[Cite as Auto Owners Ins. Co. v. Truck Line Dispatch, Inc., 2013-Ohio-2988.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

AUTO OWNERS INSURANCE CO.                                  C.A. No.            26581

        Appellee

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
TRUCK LINE DISPATCH, INC.                                  AKRON MUNICIPAL COURT
                                                           COUNTY OF SUMMIT, OHIO
        Appellant                                          CASE No.   11 CVF 07084

                                 DECISION AND JOURNAL ENTRY

Dated: July 10, 2013



        CARR, Judge.

        {¶1}     Appellant, Truck Line Dispatch, Inc., appeals the judgment of the Akron

Municipal Court. This Court affirms.

                                                      I.

        {¶2}     Appellee, Auto Owners Insurance Company, filed a complaint against Truck Line

on August 11, 2011, for money due as payment for insurance coverage provided by Auto

Owners to Truck Line. On August 16, 2011, an agent of Truck Line signed the certified mail

receipt for the complaint. Truck Line failed to answer and, on October 4, 2011, Auto Owners

filed a motion for default judgment. The trial court granted the motion and entered judgment in

favor of Auto Owners against Truck Line in the amount of $7,848.99, plus interest and costs.

        {¶3}     Subsequently, at Auto Owners’ request, the Akron Municipal Clerk of Courts

issued a certificate of judgment lien and the trial court issued an order in aid of execution,

directing the owner and statutory agent of Truck Line to appear for a debtor’s examination. An
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agent of Truck Line signed the certified mail receipt for the order in aid of execution. After the

agent failed to appear as ordered, Auto Owners filed a motion for the agent to show cause why

he should not be held in contempt. The trial court issued a summons and order for the agent to

appear and show cause. A deputy sheriff signed an affidavit of service, averring that he served

the statutory agent by leaving a copy of the show cause summons and order to appear at Truck

Line’s usual place of business with an agent of the company.

       {¶4}    On June 26, 2012, Truck Line filed a motion for relief from judgment pursuant to

Civ.R. 60(B), in which it argued that it was not served with process including the summons and

complaint. Appended to the motion was the affidavit of the president of Truck Line who averred

that the company was not served with process including the summons and complaint. Auto

Owners filed a brief in opposition to the Civ.R. 60(B) motion, and Truck Line replied. The trial

court denied the motion for relief from judgment.         Truck Line appealed and raises one

assignment of error for review.

                                               II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
       WHEN IT GRANTED DEFAULT JUDGMENT AGAINST TRUCK LINE
       DISPATCH IN FAVOR OF THE APPELLEE AUTO OWNERS INSURANCE
       CO. IN THE AMOUNT OF $7964.99 IN SPITE OF THE FACT THE
       APPELLEE HAS NOT PROVED IN RESPONSE TO THE TRUCK LINE
       DISPATCH CIVIL RULE 60(B)(5) MOTION THAT APPELLANT WAS
       VALIDLY SERVED WITH CIVIL ACTION PROCESS.

       {¶5}    Truck Line argues that the trial court erred by denying its motion for relief from

default judgment because it was not properly served with the complaint. This Court disagrees.

       {¶6}    The decision to grant or deny a motion for relief from judgment pursuant to

Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed absent an
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abuse of the discretion. Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994). An abuse of discretion

is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or

unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When

applying the abuse of discretion standard, this Court may not substitute its judgment for that of

the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶7}    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, inadvertence, surprise or excusable neglect; (2) newly
       discovered evidence which by due diligence could not have been discovered in
       time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore
       denominated intrinsic or extrinsic), misrepresentation or other misconduct of an
       adverse party; (4) the judgment has been satisfied, released or discharged, or a
       prior judgment upon which it is based has been reversed or otherwise vacated, or
       it is no longer equitable that the judgment should have prospective application; or
       (5) any other reason justifying relief from the judgment. The motion shall be
       made within a reasonable time, and for reasons (1), (2) and (3) not more than one
       year after the judgment, order or proceeding was entered or taken.

       {¶8}    To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving party

must demonstrate that

       (1) the party has a meritorious defense or claim to present if relief is granted; (2)
       the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)
       through (5); and (3) the motion is made within a reasonable time, and, where the
       grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the
       judgment, order or proceeding was entered or taken.

GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph

two of the syllabus.

       {¶9}    In this case, Truck Line argued that it was entitled to relief from judgment on the

basis of Civ.R. 60(B)(5) because Auto Owners failed to properly serve it with a copy of the

complaint. Specifically, Truck Line argues that because its president, Christian Popoiu, was not

served with a copy of the complaint, service was not perfected.
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       {¶10} Civ.R. 4.2(F) provides that service of process may properly be effected upon a

corporation “by serving the corporation at any of its usual places of business by a method

authorized under Civ.R. 4.1(A)(1)[.]” Civ.R. 4.1(A)(1)(a) provides, in relevant part: “Evidenced

by return receipt signed by any person, service of any process shall be by United States certified

or express mail * * *.”

       {¶11} Auto Owners attached a statement of account to its complaint. The statement of

account indicated that it provided insurance to Truck Line at the following business address:

“429 N Hawkins Ave Apt 414 Akron OH 44313-6175”. The Akron Municipal Court Clerk’s

Office served Truck Line at that address. An agent of Truck Line signed the certified mail

receipt on August 16, 2011, indicating that the complaint had been served on the company at one

of its usual places of business. Accordingly, the record demonstrates that Truck Line was

properly served.

       {¶12} In his affidavit appended to his Civ.R. 60(B) motion, Mr. Popoiu averred that he

is the president of Truck Line and that Truck Line was not served with process including the

summons and complaint. However, he does not dispute that the North Hawkins, Akron, Ohio

address above is a usual place of business for Truck Line or that the certified mail receipt

evidencing service of the summons and complaint on Truck Line was signed by someone at that

business location. Accordingly, Truck Line has not demonstrated that it was not properly served

and that the trial court erred by denying its motion for relief from judgment on the basis of lack

of service.

       {¶13} To the extent that Truck Line argues that the trial court erred by failing to hold an

evidentiary hearing on its motion, the argument is not well taken.         This Court has long

recognized that “[a] party moving for relief from judgment under Civ.R. 60(B) is not
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automatically entitled to an evidentiary hearing.” Deberte v. Deberte, 9th Dist. Summit No.

19461, 2000 WL 422429 (Apr. 19, 2000). “If * * * the material submitted by the movant does

not provide operative facts which demonstrate that relief is warranted, the trial court may deny

the motion without holding a hearing.” Id., quoting Gaines & Stern Co., L.P.A. v. Schwarzwald,

Robiner, Wolf & Rock Co., L.P.A., 70 Ohio App.3d 643, 646 (8th Dist.1990).

       {¶14} In this case, Truck Line submitted Mr. Popoiu’s affidavit in support of Truck

Line’s motion. The affidavit contained no operative facts to demonstrate that service was not

properly effected on the corporation at one of its usual places of business by certified mail.

Accordingly, the trial court did not err by denying the motion without first conducting an

evidentiary hearing.

       {¶15} For the reasons stated above, Truck Line’s assignment of error is overruled.

                                                III.

       {¶16} Truck Line’s sole assignment of error is overruled. The judgment of the Akron

Municipal Court is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT



MOORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

MICHAEL T. CONWAY, Attorney at Law, for Appellant.

JEFFREY L. KOBERG, Attorney at Law, for Appellee.
