Asamoah v. GM Fin. , 2022 Ohio 2301 ( 2022 )

[Cite as Asamoah v. GM Fin., 2022-Ohio-2301.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Michael Asamoah, :
Plaintiff-Appellant, : No. 21AP-641
(C.P.C. No. 21CV-37)
v. :
(ACCELERATED CALENDAR)
GM Financial, :
Defendant-Appellee. :
D E C I S I O N
Rendered on June 30, 2022
On brief: Michael Asamoah, pro se. Argued: Michael
Asamoah.
On brief: McGlinchey Stafford, and James W. Sandy, for
appellee. Argued: James W. Sandy.
APPEAL from the Franklin County Court of Common Pleas
NELSON, J.
{¶ 1} Plaintiff-appellant Michael Asamoah appeals from a judgment of the
Franklin County Court of Common Pleas that granted the motion of defendant-appellee
GM Financial ("GMF") to compel arbitration and stay proceedings in one case (21CV-6051)
while denying Mr. Asamoah's motions for default judgment in that case and in another
(21CV-37) in which arbitration already had been ordered and a default judgment motion
denied.
{¶ 2} On January 5, 2021, Mr. Asamoah filed a pro se complaint against GMF in
case No. 21CV-37, alleging he "has an account with GM[F]" arising out of the purchase and
financing of a Mercedes Benz automobile. Mr. Asamoah further alleged that GMF had
"interfered with [his] right of possession" of the car by "unlawfully repossessing" it.
No. 21AP-641 2
Complaint at 4. The complaint asserted causes of action for violations of Ohio consumer
laws (including the Ohio Retail Installment Sales Act), trespass, assault, false
imprisonment, infliction of severe emotional distress, "[b]reach of [p]eace," and "[t]respass
to [c]hattel." Complaint at 7, 8.
{¶ 3} On February 3, 2021, Mr. Asamoah filed a motion for default judgment,
asserting he had "filed a complaint against [GMF] on January 5, 2021," and that GMF "was
served by ordinary mail" and had "failed to answer [his] [c]omplaint by the deadline."
Motion for Default Judgment at 1.
{¶ 4} Also on February 3, 2021, GMF filed a memorandum in opposition to Mr.
Asamoah's motion for default judgment, as well as a motion for leave to plead. In the
memorandum in opposition, GMF argued it was "not in default," as Mr. Asamoah
"attempted ordinary mail service * * * on January 5, 2021" and there was "nothing in the
record to reflect when the ordinary mail service was actually received by GMF at the P.O.
Box." GMF Memorandum in Opposition at 1. GMF further argued that Mr. Asamoah "has
not effectuated proper service on GMF" under Civ.R. 4.2(F). Id. at 2. In its motion for leave
to plead, GMF similarly asserted that Mr. Asamoah had "attempted to serve GMF at a P.O.
Box in Arlington, Texas," and that "[t]his is not GMF's registered agent for service of
process." GMF Motion for Leave at 1.
{¶ 5} By entry filed February 19, 2021, the trial court denied Mr. Asamoah's motion
for default judgment and granted GMF's motion for leave to plead. In its entry, the trial
court held in part that, while Civ.R. 4.6 "provides alternative methods of service after
certified mail service under Civ.R. 4.1(A) is either unclaimed or refused," Mr. Asamoah's
"service on [GMF] via ordinary mail is insufficient." February 19, 2021 Entry at 1-2. The
trial court further held: "It also does not appear that [Mr. Asamoah] served the Defendant
corporation in the manner required by Civ.R. 4.2(F)." Id. at 2.
{¶ 6} Mr. Asamoah filed an appeal from the trial court's February 19, 2021 entry
denying his motion for default judgment. By journal entry filed April 26, 2021, this court
dismissed the appeal for lack of a final order.
{¶ 7} On March 5, 2021, GMF filed an answer asserting arbitration as an
affirmative defense and further raising the defense of insufficient service of process. On
July 13, 2021, GMF filed a motion to "compel arbitration, dismiss case, or, alternatively,
No. 21AP-641 3
stay case pending arbitration." In its motion, GMF argued that Mr. Asamoah had executed
an agreement to "arbitrate his claims against Defendant Americredit Financial Services,
Inc., dba GM Financial," and that his claims against GMF "clearly fall within the scope of
that agreement." July 13, 2021 Motion to Compel at 1.
{¶ 8} On October 13, 2021, GMF filed a motion to consolidate the case in that
matter (case No. 21CV-37) with a case "recently filed" by Mr. Asamoah (case No. 21CV-
6051, filed September 24, 2021). Motion to Consolidate at 1. GMF argued that "this new
action is almost identical to the previously filed action commenced by [Mr. Asamoah]," and
that "[b]oth actions involve the same parties and the claims are essentially the same and all
predicated upon the same alleged facts." Id. On October 18, 2021, Mr. Asamoah filed a
memorandum in opposition to GMF's motion to consolidate. GMF filed a reply in support
of its motion to consolidate on October 19, 2021.
{¶ 9} By decision and entry filed October 20, 2021, the trial court granted GMF's
motion to compel arbitration in case No. 21CV-37, and further granted GMF's request to
stay the case pending arbitration. In its decision, the trial court made findings that Mr.
Asamoah, on October 29, 2018, "purchased a 2009 Mercedes * * * from Crown Motor
Company, Inc." and that, as part of that purchase, he "executed a Retail Buyer's Order * * *
as well as a Retail Installment Contract." October 20, 2021 Decision & Entry at 1. The court
further found the "Buyer's Order made clear that the parties contemplated and agreed that
the documents were all part of the same transaction and incorporated into each other," and
that the contract and "accompanying documents were assigned to GMF." Id. at 1-2. The
court determined that "there is no dispute that there is a valid arbitration provision [that]
governs the issues raised in [Mr. Asamoah's] Complaint," and that "all [of his] claims fall
within the scope of the Arbitration Agreement." Id. at 3. The trial court therefore ordered
the parties to arbitrate, id. at 4. Mr. Asamoah did not promptly appeal from that order.
{¶ 10} On October 26, 2021, Mr. Asamoah filed a motion for default judgment in
case No. 21CV-6051. On October 27, 2021, GMF filed a motion to compel arbitration of
that case and to stay proceedings there. Also on October 27, 2021, the trial court granted
GMF's motion to consolidate case No. 21CV-6051 with case No. 21CV-37. On November 3,
2021, Mr. Asamoah filed a memorandum in opposition to GMF's motion to compel
arbitration in and stay case No. 21CV-6051.
No. 21AP-641 4
{¶ 11} On November 8, 2021, Mr. Asamoah filed a "second motion for default
judgment" under the two consolidated case numbers. On November 9, 2021, GMF filed a
memorandum in opposition to that motion for default judgments.
{¶ 12} In its decision and entry of November 17, 2021 from which Mr. Asamoah
appeals, the trial court granted GMF's motion to compel arbitration in case No. 21CV-6051
and to stay that case pending arbitration. The trial court denied Mr. Asamoah's October 26,
2021 motion for default judgment in case No. 21CV-6051, and also denied his second
motion for default judgment in the two cases. In its decision, the trial court found, as it had
in granting the motion to compel arbitration in case No. 21CV-37, that a valid arbitration
provision governed the issues raised in the complaint, and that all of Mr. Asamoah's claims
"fall within the scope of the Arbitration Agreement." November 17, 2021 Decision & Entry
at 4.
{¶ 13} On appeal, Mr. Asamoah sets forth the following four assignments of error
for this court's review:
[I.] The Court of Common Pleas erred and abused its discretion
in granting Defendant's Motion to Compel Arbitration and Stay
Case Pending Arbitration.
[II.] The Franklin County Common Pleas Court erred in
denying Plaintiff's Motion for Default Judgment filed on
October 26, 2021.
[III.] The Court of Common Pleas erred and abused its
discretion in denying Plaintiff's Second Motion for Default
Judgment filed on November 8, 2021.
[IV.] The Franklin County Court of Common Pleas abused its
discretion and violated Plaintiff's constitutional rights.
{¶ 14} Mr. Asamoah's assignments of error are interrelated, and we consider them
together. Under these assignments of error, he contends the trial court erred in granting
GMF's motion to compel arbitration and in denying his motions for default judgment. Mr.
Asamoah further maintains that the trial court violated his constitutional rights.
{¶ 15} In general, " '[b]oth the Ohio General Assembly and Ohio courts have
expressed a strong public policy favoring arbitration.' " Crosscut Capital, LLC v. DeWitt,
10th Dist. No. 20AP-222, 2021-Ohio-1827, ¶ 10, quoting Hayes v. Oakridge Home, 122
No. 21AP-641 5
Ohio St.3d 63, 2009-Ohio-2054, ¶ 15. Under Ohio law, "R.C. Chapter 2711 governs
arbitration," and "R.C. 2711.01 provides that an arbitration agreement or provision in a
written contract 'shall be valid, irrevocable, and enforceable, except upon grounds that exist
at law or in equity for the revocation of any contract.' " Id. at ¶ 11, quoting R.C. 2711.01. In
accordance with R.C. 2711.02(B), "a party to an arbitration agreement or provision may
obtain a stay of litigation in favor of arbitration." Id.
{¶ 16} At the outset, because it raises a jurisdictional issue, we address GMF's
contention that Mr. Asamoah failed timely to appeal in case No. 21CV-37 from the trial
court's decision and entry of October 20, 2021 that granted GMF's motion to compel
arbitration and stay that case pending arbitration. We agree.
{¶ 17} R.C. 2711.02(B) states in part: "If any action is brought upon any issue
referable to arbitration under an agreement in writing for arbitration, the court * * * shall
on application of one of the parties stay the trial of the action until the arbitration of the
issue has been had in accordance with the agreement * * *." R.C. 2711.02(C) provides in
part: "[A]n order under division (B) * * * that grants or denies a stay of a trial of any action
pending arbitration * * * is a final order and may be reviewed, affirmed, modified, or
reversed on appeal pursuant to the Rules of Appellate Procedure and, to the extent not in
conflict with those rules, Chapter 2505. of the Revised Code." See also White v. Equity,
Inc., 191 Ohio App.3d 141, 2010-Ohio-4743, ¶ 15 (10th Dist.), citing R.C. 2711.02(C) ("An
order granting or denying a motion for stay pending arbitration is a final, appealable
order"); Mynes v. Brooks, 124 Ohio St.3d 13, 2009-Ohio-5946, ¶ 13 ("R.C. 2711.02(C)
permits a party to appeal a trial court order that grants or denies a stay of trial pending
arbitration, even when the order makes no determination pursuant to Civ.R. 54(B)");
Pearson v. ManorCare Health Servs., 8th Dist. No. 2014-L-047, 2015-Ohio-5460, ¶ 63
(noting that appeal under R.C. 2711.02(C) from judgment denying motion to stay pending
arbitration "is a final order from which an immediate appeal can be taken" and that "[a]s
part of" that appeal, "appellants are entitled to contest the merits of any interlocutory order
pertaining to the substance of the stay issue").
{¶ 18} Pursuant to App.R. 4(A), a party is required to "file a notice of appeal within
30 days of the entry of the order being appealed." Landa v. Campuseai, Inc., 8th Dist. No.
103013, 2016-Ohio-298, ¶ 18. Accordingly, "[o]nce the court either grants or denies a stay
No. 21AP-641 6
pending arbitration, the order becomes final and must be appealed if the party intends to
challenge the court's decision." Id., citing Fazio v. Gruttadauria, 8th Dist. No. 90562,
2008-Ohio-4586, ¶ 20, citing Schmidt v. Bankers Title & Escrow Agency, Inc., 8th Dist.
No. 88847, 2007-Ohio-3924, ¶ 11.
{¶ 19} Here, in case No. 21CV-37, the trial court filed a decision and entry on
October 20, 2021 granting GMF's motion to compel arbitration and to stay trial court
proceedings. That matter was "immediately appealable," Harlamert v. Fischer Attached
Homes, 1st Dist. No. C-020462, 2003-Ohio-674, ¶ 4 ("trial court's * * * grant of a motion
to stay proceedings pending arbitration is immediately appealable pursuant to R.C.
2711.02(C)"), but Mr. Asamoah did not file a notice of appeal within 30 days of that entry.
The " '[f]ailure to comply with App.R. 4(A) is a jurisdictional defect and is fatal to any
appeal.' " Boulware v. Chrysler Group, L.L.C., 1oth Dist. No. 13AP-1061, 2014-Ohio-3398,
¶ 11, quoting Foreman v. Lucas Cty. Court of Common Pleas, 189 Ohio App.3d 678, 2010-
Ohio-4731, ¶ 6 (10th Dist.).
{¶ 20} That failure precludes us from considering Mr. Asamoah's appeal in case No.
21CV-37. We observe that the notice of appeal filed by Mr. Asamoah on December 2, 2021
(following the trial court's entry of October 27, 2021, granting GMF's motion to consolidate
case No. 21CV-37 with the case filed by Mr. Asamoah in case No. 21CV-6051, and the court's
entry of November 17, 2021, granting GMF's motion to compel arbitration and stay case
pending arbitration in case No. 21CV-6051) at least originally referenced both case Nos.
21CV-37 and 21CV-6051, and pointed to the trial court's November 17, 2021 Decision that
addressed both cases. The notice contains what appears to be a handwritten line striking
through "21CV-6051," although the record is not clear as to who was responsible for the
strikethrough or why it was made. But even if we assume for purposes of argument that
case No. 21CV-6051 is properly before us, Mr. Asamoah's appeal fails as to that case as well.
{¶ 21} Significantly, Mr. Asamoah does not challenge the trial court's holding that
the claims raised were subject to arbitration. Rather, he contends that the trial court lacked
jurisdiction to grant GMF's motion to compel arbitration and to stay proceedings because
GMF was in default for failing to file a timely answer. That argument would fail on the
merits.
No. 21AP-641 7
{¶ 22} The trial court, in its entry denying Mr. Asamoah's (first) motion for default
judgment in case No. 21CV-37, determined the record there failed to indicate that Mr.
Asamoah properly had served GMF with the complaint and summons. Specifically, the trial
court noted "[t]he record reflects that [Mr. Asamoah] requested service on [GMF] via
ordinary mail," which the court held to be "insufficient" service of process under the
circumstances. February 19, 2021 Entry at 1-2. The trial court further found that Mr.
Asamoah had failed to serve "the Defendant corporation in the manner required by Civ.R.
4.2(F)." Id. A review of the record supports those determinations. And Mr. Asamoah has
acknowledged the same problem as to case No. 21CV-6051. See November 17, 2021
Decision & Entry at 6 ("[Mr. Asamoah] admits that he only sought service via ordinary mail,
which is not sufficient under the Ohio Civil Rules of Procedure.").
{¶ 23} Civ.R. 4.1 sets forth "the methods for obtaining service of process within this
state, including service via certified mail." TCC Mgt. v. Clapp, 10th Dist. No. 05AP-42,
2005-Ohio-4357, ¶ 11. In accordance with Civ.R. 4.1(A), "service may be made by certified
or express mail, personal service, or residential service." Chilcote v. Kugelman, 8th Dist.
No. 98873, 2013-Ohio-1896, ¶ 11. Where certified mail is "unclaimed or refused, the Rules
of Civil Procedure permit service by ordinary mail, and deem service complete by ordinary
mail when that mail is not returned as undeliverable." Mun. Tax Invest., LLC v. Pate, 10th
Dist. No. 16AP-218, 2016-Ohio-7791, ¶ 11, citing Civ.R. 4.6(D). See also, 4030 W. Broad,
Inc. v. Neal, 10th Dist. No. 20AP-31, 2021-Ohio-3685, ¶ 26, quoting Hamilton v. Digonno,
12th Dist. No. CA2005-03-075, 2005-Ohio-6552, ¶ 10 ("If applicable, ordinary mail service
'is to be requested only after the failure of certified mail service' ").
{¶ 24} Civ.R. 4.3 addresses out-of-state service and "Civ.R. 4.3(B)(1) incorporates
the methods of service by the clerk 'as provided in Civ.R. 4.1(A)(1) through Civ.R.
4.1(A)(3).' " Pate at ¶ 11, quoting Civ.R. 4.3(B)(1). Accordingly, Civ.R. 4.3 "requires that
service of process first be attempted by certified mail." Natl. City Bank v. Akbar, 2d Dist.
No. 18929 (Jan. 25, 2002). If certified mail is attempted and returned unclaimed, a party
is "required to comply with Civ.R. 4.6(D) for service of process." United Home Fed. v.
Rhonehouse, 76 Ohio App.3d 115, 124 (6th Dist.1991). "Civ.R. 4.6(D) requires that service
then be made by ordinary mail." Id.No. 21AP-641 8
{¶ 25} Civ.R. 4.2(F) governs service of process on a corporation and, under the
provisions of that rule, "a corporation may be properly served in one of three ways."
Mayiras v. Sunrise Motors, Inc., 9th Dist. No. 27931, 2017-Ohio-279, ¶ 12. Specifically,
"service may be made upon a corporation, either domestic or foreign, by serving the agent
authorized by appointment or by law to receive service of process, by serving the
corporation by certified or express mail at any of its usual places of business, or by serving
an officer or a managing or general agent of the corporation." Miley v. STS Sys., 153 Ohio
App.3d 752, 2003-Ohio-4409 ¶ 21 (10th Dist.). See also Mayiras at ¶ 12 (noting proper
methods of service on corporation are "by serving the agent authorized by appointment or
by law to receive service of process; or by serving the corporation at any of its usual places
of business by a method authorized under Civ.R. 4.1(A)(1); or by serving an officer or a
managing or general agent of the corporation").
{¶ 26} Mr. Asamoah does not contend and the record does not reflect that he has
ever attempted in either of his two cases to serve GMF by certified mail; rather, he
acknowledges using only ordinary mail service (by sending the complaint and summons to
a P.O. Box in Texas). The Civil Rules of Procedure permit service by ordinary mail only
under limited circumstances, and the record in this case fails to indicate that Mr. Asamoah
properly served GMF under the methods of service provided by Civ.R. 4.1 and 4.3. And the
record does not show he complied with any of the alternative methods for serving a
corporation under Civ.R. 4.2(F). Specifically as to case No. 21CV-6051, Mr. Asamoah
similarly attempted service only by ordinary mail (as acknowledged in his motion for
default judgment there: "Defendant GM Financial was served by ordinary mail").
October 26, 2021 Motion for Default Judgment at 1 (case No. 21CV-6051).
{¶ 27} In general, "proper service of process is needed before a trial court can render
a valid default judgment." Bowling v. Grange Mut. Cas. Co., 10th Dist. No. 05AP-51, 2005-
Ohio-5924, ¶ 26. Even then, a trial court has discretion as to whether and when to order
default. See, e.g., 533 Short N. L.L.C. v. Zwerin, 1oth Dist. No. 14AP-1016, 2015-Ohio-4040,
¶ 50 ("A trial court has discretion to grant or deny a motion for default judgment"). Where
Mr. Asamoah had failed properly to perfect service on GMF by the time he filed his
motion(s) for default judgment, he cannot demonstrate that the trial court abused its
discretion in denying his motion(s) for default judgment. See Iqbal v. Wells Fargo Bank,
No. 21AP-641 9
N.A., 10th Dist. No. 14AP-31, 2014-Ohio-3156, ¶ 20 (trial court did not abuse its discretion
in denying appellant's motion for default judgment where appellant had failed to perfect
service on defendant corporation in accordance with Civ.R. 4.2(F) at time he filed motion
for default judgment and defendant corporation, despite the lack of service, appeared in the
action and requested extension of time to file responsive pleading).
{¶ 28} Further still, as the trial court observed, GMF "submitted evidence that it
received the Summons and Complaint [in case No. 21CV-6051] on October 4, 2021, and
[GMF] filed its answer by October 27, 2021, which is well within" the time contemplated by
rule. November 17, 2021 Decision & Entry at 6. Mr. Asamoah's argument that the trial
court erred in granting GMF's motion to compel arbitration and to stay case, an argument
predicated solely on his contention that GMF was in default for failing to timely answer, is
without merit.
{¶ 29} Mr. Asamoah further argues that his due process rights were violated because
the trial court "erred as a matter of law and abused its discretion when it denied [his]
motions." Appellant's Brief at 15. But because he cannot demonstrate that the trial court
erred in denying the motions for default judgment and in granting GMF's motion to compel
arbitration, his due process argument never gets off the ground.
{¶ 30} Finally, Mr. Asamoah has filed with this court a motion, pursuant to Civ.R.
11, seeking to impose sanctions against counsel for GMF because "there were no good
grounds to support their briefs, pleadings, motions and other documents." Appellant's
Motion to Impose Sanctions at 4. This court has held that "Civ.R. 11 does not apply to
conduct in the court of appeals." Estate of Garza v. Onesto, 10th Dist. No. 15AP-1031, 2016-
Ohio-5531, ¶ 15, citing Martin v. Ghee, 10th Dist. No. 01AP-1380, 2002-Ohio-1621,
McGowan v. Stoyer, 10th Dist. No. 02AP-263, 2002-Ohio-5410, ¶ 26. More fundamentally
still, there is no merit to Mr. Asamoah's unsupported and conclusory argument as directed
to counsel for the prevailing party. We deny his motion for sanctions.
{¶ 31} We overrule Mr. Asamoah's first, second, third, and fourth assignments of
error. Mr. Asamoah's appeal in case No. 21CV-37 is dismissed in that case where he
challenges an interlocutory order denying a default judgment in a matter stayed pending
arbitration. To the extent that Mr. Asamoah has appealed in case No. 21CV-6051, we affirm
No. 21AP-641 10
the judgment of the Franklin County Court of Common Pleas including its order to compel
arbitration and stay court proceedings.
Appeal dismissed in case No. 21CV37;
judgment affirmed in case No. 21CV-
6051.
LUPER SCHUSTER, P.J., and JAMISON, J., concur.
NELSON, J., retired, of the Tenth Appellate District, assigned
to active duty under the authority of the Ohio Constitution,
Article IV, Section 6(C).
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