Hunter v. Shield

[Cite as Hunter v. Shield , 2018-Ohio-2371.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ruth A. Hunter et al., :
Plaintiffs-Appellants, :
No. 17AP-751
v. : (C.P.C. No. 14CV-1274)
Rhino Shield et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on June 19, 2018
On brief: Law Offices of James P. Connors, and James P.
Connors, for appellants. Argued: James P. Connors.
On brief: Sybert, Rhoad, Lackey & Swisher, LLC, and Dave
Lackey, for appellee AmCoat Industries, Inc. Argued: Dave
Lackey.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiffs-appellants, Ruth A. Hunter and David G. Hunter, appeal from the
July 18, 2016 judgment entry of the Franklin County Court of Common Pleas granting the
motion to dismiss filed by defendant-appellee AmCoat Industries, Inc., for lack of
personal jurisdiction, denying appellants' motion for sanctions, and denying appellants'
motions for default judgment and renewed supplemental motion for default judgment
and sanctions as moot, and appeal from the April 25, 2017 judgment entry denying
appellants' motion for reconsideration. For the following reasons, we affirm the judgment
of the trial court.
No. 17AP-751 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This case concerns whether appellants established that an Ohio trial court
had personal jurisdiction over appellee AmCoat Industries, Inc., a Florida corporation, in
order to litigate claims arising from an Indiana entity's allegedly faulty application of the
Rhino Shield ceramic coating product on appellants' Ohio residence and subsequent
failure to adequately make promised repairs.
{¶ 3} On December 31, 2012, appellants signed a contract for the application of a
ceramic coating to their Ohio residence, along with preparation and repair work including
pressure washing, caulking and sealing as necessary, filling in stucco cracks, and
masking/shielding certain areas to prevent over-spraying. The header of the contract
contains a "Rhino Shield" logo with "By Tri-State Coating, Inc." stated directly
underneath the logo. (Sept. 4, 2014 Am. Compl., Ex. B at 1.) In the header, phone
numbers are provided with 317 area codes and for 888-RHINO41, and website addresses
are provided with names indicating Indiana, Kentucky, and Ohio. The sales
representative is listed as Rudy Pallone, who provides a 614 area-code phone number.
Appellant David Hunter signed the contract. The price agreed on in the contract is a total
of $11,998 with a $1,200 down payment, a partial payment of $5,399, and $5,399 due on
completion, with all checks made payable to "RhinoShield." (Sept. 4, 2014 Am. Compl.,
Ex. B at 1.) The body of the contract states the customer shall pay certain fees and costs
should "Tri-State Coatings"1 file a legal action to collect amounts due, and cancellation
and any other written notices should be sent to Tri-State Coating, Inc. ("Tri-State") at a
particular Indianapolis address. (Sept. 4, 2014 Am. Compl., Ex. B at 1.) The contract
continues:
Tri-State Coating Limited warranty: Tri-State Coating
warrants the material is of the quality specified and will
transfer to the Customer all manufacturer's written
warranties. Tri-State Coating warrants workmanship for two
(2) years after the date of completion and will remedy
substantial defects without charge to the Customer, on written
notice from Customer within such period. Tri-State Coating
and Customer agree that all implied warranties including,
1We note that the contract for the application of the ceramic coating references both "Tri-State Coatings"
and "Tri-State Coating."
No. 17AP-751 3
without limitations, warranties of habitability, fitness for a
particular purpose and merchant ability [sic] are hereby
excluded and there are no warranties or representations
which extend beyond those expressly set forth in this
agreement.
Tri-State Coatings makes no warranties express or implied
regarding any of the products or services except the express
warranties provided herein. TRI-STATE COATING
EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES
EXCEPT AS PROVIDED HEREIN. WITHOUT LIMITING
THE FOREGOING, THERE IS NO WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR
USE OR PURPOSE WITH RESPECT TO THE GOODS OR
SERVICES SOLD.
***
Entire Understanding: Tri-State Coating is not liable or bound
by any warranties, guarantees, statement, or representations
made by any broker, agent, employee, or other persons
representing or proposing to represent to Tri-State Coating
unless expressly set forth in the Agreement. It is understood
and agrees [sic] that all prior understanding and agreement
between the parties are merged in the Agreement, and that
Agreement alone fully and completely constitute the Final
Agreement. Any subsequent changes or modification hereto
shall not be binding on either party unless in writing and
signed by both parties hereto.
(Sept. 4, 2014 Am. Compl., Ex. B at 2.) The December 31, 2012 contract further states
that Tri-State will not be responsible for indirect or consequential damages, the buyer's
remedy is limited to the price actually paid, and that "[a]ny questions, disputes,
controversies, or litigation arising either directly or indirectly from [the December 31,
2012] contract" shall be submitted to arbitration conducted in Marion County, Indiana.
(Sept. 4, 2014 Am. Compl., Ex. B at 2.) The contract footer states: "7745 E. 89th St.
Indianapolis, IN 46256 indyrhinoshield@yahoo.com." (Sept. 4, 2014 Am. Compl., Ex. B
at 2.)
{¶ 4} On February 6, 2014, appellants filed a complaint alleging violations of the
Ohio Consumer Sales Practices Act ("CSPA"), negligent and/or false misrepresentation,
breach of contract, and violations of the Ohio Home Sales Solicitation Act ("HSSA")
No. 17AP-751 4
arising from claimed problems with the project. Appellants cited failures of inspection,
preparation and repair work, application of the coating, and clean up as well as
subsequent failures to honor warranties and remedy those problems as promised.
Appellants named as defendants "Rhino Shield" under a Columbus, Ohio address, "Tri-
State Coatings and Repair LLC" under a West Chester, Ohio address, "Tri-State Coating,
Inc." under an Indianapolis, Indiana address, "John D. Robertson," "Cleveland Coatings,
Inc.," "Jim Williams," and "Rudy Pallone." (Feb. 6, 2014 Compl. at 1.) Tri-State answered
and asserted a third-party complaint against Alexandre Dgebuadze, a contractor hired by
Tri-State to perform services on appellants' home. (Mar. 11, 2014 Answer and Third-Party
Compl. at 1.)
{¶ 5} On September 4, 2014, appellants moved for leave to file an amended
complaint, and the trial court granted appellants' motion. In the amended complaint,
appellants named several new defendants: "Rhino Shield" under an Indianapolis, Indiana
address, "Aleksandre Dgebuadze," "Timeless Coatings LLC", "Rhino Shield Florida"
under a Destin, Florida address, "Rhino Shield" under a Brighton, Michigan address, and
appellee in the instant case, "AmCoat Industries, Inc." Regarding the nature of the
complaint, appellants alleged the "case arises from an agreement for home exterior
painting and repair services which the defendants, who are collectively and individually
known as 'Rhino Shield,' agreed to perform for [appellant] David Hunter pursuant to
written contract on December 31, 2012." (Sept. 4, 2014 Am. Compl. at 2.)
{¶ 6} Addressing jurisdiction and the parties, the amended complaint asserts in
pertinent part that "[d]efendants are collectively and individually known as 'Rhino Shield'
in one form or another, and are believed to be a loosely organized group of foreign and
domestic corporations, limited liability companies, and/or individuals based in Indiana,
Kentucky, Florida, Michigan, or perhaps some other state" and that " 'Rhino Shield' is
now believed to also be known as AmCoat Industries Inc. and/or Rhino Shield Florida,"
entities allegedly licensed to conduct business in Michigan and not Ohio. (Sept. 4, 2014
Am. Compl. at 3.) Appellants assert that Rhino Shield conducts business nationwide
through an extensive mass marketing strategy without revealing the true parent company,
has "reformed information about how it conducts business, now claiming to be a
nationwide network of 'distributors,' " and held itself out as Rhino Shield when
No. 17AP-751 5
contracting with consumers but actually had the services performed and product
application done by subcontractors or others. (Sept. 4, 2014 Am. Compl. at 4.)
{¶ 7} The causes of action in the amended complaint remained the same as stated
in the original complaint. In Counts 1 and 4, appellants allege the defendants violated
two Ohio consumer protection statutes: the CSPA and the HSSA. In Count 2 of the
amended complaint, appellants allege the defendants negligently and/or intentionally
made misrepresentations to appellants on which they relied to their detriment. In Count
3, appellants allege the defendants breached the written contract of December 31, 2012
by failing to complete the agreement, failing to perform services and repair, and failing to
honor warranties and guarantees, including the written warranty in the December 31,
2012 agreement (previously stated in this opinion) and a separate "25 Year Non-Prorated
Transferable Limited Warranty" for the Rhino Shield ceramic coating. (Sept. 4, 2014 Am.
Compl., Ex. E at 1.) The 25-year transferable warranty, which covers only the replacement
of the coating material, bears the Rhino Shield name and logo with an Indianapolis
address, indicates "Tri-State Coatings, Inc." as "[d]ealer," and states that it is "valid only
when the Rhino Shield Ceramic Coat Material is applied * * * in accordance with the
Manufacturer's approved methods." (Sept. 4, 2014 Am. Compl., Ex. E at 1.) Appellants
demanded judgment against the defendants jointly and severally "where applicable," in
an amount exceeding $25,000 for both compensatory and punitive damages, treble
damages where appropriate, interest, attorney fees, costs of the action, and further relief
as deemed just and appropriate. (Sept. 4, 2014 Am. Compl. at 22.)
{¶ 8} On January 13, 2015, appellee filed a notice of improper service, indicating
that "[t]he proper service address for AmCoat is 4012 West Commons Drive, Unit 116,
Destin, Florida 32541, which is the address listed with the Florida Department of State,
Division of Corporation." (Jan. 13, 2015 Notice at 1.) Attached to the notice is an affidavit
of AmCoat officer Steve Dominique, averring "AmCoat is a corporation organized and
existing under the laws of the state of Florida" with a principal address at that Destin
address as well as a print out of the state of Florida entity search for AmCoat. Appellee
filed a second notice of improper service on January 26, 2015, noting the continued
impropriety of service by ordinary mail under the circumstances. Appellants filed a
No. 17AP-751 6
motion for default judgment on February 10, 2015, and appellee filed a motion for
sanctions against appellants and their attorney on February 12, 2015 for doing so.
{¶ 9} The case was temporarily stayed pending a decision on arbitration involving
Tri-State.2 The case was reinstated to the court's active docket on November 10, 2015.
The trial court then granted appellants' motion for default judgment against Dgebuadze
on November 10, 2015 and denied Tri-State's motion for partial summary judgment on
January 25, 2016.
{¶ 10} On April 7, 2016, appellee filed an amended motion to dismiss due to failure
of appellants to obtain service within one year as required under Civ.R. 3(A). Appellee
noted it entered an appearance solely for the purpose of moving the court to dismiss the
case against it. On April 17, 2016, appellants filed a memorandum contra appellee's
motion to dismiss, as well as a renewed supplemental motion for default judgment against
appellee and for sanctions pursuant to R.C. 2323.51.
{¶ 11} Appellee filed a motion to dismiss for lack of jurisdiction and failure to state
a claim on which relief can be granted on April 26, 2016.3 Appellee argued it distributes
the product Rhino Shield to the Indiana corporation Tri-State, the allegations are based
on conduct between Tri-State and appellants and appellee has had no participation in any
of the transactions that form the basis of the allegations, appellants had not asserted any
product liability claims, and appellee has no business transactions or contacts with the
state of Ohio. Thus, appellee asserts that Ohio's long-arm jurisdiction rule and statute—
Civ.R. 4.3 and R.C. 2307.382—cannot be used to confer personal jurisdiction on appellee.
Appellee argued, in the alternative, that appellants had failed to state a claim against
appellee on which relief can be granted pursuant to Civ.R. 12(B)(6). Appellee attached
the dealership/supply agreement between Tri-State and appellee, information on
appellee's registered trademark for the product Rhino Shield and state of Florida
corporate registration information, Tri-State's certificate of incorporation and certificate
2 On March 5, 2017, the trial court issued a decision and entry denying a motion for an order staying the
case pending arbitration filed by Tri-State. Tri-State appealed, and this court affirmed the trial court
judgment regarding arbitration in Hunter v. Shield, 10th Dist. No. 15AP-172, 2015-Ohio-4603. In Hunter
v. Shield, we noted that "[a]ppellees did not obtain service of the summons and complaint on the other six
defendants [listed in the original complaint], and they are not part of this appeal." Id. at ¶ 2, fn. 1
3 On the same day, appellee filed an amended motion to dismiss to correct a typographical error.
No. 17AP-751 7
of assumed business name of Rhino Shield, both in the state of Indiana, and the contract
between Tri-State and appellants.
{¶ 12} Various additional motions and memoranda ensued. On April 29, 2016,
appellants moved for partial summary judgment on "their claims for breaches of various
written and verbal warranties * * * and related violations of the Ohio [CSPA] relative to
the separate warranties provided by defendants Tri-State Coating, Inc., James Williams,
Rudolph Pallone, and AmCoat Industries, Inc. arising from painting and repair services
at [appellants'] home" and on their claims for breach of contract and related violations of
the CSPA as to Tri-State, Williams, and Pallone. (Apr. 29, 2016 Pls.' Mot. for Partial
Summ. Jgmt. (#5) at 1.)
{¶ 13} On May 10, 2016, appellants filed a memorandum contra appellee's motion
to dismiss. Within it, appellants argued that appellee is in default and, alternatively,
appellee's other arguments lack merit. Specifically, appellants allege that appellee, a
distributor who buys Rhino Shield from a manufacturer, "is actually 'Rhino Shield' " and
"merely allows Messrs. Dominique and Williams and Pallone, and their shell entities,
AmCoat and Tri-State and Cleveland Coatings, to conduct business on their behalves in
Ohio." (May 10, 2016 Memo. Contra Mot. to Dismiss at 2-3.) Appellants point to
Williams' deposition discussing that he began working with Dominique at AmCoat in
2002, running a branch of AmCoat in Indianapolis, until 2005 when Williams started a
new "S" Corporation, Tri-State Coating, and purchased from AmCoat the exclusive rights
to market Rhino Shield in three states. Williams later set up another entity, Cleveland
Coatings, which filed a trade name registration for "Rhino Shield" in Ohio. Appellants
also point to Dominique's deposition in a separate 2005 case filed by appellee in a federal
district court in which Dominique discusses his history with Williams and a previous
company and product and a 2002 Federal Trade Commission decision and order
regarding the previous company. Appellants conclude that "[a]s is obvious from the
foregoing, AmCoat has extensive connections and contacts with Ohio * * * [s]tarting with
* * * Williams as its registered agent, AmCoat aka Rhino Shield has conducted business
in Ohio since at least 2010 according to Jim Williams, and likely earlier * * *. There is
simply no basis at law for AmCoat to argue that it has no contacts with Ohio or that a
No. 17AP-751 8
claim has not been sufficiently alleged against it in this case." (May 10, 2016 Memo.
Contra Mot. to Dismiss at 15-16.)
{¶ 14} On May 13, 2016, appellee entered an appearance limited to the purpose of
replying to appellants' memorandum contra and renewing its motion to dismiss for lack
of personal jurisdiction and for failure to state a claim on which relief can be granted.
Appellee argued that service was deficient, that appellants listed appellee as a party but
failed to assert a basis for a cause of action against it, and that appellants' arguments
regarding the entities all essentially being the same is an unsupported attempt at
redirection to meaningless points which have no bearing on the identities of the separate
defendants identified in the complaint. Appellee asserted appellants ignored the only
legitimate issue: whether appellee had sufficient contacts with Ohio to permit the court
to exercise personal jurisdiction over it and, specifically, how appellee might fit the
criteria under Civ.R. 4.3 and/or R.C. 2307.382.
{¶ 15} On July 18, 2016, the trial court entered judgment granting appellee's
motion to dismiss the amended complaint for lack of personal jurisdiction. The trial court
noted that neither party cited to particular subsections of Civ.R. 4.3(A) or R.C. 2307.382
to support its argument. After reviewing Civ.R. 4.3(A) or R.C. 2307.382 and all the
evidence and allegations before it, construing the evidence and pleadings in favor of
appellants, the trial court found appellants had failed to make a prima facie showing of
personal jurisdiction. Therefore, the trial court dismissed appellants' amended complaint
as to appellee.
{¶ 16} Since the trial court found lack of personal jurisdiction dispositive, it did not
rule on appellee's motion regarding Civ.R. 12(B)(6) and found appellants' February 10,
2015 and April 17, 2016 motions for default judgment, appellee's April 7, 2016 motions to
dismiss, and Rhino Shield's April 27, 2016 motion to strike to be moot. The trial court
additionally denied appellee's February 12, 2015 motion for sanctions but decided to
strike appellants' seven pending motions for summary judgment on the docket while
allowing appellants leave to file one consolidated summary judgment motion within 30
days of the date of the entry.
{¶ 17} Appellants filed a motion to reconsider on July 21, 2016, this time arguing
that appellee is subject to specific personal jurisdiction under Civ.R. 4.3(A)(1), (2), (3),
No. 17AP-751 9
and (4), and further arguing personal jurisdiction over appellee is reasonable and
comports with due process. Appellants additionally reference the existence of general
personal jurisdiction over appellee without providing a specific argument to support that
contention. Appellants attached the dealership/supply agreement and amendments
between appellee and Tri-State, Ohio Secretary of State certificates as to the
foreign/designated appointment of agent and foreign license/for profit assumed name of
"Rhino Shield (Tri-State Coating, Inc.)" including Tri-State's incorporation status in
Indiana, and Tri-State's certificate of existence as a for-profit corporation in Indiana.
(July 21, 2016 Mot. for Recons., Ex. B at 1.) Appellee filed a memorandum contra arguing
it has no agents in the state of Ohio, did not act directly within the state of Ohio to cause
any of the events to occur out of which the claims arose, and simply delivered exterior
coating to Tri-State. Therefore, appellee argued no causal link exists between appellee's
activities and the causes of action to establish personal jurisdiction, and subjecting
appellee to jurisdiction in these circumstances offends due process. On April 25, 2017,
the trial court denied appellants' motion for reconsideration, stating it had "previously
reviewed and considered all subsections of Civ.R. 4.3(A) and R.C. 2307.382 before
determining that [appellants] had failed to make a prima facie showing of jurisdiction in
this case," and "[u]pon thorough review of the parties' filings, the Court does not find any
basis to reconsider that decision." (Emphasis sic.) (Apr. 25, 2017 Trial Ct. Decision at 2.)
{¶ 18} On September 22, 2017, appellants filed a notice, pursuant to Civ.R
41(A)(1)(a), of the voluntary dismissal of the action without prejudice as to "the remaining
defendants Rhino Shield, James H. Williams, Rudolph J. Pallone, and Tri-State Coating,
Inc." (Sept. 22, 2017 Notice of Dismissal at 1.)
{¶ 19} Appellants filed a timely appeal to this court.
II. ASSIGNMENTS OF ERROR
{¶ 20} Appellants present four assignments of error:
1. The trial court erred by denying plaintiffs' motion for
default judgment against defendant AmCoat Industries, Inc.
as "moot."
2. The trial court erred by denying plaintiffs' renewed
supplemental motion for default judgment and sanctions
against defendant AmCoat Industries, Inc. as "moot."
No. 17AP-751 10
3. The trial court erred by granting defendant AmCoat
Industries, Inc.'s motion to dismiss for lack of jurisdiction.
4. The trial court erred by denying plaintiffs' motion for
reconsideration of its decision dismissing AmCoat for lack of
jurisdiction.
III. STANDARD OF REVIEW
{¶ 21} "Personal jurisdiction is a question of law that appellate courts review de
novo." Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St. 3d 81, 2010-Ohio-2551,
¶ 27. On a defendant's motion to dismiss, the plaintiff bears the burden of establishing
the trial court has personal jurisdiction over the defendant. Id., citing Fallang v. Hickey,
40 Ohio St. 3d 106, 107 (1988). If the court determines a Civ.R. 12(B)(2) motion to dismiss
without an evidentiary hearing, "the plaintiff need only establish a prima facie showing of
personal jurisdiction, which requires sufficient evidence to allow reasonable minds to
conclude that the trial court has personal jurisdiction." Austin Miller Am. Antiques, Inc.
v. Cavallaro, 10th Dist. No. 11AP-400, 2011-Ohio-6670, ¶ 7. In resolving the motion, the
court must view the allegations in the pleadings and the evidence in the light most
favorable to the plaintiff and make all reasonable inferences in the plaintiff's favor.
Kauffman Racing at ¶ 27, citing Goldstein v. Christiansen, 70 Ohio St. 3d 232, 236 (1994).
IV. DISCUSSION
A. Third and Fourth Assignments of Error
{¶ 22} Because the third and fourth assignments of error are dispositive of this
appeal, we address them first. In both the third and fourth assignments of error,
appellants challenge the trial court's decision to grant appellee's motion to dismiss for
lack of personal jurisdiction over appellee.
{¶ 23} As a preliminary issue, appellants argue in their reply brief, for the first
time, that appellee waived personal jurisdiction in this case either by only contesting
service in its first appearance or through its subsequent filings generally.4 However, even
a de novo standard of review does not supersede the settled practice of not addressing
4
We note that appellants' argument in their original brief to this court takes the opposite approach: that
appellee was in default. We further note that appellants neither make nor support with legal authority an
argument specific to Civ.R. 12(B)(6) motions in their reply.
No. 17AP-751 11
issues raised for the first time on appeal. Tucker v. Leadership Academy for Math, 10th
Dist. No. 14AP-100, 2014-Ohio-3307, ¶ 20. Furthermore, "[a]ppellate courts generally
will not consider a new issue presented for the first time in a reply brief." State v.
Quarterman, 140 Ohio St. 3d 464, 2014-Ohio-4034, ¶ 18. Therefore, because appellants
did not raise this argument to the trial court or in their appellate brief, they have waived
the argument, and we decline to consider it for the first time on appeal.
{¶ 24} In Ohio, the determination whether a trial court has personal jurisdiction
over an out-of-state defendant requires a two-step inquiry. Fraley v. Estate of Oeding,
138 Ohio St. 3d 250, 2014-Ohio-452, ¶ 12. As stated in Fraley:
First, the court must determine whether the defendant's
conduct falls within Ohio's long-arm statute or the applicable
civil rule. Kentucky Oaks Mall Co. v. Mitchell's Formal Wear,
Inc., 53 Ohio St. 3d 73, 75, 559 N.E.2d 477 (1990). If it does,
then the court must consider whether the assertion of
jurisdiction over the nonresident defendant would deprive the
defendant of due process of law under the Fourteenth
Amendment to the United States Constitution. Id.
Id. Kauffman Racing at ¶ 45 ("Ohio's long-arm statute is not coterminous with due
process.").
{¶ 25} In the first step, a court must determine whether Ohio's long-arm statute,
R.C. 2307.382, or complementary service rule, Civ.R. 4.3(A), confer personal jurisdiction.
Simmons v. Budde, 10th Dist. No. 14AP-846, 2015-Ohio-3780, ¶ 15, citing Kauffman
Racing at ¶ 35 ("The requirements for out-of-state service of process to effectuate
personal jurisdiction on nonresident defendants 'mirror' the long-arm statute under these
sections."). On appeal, appellants contend that appellee is subject to Ohio's long-arm
statute under Civ.R. 4.3(A)(1), (2), (3), and (4). In pertinent part, Civ.R. 4.3(A) states:
When service permitted. Service of process may be made
outside of this state, as provided in this rule, in any action in
this state, upon a person who, at the time of service of process,
is a nonresident of this state or is a resident of this state who
is absent from this state. "Person" includes an individual, an
individual's executor, administrator, or other personal
representative, or a corporation, partnership, association, or
any other legal or commercial entity, who, acting directly or
by an agent, has caused an event to occur out of which the
No. 17AP-751 12
claim that is the subject of the complaint arose, from the
person's:
(1) Transacting any business in this state;
(2) Contracting to supply services or goods in this state;
(3) Causing tortious injury by an act or omission in this state,
including, but not limited to, actions arising out of the
ownership, operation, or use of a motor vehicle or aircraft in
this state;
(4) Causing tortious injury in this state by an act or omission
outside this state if the person regularly does or solicits
business, engages in any other persistent course of conduct,
or derives substantial revenue from goods used or consumed
or services rendered in this state.
{¶ 26} At the outset, we note that in initially opposing appellee's motion to dismiss,
appellants failed to present any argument to the trial court regarding Ohio's long-arm
statute and civil rule and instead emphasized a general theory that the defendants named
were collectively "Rhino Shield" and have "extensive contacts with Ohio." (Appellants'
May 10, 2016 Memo. Contra Appellee's Am. Mot. to Dismiss at 3.) Appellants waited until
their motion for reconsideration to the trial court to make the long-arm statute arguments
for the first time. Ordinarily, a motion for reconsideration " 'may not raise new issues not
previously raised, Columbus v. Hodge, 37 Ohio App. 3d 68, 523 N.E.2d 515 (Franklin
1987).' " Fenton v. Time Warner Entertainment Co., 2d Dist. No. 19755, 2003-Ohio-6317,
¶ 2, quoting Whiteside, Ohio Appellate Practice, Author's Comment, at 700 (2003 Ed.);
In re Estate of Traylor, 7th Dist. No. 03 MA 253, 2005-Ohio-1348, ¶ 8. See generally
State v. Brown, 7th Dist. No. 13 MA 172, 2014-Ohio-5824, ¶ 45-47; Pitts v. Ohio Dept. of
Transp., 67 Ohio St. 2d 378 (1981) (discussing applicability of motions for reconsideration
in the trial court despite the lack of a civil rule governing the practice). Faced with the
new arguments, the trial court did not find any basis to reconsider its decision since it had
already reviewed and considered all subsections of Civ.R. 4.3(A) and R.C. 2307.382
before determining appellants had failed to make a prima facie showing of jurisdiction.
Considering the trial court did not address the new arguments posed by appellants as a
basis for reconsideration, and in light of appellants' burden of establishing the trial court
No. 17AP-751 13
has personal jurisdiction over appellee, appellants' initial failure to present arguments
under Ohio's long-arm statute alone justifies finding in favor of appellee.
{¶ 27} However, even if appellants properly raised Ohio's long-arm statute and
civil rule in their motion for reconsideration in the trial court, appellants have not
demonstrated reversible error in this case. Appellants argue that Civ.R. 4.3(A)(1) applies
because appellee "transact[s] any business in this state" under the broad definition of this
phrase adopted by Ohio courts by virtue of (1) its dealership/supply agreement with Tri-
State which enables Tri-State to sell Rhino Shield services to Ohio consumers, and (2) by
virtue of the 25-year written warranty. Appellants argue Civ.R. 4.3(A)(2) applies because,
through its dealership/supply agreement with Tri-State, appellee "has an agreement with
Tri-State to supply its coating product 'Rhino Shield' in Ohio," such agreement requires
Tri-State to use a standard warranty agreement, and, according to appellants, appellee
"uses a contracted agent to supply both its product and product warranty in Ohio to Ohio
consumers." (Appellants' Brief at 42, 46.) Appellants argue Civ.R. 4.3(A)(4) applies
because appellee caused tortious injury in Ohio by an act or omission outside Ohio by
refusing to honor its own written warranty provided directly to appellants, along with the
fact that appellee derives substantial revenue from its products used, sold, and consumed
in this state. Appellants provide no argument in support of Civ.R. 4.3(A)(3).
{¶ 28} Appellee counters the single reference to appellee within the amended
complaint states that " 'Rhino Shield' is now believed to also be known as AmCoat
Industries," an entity not licensed to do business in Ohio. (Sept. 4, 2014 Am. Compl. at
3.) Appellee argues that its only contact with the state of Ohio is through the supply of
the Rhino Shield product to Tri-State, an Indiana corporation. Appellee notes that
appellants made "vague references" in their brief suggesting appellee provided defective
coating but contends that appellants made no product liability or defect claims made in
the amended complaint, and there are no clear allegations as to the basis of their claims
against appellee in their filings with the trial court. (Appellee's Brief at 12.) Finally,
appellee contends it is not a party to any written warranty, appellants made no request
and appellee did not fail to honor the warranty, and appellants' claimed damages have
nothing to do with the supply or product. As a result, appellee suggests there is no "nexus"
No. 17AP-751 14
between appellee's supply of the Rhino Shield product to Tri-State and appellants' causes
of action. (Appellee's Brief at 12.)
{¶ 29} We agree with appellee, because at the outset, "[t]he burden of affirmatively
demonstrating error on appeal rests with the [appellant]." Miller v. Johnson & Angelo,
10th Dist. No. 01AP-1210, 2002-Ohio-3681, ¶ 2; see also App.R. 9 and 16(A)(7). Pursuant
to App.R. 16(A)(7), "[t]he appellant shall include in its brief, under the headings and in
the order indicated, all of the following: * * * (7) [a]n argument containing the contentions
of the appellant with respect to each assignment of error presented for review and the
reasons in support of the contentions, with citations to the authorities, statutes, and
parts of the record on which appellant relies." (Emphasis added.) "It is not the duty of
this court to search the record for evidence to support an appellant's argument as to
alleged error." Abraham v. BP Exploration & Oil, Inc., 10th Dist. No. 01AP-1061, 2002-
Ohio-4392, ¶ 32.
{¶ 30} Here, appellant has not provided any argument or legal support for Civ.R.
4.3(A)(3). Furthermore, regarding Civ.R. 4.3(A)(4), appellants have not provided a legal
definition of "tortious injury" or argument as to why a failure to honor a warranty in this
case meets such a definition and have not provided any other legal support on this section
of the civil rule. We decline to find appellants have not met their burden of demonstrating
error on appeal in this regard. Miller, 2002-Ohio-3681; App.R. 16(A)(7).
{¶ 31} Regarding Civ.R. 4.3(A)(1) and (2), even if we were to find, for sake of
argument, that appellants demonstrated appellee transacted business in this state or
contracted to supply services or goods in this state, appellants have not demonstrated a
connection between these acts and the claims giving rise to the complaint to support
reversal in this case.
{¶ 32} In Ohio, personal jurisdiction over an out-of-state defendant may be
properly exercised where there is a causal connection between the defendant's act as
enumerated in the statute and/or rule and the causes of action asserted against him or
her. Civ.R. 4.3(A); R.C. 2307.382(C) ("When jurisdiction over a person is based solely
upon this section, only a cause of action arising from acts enumerated in this section may
be asserted against him."); Simmons at ¶ 16, 19, 21.
No. 17AP-751 15
{¶ 33} First, as noted by appellee, it is unclear what causes of action appellants
assert against appellee. In appellants' own words, this "case arises from an agreement for
home exterior painting and repair services which the defendants, who are collectively and
individually known as 'Rhino Shield,' agreed to perform for [appellant] David Hunter
pursuant to written contract on December 31, 2012." (Sept. 4, 2014 Am. Compl. at 2.)
Appellants' only reference to appellee in the amended complaint is to note that they
believe appellee is now Rhino Shield. Complicating things further, appellants dismissed
"Rhino Shield" as a defendant. (Sept. 22, 2017 Notice of Dismissal at 1.) Although
appellants essentially contend Tri-State, the company who appellants directly contracted
with to do the work on their house and promised to repair the work, is one in the same as
appellee, information provided by appellants themselves, such as the dealership
agreement and certificate of incorporation, specifically state otherwise.
{¶ 34} Second, the bulk of the amended complaint is related to allegations of faulty
application of the coating product, including applying the coating product in incorrect
and varying thicknesses and damages resulting from over-spray and the subsequent
failure to repair the work as promised. A cause of action regarding the product being
defective is not stated in the amended complaint, and the factual allegation regarding the
paint chipping and peeling is stated in relation to the faulty and inconsistent application
of the product. For example, the complaint states "[t]he coating was also not applied at
the proper mil thickness and continues to peel, split, crack, blister, and break." (Sept. 4,
2014 Am. Compl. at 13.)
{¶ 35} Third, several problems bog down appellants' assertions of personal
jurisdiction by way of alleged causes of action related to the 25-year transferrable
warranty. The warranty, which is attached to the amended complaint, does not include
appellee's name, specifically states it is only valid when the material is applied in
accordance with the manufacturer's approved methods (which appellants allege did not
happen), and does not extend beyond the replacement of the coating material, which is
not sought by appellants in their suit. Moreover, there is no allegation that appellants
demanded appellee replace the coating material pursuant to the warranty and that
appellee subsequently refused to do so.
No. 17AP-751 16
{¶ 36} Overall, reviewing the allegations in the pleadings and the evidence in the
light most favorable to appellants and making all reasonable inferences in appellants'
favor, we find appellants have not met their burden to demonstrate a causal connection
between appellee's alleged activities under Civ.R. 4.3(A)(1) and (2) and the claims
asserted against appellee to support personal jurisdiction over appellee in this case.
{¶ 37} Finally, although appellants mention general jurisdiction and cite to
Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408, 414 (1984), and Internatl.
Shoe Co. v. Washington, 326 U.S. 310 (1945), appellants failed to provide support for the
applicability of general jurisdiction under Ohio law and failed to explain within its
motions to the trial court and to this court how a general jurisdiction theory applies to the
facts of this case. (Appellants' Brief at 40.) Therefore, appellants have not met their
burden in demonstrating error on appeal in this regard. Miller, 2002-Ohio-3681;App.R.
16(A)(7).
{¶ 38} Accordingly, appellants' third and fourth assignments of error are
overruled.
B. First and Second Assignments of Error
{¶ 39} Under the first and second assignments of error, appellants contend the
trial court erred by denying appellants' motion for default judgment against appellee (and
appellants' renewed supplemental motion for default judgment and sanctions) as moot.
We disagree.
{¶ 40} A trial court's denial of a motion for default judgment is ordinarily reviewed
on appeal for an abuse of discretion. However, dismissals on the basis of mootness
present questions of law, which a court of appeals reviews de novo. Tucker at ¶ 7;
Heartland of Portsmouth, OH, LLC v. McHugh Fuller Law Group, PLLC, 4th Dist. No.
16CA3741, 2017-Ohio-666, ¶ 15.
{¶ 41} Appellants specifically contend appellee was clearly in default and filed
false/fraudulent affidavits related to issues of improper service, appellants had a right to
have their motion for default judgment heard and decided, the trial court erred by
allowing appellee to file an untimely motion to dismiss out of rule and without leave from
the court, and this court must reverse and grant default judgment and sanctions as a
matter of law. Appellants cite to Miller v. Lint, 62 Ohio St. 2d 209 (1980), and PSE Credit
No. 17AP-751 17
Union, Inc. v. Wells, 8th Dist. No. 104075, 2016-Ohio-7780, ¶ 14, in support of their
argument.
{¶ 42} In Miller, 62 Ohio St. 2d 209, after service of summons and a copy of a
complaint was made on the defendant and the defendant filed an untimely answer, the
plaintiff sought a default judgment. The trial court granted leave to file the answer, and
the appellate court overruled the plaintiff's allegation the trial court erred in allowing the
late answer. The Supreme Court of Ohio reversed the judgment allowing the defendant
to file the answer out of rule without regard to civil procedure rules. In PSE Credit Union,
a plaintiff never filed an answer to the defendant's cross-claims prior to filing a Civ.R.
12(B)(6) motion to dismiss for failure to state a claim on which relief can be granted. The
trial court granted the motion to dismiss. The appellate court reversed, noting that
"[a]lthough a party may raise the defense of failure to state a claim upon which relief can
be granted up to and including trial, it must do so in accordance with the civil rules." Id.
at ¶ 17.
{¶ 43} Both Miller, 62 Ohio St. 2d 209, and PSE Credit Union do not involve issues
of personal jurisdiction and, as such, are readily distinguishable from this case.
Appellants' legal argument is generally premised on rules and cases in which service of
process of the complaint had been established and issues of personal jurisdiction are not
involved. Personal jurisdiction affects the very authority of a court to enter judgment.
Don Ash Properties v. Dunno, 10th Dist. No. 03AP-375, 2003-Ohio-5893, ¶ 8 ("A
judgment entered without personal jurisdiction is void."); Maryhew v. Yova, 11 Ohio
St.3d 154, 156 (1984) (reversing default judgment in favor of plaintiff where personal
jurisdiction over out-of-state corporate office was not established).
{¶ 44} Here, the trial court correctly found it lacked personal jurisdiction over
appellee under Civ.R. 4.3(A) and R.C. 2307.382(C).5 As such, it lacked authority to issue
judgment against appellee. Considering all the above, appellants have not met their
5We note that, even had appellee received service of the complaint, they were not technically served under
Civ.R. 4.3. Civ.R. 4.3(A) expressly only permits out-of-state service of process as provided in that rule, in
other words, when the court has personal jurisdiction over the out-of-state defendant. Civ.R. 4.3(A) ("When
service permitted. Service of process may be made outside of this state, as provided in this rule, in any
action in this state, upon a person who, at the time of service of process, is a nonresident of this state [under
a set of enumerated circumstances]."); Simmons at ¶ 22, citing Green v. Huntley, 10th Dist. No. 09AP-652,
2010-Ohio-1024, ¶ 18, fn. 1.
No. 17AP-751 18
burden in affirmatively demonstrating error on appeal. Miller, 2002-Ohio-3681; App.R.
16(A).
{¶ 45} Accordingly, appellants' first and second assignments of error are
overruled.
V. CONCLUSION
{¶ 46} Having overruled appellants' four assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRUNNER and HORTON, JJ., concur.
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