G. Lieu, Inc., Plaintiff-Appellant,
E. Construction & Remodeling, LLC et al., Defendants-Appellees.
from the Franklin County Court of Common Pleas (C.P.C. No.
Law, for appellant.
Johrendt & Holford, and Andrew M. Holford, for appellee
Argued: Andrew M. Holford.
1} Plaintiff-appellant, G. Lieu, Inc., appeals from
the Franklin County Court of Common Pleas decisions of
October 3, 2016, granting defendant-appellee, Ernest
Chen's motion to vacate a default judgment, and of
October 5, 2016, granting appellee's motion for summary
judgment. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
2} The basic facts are as follows. On July 15, 2010,
a written contract was entered into by Thai Asian Bistro and
E. Construction & Remodeling, LLC ("ECR"),
whose sole member is appellee, Ernest Chen. Thai Asian Bistro
is a restaurant operated and owned by appellant, G. Lieu,
Inc. The contract was signed by Tai Van Lieu on behalf of
Thai Asian Bistro, and appellee Chen on behalf of ECR. The
contract shows ECR's business address as 1594 Fallhaven
Dr., Columbus, Ohio ("Fallhaven address").
3} The project called for the construction of a
patio area to the existing restaurant at a total cost of $82,
000, with appellant to pay an initial payment of $30, 000.
The initial payment was made via bank check payable to ECR.
ECR commenced work, but left the job within two weeks of
commencement. The parties dispute who was at fault for the
breakdown of the project.
4} On November 17, 2010, appellant filed a complaint
in the Franklin County Court of Common Pleas against ECR and
appellee, collectively denominated as the
"defendants." Appellant alleged breach of contract,
conversion, and unjust enrichment against the defendants.
Initially, service of process was requested on both
defendants at the Fallhaven address, and service failed as to
each. Upon that failure, appellant requested service by
certified mail, and that service was returned to the clerk of
courts as refused by both defendants on February 8, 2011.
Appellant, pursuant to Civ.R. 4.6(C), then requested ordinary
mail service, and proof of service was filed by the clerk on
February 24, 2011.
5} On April 21, 2011, an amended complaint was filed
asserting the same three claims against the defendants.
Appellant again requested ordinary mail service on both
defendants at the Fallhaven address, and proof of service was
filed by the clerk on April 27, 2011. No answer was filed
and, on July 15, 2011, appellant moved for a default
judgment. A hearing was held in which the defendants did not
appear, and the trial court granted a default judgment
against the defendants in the amount of $65, 000, plus
6} On March 25, 2014, ECR and appellee filed a
motion to vacate a void default judgment, arguing that the
judgment was void for lack of jurisdiction. Attached to the
motion was the affidavit of appellee and a decree of
dissolution and separation agreement involving himself and
his now ex-wife which provided evidence that he had moved out
of the family home which was the Fallhaven address by August
5, 2009. When it became the residence of his now ex-wife he
stopped conducting ECR's business at that address. The
decree of dissolution was filed on September 10, 2011,
approximately ten months prior to the contract between
appellant and ECR. In addition, appellee denied ever
receiving any paperwork, including the summons, complaint,
and motion for default judgment, and claimed that he only
became aware of the judgment in March of 2014.
7} The matter was referred to a magistrate for an
evidentiary hearing that was held on September 15, 2014. In
addition to appellee's testimony, he introduced as
exhibits the separation agreement and divorce decree, pay
stubs, W-2s, and a school tuition statement showing his
addresses in Columbus (none of which were the Fallhaven
address), Zanesville, and Dayton, for the time period of
2010-11. Specifically, the magistrate found the testimony of
appellee to be credible and that the documentary evidence
presented on his behalf clearly established that the judgment
against him was void.
8} As such, on September 18, 2014, the magistrate
found the motion to vacate the judgment well-founded and
timely, and granted the same as to appellee. The magistrate
denied the motion to vacate as to ECR. ECR did not file
objections to the magistrate's decision. On September 30,
2014, the trial court approved and adopted the
magistrate's decision as its own in its entirety.
9} On October 2, 2014, appellant filed three
objections to the magistrate's decision. In the same
document, appellant twice asked the trial court for leave to
file supplemental objections upon receipt of the hearing
transcript, which had been ordered. The transcript was filed
on October 23, 2014.
10} On August 28, 2015, appellee filed a motion for
summary judgment arguing that he was not a party to the
contract and, therefore, can have no liability for any
alleged breach. Appellee also argued that the conversion and
unjust enrichment claims fail as a matter of law. In
response, appellant contended that the amended complaint
stated sufficient facts to state a claim for piercing the
11} On August 30, 2015, appellant, not having
received a ruling on its motion to file supplemental
objections that was included with the initial objections to
the magistrate's decision, filed supplemental objections
without leave of court. On September 14, 2015, appellee filed
a motion to strike the supplemental objections.
12} On October 3, 2016, the trial court filed a
decision and entry overruling appellant's initial
objections to the magistrate's decision, granting
appellee's motion to strike appellant's supplemental
objections, and reaffirming its decision and entry approving
and adopting the magistrate's decision. On October 5,
2016, the trial court filed a decision granting
appellee's motion for summary judgment. The trial court
filed the journal entry of dismissal on October 13, 2016.
Appellant filed a notice of appeal on November 11, 2016.