Motorists Mut. Ins. Co. v. RobertsMotorists Mut. Ins. Co. v. Roberts
Case Information
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[Cite as
Motorists Mut. Ins. Co. v. Roberts
,
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
MOTORISTS MUTUAL INSURANCE CO., :
CASE NO. CA2013-09-089 Plaintiff-Appellee, :
O P I N I O N : 5/5/2014 - vs -
:
CODY ROBERTS, et al., :
Defendants-Appellant. :
CIVIL APPEAL FROM WARREN COUNTY COURT
Case No. 2010CVE00315
Zeehandler Sabatino & Associates, LLC, Stephen J. Zeehandelar, 471 East Broad Street, Suite 1200, Columbus, Ohio 43215-0069, for plaintiff-appellee Thomas G. Eagle Co., L.P.A., Thomas G. Eagle, 3386 North State Route 123, Lebanon Ohio 45036, for defendant-appellant
M. POWELL, J.
Defendant-appellant, Cody Roberts, appeals a decision from the Warren County Court denying his motion for relief from and to vacate a default judgment entered in favor of plaintiff-appellee, Motorists Mutual Insurance Company, Inc. (Motorists Mutual). For the reasons discussed below, we affirm in part, reverse in part, and remand this matter to the trial court.
On or about January 31, 2009, a motor vehicle owned by an insured of Motorists Mutual was stolen. The vehicle was later recovered, but it was damaged. On March 29, 2010, Motorists Mutual filed a complaint in the Warren County Court against Roberts and a co-defendant, Leslie Andrew Shaw, asserting its subrogation rights to recover funds it paid to its insured. [1] The complaint alleged that Roberts and Shaw, "while on a joint venture * * * stole a 1997 Mercury Mystique off of the Insured's lot and engaged in the unauthorized use of said vehicle." Thereafter, as Roberts had not answered or appeared, Motorists Mutual moved for default judgment. On September 15, 2010, default judgment was entered against Roberts in the amount of "$1,932.05, plus costs and interest at the statutory rate of 4%." Over two years later, on March 12, 2013, Roberts filed a motion for relief from
and to vacate default judgment. In his motion, Roberts claimed the judgment against him
was void as he had never been served with the summons and complaint and that he was
entitled to relief under
complaint in this case," and if he had, he "would have defended it on the merits." Motorists Mutual filed a memorandum in opposition claiming that service was perfected by ordinary mail, and that Roberts' affidavit was insufficient to overcome the presumption of proper service. Motorists Mutual also claimed Roberts' motion for relief from judgment was not filed within a reasonable time as he had "spoken with personnel in the office of [Motorists Mutual's] counsel" about the judgment and license suspension on numerous occasions. Attached to the memorandum were unauthenticated copies of an "Accurint" report, listing contact information for "Cоdy Roberts" and the Springboro Police Department's investigative notes as to the theft of the insured's vehicle. Based on the filings by the parties, the trial court scheduled an evidentiary
hearing on the limited issue of Roberts' contact with counsel's office in 2010, 2011, 2012, and 2013 concerning the judgment. At the hearing, Motorists Mutual presented the testimony of Kris Stephenson, a 15-year employee and accounting manager for Zeehandelar, Sabatino & Associates, LLC, the law firm representing Motorists Mutual in the present action. Stephenson testified regarding the firm's electronic recording-keeping practices. Stephenson explained that the firm uses a program called, "Collection Partner" which permits the person handling a debtor's account to place typewritten notes in the electronic file under the debtor's name. Over Roberts' objections, Motorists Mutual entered as an exhibit a printout from "Collection Partner" which pertained to Roberts' account at the firm. Based on this еxhibit, Stephenson testified Roberts engaged in a series of conversations with several account handlers from November 19, 2010 through January 29, 2013 regarding the judgment against him. The record indicated Roberts' license was suspended on November 2, 2010, and on November 19, 2010, "D" or "DB", which referred to Roberts, contacted the firm and indicated that he was going to contact an attorney. Stephenson further testified that an entry on October 22, 2012, indicated Roberts called the office and spoke with an account representative, stating he was "tired of fighting, he just wanted to get his driver's license back." Several of the entries also indicated that the account representatives had provided Roberts with a case number during the conversation.
{¶ 6} Roberts also testified at the hearing. He denied ever contacting the law firm representing Motorists Mutual. He acknowledged that the exhibit reflected his name, date of birth, and social security number, but otherwise denied several of the facts contained in the reсord. For instance, Roberts denied recognizing any of the phone numbers where these calls allegedly originated, and he also denied ever working at AK Steel, the place of employment listed in the record.
{¶ 7}
After the parties submitted post-hearing briefs, the magistrate denied Roberts'
motion finding he was properly served by ordinary mail. The magistrate further found
Roberts had notice of the judgment based upon his various contacts with the law firm, and
therefore concluded the
{¶ 8} Roberts appeals the decision of the trial court, presenting three assignments of error for our review. For ease of discussion, we address Roberts' assignments of error out of order. Assignment of Error No. 1: THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF PLAINTIFF'S
LAWYER'S EMPLOYEES' NOTES. In his first assignment of error, Roberts argues the trial cоurt erred in admitting
into evidence Exhibit 1, records of Roberts' alleged contacts, including telephone
conversations, with the attorneys representing Motorists Mutual. Roberts contends the
records were not admissible under
the trial court. League v. Collins , 12th Dist. Butler No. CA2013-03-041,
asserted are inadmissible hearsay.
a business record must manifest four essential elements: (i) the record must be one regularly recorded in a regularly conducted activity; (ii) it must have been entered by a person with knowledge of the act, event or condition; (iii) it must have been recorded at or near the time of the transaction; and (iv) a foundation must be laid by the custodian of the record or by some other qualified witness.
Green Tree Servicing, L.L.C. v. Roberts , 12th Dist. Butler No. CA2013-03-039, 2013-Ohio-
5362, ¶ 29, quoting Cent. Mtge. Co. v. Bonner , 12th Dist. Butler No. CA2012-10-204, 2013-
Ohio-3876, ¶ 13; State v. Davis ,
Zeehandelar, Sabatino and Associates, he had personal knowledge of the firm's record- keeping system. Stephenson identified Exhibit 1 as a "printout copy of [an] * * * electronic file that is kept during the course of business for our firm for this particular case involving [Motorists Mutual] and Mr. Roberts." Stephenson explained it is the practice of the firm to make this type of record for each collection and litigation case in order to keep track of the history of the case. According to Stephenson, the records are created by a software program called "Collection Partner," and when activity occurs on a particular file, such as a telephone conversation or other correspondence with a debtor, notes are entered into the file to reflect such activity. Stephenson testified these notes are made by the person who actually engages in the activity reflected in the entry and that such notes are made immediately after the event or activity takes place. Stephenson further testified that at midnight on the day the note was entered, the note on the file becomes permanent and can no longer be changed or edited. Based on this testimony, we do not find that the trial court abused its discretion
in admitting the law firm's records. Stephenson's testimony met each of the requirements under the business records exception to the hearsay rule. Stephenson explained that Exhibit 1 contains records that are regularly made in the course of the law firm's business activity; the records are made by persons with knowledge of the act and close in time to the event recorded. Finally, Stephenson as the accounting manager, and an employee who has created similar records before and reviewed the records presented to thе trial court, had the requisite knowledge to testify regarding these records. Roberts, however, asserts Exhibit 1 was still inadmissible as the records were
made and kept in anticipation of litigation and therefore indicated a lack of trustworthiness.
Roberts is correct that in some instances, documents made in anticipation of litigation are
excluded because such documents substantially undermine the presumed guarantee of
circumstantial trustworthiness in qualified business records. See Sikora v. Gibbs , 132 Ohio
App.3d 770, 776 (10th Dist.1999), citing McCormick v. Mirrored Image, Inc. , 7 Ohio App.3d
232, 234 (1st Dist.1982); see also Weis v. Weis ,
{¶ 17} Based on the foregoing, the trial court did not err in admitting into evidence records of the law office representing Motorists Mutual, and therefore, Roberts' first assignment of error is overruled. Assignment of Error No. 3: THE TRIAL COURT ERRED IN DENYING ROBERTS' MOTION FOR RELIEF
FROM THE JUDGMENT UNDER CIV.R. 60(B). In his third assignment of error, Roberts asserts the trial court erred in denying
his motion for relief from judgment under
must demonstrate that it (1) has a meritorious claim or defense to present if the motion is
granted; (2) is entitled to relief under one of the grounds stated in
contacted the law firm representing Motorists Mutual and spoke to personnel at the office in
2010, 2011, 2012, and 2013. Based on this allegation, the trial court held an evidentiary
hearing "relating to contact with [Motorists Mutual's attorney's] office by the Defendant." As
mentioned above, Stephenson testified at the hearing regarding the company's records and
explained that entries in those records indicated Roberts had engaged in conversations with
several account handlers over a period of time about the judgment against him. Roberts also
testified at the hearing and denied ever contacting the law firm or being aware of the
judgment against him. In light of Roberts' contact with the law firm, the trial court found
Roberts was aware of the judgment against him. In reaching this conclusion, the trial court
also rejected Roberts' testimony that he had never contacted the law firm and was unaware
of the judgment. Accordingly, the trial court denied Roberts
{¶ 24}
Roberts asserts that even if hе had notice of a collection effort, his motion was
timely as it was made "within weeks" of finding out about the judgment against him.
However, the trial court elected to believe the testimony of Stephenson and the records
presented by Motorists Mutual over Roberts' claims. We find no abuse of discretion in this
regard. Accordingly, Roberts' inability to demonstrate the timeliness of his motion is fatal to
his claim for relief under
{¶ 25} Roberts' third assignment of error is overruled. Assignment of Error No. 2: THE TRIAL COURT ERRED IN DENYING ROBERTS' MOTION TO VACATE
THE JUDGMENT DUE TO LACK OF SERVICE. In his second assignment of error, Roberts argues the trial court erred in
denying his motion to vacate the default judgment because he was not properly served with the complaint and summons in this matter. Roberts contends that as a result of Motorists Mutual's failure to perfect service, the trial court did not have personal jurisdiction over him, and therefore the judgment аgainst him is void. "In order to render a valid judgment, a court must have jurisdiction over the
defendant in the action." Beachler v. Beachler , 12th Dist. Preble No. CA2006-03-007, 2007-
Ohio-1220, ¶ 12. A court may acquire personal jurisdiction over the defendant either by
service of process upon the defendant, the voluntary appearance and submission of the
defendant or his legal representative, or by certain acts of the defendant or his legal
representative which constitute an involuntary submission to the jurisdiction of the court. Id. ,
citing Maryhew v. Yova ,
the defendant is void, not merely voidable. Alsip at ¶ 10; see also In rе B.P.H. , 12th Dist.
Butler No. CA2006-04-090,
requirements under
reasonably calculated, under the circumstances, to give interested parties notice of a pending
action and an opportunity to appear. Hamilton v. Digonno , 12th Dist. Butler No. CA2005-03-
075,
copy of the summons and complaint were sent by certified mail to Roberts at 952 Dubois Road, Franklin, OH 45005. It was returned "unclaimed." Thereafter, upon request, service was reissued to Roberts by ordinary mail at the Dubois Road address on May 28, 2010. There is no evidence in the record that the ordinary mail envelope was returned by the postal authorities with an endorsement showing failure of delivery. Therefore, there is a rebuttable presumption that service was perfected. Essentially, Roberts asserts that his affidavit presented sufficient evidence of
nonservice. Roberts attached his own affidavit to the motion to vacate, wherein he asserted "[a]t no time did I receive notice or summons of the complaint in this case and it was apparently sent to an incorrect address." He further averred that he did not live at the Dubois Road address at the time, but rather resided on Franklin-Trenton Road until 2011. Roberts also asserted that the complaint and summons could have been sent to his mother's residence at 3916 Kenny Lane, Springboro, Ohio, where the criminal complaints were served. In response, Motorist Mutual filed a printout from "Accurint" which it asserted is
"routinely utilized in this industry to locate persons." The report listed various аddresses for
"Cody Roberts" including both the Kenny Road address and the Dubois Road address. This
report was not authenticated by a necessary affidavit. Motorist Mutual argued that this report
indicated Roberts resided at the Dubois address when service was perfected, and therefore
his affidavit failed to rebut the presumption of proper service. However, as the "Accurint"
report was unauthenticated, we find that this document alone was insufficient to refute
Roberts' claims of nonservice. See Whittle v. Davis , 12th Dist. Butler No. CA2013-08-153,
resided at the Dubois address where he was served. Motorists Mutual filed certified copies of several records from the Ohio Registrar of Motor Vehicles with its post-hearing brief. These records indicate that for much of the relevant time period, Roberts reported his address as 3916 Kenny Lane. In early 2007 and 2008, Roberts did report a Dubois Road Court address, however, it was a different house number than where the summons and complaint were sent in this case. Moreover, as noted by Roberts, the notice of the default judgment hearing, as well as the entry granting default judgment were sent by ordinary mail to the Dubois Court address, but were later returned by the postal authorities as "not deliverable." These documents were sent in August and September 2010, just a few months after service was sent by ordinary mail in May 2010. We find that Roberts' affidavit and the documentary evidence in this case
created a factual issue as to whether the court had jurisdictiоn over Roberts at the time
default judgment was entered. The conflicting evidence should have been resolved by an
evidentiary hearing. See Patterson v. Patterson , 8th Dist. Cuyahoga No. 86282, 2005-Ohio-
5352, ¶ 23 (party's contention that he resides at different address than where summons was
sent warranted hearing on whether rebuttable presumption of proper service arising when
serving party complies with
pursuant to
proceedings.
RINGLAND, P.J., and PIPER, J., concur.