COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68992 McGILL INTERNATIONAL TRADING CORP. : U.S.A. : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION PHILIP ISON, et al : : Defendant-appellants : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 1, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 263,022 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: ROGER M. SYNENBERG MARY JO TIPPING Attorneys at Law 526 Superior Avenue 222 Leader Building Cleveland, Ohio 44114 For defendant-appellant PATRICK P. LENEGHAN, JR. Philip Ison : Attorney at Law 9500 Maywood Avenue Cleveland, Ohio 44102-4800 TIMOTHY E. McMONAGLE, J.: Defendant-appellant Philip Ison appeals the judgment of the trial court which, after a full hearing on damages before the court, awarded the plaintiff-appellee, John McGill, damages ren- dered on a default judgment taken against defendant Ison in the amount of $7,313.24, plus statutory interest until paid in full, and court costs. Defendant-appellant Ison raises two assignments of error for our review. I. THE TRIAL COURT'S DETERMINATION THAT PLAINTIFF JOHN MCGILL MET HIS BURDEN OF PROOF ON DAMAGES AS A RESULT OF A CONTRACT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant contends that the determination of the trial court that plaintiff-appellee suffered damages in the amount of $7,313.24 was against the manifest weight of the evidence presented. Appellant proffers for his first argument that it was abuse of discretion for the trial court to award damages which did not arise from the alleged contract which had given rise to the default judgment. In this instance, this argument of the appellant is without merit. - 3 - A review of the record in this case clearly shows that the first amended complaint upon which the default judgment was granted set forth six claims against the appellant as summarized below: 1) Breach of the contract agreement dated January 9, 1993 by defendant Ison against plaintiffs McGill and Munteanu; 2) Breach of fiduciary duty; 3) Bad faith claims; 4) Claims for unauthorized or prohibited use of confidential information; 5) Submission of fraudulent expenses; and 6) Conversion of property, specifically two Ford Tauruses and a Ford Aerostar van. The claims in this case go beyond the one-contract issue as depicted by the appellant. Damages may be received by the plaintiff-appellee on any or all of the claims upon which the default was entered. The record reflects that at the damage hearing, evidence was presented by a competent, credible witness with personal knowledge of the financial matters of the appellee. Testimony was taken that actual damages of $2,952.73 were incurred by the appellee as a result of the conversion of the Ford Aerostar van, the claim of count six of the amended complaint. We find no abuse of discretion by the trial court in awarding to appellee damages which arose from the appellant's conversion of the Ford Aerostar van as such claim was specifically pled in count six of the first amended complaint. - 4 - Appellant next contends that it was an abuse of the trial court's discretion to award damages of $4,360.51 to the appellee where such a determination was against the manifest weight of the evidence. Appellant bases his argument on five different theo- ries: 1) some of the monies awarded were not subject to the terms of the contract; 2) some of the damages were prior to the contract; 3) the witness failed to provide adequate supporting documentation; 4) the witness failed to demonstrate how the plaintiff was damaged as a direct and proximate result of the alleged contract; and 5) the witness failed to show a correlation between the expenses of the corporate entities and the plaintiff. Appellant's first and second arguments that the damages in- cluded in the amount awarded were outside the scope of the con- tract in time or by the contract terms have no merit. The record reflects that each of the items enumerated at the hearing was within the time and scope of the contract. Appellant's arguments that the witness failed to provide adequate documentation, failed to demonstrate how the plaintiff was damaged and failed to show a correlation between corporate expenses and those of the appellee are without merit. The standard for review when determining whether the deter- mination of the trial court is against the manifest weight of the evidence is found in C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279 ("Judgments supported by some competent, credible evidence going to all the essential elements of the case - 5 - will not be reversed by a reviewing court as being against the manifest weight of the evidence.") at the syllabus. The evidence presented at the damage hearing showed that, pursuant to the contract agreement, the appellant was directly responsible for his own "overhead" expenses. The witness pres- ented evidence of twenty-one items for which the appellant should have been responsible. The testimony of the witness indicated that the appellee became responsible for each of these expenses due to the appellant's breach of the agreement. Evidence was presented as to the value of each identified item for which appellee became responsible. Testimony was presented to show that the appellee was damaged in the amount of $4,360.51, representing expenses incurred by the appellant but not paid by him as required by the contract. The evidence adduced at the hearing supported the finding that the expenditures made on behalf of the appellant by the corporate entities were ultimately the direct responsibility of the appellee, personally, and were a direct damage cost to him as a result of the appellant's breach of contract and conversion of property. An examination of the record indicates that ample, competent and credible evidence was presented at the damage hearing to sup- port the finding of the trial court as to the amount of damages as awarded. Therefore, the trial court's determination that the appellee met his burden of proof on the damages sustained by the appellant's breach of contract is not against the manifest weight - 6 - of the evidence. The determination of damages by the trial court is affirmed. II. THE TRIAL COURT ERRED IN HOLDING THAT THE DEFENDANT PHILIP ISON WAS SERVED WITH THE AMENDED COMPLAINT. Appellant contends that he did not receive service of the appellee's first amended complaint as a result of the appellee's alleged use of the "wrong" address. Appellant's argument has no merit. The record reflects that the address which was used by the appellee in perfecting service of the first amended complaint upon the appellant was the address which appellant provided on his answer and counterclaim filed on January 26, 1994, the address which was the one provided by the appellant on a subsequent motion, and the address which was the address noted upon the court's docket. The address which the appellee used in perfecting service upon the appellant can hardly be considered the "wrong" address since it was provided by the appellant. A careful review of the record indicates that the plaintiff- appellee properly followed Rule 4 of the Ohio Rules of Civil Procedure. The pertinent part of the rule provides for: 4.3 Process: out-of state service * * * (B) Methods of service. - 7 - (1) Service by certified mail. Evi- denced by return receipt signed by any person, service or any process shall be by certified mail unless otherwise permitted by these rules. The clerk shall place a copy of the process and complaint or other document to be served in an envelope. He shall address the envelope to the person to be served at the address set forth in the caption or at the address set forth in written instructions furnished to the clerk with instructions to forward. He shall affix adequate postage and place the sealed envelope in the United States mail as certified mail return receipt requested with instructions to the delivering pos- tal employee to show to whom delivered date of delivery, and address where de- livered. The clerk shall forthwith enter the fact of mailing on the appearance docket and make a similar entry when the return receipt is received by him. If the en- velope is returned with an endorsement showing failure of delivery, the clerk shall forthwith notify, by mail, the attorney of record, or if there is no attorney of record, the party at whose instance process was issued. He shall enter the fact of notification on the appearance docket. The clerk shall file the return receipt or returned envelope in the records of the action. *** And further, ORCP 4.6 governs unclaimed service and provides: Process: limits, amendment; service refused. * * * (D) Service unclaimed. If a certified mail envelope is returned with an endorsement showing that the envelope was unclaimed, the clerk shall forthwith notify, by mail, the attorney of record or if there is no attorney of record, the party at whose instance process was issued. - 8 - If the attorney, or serving party, after notification by the clerk, files with the clerk a written request for ordinary mail service, the clerk shall send by ordinary mail a copy of the summons and complaint or other document to be served to the defendant at the address set forth in the caption, or at the address set forth in written instructions furnished to the clerk. The mailing shall be evidenced by a certificate of mailing which shall be completed and filed by the clerk. Answer day shall be twenty-eight days after the date of mailing as evidenced by the certificate of mailing. The clerk shall endorse this answer date upon the summons which is sent by ordinary mail. Service shall be deemed complete when the fact of mailing is entered of record, provided that the ordinary mail envelope is not returned by the postal authorities with an endorsement showing failure of delivery. The record is clear that, pursuant to ORCP 4.3, on June 3, 1994, a request for service of the first amended complaint was filed by appellee and a copy of the first amended complaint and summons was forwarded by certified mail to appellant at P.O. Box 2713 in Martinsburg, West Virginia. On June 30, 1994, the certi- fied mail was returned for failure of service as "unclaimed," and notice of failure of service was mailed to appellee's attorney. Following the notice of the "unclaimed" certified mail, appellee filed a request for ordinary mail service of the first amended complaint, pursuant to the directive of ORCP 4.6. The record reflects that a copy of the first amended complaint and summons was sent by ordinary mail to appellant at the same address, P.O. Box 2713 in Martinsburg, West Virginia. There is no record of the failure of ordinary mail service. Appellant's answer date was September 5, 1994. Service of the first amended complaint was - 9 - perfected on the appellant pursuant to the Ohio Rules of Civil Procedure. Appellant concedes that appellee correctly followed Rule 4 of the Ohio Rules of Civil Procedure but contends that the trial court's determination that service had been perfected upon appel- lant was against "public policy." This argument of the appellant is without merit. Appellee perfected service upon appellant pursuant to Ohio Rules of Civil Procedure. The record indicates that appellant made no motion pursuant to Rule 12 to quash service for any reason. The appellant having been properly served with the first amended complaint under the Ohio Rules of Civil Procedure and having failed to respond to the first amended complaint pursuant to the rule, upon motion properly before the court, a default judgment was taken against appellant. The decision of the trial court is affirmed. - 10 - It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, P.J. and JOHN T. PATTON, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .