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American, Inc. v. Ismael Solivan

October 13, 2011

AMERICAN, INC. PLAINTIFF-APPELLEE
v.
ISMAEL SOLIVAN DEFENDANT-APPELLANT



REVERSED AND REMANDED Civil Appeal from the Cleveland Municipal Court Case No. 05CVF06793

The opinion of the court was delivered by: Mary Eileen Kilbane, A.J.:

Cite as American, Inc. v. Solivan,

JOURNAL ENTRY AND OPINION

JUDGMENT:

BEFORE: Kilbane, A.J., Celebrezze, J., and Keough, J.

{¶1} Defendant-appellant Ismael Solivan appeals from the order of the Cleveland Municipal Court that reinstated a default judgment entered against him in favor of plaintiff-appellee American, Inc.

{¶2} Solivan presents one assignment of error, arguing that the Cleveland Municipal Court abused its discretion. Upon a review of the record, this court agrees. The municipal court's order is reversed, and this case is remanded for further proceedings.

{¶3} American originally filed the action against Solivan in March 2005.

American alleged two causes of action, i.e., breach of contract and unjust enrichment.

{¶4} American first claimed that it had entered into a lease agreement with Solivan in "August 1999" to provide electronic monitoring equipment and service to a home located on W. 130th Street in Cleveland, Solivan owed the "principal amount of $136.00" pursuant to the lease, and "[n]o one ha[d] paid the debt."

{¶5} With respect to the same claim, American further alleged that the agreement called for monitoring services for a term of sixty months and a total rental fee of $1,497.00, Solivan "authorized commencement" of the services, American had supplied the services, but the "agreement was breached." American demanded damages of the principal amount, the unpaid portion of the lease term, "accrued interest," and interest on the debt of "18% per annum."

{¶6} With respect to the second claim, American alleged that Solivan "should have been aware" of the goods and services American delivered to the property, the property had been improved by them, and Solivan thereby received a "benefit" in the amount of "no less than $886.00." For both of these claims, American requested damages in the amount of $2,207.34, plus interest.

{¶7} American attached several documents to the complaint as exhibits. These indicated the "customer's name" as Zenaida Solivan. "Zenaida Solivan" also was referred to as the "Purchaser/Subscriber." These documents were dated "2-12-00."

American's "Statement of Account," dated February 5, 2001, indicated the account was in the names of both Zenaida and Ismael Solivan, and indicated a past due amount that totaled $2,207.34. However, American did not attach a copy of the agreement itself.

{¶8} The record reflects the original summons to Solivan could not be delivered by certified mail. In June 2005, American requested the clerk of court to reissue the summons to Solivan by certified mail to an address on W. 44th Street. When that was returned unclaimed, American requested the court clerk to send the summons by regular mail. The certificate of mailing was placed on file on July 19, 2005 pursuant to Civ.R. 4.6(D).

{¶9} On September 15, 2005, the case was set for a default hearing to be held on October 25, 2005. The court's docket reflects notice of the hearing was "sent to PLTF/ATTY," and that "failure to appear may result in dismissal."

{¶10} The next document that appears in the municipal court's record is dated October 28, 2005. It is a magistrate's decision on a form that was filed with the clerk. This document states in pertinent part as follows:

{ΒΆ11} "Pursuant to Civil Rule 55, Defendant(s) having failed to appear or answer in this case, Plaintiff'[s] Motion for Default Judgment is granted and judgment is rendered against all named and served Defendants in the amount of ...


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