JAMES RIGGS v. PREFERRED CAPITAL, INC.
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RENDERED: July 8, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002417-MR
JAMES RIGGS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH McDONALD-BURKMAN, JUDGE
ACTION NO. 03-CI-006652
PREFERRED CAPITAL, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
James Riggs has appealed from the October 17,
2003, order of the Jefferson Circuit Court which denied his
motion to vacate or stay enforcement and execution on a default
judgment entered against him in Ohio.
Having concluded that
Riggs was not entitled to the relief he requested, we affirm.
In June 2000 Riggs, individually and as president of
JFR Enterprises, Inc., d/b/a JR’s Discount Liquor in Louisville,
Jefferson County, Kentucky, entered into a lease with Preferred
Capital1 of Brecksville, Ohio, for the use of an automated teller
machine (ATM).
The lease on the ATM authorized payment through
a bank draft from Stockyards Bank in Louisville, Kentucky, in
the amount of $269.00 per month.
Following the first month of use, the ATM became
inoperable.
When Riggs notified Preferred Capital of the
problem with the ATM, he was told that the vendor had become
bankrupt and was no longer servicing the equipment.
Riggs
attempted to rescind the lease with Preferred Capital, but it
refused to release Riggs from his lease obligation.
Pursuant to
the lease agreement’s choice of law and venue provision,2
Preferred Capital brought suit against Riggs to enforce the
terms of the lease in Summit County, Ohio.
Preferred Capital
first attempted service upon Riggs at his place of business by
1
The vendor/supplier on the lease was listed as Credit Card Center of
Philadelphia, Pennsylvania, but Preferred Capital was listed as the lessor.
2
The lease agreement provided, in pertinent part, as follows:
27.
CHOICE OF LAW AND VENUE. This Lease shall not
be effective until signed by Lessor at its
principal office listed above. This Lease
shall be considered to have been made in the
state of Lessor’s principal place of business
listed above and shall be interpreted in
accordance with the laws and regulations of the
state of Ohio. The parties, and any
guarantors, expressly agree that any action to
implement and/or explore the terms of this
Lease shall be brought in the Summit County
Common Pleas Court in Akron, Ohio, or the
county of Lessor’s principal place of business.
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certified mail,3 but the mail was returned as refused.
Preferred
Capital then attempted service, via certified mail, at Riggs’s
home address as listed on the lease, which was returned as
unclaimed.
Finally, Preferred Capital through the Clerk of
Summit County attempted service on Riggs via regular mail at his
home address as listed on the lease.
This mailing was not
returned.
On July 2, 2003, the Summit County Court of Common
Pleas entered a default judgment against Riggs after he failed
to respond to the suit.
Preferred Capital filed a notice on
July 31, 2003, in the Jefferson Circuit Court to enforce the
judgment against Riggs.
Riggs filed a motion to vacate or stay
enforcement of judgment on August 13, 2003, claiming that he was
never served with the original complaint.
Preferred Capital
filed its reply on August 25, 2003, claming that the judgment
was enforceable because under Ohio law the civil rules permitted
service of process via regular mail, if the mail was not
returned.
The trial court denied Riggs’s motion on October 17,
2003, and this appeal followed.
3
The address listed on the certified mail was 1739 Luken Drive, Louisville,
Kentucky. It is unclear as to whether Riggs’s home or business was allegedly
located at this address since the lease shows the business address as 9220
Bluelick Road, Louisville, Kentucky, and his home address as 4002 Maynard
Avenue, Louisville, Kentucky.
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We begin our analysis with the Uniform Enforcement of
Foreign Judgments Act (UEFJA) which is outlined in KRS4 426.950
to KRS 426.990.
KRS 426.950 defines a foreign judgment as “any
judgment, decree, or order of a court of the United States or of
any other court which is entitled to full faith and credit in
the Commonwealth.”
The procedure for the filing and the
enforcement of foreign judgments is provided for in KRS 426.955
as follows:
A copy of any foreign judgment authenticated
in accordance with the act of Congress or
the statutes of this state may be filed in
the office of the clerk of any court of
competent jurisdiction of this state. The
clerk shall treat the foreign judgment in
the same manner as a judgment of any court
of this state. A judgment so filed has the
same effect and is subject to the same
procedures, defenses and proceedings for
reopening, vacating, or staying as a
judgment of a court of this state and may be
enforced or satisfied in like manner.
“No doubt, the purpose of the [UEFJA] is to give
holders of foreign judgments the same rights and remedies as the
holder of a domestic judgment.”5
It is well-settled in Kentucky
that a “sister state’s judgment is entitled to full faith and
credit and to registration if the judgment is valid under that
4
Kentucky Revised Statutes.
5
Sunrise Turquoise, Inc. v. Chemical Design Co., Inc., 899 S.W.2d 856, 857
(Ky.App. 1995).
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state’s own laws.”6
A judgment entered by another state is
presumed to be valid, and the party attacking that judgment has
the burden of demonstrating its invalidity.7
Riggs argues that the trial court erred in denying his
motion to vacate the default judgment against him based on his
claim that the Ohio judgment is void due to improper service of
process.
Thus, the issue before this Court is whether Riggs was
properly served under Ohio law.8
After reviewing Ohio’s
procedures, we conclude that Riggs’s reliance on Kentucky
procedures as outlined in CR9 4.04 is misplaced.
Rule 4.3 of the Ohio Rules of Civil Procedure
addresses the proper procedure for service of process on an outof-state defendant.
Rule 4.3 states, in relevant part, as
follows:
(A)
When service permitted
Service of process may be made outside
of this state, as provided in this rule, in
any action in this state, upon a person who,
at the time of service of process, is a
nonresident of this state or is a resident
of this state who is absent from this state.
“Person” includes an individual, an
individual’s executor, administrator, or
other personal representative, or a
corporation, partnership, association, or
6
Sunrise Turquoise, 899 S.W.2d at 857-58.
7
Dant v. Progress Paint Manufacturing Co., 309 S.W.2d 187 (Ky. 1958); Waddell
v. Commonwealth, 893 S.W.2d 376, 379 (Ky.App. 1995).
8
Sunrise Turquoise, supra.
9
Kentucky Rules of Civil Procedure.
-5-
any other legal or commercial entity, who,
acting directly or by an agent, has caused
an event to occur out of which the claim
that is the subject of the complaint arose,
from the person’s:
(1)
Transacting any business in this
state[.]
. . .
(B)
Methods of Service
(1)
Service by certified or express mail
Evidenced by return receipt signed by
any person, service of process shall be by
certified or express mail unless otherwise
permitted by these rules. . . .
Preferred Capital attempted on two occasions to
effectuate service of process on Riggs by certified mail.
However, the first certified mailing was returned as refused and
the second was returned as unclaimed.
When certified mail is
refused, Ohio Civil Rule 4.6 provides, in relevant part, as
follows:
(C)
Service refused
If service of process is refused, and
the certified or express mail envelope
is returned with an endorsement showing
such refusal, or the return of the
person serving process states that
service of process has been refused,
the clerk shall forthwith notify, by
mail, the attorney of record or, if
there is no attorney of record, the
party at whose instance process was
issued. If the attorney, or serving
party, after notification by the clerk,
-6-
files with the clerk a written request
for ordinary mail service, the clerk
shall send by ordinary mail a copy of
the summons and complaint or other
document to be served to the defendant
at the address set forth in the
caption, or at the address set forth in
written instructions furnished to the
clerk. The mailing shall be evidenced
by a certificate of mailing which shall
be completed and filed by the clerk.
Answer day shall be twenty-eight days
after the date of mailing as evidenced
by the certificate of mailing. The
clerk shall endorse this answer date
upon the summons which is sent by
ordinary mail. Service shall be deemed
complete when the fact of mailing is
entered of record. Failure to claim
certified or expressed mail service is
not refusal of service within the
meaning of division (C) of this rule
[emphasis added].
(D)
Service unclaimed
If a certified or express mail envelope
is returned with an endorsement showing
that the envelope was unclaimed, the
clerk shall forthwith notify, by mail,
the attorney of record or, if there is
no attorney of record, the party at
whose instance process was issued. If
the attorney, or serving party, after
notification by the clerk, files with
the clerk a written request for
ordinary mail service, the clerk shall
send by ordinary mail a copy of the
summons and complaint or other document
to be served to the defendant at the
address set forth in the caption, or at
the address set forth in written
instructions furnished to the clerk.
The mailing shall be evidenced by a
certificate of mailing which shall be
completed and filed by the clerk.
Answer day shall be twenty-eight days
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after the date of mailing as evidenced
by the certificate of mailing. The
clerk shall endorse this answer date
upon the summons which is sent by
ordinary mail. Service shall be deemed
complete when the fact of mailing is
entered of record, provided that the
ordinary mail envelope is not returned
by the postal authorities with an
endorsement showing failure of
delivery. If the ordinary mail
envelope is returned undelivered, the
clerk shall forthwith notify the
attorney, or serving party, by mail
[emphasis added].
After a party, who has had certified mail returned
“refused,” complies with Ohio Civil Rule 4.6(C), a mere
assertion by the defendant that service was never received is
insufficient to rebut the presumption of proper service.
Rather, in Ohio there is a presumption that refusal of the
certified mail evidences a consciousness on the part of the
person rejecting the mail and demonstrates that he knew he was
being served with process.10
Thus, pursuant to Ohio Civil Rule 4.6(C), once the
certified mail sent to Riggs was returned as refused, Preferred
Capital had a right to effectuate service via ordinary mail
through the clerk’s office.
The record shows that the clerk’s
office mailed a copy of the summons and complaint to Riggs’s
10
See Staff Note to Ohio Civil Rule 4.6(C). See also Weinberger v.
Weinberger, 334 N.E.2d 514, 515 (1974) (noting that the defendant had been
properly served where the certified mail notices were returned “unopened” or
“refused”).
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address of record.
A printout from the Clerk of the Summit
County Court of Common Pleas shows that the summons and
complaint was not returned as undelivered.
Under Civil Rule
4.6, service of the complaint was deemed to be complete when the
ordinary mail was not returned to the clerk.11
The Ohio Civil
Rules provided Riggs 28 days following the mailing in which to
respond to the complaint.
It is undisputed that Riggs failed to
respond, and accordingly a default judgment was entered against
him.
Hence, the trial court did not err by denying Riggs’s
motion to vacate or stay execution of the foreign judgment.
Based on the foregoing reasons, the order of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard N. Bush
Louisville, Kentucky
J. Eric Rottinghaus
Cincinnati, Ohio
11
See Pittsburgh Hilton v. Reiss, 489 N.E.2d 1066, 1067 (Ohio App. 1985); and
City of Akron v. Gay, 351 N.E.2d 475, 476 (Ohio 1976) (noting that
considering service complete when notice by ordinary mail is not returned is
constitutionally valid).
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