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Sampson v. Hooper Holmes11/10/1993
COOK, Presiding Judge.
Loren Sampson ("appellant") appeals the trial court's judgment vacating its default judgment against Hooper Holmes, Inc. ("Hooper"). Appellant claims that the trial court abused its discretion in vacating the default judgment because (1) the court did not apply equitable principles; and (2) Hooper did not meet the requirements of Civ.R. 60(B). We affirm because the default judgment was void ab initio in that Hooper was not served with notice of the action. Thus, the requirements of Civ.R. 60(B) were inapplicable.
1. Hooper Holmes, Inc.
In order to fully understand the facts in this case, a brief explanation of the history and relationship of Hooper and Nurse's House Calls, Inc. is required. In 1987, Hooper bought some of Nurse's House Calls, Inc.'s assets, including the registered trade name "Nurse's House Call." Hooper's statutory agent in Ohio is Prentice Hall Corporation ("PH"), but Hooper did not inform PH that it was doing business in Ohio under the name of Nurse's House Call. Nurse's House Calls, Inc. remained a separate corporate entity with a different statutory agent than Hooper.
2. Underlying Suit and Service Attempts
After having been released from the hospital with terminal cancer, Christopher Patton ("Patton") retained Nurse's House Call to provide nursing care for him while he remained at home. Two weeks later, Patton died. Appellant, as executor of Patton's estate, filed a complaint for wrongful death and negligence. Appellant asserted that Patton died as a result of a staph infection caused by the negligence of Nurse's House Call and its employees.
In his complaint, appellant listed the first defendant as follows:
"Nurse's House Calls, Inc.
"Hooper Holmes, Inc.
"c/o Statutory Agent
"Prentice Hall Corporation"
Appellant attempted service by certified mail, which was addressed only to Nurse's House Calls, Inc. and did not reference Hooper Holmes, Inc. After receiving the notice, PH marked the envelope "not agent" and returned it. Appellant then attempted service by ordinary mail. The envelope again wasaddressed only to Nurse's House Calls, Inc. and PH again marked the mail "not agent" and returned it.
Appellant moved for default judgment against Nurse's House Calls, Inc. and the trial court granted it against "Nurse's House Calls, Inc./Hooper Holmes, Inc." After a hearing on damages, the trial court awarded appellant $250,000. After learning of the default judgment, Hooper immediately moved to vacate it. The trial court vacated the judgment because Hooper was not properly served.
Appellant now appeals, asserting three assignments of error.
"I. The trial court abused its discretion and prejudicially erred to the detriment of appellant in failing to apply the doctrine of estoppel to preclude appellee from claiming that it was not properly served summons in accordance with the requirements of rule 4.2(6) of the Ohio Rules of Civil Procedure.
"II. The trial court abused its discretion and prejudicially erred to the detriment of appellant in recognizing appellee's claim to a defense under Ohio Civil Rule 60(B) when appellee only presented an unsubstantiated claim.
"III. The trial court abused its discretion and prejudicially erred to the detriment of appellant by vacating default judgments granting appellant judgment on its claim of negligence against appellee and assessing damages at $250,000.00 notwithstanding appellee's failure to meet the requirements for vacating such judgments under rule 60(B) of
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