Ross v. Olsavsky

Citation: 2010 Ohio 1310Docket: 09 MA 95

Court: Ohio Court of Appeals; March 25, 2010; Ohio; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

In **Ross v. Olsavsky**, 2010-Ohio-1310, the Court of Appeals for Mahoning County affirmed the lower court's denial of Linda Olsavsky's motion to vacate a default judgment issued against her on July 27, 2007. Olsavsky raised three main issues on appeal: (1) the adequacy of service of the complaint, (2) whether the trial court abused its discretion in denying her Civ.R. 60(B) motion, and (3) whether it was improper for the plaintiffs' attorney to represent them while also being a potential witness.

The case originated from a land installment contract between Jack and Barbara Ross and Olsavsky, who fell behind on payments and vacated the property in February 2007, leading to property damage due to a burst pipe. Ross filed a complaint on April 18, 2007, seeking $5,910.90 for unpaid installments and $6,395.75 for damages. Olsavsky was served by certified mail at an address she acknowledged, but the receipt was not signed by her. She did not respond, resulting in a default judgment favoring Ross.

Olsavsky later filed a motion to vacate the judgment in February 2009, claiming improper service and arguing against double recovery for damages already covered by insurance. Ross countered that Olsavsky had acknowledged the lawsuit in a phone call to his attorney in June 2007, supporting the validity of service. The court found no merit in Olsavsky's arguments, affirming that the judgment was not void and that she lacked a meritorious defense, leading to the dismissal of her motion.

A hearing was conducted regarding the motion to vacate, during which Olsavsky sought to disqualify Ross' attorney due to the attorney potentially being a witness. The trial court allowed the attorney to continue representing Ross. After considering testimonies and arguments, the court denied Olsavsky's motion to vacate, prompting her to appeal.

Olsavsky's first assignment of error argues that the trial court abused its discretion by not declaring the judgment against her void from the outset (void ab initio). According to Ohio law, a civil action commences with a complaint filed, and proper service within a year is required for the court to have jurisdiction. If service is lacking, any judgment rendered is null and void. The authority to vacate such judgments comes from the inherent power of Ohio courts, not from Civil Rule 60(B).

The court's denial of the motion to vacate is reviewed for abuse of discretion, which implies an unreasonable or arbitrary decision. In this case, the complaint was sent to Olsavsky by certified mail, with a signed receipt returned to the court, establishing a presumption of valid service. Service is considered valid if it was sent to an address likely to inform the defendant, and Olsavsky acknowledged the address was correct. While she claimed not to have received the complaint and was unaware of the default judgment, the signature card was signed by someone named 'Mousa Emey.' Olsavsky admitted the card exists but did not recognize the name, despite acknowledging that her daughter's name is similar. Thus, the court must evaluate if Olsavsky has sufficiently rebutted the presumption of valid service.

Olsavsky asserted that the signature on the receipt for the complaint did not appear to be her daughter’s, contending that there was no contradictory testimony regarding her claim of never receiving the complaint. She argued this lack of service warranted vacating the default judgment. However, courts have established that a self-serving affidavit, claiming non-receipt of the complaint, is not automatically accepted if there is evidence showing proper service. The trial court has discretion to evaluate the credibility of such self-serving claims, especially when circumstantial evidence of receipt is strong. Olsavsky's situation was compared to precedents from the Eighth Appellate District, which ruled it was reversible error to disregard unchallenged testimony of non-receipt; however, those cases involved service sent to incorrect addresses, unlike Olsavsky's case where the complaint was sent to an address she acknowledged as hers. Therefore, the appellate court found no abuse of discretion by the trial court in disbelieving Olsavsky's claims of non-service, especially since the signature on the receipt bore a name closely resembling her daughter's, and she acknowledged the address was correct.

The trial court did not abuse its discretion by upholding the presumption of service despite the argument that the signature on the certified mail did not appear to belong to the appellant's daughter. The appellant's claim lacks merit. In a second assignment of error, the appellant argues that the trial court erred by not granting relief from the default judgment under Ohio Civil Rule 60(B). This rule allows for the vacating of a default judgment at the trial court's discretion, which is only overturned on appeal if shown to be arbitrary or unreasonable. The policy in Ohio favors resolving cases on their merits, and Civ.R. 60(B) is intended to be liberally construed for just outcomes.

To succeed under Civ.R. 60(B), a movant must demonstrate: (1) a valid defense or claim if relief is granted, (2) entitlement to relief under one of the specified grounds in Civ.R. 60(B)(1)-(5), and (3) that the motion was filed within a reasonable time frame. Although the motion was based on subsections (4) and/or (5), it did not need to be filed within one year, only within a reasonable timeframe, which is context-dependent. Delays in filing must be justified, especially when the movant is aware of the grounds for relief. In this case, the appellant claimed ignorance of the default judgment until shortly before filing her motion in February 2009, but evidence indicated she had multiple notices and was aware of the judgment from her May 2007 bankruptcy case. Thus, her delay in filing the motion was not justified.

The bankruptcy court required all claims to be filed by September 25, 2007. Olsavsky was aware of her claim for at least seventeen months before filing her motion to vacate, or at the latest, by July 2008, when the bankruptcy petition was dismissed. She also became aware of the default judgment in April 2008 when Ross filed a motion to intervene in her federal case, which included a creditor's bill based on the default judgment. By her admission, Olsavsky contacted Ross and his attorney in September 2008 regarding the default judgment. Despite being served with a debtor’s examination notice on September 12, 2008, she failed to appear. This notice was five months before her motion to vacate. Olsavsky received multiple notifications about the default judgment, ranging from five to seventeen months before her motion, and did not provide a valid reason for the delay in seeking to vacate the judgment. The trial court found no abuse of discretion in denying her Civ.R. 60(B) motion since it was not filed within a reasonable time, leading to the conclusion that the third prong of the GTE test was not satisfied, rendering the rest unnecessary for review.

In her third assignment of error, Olsavsky claimed the trial court abused its discretion by not disqualifying Ross’ attorney, who she argued should not act as both a witness and counsel. However, disqualification is a drastic measure that should only occur if absolutely necessary. Under Prof. Cond. Rule 3.7, an attorney may not serve as an advocate if they are likely to be a necessary witness unless certain conditions are met. The court must assess whether the attorney's testimony is admissible and necessary, considering its relevance and availability from other sources.

The court assessed the admissibility of testimony related to service of process and the applicability of Rule 3.7, which governs attorney testimony at trial. It concluded that Rule 3.7 was not relevant since Ross’ attorney did not intend to testify at trial; any potential testimony would pertain only to service issues. The attorney's affidavit indicated that Olsavsky contacted him after receiving the complaint, but the court determined that service was adequately established through certified mail sent to Olsavsky's known address, which was signed for, creating a rebuttable presumption of receipt. Olsavsky failed to rebut this presumption, and her claim that she did not receive the complaint was deemed incredible due to discrepancies with the signature on the certified card. Consequently, even if Rule 3.7 were applicable, it would not disqualify Ross’ attorney. The trial court’s judgment to deny Olsavsky's motion to vacate based on lack of service and Civ.R. 60(B) was affirmed.