Carkido v. Hasler

• Decision Date: 26 August 1998
• Docket Number: No. 97 CA 35.,97 CA 35.
• Citation: Carkido v. Hasler, 129 Ohio App.3d 539, 718 N.E.2d 496 (Ohio App. 1998)
• Parties: CARKIDO, Appellee, v. HASLER, Appellant, et al.
• Court: Ohio Court of Appeals

129 Ohio App.3d 539

718 NE 2d 496

CARKIDO, Appellee, v. HASLER, Appellant, et al.

No. 97 CA 35.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Decided August 26, 1998.

COPYRIGHT MATERIAL OMITTED

Rhonda L. Granitto, for appellee.

David J. Wolfe, Jr., for appellant.

VUKOVICH, Judge.

Appellant, Geoff Hasler, appeals from a judgment of the Mahoning County Common Pleas Court denying his motion for relief from judgment in regard to a default judgment rendered against him. For the following reasons, the judgment is affirmed.

I. FACTS

Appellee, Michael Carkido, received a mail solicitation to become a local consultant for Telephone Bill Reduction Consultants, Inc. ("TBRC"). The solicitation pictured appellant and labeled him as president of TBRC. At the bottom of the advertisement, the address of TBRC was listed as 21550 Oxnard Street, Suite 300, Woodland Hills, California 91367, with the address 4190 Belfort Road, Suite 360, Jacksonville, Florida 32216 in small print below the California address. There was also an 800 number for interested parties to call. The solicitation included a guarantee, which stated that if the individual was "unhappy," he or she would be entitled to a "full, no questions asked refund" after the first one hundred eighty days. In addition to this, it had a specific section with the designation "please note," which read:

"We hold regular, highly informative `Getting To Know You' Weekly Information Sessions at our offices in California and Florida, usually once a week.

"You may come to our office, meet our President (Geoff Hasler) and other people from all over America (just like you) who are interested in becoming an Affiliate. You may ask any questions you may have.

"Each Information Session lasts about two hours. There's no cost and absolutely no obligation. You're welcome to bring as many family members and friends as you wish. Due to the popularity of these Information Sessions, reservations are essential.

"Please call 1-800-851-4880 to reserve your seat(s) at the next Session."

Appellee decided to pursue the business opportunity and did so from October 1993 to March 1994, but with no success. Accordingly, and pursuant to the representations in the solicitation materials, appellee requested a refund pursuant to his money-back guarantee, which was never honored. As a result, appellee filed a complaint against appellant Geoff Hasler, Telephone Bill Reduction Consultants, Inc., John Doe, Inc., and John Doe. In that complaint, appellee requested compensatory damages, treble damages, and punitive damages.

Separate summons on the complaint were issued to appellant, Telephone Bill Reduction Consultants, Inc., John Doe, Inc., and John Doe by certified mail. They were all mailed to the Woodland Hills, California address listed on the advertisement. On June 5, 1995, the same individual, whose name was illegible, signed for service on each certified mail return. Those mail returns were filed with the Mahoning County Court of Common Pleas on June 7 and 8, of 1995.

Appellant failed to file an answer or otherwise defend against the action. Accordingly, on July 26, 1995, appellee filed a motion for default judgment and requested a hearing on the issue of punitive damages.

On August 1, 1995, the trial court found that service had been accomplished, and proceeded to enter judgment in favor of appellee in the amount of $13,980 (compensatory and treble damages). The court then scheduled a hearing to address the issue of punitive damages. Thereafter, on August 24, 1995, the trial court filed a judgment entry specifically identifying the breakdown of the award of damages. The breakdown was as follows: $3,495 compensatory damages; $10,485 treble damages (allowed by R.C. 1334.01 et seq.); $1,531 attorney fees; and $10,000 in punitive damages. The result was a total award of $25,511 plus interest.

After the award was entered, there was an attempt to serve the court's judgment entry on appellant at the Woodland Hills address. However, the clerk's docket reflected a failure of service, with a notation that appellant had moved and left no forwarding address. Counsel for appellee then provided a new address for appellant at 26500 W. Agoura Road, Suite 654, Calabasas, California 91302 and instructed the clerk to serve appellant by regular mail at that address. Apparently, the Calabasas, California address was used only to receive unimportant bulk third-class mail. Therefore, over the ensuing year, there was attempted service of the August 24, 1995 entry on appellant, with seemingly no success. The clerk's docket reflected a February 9, 1996 entry evidencing the fact that a copy of the certified mail card was filed, showing a service date of December 16, 1995. However, that entry is conspicuous in light of the fact that the actual return receipt card is absent from the transcript provided to this court.

Appellee was forced to hire an attorney in California to obtain a sister-state judgment so as to enforce the Ohio judgment against appellant. Eventually, appellee's counsel was able to serve appellant with notice of the entry of the sister-state judgment at his residence address in Santa Barbara, California.

On November 27, 1996, appellant, d.b.a. Telephone Bill Reduction Consultants, filed a motion to void judgment or, in the alternative, for relief from judgment. He attached his affidavit, wherein he averred that he had never been served with a summons or complaint and that he maintained a limited "image identity" at the Woodland Hills, California address. Moreover, he stated in his affidavit that over two hundred businesses maintained offices at the Woodland Hills, California address, and his "walk-in" national public office was maintained in Jacksonville, Florida. Appellant also attested to the fact that he resided and maintained a full-time office in Santa Barbara, California, and that he visited the Woodland Hills office only approximately two times a month. Appellant claimed that his residence address was a matter of public record at all times. His affidavit also raised questions regarding who had signed the initial certified mail returns, claiming that if it was the general receptionist, he had neither employed her nor had given her the authority to sign as his agent.

In the memorandum of law attached to his motion, appellant further averred that he had a meritorious defense to present if relief was granted. He claimed that he had not violated any Ohio law or done anything else improper upon which a cause of action could be sustained. He also alleged that he had four affirmative defenses available to him, alleging that he was not making a general denial but a denial based on facts that he would be able to prove to the court. Appellant claimed that if the trial court allowed the relief he sought, he would present other evidence to show that the allegations made against him were unfounded.

Appellee filed a memorandum in opposition to appellant's motion. Appellee attached his affidavit, as well as the affidavit of his attorney, Kelly Burton, and the affidavit of Donald Zelinsky, the attorney from California whom appellee had hired to obtain the sister-state judgment against appellant. The response also had an attachment consisting of Ohio Attorney General documents, but there was no affidavit from anyone from the Attorney General's office to authenticate those documents.

On January 31, 1997, the trial court denied appellant's motion to void judgment and the alternative motion for relief from judgment, finding that proper service had been made upon appellant and that it could not "countenance the actions of Defendant Hasler to avoid process and litigation and then allow vacation of a properly issued judgment when all else fails." On February 12, 1997, almost two weeks after the trial court denied the motion to void judgment, appellant filed a reply to the memorandum in opposition. Basically, that reply attempted to distinguish the cases cited by appellee in his memorandum.

It is from the January 31, 1997 judgment entry that this appeal emanates, in which appellant asserts three assignments of error for this court's review.

II. First and Second Assignments of Error

Appellant's first and second assignments of error will be addressed together for efficiency and clarity. Appellant's first assignment of error reads as follows:

"The trial court erred in failing to void the judgment or grant relief from the judgment when appellant filed an uncontroverted affidavit that he did not receive service."

The second assignment of error reads:

"The trial court erred in failing to void the judgment or grant relief from the judgment when appellant filed an uncontroverted affidavit in which he stated that he did not maintain a regular, habitual physical presence at any of the facilities where plaintiff attempted to serve him."

Appellant argues that it is an abuse of discretion for a court not to vacate a judgment when a party has presented unchallenged testimony that he did not receive service. In support of his assertion, appellant cites Rogers v. United Presidential Life Ins. Co. (1987), 36 Ohio App.3d 126, 521 N.E.2d 845, which states:

"Other Ohio appeals courts have held that when a party makes a sworn statement that he did not receive service, there must be a further evidentiary showing that the party was served to rebut the party's statement. A court may not draw inferences which are contrary to the party's statement * * *. This court has also held that a trial court abuses its discretion and it is reversible error for a court to overrule a party's motion to vacate a dismissal when the party has clearly demonstrated, through unchallenged testimony, that he had not received service. Lin v. Reid (1983), 11 Ohio App.3d 232, 11 OBR 356, 464 N.E.2d 189. This is true even if the other party has complied with the Civil Rules on service."

Rogers is distinguishable from the case at bar...