Duraclean Restoration & Cleaning Services, Inc. v. Desantis

Avon Lake Municipal Court

Duraclean Restoration & Cleaning Services, Inc. v. Desantis

703 N.E.2d 374, 94 Ohio Misc. 2d 69, 1998 Ohio Misc. LEXIS 40

CourtAvon Lake Municipal Court

DecidedMay 22, 1998

DocketNo. 97CVI00110

StatusPublished

This text of 703 N.E.2d 374 (Duraclean Restoration & Cleaning Services, Inc. v. Desantis) is published on Counsel Stack Legal Research, covering Avon Lake Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duraclean Restoration & Cleaning Services, Inc. v. Desantis, 703 N.E.2d 374, 94 Ohio Misc. 2d 69, 1998 Ohio Misc. LEXIS 40 (Ohio Super. Ct. 1998).

Pincite

Opinion

John F. Mackin, Judge.

Defendant Elíseo Desantis moved to dismiss on the basis of improper venue.

The defendant executed plaintiffs form document entitled “Access and Work Authorization.” The document gave access and authorization for the purpose of cleaning and making necessary repairs to personal property as a result of water damage — sewer backup. The document was attached to the complaint, reading:

“Bill to: Allstate Insurance, Hudson, Ohio

“Customer: Elisco Desantis, Lorain, Ohio

“Job Site: Lorain, Ohio”

The plaintiff is located in Avon, Ohio. Avon is within the territorial jurisdiction of the Avon Lake Municipal Court. Lorain is within the territorial jurisdiction of the Lorain Municipal Court.

The plaintiff relies upon Civ.R. 3(B)(6) and the premise that the “breach occurred at the place where payment was due.”

Civ.R. 3(B)(6) provides that venue is proper in the county in which “all or part of the claim for relief arose.” The court in Lorenz Equip. Co. v. Ultra Builders, Inc. (Feb. 23, 1993), Franklin App. No. 92 AP-1445, unreported, 1993 WL 51095, in effect defined “claim” as “default of payment.” It substituted “default of payment” for “claim.” The default is not the claim because the claim arises prior to the default and the default merely triggers action on the claim. Considering the plain meaning of words, neither “default of payment” nor “breach” is a “claim.” You might be able to substitute “default of payment” for “breach,” but you cannot substitute “breach” for “claim.” It is obvious that [71]*71Lorenz enlarges venue. The rule should be strictly construed rather than enlarged.

A review of the cited cases shows that they are distinguishable. The exhibits do not show agreement for payment but only access and work authorization. The plaintiffs invoice with an Avon address clearly states, “Bill to: Allstate Insurance Company, P.O. Box 427, Hudson, Ohio 44236.”

Per exhibits, there was no payment due from the defendant at plaintiffs place of business, and thus there can be no default of payment because there was no claim. Therefore, venue is improper.

This court declines to follow Lorenz Equip. Co. v. Ultra Builders, Inc., supra.

Motion to dismiss granted.

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John F. Mackin, Judge.

Defendant Elíseo Desantis moved to dismiss on the basis of improper venue.

The defendant executed plaintiffs form document entitled “Access and Work Authorization.” The document gave access and authorization for the purpose of cleaning and making necessary repairs to personal property as a result of water damage — sewer backup. The document was attached to the complaint, reading:

“Bill to: Allstate Insurance, Hudson, Ohio

“Customer: Elisco Desantis, Lorain, Ohio

“Job Site: Lorain, Ohio”

The plaintiff is located in Avon, Ohio. Avon is within the territorial jurisdiction of the Avon Lake Municipal Court. Lorain is within the territorial jurisdiction of the Lorain Municipal Court.

The plaintiff relies upon Civ.R. 3(B)(6) and the premise that the “breach occurred at the place where payment was due.”

Civ.R. 3(B)(6) provides that venue is proper in the county in which “all or part of the claim for relief arose.” The court in Lorenz Equip. Co. v. Ultra Builders, Inc. (Feb. 23, 1993), Franklin App. No. 92 AP-1445, unreported, 1993 WL 51095, in effect defined “claim” as “default of payment.” It substituted “default of payment” for “claim.” The default is not the claim because the claim arises prior to the default and the default merely triggers action on the claim. Considering the plain meaning of words, neither “default of payment” nor “breach” is a “claim.” You might be able to substitute “default of payment” for “breach,” but you cannot substitute “breach” for “claim.” It is obvious that [71]*71Lorenz enlarges venue. The rule should be strictly construed rather than enlarged.

A review of the cited cases shows that they are distinguishable. The exhibits do not show agreement for payment but only access and work authorization. The plaintiffs invoice with an Avon address clearly states, “Bill to: Allstate Insurance Company, P.O. Box 427, Hudson, Ohio 44236.”

Per exhibits, there was no payment due from the defendant at plaintiffs place of business, and thus there can be no default of payment because there was no claim. Therefore, venue is improper.

This court declines to follow Lorenz Equip. Co. v. Ultra Builders, Inc., supra.

Motion to dismiss granted.

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Bluebook (online)

703 N.E.2d 374, 94 Ohio Misc. 2d 69, 1998 Ohio Misc. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duraclean-restoration-cleaning-services-inc-v-desantis-ohmunictavonlak-1998.