Med Express v. Univ. of Colo. Denver

49 N.E.3d 729

MED EXPRESS, Appellee

v.UNIVERSITY OF COLORADO DENVER, Appellant.

No. 14CA0024–M.

Court of Appeals of Ohio, Ninth District, Medina County.

Jan. 20, 2015.

David P. Temple, Attorney at Law, Denver, for Appellant.

Richard Miller, Attorney at Law, Columbus, for Appellant.

James A. Amodio, Medina, and Donald Luke Ross, Attorneys at Law, for Appellee.

Opinion

MOORE, Judge.

{¶ 1} Defendant, University of Colorado Denver (“the University”) appeals from the judgment of the Medina Municipal Court. This Court vacates the decision of the trial court for lack of personal jurisdiction over the University.

I.

{¶ 2} In 2013, Med Express, located in Valley City, Ohio, filed a small claims complaint in the Medina Municipal Court against the University, located in Denver, Colorado. In its complaint, Med Express alleged that it had sent, through insured delivery, a diagnostic unit to the University. The unit arrived at the University in a damaged state. Med Express further maintained that the University failed to fully notify Med Express about the extent of the damages, and returned the unit to Med Express uninsured, making it impossible for Med Express to make a claim for damages through the delivery company.

{¶ 3} The University, through its attorney, David P. Temple, filed a motion to dismiss for lack of personal jurisdiction. Included with the motion was an affidavit of the University's faculty member Michelle Kerklo. Because Mr. Temple was not admitted to practice law in the State of Ohio, the magistrate issued an order striking the motion to dismiss. However, in the order striking the motion to dismiss, the magistrate stated that the court would consider Ms. Kerklo's affidavit prior to issuing a decision.

{¶ 4} A trial to the magistrate was later held, at which the University did not appear. The president of Med Express, Richard Radley, appeared at the trial and testified. Mr. Radley maintained that the University had contacted him because it was interested in purchasing a diagnostic unit that Med Express had listed on an internet website. The University inquired as to condition of the unit, which Mr. Radley maintained was in good condition. The parties then engaged in negotiations over the telephone and through email. The University agreed to purchase the unit for $3,000, and Med Express agreed to provide free shipping. The University agreed to charge one of its credit cards for the $3,000 purchase price. Med Express sent the unit to the University through an insured delivery service. However, after the University received the item, the University contacted Mr. Radley, and advised him that the unit had arrived with a broken mounting arm and was missing a component. As a result, the University wished to return the unit for a full refund. Mr. Radley responded that the University could contact the manufacturer for the missing component, and Med Express would cover the cost. Also, Mr. Radley advised the University that he had mounting arms in stock to replace the broken piece.

{¶ 5} Mr. Radley maintained that, thereafter, the University sent him an email advising him that it was unable to repair the unit, and wanted to return the unit for full credit as soon as possible. Mr. Radley, believing that the only damage to the unit was the missing component and broken arm, advised the University that it could sent the unit back and Med Express would give it a full credit. The University returned the unit through uninsured delivery. When Med Express received the unit, it had extensive damage and was completely unusable. Mr. Radley then contacted the University and said that he was not made aware of the extent of the damage, and offered to refund the University $2,000 and to provide it a $1,500 store credit. The University declined and then disputed the charge with its credit card company. The University won the dispute, and the purchase price was refunded to the University's account. Because Med Express could not establish when the damage occurred, and because the University had returned the item through uninsured delivery, Med Express could not successfully make a claim through delivery insurance for the damages to the unit.

{¶ 6} Following the small claims hearing, the magistrate issued a decision dismissing Med Express' complaint due to lack of personal jurisdiction over the University. In its decision, the magistrate pointed to Ms. Kerklo's affidavit, wherein she stated that the University's only dealings with Med Express pertained to the purchase of the unit. Med Express filed objections to the magistrate's decision.

Mr. Temple then filed a motion to appear pro hac vice, and filed a response to Med Express' objections on behalf of the University, contending that the magistrate had correctly determined that the court lacked personal jurisdiction over the University. The trial court granted Mr. Temple's motion to appear pro hac vice.

{¶ 7} Thereafter, the trial court sustained Med Express' objections, and entered judgment in favor of Med Express, concluding that the court could not consider the affidavit of Ms. Kerklo because it was included with the stricken motion, and it could not sua sponte review personal jurisdiction. Alternatively, the trial court concluded that Ms. Kerklo's affidavit constituted a waiver of personal jurisdiction. In addition, the trial court determined that Med Express had successfully proven its claim and awarded it damages in the amount of $3,000. The University timely appealed from the trial court's judgment, and it now raises three assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE JUDGE'S DETERMINATION THAT THE MAGISTRATE WAS NOT PERMITTED TO CONSIDER THE COURT'S PERSONAL JURISDICTION OVER THE UNIVERSITY SUA SPONTE WAS ERROR.

{¶ 8} In its first assignment of error, the University argues that the trial court erred in concluding that the magistrate could not sua sponte raise the issue of personal jurisdiction. We agree.

{¶ 9} “[I]n order to render a valid personal judgment, a court must have personal jurisdiction over the defendant.” Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). “An objection to the lack of jurisdiction over a person generally must be raised either in the defendant's answer or in a motion filed prior to the filing of an answer.” State ex rel. DeWine v. 9150 Group, L.P., 9th Dist., 2012-Ohio-3339, 977 N.E.2d 112, ¶ 6, citing Franklin v. Franklin, 5 Ohio App.3d 74, 75–76, 449 N.E.2d 457 (7th Dist.1981). “A defense of lack of jurisdiction over the person * * * is waived * * * if it is neither made by motion under [Civ.R. 12 ] nor included in a responsive pleading or an amendment thereof permitted by Rule 15(A) to be made as a matter of course.” Civ.R. 12(H)(1). “However, if the defendant does not appear in the action, the defense is not waived for failing to object.” DeWine at ¶ 6, citing Maryhew at 156–159, 464 N.E.2d 538 (defendant had not submitted to the court's jurisdiction, where submission to jurisdiction would have waived the issue of lack of personal jurisdiction), and Mortgage Lenders Network USA, Inc. v. Riggins, 9th Dist. Summit No. 22901, 2006-Ohio-3292, 2006 WL 1751251 (trial court acquired personal jurisdiction over appellant when she made a voluntary appearance in the matter).

{¶ 10} The trial court here concluded that, because the magistrate struck the motion to dismiss, there was no assertion of lack of personal jurisdiction made on the part of the defendant prior to the magistrate's decision. Further, the trial court determined that the magistrate could not consider Ms. Kerklo's affidavit, holding that “when a pleading is stricken from a case, the [c]ourt may not consider attachments to the pleading as if they had been filed separately[.]” The court, relying on D'Amore v. Mathews, 193 Ohio App.3d 575, 2011-Ohio-2853, 952 N.E.2d 1212 (12th Dist.), then determined, “Generally, because a lack of personal jurisdiction was not raised and is therefore considered to be waived, the magistrate/trial court cannot sua sponte address the issue of personal jurisdiction in its decision.”

{¶ 11} However, we conclude that D'Amore is distinguishable from this case on its facts. In D'Amore, the defendant personally appeared in the action and failed to raise lack of personal jurisdiction as a defense. Id. at ¶ 32–33. Therefore, the defendant waived the defense of lack of personal jurisdiction. Id. at ¶ 33. The Twelfth District held, “once the lack of personal jurisdiction was waived, the trial court could not sua sponte address the issue of personal jurisdiction in its judgment entry.” (Emphasis added.) Id. at ¶ 34; see also Brislin v. Albert, 9th Dist. Summit No. 27052, 2014-Ohio-3406, 2014 WL 3844799, ¶ 9. Here, because the trial court struck the motion to dismiss, there was no appearance by the University prior to the magistrate's decision. Thus, the University did not waive the defense of lack of personal jurisdiction because it did not appear voluntarily in the action without raising the issue of personal jurisdiction. See Maryhew at 156–159, 464 N.E.2d 538. Therefore, the trial court erred in determining that the University's failure to appear constituted a waiver, i.e. a voluntary relinquishment of a known right, of the defense of personal jurisdiction.

{¶ 12} Because the University did not appear, and did not raise the issue of personal jurisdiction prior to trial, we next must address whether the trial court was permitted to sua sponte review the issue of personal jurisdiction. The University argues that the trial court was permitted to sua sponte address personal jurisdiction in this case, and cites Bradley Shoptaw v. I & A Auto Sales, Inc., 10th Dist. Franklin No. 12AP–453, 2012-Ohio-6259, 2012 WL 6738672 in support. In Shoptaw, certain defendants had not appeared in the action, and the trial court sua sponte determined that it lacked jurisdiction over non-appearing defendants. Id. at ¶ 17–18. The plaintiff appealed, arguing in part that the...