Charles M. Feeny v. Carlo E. Borghi & Spartaco Olivieri

• Decision Date: 16 February 1988
• Docket Number: 88-LW-0677,87AP-832
• Parties: Charles M. FEENY, Plaintiff-Appellant, v. Carlo E. BORGHI & Spartaco Olivieri, Defendants-Appellees.
• Court: Ohio Court of Appeals

Charles M. FEENY, Plaintiff-Appellant, v. Carlo E. BORGHI & Spartaco Olivieri Defendants-Appellees.

No. 87AP-832.

88-LW-0677 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

February 16, 1988

Appeal from the Franklin County Court of Common Pleas.

Gayton Tilton & Endres, Charles W. Gayton and Louis P. Endres, III for appellant.

Thompson, Hine and Flory, Daniel J. Hunter and Susan L. Rhiel, for appellees.

OPINION

REILLY Judge.

This is an appeal from a judgment of the Franklin County Court of Common Pleas. Plaintiff appeals the part of the judgment that vacates the default judgment against defendant Spartaco Olivieri.

Plaintiff filed a complaint against defendants Carlo E. Borghi and Olivieri. Plaintiff obtained service on Borghi at his residence in Pennsylvania. A certified mail receipt signed by Borghi was returned to the clerk of courts on October 24, 1985. Plaintiff obtained a default judgment against Borghi and a damages hearing was scheduled for December 18, 1985.

Plaintiff twice sought service of process upon Olivieri at his residence, 176 York Road, Warminster, Pennsylvania. The initial attempt occurred when the action was filed on October 8, 1985. The second request for certified mail service on Olivieri at his residence was filed on November 5, 1985. The first certified mail envelope was returned to the court unclaimed. Subsequently, on November 18, 1985, plaintiff attempted to serve Olivieri by ordinary mail. That envelope was not returned to the court. Plaintiff filed a motion for default judgment against Olivieri on December 17, 1985, and obtained such judgment on December 18, 1985. A damages hearing was held at that time before a referee.

Thereafter, on January 6, 1986, the referee submitted his report, recommending judgment for plaintiff in the sum of $76,495.13 in compensatory damages against defendant jointly and severally; $100,000.00 punitive damages against Borghi; and $50,000.00 punitive damages against Olivieri. Judgment was entered on February 11, 1986. When defendants became aware of the judgment, they retained Pennsylvania counsel.

Defendants filed a motion to vacate judgment on April 2, 1986 in the Court of Common Pleas of Buck County, Pennsylvania. On February 10, 1987, defendants filed a motion for relief from judgment, pursuant to Civ.R. 60(B)(2) and (5), in the Court of Common Pleas of Franklin County, Ohio.

Olivieri's motion was based on the allegation that he did not receive a copy of the complaint. Plaintiff filed a memorandum contra on March 16, 1987. Defendants filed a reply memorandum supporting their motion for relief on March 26, 1987.

There was an oral hearing before a referee. The parties were present and there was a full-day of testimony. Thereafter, the referee issued his findings of fact and conclusions of law. He recommended that Borghi be denied relief from judgment and that Olivieri be granted relief under Civ.R. 60(B)(5).

Plaintiff filed objections to the referee's report and requested an oral hearing. Olivieri responded with a memorandum contra. A hearing on the objections was held before the trial court. Whereupon, the court overruled the objections and adopted the referee's report. An entry vacating the default judgment against Olivieri was filed.

Plaintiff has perfected this appeal, including the following assignments of error:

"I.The court erred in finding that appellee Olivieri had rebutted the presumption of service upon him, thereby vacating the judgment against appellee Olivieri.

"II.The lower court erred in finding that the appellee Spartaco Olivieri's Motion to Vacate, filed 364 days after the judgment and more than 320 days after discovery of the judgment, was filed within a reasonable time as mandated by Civil Rule 60(B) and the holding of GTE Automatic Electric v. ARC Industries, 47 Ohio St.2d 146 (1976)."

Considering the first assignment of error, Olivieri testified that the 176 York Road address includes several buildings, each containing offices and resident units. Further, he stated that there are eighteen different doorways at that address and all the residents of the units receive mail at 176 York Road. He said that none of them have their name on the doors. Olivieri unequivocally testified that he did not receive a copy of the complaint. He stated that he learned that a judgment had been taken against him in March 1986 when his bank account was frozen. He added that he often had problems with his mail.

Olivieri also testified that when he became aware that a judgment was taken against him, he sought the assistance of counsel in Pennsylvania. On April 2, 1986, one week after receiving notice of the judgment, he contested the judgment in the Pennsylvania courts. Apparently the parties have been litigating the issue in Pennsylvania since that time.

It is reiterated that at the hearing Olivieri testified that he did not receive a copy of the complaint whether by certified or ordinary mail. This testimony was uncontradicted. The fact that he did not receive service of the complaint puts the issue within Civ.R. 60(B)(5) as " * * * any other reason justifying relief from the judgment * * *." The case of Rafalski v. Oates (1984), 17 Ohio App.3d 65 included a fact situation similar to this...