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Famageltto v. Telerico

Court of Appeals of Ohio, Eleventh District

August 26, 2013

MICHAEL FAMAGELTTO d.b.a. FIVE STAR LANDSCAPING, Plaintiff-Appellee,
v.
LOUIS A. TELERICO, Defendant-Appellant.

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2012 CV 0352.

Stacy L. Bauer, (For Plaintiff-Appellee).

Susan J. Lax, (For Defendant- Appellant).

OPINION

COLLEEN MARY O’TOOLE, J.

(¶1} Appellant, Louis A. Telerico (hereafter Telerico), appeals from judgments of the Portage County Common Pleas Court, ordering default judgment against him in the amount of $42, 231.65 and denying his subsequent motion to vacate.

(¶2} This case involves whether Telerico received proper service of a complaint which was sent to his home address. Thus, dates and events are relevant.

(¶3} From April 2009 through July 2011, appellee, Michael Famageltto, d.b.a., Five Star Landscaping (hereafter Famageltto), performed landscaping services at several of Telerico's properties, including his residence. On March 27, 2012, Famageltto filed a three-count complaint alleging that Famageltto provided goods, materials and services to Telerico in the amount of $42, 231.65 and that as of the date of the complaint that sum remained due and owing. Famageltto listed Telerico's home address on the complaint and on March 29, 2012, the summons and a copy of the complaint were served via certified mail upon Louis A. Telerico, 545 Bristol Way, Aurora, Ohio 44202. On April 2, 2012 the summons and a copy of the complaint were reissued to Telerico because the address for Famageltto's attorney was incorrect. On April 24, 2012, the initial summons and a copy of the complaint were returned as "unclaimed" and "unable to forward" with instructions to "return to sender." On April 27, 2012, the second summons and complaint were returned as "unclaimed" and "unable to forward" with instructions to "return to sender."

(¶4} As a result, Famageltto requested the court serve Telerico via ordinary U.S. mail. On May 2, 2012, the clerk of court sent the summons and a copy of the complaint via ordinary U.S. mail to Louis A. Telerico, 545 Bristol Way, Aurora, Ohio 44202. The ordinary mail complaint was never returned as undeliverable. Telerico did not file an answer to the complaint.

(¶5} On June 6, 2012, Famageltto filed a motion for default judgment alleging that Telerico failed to answer or otherwise plead to the complaint. There is no indication from the common pleas docket that a copy of the motion was sent to Telerico. On July 6, 2012, the court granted Famageltto's motion for default and entered judgment against Telerico in the amount of $42, 231.65 plus costs and interest. The court found that a copy of the complaint was duly served upon Telerico and that Telerico failed to file an answer.

(¶6} On August 29, 2012, Telerico filed a motion to vacate the July 6, 2012 judgment pursuant to Civ.R. 60(B). Telerico alleged in an affidavit that he never received a copy of the complaint. On September 5, 2012, Famageltto filed a brief in opposition outlining the service history of the case as noted in the court docket. Famageltto also argued that Telerico's self-serving statement failed to support an alleged meritorious defense.

(¶7}In his October 10, 2012 decision, the judge determined that Telerico failed to establish a meritorious defense under Civ.R. 60(B). However, the court did not address the issue raised by Telerico in his motion: whether Famageltto secured service of process on Telerico in a lawful manner.

(¶8} Telerico filed a timely appeal, asserting a sole assignment of error:

(¶9} "The trial court erred and abused its discretion in finding that Defendant-Appellant did not raise a 'meritorious defense' in Defendant's Motion for Relief under Civ.R. 60(B) and failing to find the Complaint void ab initio for lack of service."

(¶10} An appellate court reviews the denial of a motion to vacate under an abuse of discretion standard. See e.g. Linquist v. Drossel, 5th Dist. Stark No. 2006-CA-00119, 2006-Ohio-5712. The phrase "abuse of discretion" indicates the trial court's attitude in issuing its decision was arbitrary, unreasonable, or otherwise unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Even though there is a preference in the law for deciding matters upon their merits, a court's decision denying a defendant's motion to vacate a default judgment will not be overturned ...


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