Griffin v. Braswell

931 N.E.2d 1131, 187 Ohio App. 3d 281
CourtOhio Court of Appeals
DecidedApril 9, 2010
DocketNo. L-09-1261
StatusPublished
Cited by12 cases

This text of 931 N.E.2d 1131 (Griffin v. Braswell) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Griffin v. Braswell, 931 N.E.2d 1131, 187 Ohio App. 3d 281 (Ohio Ct. App. 2010).

Opinion

Handwork, Judge.

{¶ 1} In this accelerated appeal from a judgment of the Lucas County Court of Common Pleas, appellant, Corvez L. Braswell Jr., asserts the following assignments of error:

{¶ 2} “1. The trial court erred in finding that Mr. Braswell failed to successfully rebut a presumption of valid service by ordinary mail and thus the trial court incorrectly refused to vacate plaintiffs default judgment.
{¶ 3} “2. The trial court incorrectly denied Mr. Braswell’s motion to vacate the default judgment pursuant to Ohio Civ.R. 60(B).”

{¶ 4} On April 13, 2009, appellee, Barbara Griffin, filed a complaint in the lower court seeking damages in the amount of $52,482.16, plus costs, interest, and punitive damages, from appellant, Corvez L. Braswell Jr. According to appellee, she and appellant, as co-tenants, had owned property at 718 Oakwood Avenue in Toledo, Lucas County, Ohio, since 2003. In her complaint, she maintained that a fire destroyed the residence on the Oakwood property in September 2008 and that “the insurance company” settled the claim on that property for $95,124.35. Appellee asserted that GMAC Mortgage (“GMAC”) was paid $42,642.19 to satisfy her mortgage on the residence, and the remaining balance of $52,482.16 was paid out to appellee only.

{¶ 5} Appellee asserted that on February 2, 2009, she signed the check for the balance of the insurance monies over to appellant “with the assurance that he would pay her from his own account.” According to Griffin, appellant gave her a check for only $2,000, which he later “dishonored.” He then ceased all communication with her. She requested an award of damages in the amount of $52,482.16, $25,000 in punitive damages, interest, attorney fees, and court costs. Griffin asked for service of her complaint by certified mail to “534 Bronson Av., Toledo, OH 43608,” and requested a return receipt.

[283]*283{¶ 6} Although the record contains a notice of service requiring appellant to respond within 28 days from April 14, 2009, the complaint was returned as unclaimed on May 5, 2009. Therefore, on May 15, 2009, appellee requested ordinary mail service. The complaint was then mailed to 534 Bronson Avenue by the clerk of the Lucas County Court of Common Pleas on May 20, 2009. Appellant did not respond to appellee’s complaint within 28 days; therefore, on June 22, 2009, appellee filed a motion for a default judgment. The trial court granted that motion on July 8, 2009.

{¶ 7} On August 12, 2009, appellant filed a motion to vacate the default judgment pursuant to Civ.R. 60(B) or as being void ab initio under Civ.R. 4.6. In an attached affidavit, appellant averred that the facts set forth in the motion were true. According to Braswell, he and Griffin had lived together at 718 Oakwood Avenue for a number of years. This property was, however, owned solely by appellant. In order to renovate the property and to aid Griffin in eliminating some of the debt she owed, appellant mortgaged the Oakwood Avenue property with GMAC so that she could draw on those funds to pay her debts. The GMAC loan was in Griffin’s name, but appellant insisted that he was the party who made the payments on the mortgage. Appellant insured the property with Allstate Indemnity Company (“Allstate”). The insurance policy, numbered as 9-26-988246/11, was issued in Braswell’s name only.

{¶ 8} Braswell averred that his relationship with Griffin ended in “approximately 2006,” and he retained possession of and control over the Oakwood property. On September 4, 2008, however, a fire broke out at that property. Allstate processed appellant’s claim in his name only. On January 7, 2009, Braswell received a settlement from Allstate in the amount of $110,068.84. Of this amount, $14,675.85 was made payable to the city of Toledo for nuisance abatement with regard to the Oakwood property. The remaining $95,392.99 was made payable to “Mickel and Huffman and Corvez Braswell and GMAC Mortgage LLC.” The check number issued by Allstate was 54924037.

{¶ 9} According to appellant, he and his attorney, Kenneth Mickel, endorsed the check and sent it to GMAC with instructions to pay off the mortgage and issue a check made payable to “Mickel & Huffman and Corvez Braswell.” After subtracting the amount owed on the mortgage, GMAC subsequently issued a check in the amount of $52,482.16 to Barbara L. Griffin. Nonetheless, in February 2009, the check was mailed to 534 Bronson Avenue, the residence where Braswell was living with his girlfriend, Erica Powell. At that point, appellant claimed that he went to Griffin and asked her to sign the check so he could deposit it in his account. She agreed to sign the check if he gave her $2,000. Appellant asserted that he gave appellee the $2,000, and she then endorsed the check so that he could deposit the remainder of the monies in his [284]*284bank account. A document signed by “Barbara L. Griffin,” in which she agrees to release any funds remaining after the mortgage is paid to appellant, is also attached to appellant’s Civ.R. 60(B) motion.

{¶ 10} In his motion/affidavit, appellant swore that Griffin then demanded that he give her more money. When he refused, appellee contacted his bank, asking that a hold be put on the $52,482.16. She also contacted the police. After an investigation, both the police and the bank concluded that Griffin’s claims were “unfounded.”

{¶ 11} In March 2009, appellant “broke up” with Powell and moved out of the Bronson Avenue residence. He then moved in with his mother at 2861 North Detroit Avenue in Toledo, Ohio. Braswell did not take possession of the property at 534 Bronson until his former girlfriend vacated the premises in “late July 2009.” Appellant swore that it was only then that he received his mail, which included appellant’s complaint.

{¶ 12} In opposition to appellant’s motion to vacate the default judgment, appellee urged that appellant failed to offer any evidence, absent his self-serving affidavit, to rebut the presumption that he had received the complaint in this case. In response, appellant filed the affidavit of Powell, who swore that Braswell did not reside at 534 Bronson in May or June 2009. Powell also averred that she did not deliver the mail that was received during those two months to appellant until late July 2009.

{¶ 13} On September 10, 2009, the trial court denied appellant’s motion to vacate the default judgment, finding that he had failed to rebut the presumption of valid service by ordinary mail, and/or that he had failed to satisfy the strictures of Civ.R. 60(B).

{¶ 14} In his first assignment of error, appellant contends that the trial court erred in finding that he had failed to rebut the presumption of valid service of the summons and complaint by ordinary mail.

{¶ 15} Service of process is required to notify any interested parties of the pendency of an action and to afford them an opportunity to respond. Akron-Canton Regional Airport Auth. v. Swinehart (1980), 62 Ohio St.2d 403, 406, 16 O.O.3d 436, 406 N.E.2d 811, quoting Mullane v. Cent. Hanover Bank & Trust Co. (1950), 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865. It is the plaintiffs duty to accomplish proper service on a defendant. Cincinnati Ins. Co. v. Emge

Free access — add to your briefcase to read the full text and ask questions with AI

Related

U.S. Bank Trust NA Natl. Assn. v. Sarver
2024 Ohio 1303 (Ohio Court of Appeals, 2024)
Universal Acceptance Corp. v. Olivarez
2024 Ohio 1069 (Ohio Court of Appeals, 2024)
Andrews v. Andrews
2023 Ohio 293 (Ohio Court of Appeals, 2023)
Altman v. Parker
2022 Ohio 142 (Ohio Court of Appeals, 2022)
Capital One Bank, N.A. v. Coleman
2019 Ohio 3700 (Ohio Court of Appeals, 2019)
Jardine v. Jardine
2018 Ohio 3196 (Ohio Court of Appeals, 2018)
G. Lieu, Inc. v. E. Constr. & Remodeling, L.L.C.
2018 Ohio 56 (Ohio Court of Appeals, 2018)
Chuang Dev. L.L.C. v. Raina
2017 Ohio 3000 (Ohio Court of Appeals, 2017)
Wells Fargo Bank, N.A. v. Scott
2015 Ohio 3269 (Ohio Court of Appeals, 2015)
LVNV Funding, Inc. v. Burns
2014 Ohio 732 (Ohio Court of Appeals, 2014)
Ohio State Aerie Fraternal Order of Eagles v. Alsip
2013 Ohio 4866 (Ohio Court of Appeals, 2013)
Goering v. Lacher
2011 Ohio 5464 (Ohio Court of Appeals, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
931 N.E.2d 1131, 187 Ohio App. 3d 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffin-v-braswell-ohioctapp-2010.