Polly v. Martin v. Bedroom Emporium

Decision Date24 December 1997
Docket Number97-LW-5467,18509
PartiesPOLLY V. MARTIN, Appellee v. BEDROOM EMPORIUM, et al., Appellants C.A.
CourtOhio Court of Appeals

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:


REECE Judge.

Appellant Bedroom Emporium appeals from the decision of the Akron Municipal Court denying its motion for relief from judgment. We affirm.

In July 1995, appellee Polly Martin purchased a waterbed from Bedroom Emporium, which is located in Akron, Ohio. After discovering a defect in the bed, Martin sought to have Bedroom Emporium remedy the problem. The difficulty evidently was never resolved. On May 7, 1996, Martin filed suit in the Akron Municipal Court, naming Bedroom Emporium as a defendant, as well as Somma Mattress Company, the manufacturer of the bed, and Associated Financial Services the party that was granted a security interest in the bed. After Bedroom Emporium and Somma Mattress did not answer the complaint, Martin moved for default judgment under Civ.R. 55. The trial court granted the motion on October 15, 1996, and awarded damages in the amount of $9,763.64. Associated Financial Services was voluntarily dismissed without prejudice.

In February 1997, the Summit County Sheriff's Office levied on Bedroom Emporium in execution of Martin's judgment. On April 17, 1997, Bedroom Emporium moved to vacate the judgment against it. Martin opposed the motion. The trial court denied Bedroom Emporium's motion on April 25, 1997. Bedroom Emporium now appeals to this court.

Bedroom Emporium asserts two assignments of error for our review. We consider each in turn.

The trial court erred when it denied Bedroom Emporium's motion to vacate the default judgment since the default judgment against defendant Bedroom Emporium is void.

Bedroom Emporium first argues that the default judgment is void because the trial court lacked personal jurisdiction over it. Bedroom Emporium contends that it cannot be sued because "Bedroom Emporium" is a fictitious name and that the proper party, Akron Waterbeds, Inc., was never properly served. Bedroom Emporium also argues that "Bedroom Emporium" itself was never properly served. We disagree.

A judgment rendered by a court lacking jurisdiction over a party is void. Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio St. 61, 64. Trial courts possess the power to vacate void judgments, not because of Civ.R. 60(B), but because the power is inherent in the courts. Patton v. Diemer (1988), 35 Ohio St.3d 68, paragraph four of the syllabus. Bedroom Emporium argues that the judgment against it is void, because the trial court did not have proper personal jurisdiction over either Akron Waterbeds, Inc., or Bedroom Emporium.

R.C. 1329.01(A)(2) defines a "fictitious name" as "a name used in business or trade that is fictitious and that the user has not registered or is not entitled to register as a trade name." Fictitious names are required to be registered with the secretary of state. R.C. 1329.01(D). Martin presented evidence that "Bedroom Emporium" is a trade name registered to an entity other than Akron Waterbeds, Inc., and that Akron Waterbeds, Inc., has not registered the use of "Bedroom Emporium" as a fictitious name. "Bedroom Emporium" is clearly a fictitious name used by Akron Waterbeds, Inc.

Under R.C. 1329.10(C), "[a]n action may be commenced or maintained against the user of *** a fictitious name whether or not the name has been registered or reported in compliance with section 1329.01 of the Revised Code." Thus, Martin may maintain this action against the user of the fictitious name "Bedroom Emporium."[1]

Bedroom Emporium's second argument is that Bedroom Emporium itself was never properly served, depriving the trial court of personal jurisdiction over it. However, the record shows that Bedroom Emporium was properly served. A corporation may be served "by certified mail at any of its usual places of business." Civ.R. 4.2(6). The record contains the signed return receipt of the certified letter served on Bedroom Emporium at the place of business where Martin bought her bed. This is evidence that Bedroom Emporium was properly served. See Civ.R. 4.1(1). Accordingly, Bedroom Emporium's first assignment of error is overruled.

The trial court abused its discretion when it denied Bedroom Emporium's motion for relief from judgment pursuant to Rule 60(B).

Bedroom Emporium's second assignment of error argues that the trial court improperly denied its motion under Civ.R. 60(B)(5). We disagree.

To prevail on a Civ.R. 60(B) motion, a party must meet three requirements:

(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the judgment, order or proceeding was entered or taken.

GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. All three requirements must be met for the motion to be granted. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20.

Civ.R 60(B)(5) is known as the "catch-all" provision, which permits a court to grant relief from a judgment for "any other reason justifying relief from the judgment." The purpose of the rule is "to bring litigation to an end while preserving justice." Lenzer v. Lenzer (Nov. 3, 1993), Lorain App. No. 93CA005541, unreported, at 11. The grounds for invoking this provision should be "substantial." Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, paragraph two of the syllabus. A motion...

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