February 26

Law Firm in Middleburg Heights and Cleveland, OH

Law Firm in Middleburg Heights and Cleveland, OH

Getting personal jurisdiction over a defendant often seems simple. In Shah v. Simpson 2014-Ohio-675 obtaining service over the defendant was not simple.

The Plaintiff had the Clerk of Court issue the summons and complaint to the wrong address. Defendant’s neighbor signed the certified mail receipt.

Plaintiff moved for default judgment. Defendant learned of the pending action and filed a pro se “Motion for Case to Be Dismissed.” Defendant denied any liability.

The trial court granted the default judgment and had a Magistrate conduct a hearing on damages. Defendant then filed a pro se “Motion Appealing Default Judgment,” where he claimed to have learned of the case when he was served with Plaintiff’s Motion for Default Judgment.

Defendant appeared at the damages hearing and testified. The Magistrate recommended judgment for the Plaintiff in the amount of $26,093.50. The trial court adopted the Magistrate’s recommendation.

Defendant did not appeal but he finally hired legal counsel. Defendant’s legal counsel filed a motion from default judgment on the grounds that his client had not been properly served.

The Magistrate recommended that the previous default judgment be vacated. The trial court agreed and the parties continued to litigate.

Fifteen months after the commencement of this action, the trial court sue sponte (on its own) dismissed Plaintiff’s complaint for failure of personal jurisdiction of defendant pursuant to Civil Rule 41(B)(4)(a). This rule requires that service be perfected within one year.

Plaintiff appealed and lost. The Appellate Court held that “… plaintiff’s failure to perfect service upon defendant in this case deprived the trial court of jurisdiction over defendant and prevented a valid judgment in plaintiff’s favor, notwithstanding defendant’s participation in litigation.”

The moral of the story?  The defendant needed a good attorney to protect his due process rights and for any plaintiff, when in doubt – re-serve the defendant!

February 24

Credit Card Law Firm in Middleburg Heights and Cleveland, OH

Credit Card Law Firm in Middleburg Heights and Cleveland, OH

Discover Bank filed a complaint against Pierce for $11,757.16 on a credit card debt. A bench trial took place with Pierce representing himself.

A representative of Discover Bank testified that as of March 2005, Pierce’s credit card balance was $7,931.42 but that Discover Bank did not have Pierce’s account statements from 1987 to April 2005, and that account records are kept up to ten years.

Since 1967, most Ohio Courts have applied the holding in Brown et al v. Columbus Stamping & MFG. Co., 9 Ohio App.2d 123 which states:

An account must show the name of the party charged. It begins with a balance preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear…

The Pierce trial court found that the March 2005 credit card balance of $7,931.42 constituted a proper amount stated and the Court of Appeals held that the trial court’s finding was not against the manifest weight of the evidence.