Ohio Civil Rights Commission v. First American Properties, Inc., Dba Constance Ange, D.O. and Associates, 96-LW-3228
| Decision Date | 02 August 1996 |
| Docket Number | 96-LW-3228,15646 |
| Parties | OHIO CIVIL RIGHTS COMMISSION, Plaintiff-Appellee v. FIRST AMERICAN PROPERTIES, INC., dba CONSTANCE ANGE, D.O. AND ASSOCIATES, et al., Defendants-Appellants CASE |
| Court | Ohio Court of Appeals |
Duffy Jamieson, S.C. Regis. No. 0042408, Assistant Attorney General, Civil Rights Section, 30 East Broad Street, 15th Floor, Columbus, Ohio 43215-4328, Attorney for Plaintiff-Appellee
Jeffrey M. Silverstein, S.C. Regis. No. 0016948, and William H Prophater, Jr., S.C. Regis. No. 0062318, JEFFREY M. SILVERSTEIN & ASSOCIATES, 1700 First National Plaza, Dayton, Ohio 45402, Attorney for Defendant-Appellant
Richard J. Fryman ("Fryman") appeals the trial court's denial of his motion to vacate judgment.
I.
Fryman was the president of First American Properties ("First American"), a company allegedly doing business as Constance Agne, D.O. & Associates. First American was a real estate management company which handled the administrative, personnel, and payroll services for Constance Agne, D.O. & Associates. Fryman is the husband of Dr. Constance Agne.
Laurie Miller ("Miller"), appellee, was an employee of Constance Ange, D.O. & Associates. First American terminated her employment with Constance Agne, D.O. & Associates on December 11, 1990. Thereafter, on March 30, 1991, Miller filed a discrimination charge with the Ohio Civil Rights Commission ("OCRC"), alleging that First American terminated her employment because of her pregnancy. The OCRC conducted a preliminary investigation of Miller's claim and determined that it was probable that First American had engaged in unlawful discriminatory conduct.
The OCRC made the following findings of fact. Miller was employed on April 18, 1988, as a psychology assistant to Dr. Constance Agne. Miller's employment contract provided that she would receive health care coverage. In mid-July of 1990, Miller informed Fryman that she was pregnant and requested that she be permitted to reduce her work hours to thirty-two hours per week after her maternity leave. On September 20, 1990, Miller discovered that her health care insurance had been canceled due to First American's failure to pay her premiums. Miller then attempted to contact Fryman, but was not successful until October 5, 1990. During their ensuing conversation, Fryman assured Miller that he would apply to have her insurance reinstated. Fryman did so, but the application for reinstatement was denied on October 23, 1990, apparently because of her pregnancy. The other employees had their insurance reinstated.
On October 24, 1990, Fryman wrote Miller a letter granting her "request" to immediately begin part-time hours, even though she allegedly only requested to have her hours reduced after her maternity leave. Fryman then rescheduled Miller's hours accordingly. On November 6, 1990, Fryman wrote Miller a letter in which he stated that he was placing her on disciplinary leave for an alleged time card discrepancy. Following that letter, Fryman met with Miller on several occasions in which he attempted to reduce Miller's accrued benefits and to get her to drop the insurance issue. Miller refused to do either.
On December 11, 1990, Fryman told Miller that she would be terminated for, among other reasons, her continued refusal to address accountability issues with her time. Fryman gave Miller several options with respect to her termination: (1) that Miller continue working until after her maternity leave; (2) that Miller be paid severance of $2,500.; or (3) a combination of the first two options. Fryman also informed Miller that these options were conditioned upon her dropping the insurance issue. Miller responded that the condition was unacceptable, and then Fryman terminated her employment without any renumeration for her accrued benefits.
After Miller filed her discrimination claim, the OCRC attempted to settle her dispute with Fryman and First American, but was unsuccessful. Consequently, on March 12, 1992, the OCRC filed a formal complaint against First American dba Constance Agne, D.O. & Associates. The matter was then referred to the Ohio Attorney General's Office for prosecution.
First American answered the complaint on March 20, 1992. Afterward, the OCRC attempted to depose Fryman, but he did not appear at the deposition. Fryman alleged that he failed to appear because First American's counsel had withdrawn from representation, and it had yet to retain new counsel. The hearing was then continued until September 2, 1992, because discovery was not proceeding in a timely fashion. During the interim, Fryman, as the president and representative of First American, corresponded and had telephone conversations with the OCRC. In those conversations, he claimed that the OCRC did not have jurisdiction over the matter because First American had less than four employees. On September 1, 1992, Fryman allegedly called the OCRC to reschedule the September 2nd hearing date because he was not going to be able to attend. The hearing was then continued until October 13, 1992. Thereafter, the OCRC was granted a continuance which further postponed the trial until October 15, 1992.
The hearing was held on October 15, 1992, however, First American and Fryman failed to appear. After considering the evidence, the hearing examiner recommended that the OCRC order First American to cease and desist from all unlawful discriminatory conduct. The OCRC adopted the hearing examiner's recommendation and issued a cease and desist order on March 13, 1993.
First American neglected to appeal the OCRC's final order, and after the time for an appeal expired, the OCRC filed a petition for decree of enforcement with the Montgomery County Common Pleas Court. In that petition, OCRC requested that Fryman be added as a defendant because First American's articles of incorporation had been canceled by the Secretary of State on December 30, 1988, due to its failure to pay franchise taxes. Fryman was then added as a defendant.
On December 16, 1993, the court issued a notice to the parties that Fryman and First American were in default because they had failed to answer or appear. On December 21, 1993, the OCRC filed a motion for default judgment against Fryman and First American. The court granted the motion on December 30, 1993. On May 24, 1994, the OCRC filed a motion to show cause why Fryman and First American should not be held in contempt of court. On July 12, 1994, Fryman and First American were placed in contempt of court. On September 15, 1995, Fryman and First American filed a motion to vacate the default judgment of December 30, 1993. The trial court overruled the motion, and Fryman now brings this timely appeal.
I.
In his sole assignment of error, Fryman argues that:
THE COURT OF COMMON PLEAS ERRED IN DENYING APPELLANTS [SIC] MOTION TO VACATE JUDGMENT WHEN APPELLANTS OFFERED UNCHALLENGED TESTIMONY AND EVIDENCE THAT THEY DID NOT RECEIVE ACTUAL NOTICE OF THE PROCEEDINGS AGAINST THEM, AND APPELLEE DID NOT OFFER CONTRADICTORY EVIDENCE.
Fryman asserts that the trial court erred in not granting him relief from judgment because he presented an affidavit in which he attested that he never actually received service of process. He argues that although the OCRC satisfied the Civil Rules, his affidavit rebutted the presumption of perfected service of process and placed the burden on the OCRC to prove actual service of process. Fryman contends that OCRC failed to meet this burden of proof and, therefore, the trial court abused its discretion in not granting his motion.
We find no merit in Fryman's argument. Civil Rule 4.1 outlines the methods of obtaining service of process within this state. It provides that " * * * service of any process shall be by certified mail unless otherwise permitted by these rules." Civ.R. 4.1, Section 1. Service is perfected by certified mail when it is sent to an address that is reasonably calculated to reach the defendant. Regional Airport Authority v. Swinehart (1980), 62 Ohio...
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Matteo v. Principe, 2010 Ohio 1204 (Ohio App. 3/25/2010), 92894.
...mail must be sent to an address "reasonably calculated to cause service to reach the defendant." Ohio Civ. Rights Comm. v. First Am. Properties (1996), 113 Ohio App.3d 233, 237, 680 N.E.2d 725. In Akron-Canton Regional Airport Auth. v. Swinehart (1980), 62 Ohio St.2d 403, 406, 406 N.E.2d 81......