The owners of a Dayton nightclub must pay nearly $90,000 to the victim of an alleged barroom brawl after they failed to respond to the victim’s lawsuit, the Second District Court of Appeals ruled.

The court recently decided that Ned Peppers Inc., the company that owns the nightclub, and the building’s owner J&M Holdings Inc., were properly served with notice of the lawsuit filed by William S. Lussier. The ruling upheld a Montgomery County Court of Common Pleas that delivered a default judgment to Lussier when the owners failed to respond.

According to the appeals court, Lussier filed a lawsuit in 2008 for injuries he allegedly suffered in a “barroom brawl” in 2006. In 2010, Lussier dismissed his initial lawsuit and re-filed in November 2011.

In December 2011, Lussier served complaints to Ned Peppers and J&M Holding by certified mail. James A. Schaeffer Jr., is the owner of both Ned Peppers and J&M Holding. Dill Bowling, who works for another company owned by Schaeffer, signed the receipt for the complaints served by Lussier.

The companies failed to respond to the complaint, and in January 2012 the trial court granted Lussier default judgment. In March 2012, the court awarded him $89,373 plus interest. The club owners appealed that decision to the Second District, but the appeals court dismissed the claim for being filed too late.

In June 2013, the owners asked the trial court to vacate its judgment against them. The trial court upheld its prior ruling and the owners appealed to the appeals court a second time, arguing they were not properly served with Lussier’s lawsuit.

Writing for the court, Judge Mike Fain said  civil lawsuit rules allow a corporation to be served with a lawsuit: by serving an agent authorized by the company to receive notice, by serving the corporation at its usual place of business, or by serving a managing officer of the corporation. The complaint was sent to 419 E. 5th Street in Dayton, and the club owners contended in their appeal this was not the usual place of business for either corporation.

Judge Fain noted that Schaeffer testified before a magistrate in trial court and was asked where the usual place of business for the companies was located.

“Schaeffer testified that 419 E. 5th Street was the address of Ned Pepper, Inc. listed in its articles of incorporation, that that was the address of Ned Peppers’ place of business, and that that address, with a suite number of 206, was the address of J&M Holdings, Inc.,” Judge Fain wrote.

In addition, Lussier presented at the hearing a letter from J&M Holdings, Inc.’s insurance company denying his injury claim, that listed the address for the company was 419 through 423 East 5th Street.

Schaeffer also acknowledged that Bowling picked up the mail for the companies at the 419 E. 5th Street location and was in the habit of placing the club’s mail at the end of the bar at Ned Peppers. Bowling testified his signature was on the receipt of Lussier’s complaint and that it has been his usual practice to place the mail at the end of the bar for the last 19-20 years.

The court concluded the owners were sufficiently served with Lussier’s notice.

The owners also sought relief by another rule that allows for reconsideration if the judgment against it was for “mistake, inadvertence, surprise or excusable neglect.” Judge Fain noted that motion for relief must be filed within one year of the judgment and the  nightclub owners waited more than a year and did not articulate the basis for the claim.

“Given that the defendants waited for more than a year after their appeal from the judgment was dismissed before filing their motion, we do not find the trial court to have abused its discretion in finding that the motion was not filed within a reasonable time,” Judge Fain concluded.

Judges Mary E. Donovan and Jeffrey M. Welbaum concurred in the decision.

Lussier v. Ned Peppers, Inc. 2014-Ohio-5169
Opinion: http://sc.ohio.gov/rod/docs/pdf/2/2014/2014-ohio-5169.pdf
Civil Appeal From: Montgomery County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 21, 2014

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