Ervin v. Patrons Mut. Ins. Co.

Full title: ERVIN ET AL., APPELLANTS, v. PATRONS MUTUAL INSURANCE COMPANY, APPELLEE

Court: Supreme Court of Ohio

Date published: Oct 30, 1985

20 Ohio St. 3d 8 (Ohio 1985)

484 N.E.2d 695

Opinion

No. 84-1812

Decided October 30, 1985.

Civil procedure — Civ. R. 5(B) — Service upon party's attorney — Attorney must be an attorney of record.

O.Jur 2d Pleading § 371.

For purposes of Civ. R. 5(B), in order that service be effective on a party by serving that party's attorney, the attorney must be an attorney of record in the trial court.

APPEAL from the Court of Appeals for Athens County.

Plaintiffs-appellants, Scott Ervin, Pauline Ervin and Ronnie Ervin, initiated this lawsuit on December 21, 1982 by filing a complaint for declaratory judgment in the Court of Common Pleas of Athens County. The complaint alleged that defendant-appellee, Patrons Mutual Insurance Company, issued a policy of fire insurance to Scott and Pauline Ervin in 1981, and that appellee wrongfully failed to settle appellants' claim for payment of the insurance proceeds after a fire destroyed the insured premises on March 6, 1982. On December 23, 1982, Patrons Mutual received a copy of the complaint and a summons requiring it to file an answer within twenty-eight days. Patrons Mutual did not file an answer, but its attorney, J. MacAlpine Smith, entered into negotiations with the attorney for the appellants.

On January 13, 1983, the appellants filed an amended complaint setting forth two additional claims for relief and demanding judgment in the amount of $986,337.16. The amended complaint contained a certificate of service stating it had been sent by regular United States mail "* * * to Mr. J. MacAlpine Smith * * * this 12th day of January, 1983." Appellants did not serve Patrons Mutual with a copy of the amended complaint.¹ According to an affidavit filed by Smith, "* * * I believed an answer could be filed to * * * [the] amended complaint within twenty-eight (28) days after * * * [it] was served, plus three days to allow for regular U.S. Mail service, plus time to account for an answer date falling on a weekend. Therefore, I believed in good faith that the answer in this case was due on 14 February 1983."

1 Despite the trial court's finding to the contrary, this court finds no competent, credible evidence in the record to indicate that Smith was an officer of Patrons Mutual at the time he received a copy of the amended complaint.

On February 2, 1983, the appellants filed a motion "* * * for a Default Judgment on the original Complaint as amended, because the defendant ha[d] failed to plead or otherwise defend this action within the time period provided for * * * [in the Ohio Rules of Civil Procedure]." Appellants argued that, by operation of Civ. R. 15(A) and 6(E), Patrons Mutual had seventeen days to file an answer to the amended complaint and it had not done so.² Appellants did not serve Patrons Mutual or its counsel with a copy of theor motion for default judgment. The trial court held a hearing on the motion but neither Patrons Mutual nor its counsel was present or participating. On February 3, 1983, the common pleas court entered a judgment finding that Patrons Mutual's answer had become due on January 31, 1983, and that it had not filed an answer or requested an extension of time in which to file an answer. The trial court entered judgment for the appellants and against Patrons Mutual in the amount of $386,337.16.

2 Civ. R. 15 deals with amended and supplemental pleadings. Civ. R. 15(A) states, in relevant part, that "* * * [a] party shall plead in response to an amended pleading within the time remaining for response to the original pleading, or within fourteen days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders." (Emphasis added.) Civ. R. 6(E) states that "[w]henever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period. * * *" (Emphasis added.)

Eight days later, on February 11, 1983, Patrons Mutual filed its answer to appellants' amended complaint and alleged that appellants were barred from any recovery under the insurance policy. Patrons Mutual then learned of the default judgment and on February 16, 1983 filed a motion asking the trial court to vacate the default judgment and accept its answer for filing. On April 1, 1983, the common pleas court vacated its February 3, 1983 default judgment and subsequently accepted Patrons Mutual's answer as having been filed.

Appellants appealed the judgment to the court of appeals which affirmed the trial court's decision to vacate the default judgment.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Lavelle Goldsberry Co., L.P.A., William A. Lavelle and John P. Lavelle, for appellants.

Mollica, Gall, Sloan Sillery Co., L.P.A., Gerald A. Mollica and Robert J. Gall, for appellee.

DOUGLAS, J.

The issue in this case is whether the trial court committed reversible error by vacating its February 3, 1983 default judgment.

Civ. R. 55 deals with default judgments. Civ. R. 55(B) states that if a default judgment has been entered, the court may set it aside in accordance with Civ. R. 60(B), which rule encompasses relief from final judgments. Civ. R. 60(B) states, in relevant part:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertance, surprise or excusable neglect; * * *." (Emphasis added.)

Civ. R. 4 states that a copy of the original complaint, and a summons, must be served upon each defendant. Appellants complied with this rule. Nevertheless, the default judgment in this case was the product of unfair surprise since Patrons Mutual was not given proper notice of the amended complaint.

Civ. R. 5(A) provides:

"Except as otherwise provided in these rules * * * every pleading subsequent to the original complaint * * * shall be served upon each of the parties. * * *"

Civ. R. 5(B) states that:

"Whenever under these rules service is required or permitted to be made upon a party who is represented by an attorney of record in the proceedings, the service shall be made upon such attorney * * *." (Emphasis added.)

The appellants served attorney Smith with a copy of their amended complaint. However, since the original complaint had not yet been answered by Patrons Mutual, there was no attorney of record upon whom service could be made and, therefore, service of the amended complaint upon Smith was not effective as to Patrons Mutual. Accordingly, Patrons Mutual had no duty to answer the amended complaint. Westmoreland v. Valley Homes Corp. (1975), 42 Ohio St.2d 291 [71 O.O.2d 262], and it could not be in default for failing to defend. The trial court's default judgment was, therefore, invalid and the court committed no error by vacating that judgment.³

3 It is arguable that since the amended complaint was not properly served that the default judgment was void and that it was unnecessary for Patrons Mutual to file a motion, pursuant to Civ. R. 60(B), to vacate that judgment.

Even if this court were to assume, for the sake of argument, that Smith had made an appearance on Patrons Mutual's behalf in the trial court, the result would be the same. Civ. R. 55(A), dealing with the entry of default judgments, states:

"* * * If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for [default] judgment at least seven days prior to the hearing on such application. * * *"

Thus, if Smith was Patrons Mutual's representative in the trial court, the granting of the default judgment was improper since Smith never received notice of the application for that judgment as required by Civ. R. 55(A).

The problem here is that the appellants, for purposes of serving the amended complaint, chose to treat Smith as though he were Patrons Mutual's attorney of record. Yet, for purposes of serving notice of their application for default judgment, they chose to treat Smith as though he were not Patrons Mutual's attorney of record. By classifying Smith one way for purposes of Civ. R. 5(B) and the other way for purposes of Civ. R. 55(A), the appellants were able to escape complying with the germane notice requirements of the Civil Rules and to obtain a default judgment as the result of unfair surprise. We, therefore, hold that for purposes of Civ. R. 5(B), in order that service be effective on a party by serving that party's attorney, the attorney must be an attorney of record in the trial court. The trial court, therefore, committed no error in vacating the default judgment.

For the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN and WRIGHT, JJ., concur.