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Domestic Linen Supply Co. v. Executive Court Medical Associates, Inc.

Court of Appeals of Ohio, Sixth District, Erie

March 31, 2017

Domestic Linen Supply Co., Inc. dba Domestic Uniform Rental Appellant
v.
Executive Court Medical Associates, Inc., et al. Appellees

         Trial Court No. 2015 CV 0746

          James G. Kozelek, for appellant.

          Christopher M. Marinko, for appellees.

          DECISION AND JUDGMENT

          JENSEN, P.J.

         {¶ 1} This is an appeal from the judgment of the Erie County Court of Common Pleas, granting appellees', Executive Court Medical Associates, Inc. and Graham Johnson, motion to vacate both an arbitration award in favor of appellant, Domestic Linen Supply Co., Inc., and the trial court's judgment confirming the arbitration award. For the reasons that follow, we reverse.

         I. Facts and Procedural Background

          {¶ 2} On November 23, 2015, pursuant to R.C. 2711.09, [1] appellant filed its application for an order confirming an arbitration award entered in its favor against appellees on June 5, 2014. Service of the application was attempted by certified mail on Executive Court Medical Associates, Inc. at 54 Executive Drive, Norwalk, OH 44857, and on Graham Johnson at 49 Pawnee Drive, Milan, OH 44846. As to Executive Court Medical Associates, Inc. a return receipt was received signed by Nikita White. Service on Graham Johnson was unsuccessful as the certified mail was returned "Not Deliverable as Addressed." On November 30, 2015, the trial court entered its order granting confirmation of the arbitration award.

         {¶ 3} Appellant subsequently began garnishment proceedings. In February 2016, notice of the attempts at garnishment were returned undeliverable and unable to be forwarded as to both appellees.

         {¶ 4} Thereafter, on March 3, 2016, appellees moved to vacate both the trial court's November 30, 2015 judgment confirming the arbitration award, and the arbitration award itself. Appellees alleged that they never received notice of the arbitration proceedings or the trial court proceedings to confirm the arbitration award. In support, appellees submitted two affidavits, one from Scott Kaple, D.O., an officer and shareholder in Executive Court Medical Associates, Inc., and the other from Graham Johnson, the former business manager of Executive Court Medical Associates, Inc. Kaple, in his affidavit, stated that Executive Court Medical Associates, Inc. has not done business at 54 Executive Drive since October 2013. Further, he stated that Nikita White is not employed by Executive Court Medical Associates, Inc. Likewise, Johnson stated in his affidavit that he does not reside at 49 Pawnee Drive.[2]

         {¶ 5} On March 11, 2016, the trial court granted appellees' motion, and vacated both the June 5, 2014 arbitration award and the November 30, 2015 judgment confirming the arbitration award.

         {¶ 6} On March 14, 2016, appellant filed an opposition to appellees' motion to vacate, in which it argued that service was proper on both appellees as to the arbitration proceedings, and proper on Executive Court Medical Associates, Inc. as to the trial court proceedings. Appellant acknowledged that Johnson was not properly served in the trial court proceedings to confirm the arbitration award. The evidence submitted with the March 14, 2016 opposition showed that notice of the arbitration proceedings, the arbitration award, and the application for confirmation of the award were sent to Executive Court Medical Associates, Inc. at 54 Executive Drive, which is the address listed on the underlying contract and registered with the Ohio Secretary of State. Appellees replied to appellant's opposition on March 17, 2016. On April 6, 2016, the trial court entered its judgment reaffirming that the arbitration award and confirmation of the arbitration award were properly vacated.

         {¶ 7} Appellant timely appealed the trial court's March 11, 2016 judgment. It subsequently moved to amend its appeal to include the trial court's April 6, 2016 judgment. On May 5, 2016, we denied appellant's motion to amend, finding that the March 11, 2016 judgment was a final and appealable order, and thus the April 6, 2016 judgment was void and a nullity.

         II. Assignments of Error

         {¶ 8} Appellant now asserts three assignments of ...


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