Twymon v. Eagle Auto Parts, Inc.

• Decision Date: 07 July 2022
• Docket Number: 110993
• Citation: 2022 Ohio 2360
• Parties: MICKEY TWYMON, Plaintiff-Appellee, v. EAGLE AUTO PARTS, INC., ET AL., Defendants-Appellants.
• Court: Ohio Court of Appeals

2022-Ohio-2360

MICKEY TWYMON, Plaintiff-Appellee, v. EAGLE AUTO PARTS, INC., ET AL., Defendants-Appellants.

No. 110993

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 7, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-931093

JUDGMENT: REVERSED, VACATED, AND REMANDED

Joseph B. Rose, III, for appellee.

Yelsky & Lonardo, LLC, and Mitchell J. Yelsky, for appellant.

JOURNAL ENTRY AND OPINION

EILEEN A. GALLAGHER, JUDGE

{¶ 1} In this accelerated appeal, defendant-appellant Eagle Auto Parts, Inc. ("Eagle Auto Parts") appeals from the trial court's order denying its motion to vacate default judgment entered in favor of plaintiff-appellee Mickey Twymon. For the reasons that follow, we reverse the trial court's decision, vacate the default judgment and remand the case for further proceedings.

Procedural and Factual Background

{¶ 2} On March 18, 2020, Twymon filed a complaint in the Cuyahoga County Court of Common Pleas against Eagle Auto Parts and a John Doe defendant (collectively, the "defendants"),^[1] alleging that nearly two years earlier on March 22, 2018, Twymon had been bitten by a pit bull while attempting to purchase auto parts at Eagle Auto Parts' facility at 4063 East 116th Street in Cleveland. Twymon asserted claims of negligence, gross negligence, intentional infliction of emotional distress and violation of Ohio's dog bite statute, R.C. 955.28, against the defendants.

{¶ 3} In his complaint, Twymon alleged that "while in the process of purchasing auto parts," he had been directed by "one of [Eagle Auto Parts'] agents" to accompany an employee to a storage building to select the auto parts. He further alleged that while he was inside the building he was, "without provocation," "viciously and violently attacked by Defendants' Pitbull," causing "puncture wounds and bite marks to his leg." Tymon further alleged that an Eagle Auto Parts employee witnessed the attack and that employees informed Twymon "on scene" that the dog should have been secured in its cage at the rear of the facility at the time it attacked Twymon. Twymon also alleged that the defendants knew of the dog's "viciousness" and that they breached a duty owed to him by keeping the dog in a "reckless and/or negligent manner."

{¶ 4} The incident was reported as an "animal bite" to the Cleveland Department of Public Safety Division of Animal Care & Control ("Animal Control").^[2] Following the incident, Twymon sought medical treatment in the emergency room at University Hospitals' Cleveland Medical Center. There is no information in the record as to what medical treatment he received, other than that he was prescribed Amoxicillin-Clavulanate tablets.

{¶ 5} As a result of the incident, Twymon claimed to have sustained "injuries, which have caused pain and suffering, and, upon information and belief, will continue to cause pain and suffering into the future and upon a permanent basis" as well as "serious emotional distress" and unspecified "economic and noneconomic damages." For his injuries and other damages, Twymon sought to recover compensatory damages in excess of $25,000, punitive damages attorney fees and his "costs and expenses."

{¶ 6} The caption of Twymon's complaint listed two addresses for Eagle Auto Parts: (1) Eagle Auto Parts, Inc., 4063 East 116th Street, Cleveland, Ohio 44105, and (2) Eagle Auto Parts, Inc., "c/o Statutory Agent: Diane A. Calta," 1360 SOM Center Road, Cleveland, OH 44124. On March 23, 2020, the clerk for the Cuyahoga County Court of Common Pleas sent a summons and complaint, via certified mail return receipt requested, to (1) Eagle Auto Parts at 4063 East 116th Street, Cleveland, Ohio 44105 and (2) Eagle Auto Parts, "c/o s/a: Diane A Calta," 1360 SOM Center Rd., Cleveland, Ohio 44124. 1360 SOM Center Road is the address of the offices of Diemert & Associates Co., L.P.A (the "Diemert law firm"). At the time she was appointed Eagle Auto Parts' statutory agent in 2008, Calta was employed by, or otherwise associated with, the Diemert law firm.

{¶ 7} A return receipt was received for the summons and complaint sent via certified mail in care of Calta, indicating that it was "delivered on 03/26/2020 at 12:28 p.m. in Cleveland, Ohio 44124." It is unknown who signed the certified mail delivery receipt. The "signature" on the return receipt is little more than a scribble. The return receipt was entered on the trial court's docket on April 1, 2020. The trial court's docket indicates that the summons and complaint sent via certified mail to Eagle Auto Parts at 4063 East 116th Street was returned "unclaimed" on April 14, 2020 and as "attempted - not known unable to forward" on April 22, 2020. ^[3]

{¶ 8} Eagle Auto Parts did not file an answer or otherwise enter an appearance in the case.

{¶ 9} On July 21, 2020, Twymon filed a motion for default judgment pursuant to Civ.R. 55(A). In his default motion, Twymon asserted that Eagle Auto Parts had been served with the summons and complaint via certified mail on April 1, 2020 and that Eagle Auto Parts was, therefore, required to file an answer or otherwise plead on or before April 29, 2020,^[4] but had failed to do so. Twymon requested that the trial court enter a default judgment against Eagle Auto Parts and that the matter be set for trial for a determination of damages.

{¶ 10} Twymon's certificate of service for the motion for default indicates that Twymon sent a copy of the motion to Eagle Auto Parts, via certified mail, return receipt requested, in care of "S/A Diane A. Calta" at 1360 SOM Center Road, Cleveland, OH 44124. Twymon did not send a copy of the motion directly to Eagle Auto Parts at 4063 East 116th Street, the other address listed for Eagle Auto Parts in the complaint. There is no return receipt in the record for the copy of the motion sent to Calta.

{¶ 11} On July 21, 2020, the trial court issued an order scheduling a telephonic default hearing for September 1, 2020. The trial court ordered Twymon's counsel to inform "all opposing counsel and unrepresented parties," via certified mail, of the date, time and court phone number for the hearing, at least seven days prior to the hearing. The trial court also ordered that Twymon file, at least five days prior to the hearing (1) an affidavit of damages and military service, (2) a proposed judgment entry and (3) a copy of the letter Twymon's counsel sent to the defendant notifying it of the default hearing.

{¶ 12} The default hearing was continued three times at Twymon's request. In each of his motions for continuance, Twymon asserted that although a "concerted effort has been made by counsel to obtain all relevant records from University Hospitals] regarding Mr. Twymon's treatment as a result of his injuries, he has been unable to do so and hereby requests additional time." The certificate of service for each motion indicates that a copy of the motion was sent to Eagle Auto Parts, via "USPS mail," in care of "S/A Diane A. Calta" at 1360 SOM Center Road, Cleveland, OH 44124. Copies of the motions were not sent to Eagle Auto Parts directly. There is no evidence in the record as to what happened to these motions after they were sent to 1360 SOM Center Road. The default hearing was ultimately rescheduled for December 17, 2020.

{¶ 13} There is nothing in the record that indicates that any of the trial court's July 21, 2020, September 14, 2020, October 15, 2020 or November 19, 2020 orders scheduling (or rescheduling) the default hearing were sent to Eagle Auto Parts (either in care of Calta or directly). The trial court's docket reflects only that the orders were sent to Twymon or his counsel via "e-filing service email."

{¶ 14} On December 11, 2020, Twymon filed a copy of a letter, dated December 8, 2020, advising Eagle Auto Parts of the date, time and telephone number for the default hearing on December 17, 2020. The letter indicates that it had been sent via certified mail, return receipt requested, to Eagle Auto Parts in care of "S/A Diane A. Calta" at 1360 SOM Center Road, Cleveland, OH 44124. There is no return receipt in the record for the letter sent to Calta. Accordingly, it is unknown whether it was received at 1360 SOM Center Road.

{¶ 15} Twymon also filed an "affidavit of damages" in which he averred as follows:

1. I am the Plaintiff in the above captioned lawsuit which has been filed against the Defendant, Eagle Auto Parts, Inc.

2. I have reviewed the Complaint filed on my behalf by my attorney and declare that the allegations contained in the Complaint are true.

3. As a direct and proximate result of the dog bite, I was required to obtain medical treatment to my leg at University Hospitals, the cost of said services is nine hundred thirty dollars ($930.00) * * * and Walgreens Pharmacy, the cost of which is twenty-one dollars and two cents ($21.02)

4. I suffered great pain and discomfort as a result of such injuries and to date, a scar remains where I was viciously bitten. For such pain and suffering, both physically and mentally, I have incurred damages in the amount of ten thousand dollars ($10,000.00).

5. I was further damaged to the extent, that in that I was born and raised in Alabama, I had planned to drive there to be with my family on Easter but was unable to do so due to my injuries.

6. To be fully compensated for the injuries inflicted by the Defendant I seek the amount of twenty-five thousand dollars ($25,000.00) and my costs.

Copies of an invoice from University Hospitals Cleveland Medical Center (the "UH invoice") and a receipt from Walgreens pharmacy (the "Walgreens receipt") were attached to the affidavit. The UH invoice listed charges of $930.00 for "Emergency Department E&M Level 3" and $3.22 for Amoxicillin-Clavulanate...