Keaton v. Purchase Plus Buyers Group

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2001-Ohio-2569

Case Date: 08/31/2001

Plaintiff: Keaton

Defendant: Purchase Plus Buyers Group

Preview:[Cite as Keaton v. Purchase Plus Buyers Group, 2001-Ohio-2569.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PIKE COUNTY HOWARD KEATON, Plaintiff-Appellee, vs. PURCHASE PLUS BUYERS GROUP, : : : , : DECISION AND JUDGMENT ENTRY INC., Case No. 01CA657

RELEASED: 8-31-01 : Defendant-Appellant. _________________________________________________________________ APPEARANCES: COUNSEL FOR APPELLANT: Geoffrey J. Moul, Murray, Murphy, Moul & Basil, L.L.P., 326 South High Street, Suite 400, Columbus, Ohio 43215

COUNSEL FOR APPELLEE:

Michele R. Rout, Catanzaro & Rosenberger, 100 North Market Street, Waverly, Ohio 45690 _________________________________________________________________ ABELE, P.J. This is an appeal from a Pike County Common Pleas Court judgment that denied a Civ.R. 60(B) motion for relief from judgment filed by Purchase Plus Buyers Group, Inc., defendant below and appellant herein. for our review: FIRST ASSIGNMENT OF ERROR: "THE TRIAL COURT ABUSED ITS DISCRETION IN NOT HOLDING AN EVIDENTIARY HEARING ON PURCHASE PLUS BUYER'S GROUP'S MOTION TO SET ASIDE THE DEFAULT JUDGMENT." The following errors are assigned

[Cite as Keaton v. Purchase Plus Buyers Group, 2001-Ohio-2569.] SECOND ASSIGNMENT OF ERROR: "THE TRIAL COURT ABUSED ITS DISCRETION IN NOT SETTING ASIDE THE ENTIRE DEFAULT JUDGMENT ENTERED AGAINST PURCHASE PLUS AND COMPELLING KEATON TO ARBITRATE." THIRD ASSIGNMENT OF ERROR: "THE TRIAL COURT ABUSED ITS DISCRETION IN NOT HOLDING A HEARING ON THE MOTION TO SET ASIDE." FOURTH ASSIGNMENT OF ERROR: "THE TRIAL COURT ABUSED ITS DISCRETION IN NOT SETTING ASIDE THE DEFAULT JUDGMENT AS TO DAMAGES." FIFTH ASSIGNMENT OF ERROR: "THE TRIAL COURT ABUSED ITS DISCRETION BY NOT 1 HOLDING A HEARING ON DAMAGES."

These assignments of error are taken from the "statement of assignment of error presented" as set forth on page v of appellant's brief. We note that in its table of contents, appellant includes another "statement of assignment of error presented" but, this time, only sets out four (4) assignments of error rather than the five (5) set out later in its brief.

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PIKE, 01CA657 Our review of the record reveals the following facts pertinent to this appeal. On July 28, 2000, Howard Keaton,

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plaintiff below and appellee herein, filed suit against appellant alleging that he had been "recruited" as an "independent contractor, sales associate" to conduct business for the company in Pike County. Appellee further alleged that he was promised a

"%100 [sic] Money Back Guarantee" if he was not satisfied in his business with appellant and that he would be returned, within ninety days of investment, any money he "expended for the original wholesale purchase." Appellee claimed that based upon

his reliance on these assurances, he purchased over "250 purchasing centers" at a cost of more than $100,000. Appellee

apparently became disillusioned with the company and sought return of his money. unsuccessful. Apparently, appellee's effort was

Subsequently, appellee pled claims for fraud,

misrepresentation and breach of warranty and sought, inter alia, $81,000 in compensatory damages.2 Certified mail service was ostensibly made on appellant's statutory agent, but no answer was ever filed. 2000, appellee moved for default judgment. On September 7,

The trial court

granted the motion and, on September 22, 2000, entered judgment in appellee's favor against appellant for $81,000 plus interest and costs. Appellee thereafter caused a certificate of judgment

It is not entirely clear from the complaint (which is not exactly a model of clarity to begin with) why appellee sought only $81,000 rather than the $100,000 which he allegedly spent to acquire the "purchasing centers."

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PIKE, 01CA657 (lien) to be issued and initiated proceedings to hold a judgment debtor examination. On October 31, 2000, appellant filed a motion "to set aside default judgment, to stay execution of judgment and to compel arbitration." Appellant argued that its statutory agent had

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resigned three days after the original complaint was filed and that it was "not at all clear" who signed for service of the summons and complaint. In any event, appellant continued, the

company's "practice" was for all new legal matters to be forwarded to Ted Lindauer, chairman of the company's board of directors. Mr. Lindauer allegedly visited the company's

Westerville, Ohio, office in August of 2000 to review "all the open legal files" but found nothing related to this case. affidavit to that effect from Mr. Lindauer was submitted in support of the motion. Appellant also asserted that if the court granted relief from judgment, appellee was obligated, under the "independent sales associate contract" that he had signed, to submit "any claim, dispute or other differences" with the company to "binding arbitration." Appellant incorporated a copy of this contract An

into an affidavit from Jim Williamson, a Vice President of Corporate Development with the company. Finally, appellant argued that the underlying claims in this case would fail on their merits if the matter was reopened. Williamson's affidavit incorporated an account statement showing that appellee had been paid more than $35,000 in bonuses and

PIKE, 01CA657 commissions during his association with the company and that he

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retained "additional product" that he had not sold or returned in an amount exceeding $38,000. Thus, appellant claimed that it did

"not owe Howard Keaton $80,000." Appellee's memorandum in opposition asserted that the complaint had been duly served on the company's corporate agent. Further, although he submitted no evidence in support of this point, appellee asserted that no new statutory agent had ever been appointed to replace the one who allegedly resigned. This

scenario, appellee maintained, was simply a "tactic" employed by appellant "to avoid being served with any complaints." As to

appellant's alleged defenses if the default judgment was vacated, appellee argued that the arbitration clause was adhesionary and unconscionable and, thus, unenforceable. Appellee further argued

that his claims did have merit and, in support thereof, attached a copy of a complaint in an ongoing action by the Ohio Attorney General against appellant alleging various and sundry violations of the Ohio Consumer Sales Practices Act. On December 8, 2000, the trial court issued its judgment and overruled appellant's Civ.R. 60(B) motion. I Before we review this case on its merits, we first pause to address some problems with appellant's brief. The provisions of This appeal followed.

App.R. 16(A) require a separate argument for each assignment of error. Pursuant to App.R. 12(A)(2), an appellate court may

disregard any assignment of error for which a separate argument

PIKE, 01CA657 has not been made. See Portsmouth v. Internatl. Assn. of Fire

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Fighters, Local 512 (2000), 139 Ohio App.3d 621, 626, 744 N.E.2d 1263; Park v. Ambrose (1993), 85 Ohio App.3d 179, 186, 619 N.E.2d 469, 474; State v. Caldwell (1992), 79 Ohio App.3d 667, 677, 607 N.E.2d 1096, 1103, at fn. 3.
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In the instant case, the argument portion of appellant's brief is divided into four parts. However, only the third and

fourth parts appear to directly address any of the assignments of error. Moreover, we find no discernible difference between All of these

appellant's first and third assignments of error.

factors combine to make the brief much more confusing and difficult to follow than it otherwise should have been. Nevertheless, in the interests of justice we shall endeavor to address the arguments therein to the best of our ability.

The argument portion of the brief should also be organized in accordance with the assignments of error in the brief. See Whiteside, Ohio Appellate Practice (1999 Ed.) 94,

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