[Cite as Verhoogen v. United Parcel Serv., Inc., 2013-Ohio-2306.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


ALEX R. VERHOOGEN                                  :            JUDGES:
                                                   :            Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         :            Hon. Sheila G. Farmer, J.
                                                   :            Hon. Patricia A. Delaney, J.
-vs-                                               :
                                                   :
UNITED PARCEL SERVICE, INC.                        :            Case No. 12CA104
AND UPS STORE 3832                                 :
                                                   :
        Defendants-Appellants                      :            OPINION


CHARACTER OF PROCEEDING:                                        Appeal from the Mansfield Municipal
                                                                Court, Case No. 10-CVE-1664


JUDGMENT:                                                       Reversed



DATE OF JUDGMENT:                                               June 4, 2013



APPEARANCES:

For Plaintiff-Appellee                                          For Defendant-Appellant The UPS
                                                                Store 3832
ALEX R. VERHOOGEN, PRO SE
585 Austin Road                                                 CORNELIUS J. O'SULLIVAN,JR.
Mansfield, OH 44903                                             6480 Rockside Woods Blvd., South
                                                                Suite 145
                                                                Independence, OH 44131

                                                                For United Parcel Service, Inc.

                                                                ROGER P. SUGARMAN
                                                                KATHERINE CONNOR FERGUSON
                                                                Capitol Square, Suite 1800
                                                                65 East State Street
                                                                Columbus, OH 43215
Richland County, Case No. 12CA104                                                    2

Farmer, J.

      {¶1}   On August 28, 2008, appellee, Alex Verhoogen, caused a parcel

containing a stove top to be shipped from appellant, The UPS Store 3832, in Spokane,

Washington, to Mansfield, Ohio.      United Parcel Service, Inc. (hereinafter "UPS")

shipped the parcel. The stove top arrived damaged.

      {¶2}   On June 25, 2010, appellee filed a complaint for damages against

appellant and UPS in the Mansfield Municipal Court. On March 29, 2011, appellant filed

a motion for summary judgment, claiming it was not liable for damages based on the

language in the parcel shipping order. By judgment entry filed May 2, 2011, the trial

court denied the motion.

      {¶3}   A bench trial commenced on April 24, 2012.       By judgment entry filed

August 3, 2012, the trial court found in favor of appellee as against appellant and UPS

in the amount of $4,183.54.

      {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶5}   "VERHOOGEN DID NOT NAME THE PROPER PARTY DEFENDANT IN

THIS ACTION."

                                           II

      {¶6}   "THE TRIAL COURT ERRED WHEN IT DENIED THE MOTION FOR

SUMMARY JUDGMENT OF UPS STORE 3832."
Richland County, Case No. 12CA104                                                   3


                                          III

      {¶7}   "THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE."

                                          II

      {¶8}   Appellant claims the trial court erred in denying its motion for summary

judgment based on the language of the parcel shipping order and the fact that appellee

did not request insurance on the package. We disagree.

      {¶9}   Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:



             Civ.R. 56(C)   provides that before summary judgment may be

      granted, it must be determined that (1) no genuine issue as to any

      material fact remains to be litigated, (2) the moving party is entitled to

      judgment as a matter of law, and (3) it appears from the evidence that

      reasonable minds can come to but one conclusion, and viewing such

      evidence most strongly in favor of the nonmoving party, that conclusion is

      adverse to the party against whom the motion for summary judgment is

      made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,

      628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50

      Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.
Richland County, Case No. 12CA104                                                        4


       {¶10} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35 (1987).

       {¶11} Appellant relies on the following language of the parcel shipping order

(Plaintiff's Exhibit 2):



               3. We do not transport Your parcels. We assume no liability for the

       delivery of the parcels accepted for shipment or for loss or damage by any

       cause to the parcels or their contents while in transit. You agree that

       carrier's liability for loss or damaged parcels is limited by the provisions in

       this PSO. You agree to all terms and conditions on this PSO whether or

       not declared value is purchased.***

               10. Declared Value Terms & Conditions. Declared value coverage

       will be available only if You have complied with all Declared Value Terms

       & Conditions.       For an additional fee We will obtain declared value

       coverage for Your shipment through the carrier designated on this PSO.

       We surcharge the cost of this product. You expressly acknowledge that

       the value of each parcel does not exceed the amount You listed below as

       Declared Value and stated on the transaction receipt. If no amount is

       specified, You agree that the value of the parcel(s) shall not exceed $100.

       If You refuse additional declared value coverage for items of greater value

       than $100, You will be limited to a maximum declared value coverage of
Richland County, Case No. 12CA104                                                         5


       $100. Each declared value provider designates monetary limits coverage.

       The declared value terms and conditions of the various carriers are

       located in the carrier service guide for coverage provided by the carriers

       and are also available at this location upon request.           Consult the

       applicable Declared Value Terms & Conditions and terms of coverage for

       further information.



       {¶12} Appellant argues appellee filled the form out himself and did not request or

purchase declared value coverage.

       {¶13} In response to the motion for summary judgment, appellee argued

although he placed the declared value of the parcel ($950.00) on the form, he did not

pay for insurance because "no specific amount, apart and distinct from the overall

shipping cost, was presented as the cost of the insurance" and he "was not given the

opportunity to pay for insurance as a selection apart and distinct from the overall

charges for shipment."

       {¶14} Appellee appeared pro se and made these averments in his responsive

brief filed April 11, 2011. Although they do not comply with the letter of Civ.R. 56 as

being of evidentiary quality [Cogswell v. Cardio Clinic of Stark County, Inc., 5th Dist. No.

CA-8553, 1993 WL 308452 (October 21, 1991)], with appellee's pro se signature in the

pleading, we find they do rise to a minimal level of presenting a genuine issue of

material fact.

       {¶15} Assignment of Error II is denied.
Richland County, Case No. 12CA104                                                       6


                                              I

       {¶16} Appellant claims it was not the proper party and is a legal fiction.

       {¶17} In its July 30, 2011 answer to the complaint, appellant listed as its first

affirmative defense: "This answering Defendant states, in the alternative, that it has not

been properly identified in plaintiff's Complaint."

       {¶18} Appellant argues "The UPS Store 3832" is a name given to it by UPS to

identify it as a franchisee.     Defendant's Exhibit 6 is a franchise agreement and

establishes the franchisor is "Mail Boxes Etc., Inc. ('MBE')" and the franchisee is "XFD

Inc." As indicated in the franchise agreement at EX D-3, paragraph number 4, MBE's

brands include "Mail Boxes Etc." and "The UPS Store." Therefore, MBE's franchisees

hold themselves out as either Mail Boxes Etc. or The UPS Store.

       {¶19} Appellant argues with the first affirmative defense, appellee was put on

notice that further discovery on the issue was required. Appellant's own statements in

its motion for summary judgment filed March 29, 2011 contradict this argument and

were misleading: "Defendant The UPS Store 3832 ("UPS Store") owns and operates a

UPS Store in Spokane, Washington. On or about August 28, 2008, the Plaintiff brought

a parcel to our store for shipment to Mansfield, Ohio." Further, to all customers, the

parcel shipping order explicitly implies "The UPS Store 3832" is a legal entity.

       {¶20} However, the franchise agreement was admitted into evidence and

specifically delineates that the full legal name of the franchisee is "XFD, Inc." and the

location of franchisee's "The UPS Store® Center" is Spokane, Washington. T. at 153.

"The UPS Store Center No." is identified as "3832." Appellant argued to the trial court

that appellee sued the wrong party. T. at 169-171. At this point in the proceedings, the
Richland County, Case No. 12CA104                                                    7


proper avenue would have been to amend the pleadings to conform to the evidence.

Civ.R. 15(B). This was not done, and appellee is left with a hollow victory. Although

there is a judgment, there is no one to levy against to fulfill the judgment.

       {¶21} Appellee attempts to bridge this gap by arguing "The UPS Store 3832" is

an agent of UPS, Inc. The franchise agreement and EX K to the agreement [Contract

Carrier Agreement between United Parcel Service, Inc. ("UPS") and XFD, Inc.]

contradict this argument as the contract carrier agreement states at paragraph 4: "All

services provided by UPS pursuant to this Agreement are provided to you, and not to

your customer. You understand and agree that you will be considered the shipper for

all shipments of packages tendered to you by your customers."

       {¶22} This results in an unfortunate, though legal result. It is undisputed that

appellee requested insurance to $950.00 which he did not receive as a result of the

inactions of appellant's employee. T. at 20. A minimal sum of $.90 per $100.00 would

have been charged and the parcel would have been fully insured. T. at 23.

       {¶23} Because this matter was a regular docketed case and not a small claims

case, this error might have been resolved [Evid.R. 101(C)(8)]1

       {¶24} Assignment of Error I is granted

       {¶25} Based upon our decision in Assignment of Error I, Assignment of Error III

is moot.




1
Appellee won many battles, but lost the war.
Richland County, Case No. 12CA104                                               8


      {¶26} The judgment of the Mansfield Municipal Court of Richland County, Ohio

is hereby reversed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




SGF/sg 508
