.Civ.P. 60(b)(5) similarly provides for a judgment to be vacated if “applying it prospectively is no longer equitable.” Consequently, when the Ohio Supreme Court first interpreted the “no longer equitable” language ofCiv.R. 60(B)(4) , it looked to federal case law for guidance. See Wurzelbacher, 40 Ohio St.2d at 90 (recognizing that the federal rulecontains identical language). This Court likewise found guidance in federаl case law to determine whether the judgment at issue has “prospective application.” A judgment that has prospective or continued application is one that is “forward-looking,” such as a long-term injunction or consent decree, both of which “envision the regulation of future conduct.” Comfort v. Lynn School Committee, 560 F.3d 22, 28 (1st Cir.2009). Such judgments remain “executory [and/or] leave open for future adjudication any issues regarding the rights of the parties.” Id. As one federal district court summarized, “[p]rospective application * * * means that the judgment a party seeks to render ineffective: 1) compels a party to perform; 2) orders a party not to perform a future act; or 3) mandates court supеrvision of continuing interaction between the parties.” Villescas v. Abraham, 285 F.Supp.2d 1248, 1253 (D.Colo.2003), citing Twelve John Does v. District of Columbia, 841 F.2d 1133 (D.C.Cir.1988).
Id. at ¶ 23-24.
{¶ 31} In this case, all of the facts on which the claim for relief was based were known before judgment was entered. There is nothing in this record, other than the accrual of post-judgment interest, to indicate that any event subsequent to the judgment has rendered the judgment inequitable. Further, if the accruаl of post-judgment interest were construed as a subsequent event, any monetary judgment could potentially be avoided by the use of this provision. We conclude that the trial court did not err in denying relief under
{¶ 33} Finally, Wells argues that default judgment should not have been rendered because Discover failed to allege a provable sum owed, failed to show an account agreement between him and Discover, and failed to mitigate its damages. We note that these issues do not provide a basis for relief under
{¶ 34} Wells’s first, second and third assignments of error are overruled.
III. Conclusion
{¶ 35} All of Wells’s assignments of error being overruled, the judgment of the trial court is affirmed.
WELBAUM, P.J. and DONOVAN, J., concur.
Vincent E. Thomas
Regina Rosemary Richards
Christ Theodor
Hon. Thomas E. Trempe