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Cincinnati Insurance Company v. Jacob

Court of Appeals of Ohio, Second District

June 21, 2013

CINCINNATI INSURANCE COMPANY Plaintiff-Appellee
v.
KEVIN E. JACOB Defendant-Appellant

(Civil Appeal from (Common Pleas Court) Trial Court Case No. 09-CV-10441

MATTHEW M. SCHMIDT, Attorney for Plaintiff-Appellee

KEVIN E. JACOB, Defendant-Appellant-pro se

OPINION

WELBAUM, J.

{¶ 1} Defendant-Appellant, Kevin Jacob, appeals pro se from a summary judgment rendered in favor of Plaintiff-Appellee, Cincinnati Insurance Company (CIC). In support of his appeal, Jacob contends that the trial court or plaintiffs attorney erred in failing to serve the motion for summary judgment upon Jacob. Jacob further contends that the trial court did not have jurisdiction over him because he was a nonresident of Ohio, and the corporate veil was never pierced. In addition, Jacob maintains that either estoppel or res judicata applies to this action, due to a prior judgment between the parties. Jacob also contends that CIC acted in a commercially unreasonable manner in valuing the property that Jacob allegedly converted. Finally, Jacob contends that he was denied due process due to his incarceration in New York and the trial court's refusal to accede to his requests to be heard.

{¶ 2} We conclude that no error occurred in the trial court, and that the court properly rendered summary judgment in favor of CIC. Jacob failed to respond to the motion for summary judgment. In addition, the record shows no dispute of material facts and that CIC was entitled to judgment as a matter of law. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} In May or June 2006, Paul Schultz contacted the defendant, Kevin Jacob, to arrange the sale of a portion of Schultz's collection of Hummel figurines. Schultz had learned from mutual friends that Jacob operated an internet auction site.

{¶ 4} After the two men had spoken several times, Jacob came to Schultz's home in October 2006 to take pictures of the items that Schultz wanted to sell. Jacob then returned on November 18, 2006, loaded about ten boxes of figurines into a trailer bearing the logo "MYPORTS.com, " and returned to Michigan. Over the next few months, Schultz and Jacob talked occasionally, and Jacob indicated that he had prospects interested in buying the pieces. Subsequently, on June 14, 2007, Schultz sent Jacob another rare International Hummel figurine, but he was not able to contact Jacob after that time. Schultz never received any proceeds from any sales, nor did Jacob return the figurines.

{¶ 5} In total, Schultz entrusted Jacob with 315 figurines that Jacob was supposed to sell over the internet. After learning that Jacob had left Michigan and might be in California, Schultz filed a complaint with the police in December 2007. Schultz also filed a proof of loss form with his insurer, CIC, in January 2008, valuing the Hummel collection at between $200, 000 and $300, 000. After investigating, CIC paid Schultz $256, 307 on January 22, 2008, and received an assignment of Schultz's rights to recover against Jacob.

{¶ 6} In February 2008, Jacob was indicted by the Montgomery County Grand Jury on one count of theft from an elderly person in the amount of $100, 000 or more. See State v. Jacob, 185 Ohio App.3d 408, 2009-Ohio-7048, 924 N.E.2d 410, ¶ 4 (2d Dist.). After being extradited to Ohio from California, Jacob was indicted on an additional count of theft from an elderly person in the amount of more than $25, 000. Id. at ¶ 5. Jacob pled no contest to the charges and appealed from the denial of his motion to suppress evidence. Id. at ¶ 8. We reversed the trial court's ruling because the Miamisburg Municipal Court lacked jurisdiction to issue the search warrant that was executed in California. Id. at ¶ 26-32.

{¶ 7} On remand, Jacob pled no contest to the charges, and was sentenced to community control. Jacob's case was immediately terminated and his community control status was also terminated, due to the fact that Jacob was currently incarcerated in New York on unrelated charges. State v. Jacob, Montgomery C.P. No. 2008 CR 00401 (May 11, 2010).

{¶ 8} Subsequently, in December 2009, CIC filed a civil action against Jacob, alleging that he had converted property owned by Schultz in the amount of $256, 307. CIC also claimed that Jacob was civilly liable for criminal acts, pursuant to R.C. 2307.60. Jacob was properly served at the address of the correctional facility in New York (Orleans Correctional Facility). Jacob then filed a pro se answer to the complaint, denying the allegations. Jacob did not, however, assert any defenses in his answer. All pertinent notices during the case, including an entry setting deadlines for motions for summary judgment, responses to motions for summary judgments, and so on, were sent to Jacob at his address at the Orleans Correctional Facility.

{¶ 9} CIC filed a motion for summary judgment in August 2012, and attached a certificate of service, indicating that a copy of the motion had been sent to Jacob at his address at the Orleans Correctional Facility. The motion was supported by affidavits from the following individuals: Schultz; a CIC claims superintendent; and the regional manager of CIC's special investigating unit. The affidavits outlined the facts of the case, and indicated that CIC had paid $256, 307 to its insured and had obtained the remaining Hummel figures from the police after the conclusion of the case. According to CIC, it had been able to sell the figurines for about $14, 126 in salvage value.

{¶ 10} Jacob did not file a response to the motion for summary judgment. Consequently, the trial court filed a decision on September 12, 2012, rendering summary judgment in favor of CIC in the amount of $242, 180.68, which was the amount CIC paid out, less the salvage value. Jacob appeals from the judgment in favor of CIC.

II. Did the Court or Attorney Err in Failing to Serve Jacob with the Summary Judgment Motion?

{¶ 11} Jacob's First Assignment of Error, quoted verbatim, states that:

Whether the Court and/or Attorney for Plaintiff Erred in Failing to Serve "Plaintiffs Motion for Summary Judgment" Upon Defendant.

{¶ 12} Under this assignment of error, Jacob contends that he was never served with CIC's motion for summary judgment. As a preliminary matter, we note that Jacob never raised this point in the trial court after receiving the decision granting summary judgment in favor of CIC, ...


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