dba ISPC, Inc.A. Mr. Scott financed the purchase of water conditioning equipment with ISPC. On...
Transcript of dba ISPC, Inc.A. Mr. Scott financed the purchase of water conditioning equipment with ISPC. On...
IN THE SUPREME COURT OF OHIO
JAMES L. SCOTT,
Appellant
V.
INDEPENDENT SAVINGS PLANCOMPANY, dba ISPC,
Appellee
Case No. 14-0930
On Appeal from theMiami County Court of Appeals,Second Appellate District
Case No. 2013-CA-19
APPELLEE'S MEMORANDUM IN OPPOSITION TO JURISDICTION
Miriam H. Sheline (0018333)mshelinena proseniors.orgPRO SENIORS, INC.7162 Reading Road, Suite 1150Cincinnati, Ohio 45237Tele: (513) 458-5509Fax: (513) 345-4169
Attorney for AppellantJames L. Scott
Brigid E. Heid (0047142)bheid kcpmlaw.comCARLILE PATCHEN & MURPHY LLP366 East Broad StreetColumbus, Ohio 43215Tele: (614) 228-6135Fax: (614) 221-0216
_Attorney, for AppelleeIndependent Savings Plan Company,dba ISPC, Inc.
( .... ..
BEHIJMC/01350357.3026190.000004
TABLE OF CONTENTS
Page
I. THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONALQUESTION OR A MATTER OF PUBLIC OR GREAT GENERAL INTEREST........... 1
II. STATEMENT OF THE CASE AND FACTS ................................................................... 2
A. Mr. Scott financed the purchase of water conditioning equipmentwith ISPC . ............................................................................................................... 2
B. Mr. Scott defaulted and ISPC obtained judgment in Florida, whichwas satisfied in Florida . .......................................................................................... 3
C. Mr. Scott filed suit in Ohio to declare the Florida judgment voidand for other affirmative relief ................................................................................ 4
D. The Appellate Court affirmed summary judgment in favor of ISPC ...................... 5
III. ARGUMENT IN OP.POSITION TO PROPOSITIONS OF LAW .................................... 5
Proposition of Law 1: Ohio's Uniform Enforcement of Foreign Judgments Act,R.C. §2329.021, et seq. as interpreted by the 2nd District Court of Appealslimiting the court's jurisdiction to only foreign judgments which are registered isan unconstitutional invasion of judicial powers .................................................................. 5
Proposition of Law 2: A judgment issued in a foreign jurisdiction against an Ohioresident where the court in that jurisdiction had no personal jurisdiction over theOhio resident is void and entitled to no presumption of validity ........................................ 6
Proposition of Law 3: A forum selection clause does not give a foreign Statepersonal jurisdiction over a non-resident consumer. The court is required tocomplete a minimum contacts analysis ............................................................................... 7
Proposition of Law 4: Courts are required to apply the clear language of the HomeSolicitation Sales Act, R.C. § 1345.02 mandating the seller fill in the correct dateof cancellation . .................................................................................................................. 10
IV. CONCLUSION ................................................................................................................. 13
BEH1JNiC/01350357.3026190.000004
-11-
I. THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONALQUESTION OR A MATTER OF PUBLIC OR GREAT GENERAL INTEREST.
The Ohio Supreme Court "will grant a motion to certify only if there is a substantial
constitutional question or if the case is of public or great general interest." Noble v. Colwell, 44
Ohio St. 3d 92, 94, 540 N.E.2d 1381 (1989); Section 2(B)(2)(e), Article IV of the Ohio
Constitution. This case involves neither.
Appellant James Scott purchased a water conditioning system for his home and stopped
making payments on it roughly a year later. After attempts to get Mr. Scott to make payments
were unsuccessful, Appellee Independent Savings Plan Company (ISPC) filed suit in Florida
pursuant to the forum-selection clause contained in the parties' financing agreement. Mr. Scott
did not appear or respond to the complaint, so a default judgment was entered against him. More
than a year after ISPC satisfied the Florida judgment through a bank garnishnlent in Florida, Mr.
Scott filed suit against ISPC in Ohio alleging ISPC violated the Ohio Consumer Sales Practices
Act (CSPA) by including a forum-selection clause in the financing agreement and pursuing
litigation against him in Florida. Mr. Scott also argued that ISPC violated the Ohio Home
Solicitation Sales Act (HSSA) because an incorrect date was filled in on the three-day notice of
cancellation. Mr. Scott demanded, among other things, that the Florida judgment be declared
void.
The issues presented in this case are not novel. Ohio's Full Faith and Credit Clause and
the Uniform Enforcement of Foreign Judgments Act (UEFJA) require Ohio courts to recognize
and enforce foreign judgments unless the judgment was obtained by fraud or the issuing court
lacked jurisdiction. These laws provide constitutional protections to Ohio citizens who contend a
foreign judgment is void. The lower courts acted appropriately when they declined to find the
Florida judgment was void and unenforceable under Florida law.
BEH!JMCI01350357.3026190.000004
-1-
While Mr. Scott argues that including forum-selection clauses in consumer agreements is
a matter of public or great general interest and should be prohibited, the agreement here is
governed by Florida law and such clauses are routinely enforced in Florida unless the
enforcement would be unreasonable or iuljust. Contrary to Mr. Scott's suggestion, the rights of
an Ohio consumer are not abdicated by virtue of a forum-selection clause in a consumer contract.
Rather, those rights are just asserted in a different forum. Here, the Florida forum was reasonable
and provided Mr. Scott with an adequate opportunity to be heard.
Further, the appellate coui-t's application of the HSSA did not remove protections that are
afforded to consumers under the Act. Rather, the court recognized that Mr. Scott had been
adequately informed of his cancellation rights, despite the inclusion of an incorrect date, and
therefore, there was no deceptive practice. Implicit in the court's finding was the recognition. that
where the alleged technical violation has no bearing on the parties during the course of their
transaction, but was instead an afterthought in conteniplation of litigation, there should be no
finding of a deceptive act.
There is nothing unusual about this case, nor is there a need to address constitutional
issues or clarify misunderstood law. For the reasons set forth below, this Court should decline
jurisdiction.
II. STATEMENT OF THE CASE AND FACTS
A. Mr. Scott financed the purchase of water conditioning equipment with ISPC.
On September 21, 2007, Mr. Scott purchased a water conditioning system from Easton
Water Solutions, LLC. Mr. Scott financed his purchase through ISPC, a Florida company, and
that same day signed a credit application with ISPC, entitled "ISPC Open-End Credit
Application and Agreement" (the "ISPC Agreement"). (R.1 Complaint ¶¶7-9 and Ex. A, ISPC
Open-End Credit Application and Agreement).
BEHf.TMC/01350357.3026190.000004
-2-
The ISPC Agreement contains both a choice-of-law provision stating that Florida law
governs the transaction and a forum-selection clause designating venue as Hillsborough County,
Florida. (R. 1 Complaint Ex. A, pp. 3-4) The ISPC Agreement contains on the first page a notice
of right to cancellation:
YOU, THE BUYER, MAY CANCEL THIS TRANSACTION ATANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESSDAY OF THIS TRANSACTION. SEE THE "BUYER'S RIGHTTO CANCEL" ON THE BACK OF CUSTOMER COPY OFDISCLOSURES. ALSO SEE THE COPIES OF THE "NOTICEOF CANCELLATION" ATTACHED HERETO.
Easton filled in the "Transaction Date" and the "Cancellation Deadline" as the same day Mr.
Scott signed, "9-21-07." (R. I Complailit Ex. A, p. 1)
B. Mr. Scott defaulted and ISPC obtained judgment in Florida, which wassatisfied in Florida.
The water conditioning system was installed in September 2007, and Mr. Scott made
payments to ISPC for more than a year. (R. 29 Judgment Entry, p. 9, fn. 24) At no time did Mr.
Scott attempt to rescind his contract, nor did he make any effort to return the system.
ISPC called Mr. Scott numerous times about his failure to pay, but the account remained
delinquent. Finally, ISPC filed suit in Hillsborough County, Florida, and on January 30, 2010,
Mr. Scott was personally served with a summons and the complaint. (R. 1 Complaint ¶15 and
Ex. B) The summons notified Mr. Scott that he "must appear in court on the date specified in
order to avoid a default judgment" and the appearance may be "in person or by attorney." (R. 1
Complaint Ex. B) The summons also states that the pre-trial conference could be rescheduled for
"good cause" and with "prior court approval." Id.
Mr. Scott took no action and made no effort whatsoever to contact ISPC or the court. He
did not make a request to reschedule the pre-trial conference (as provided for in the summons) or
to appear by telephone. He did not retain an attorney to appear on his behalf, nor did he take any
BEH/JMC/01350357.3026190.000004
-3-
action to oppose the complaint. Consequently, the Florida court entered a final judgment against
Mr. Scott on February 10, 2010, in the amount of $5,673.63, plus interest. (R. 1 Complaint
Ex. C)
After the court entered the judgment, ISPC engaged in further communications with Mr.
Scott in an effort to come to a payment arrangement to satisfy the Florida judgment, but to no
avail. (See R. 1 Complaint ¶20) Six months later, on August 16, 2010, ISPC filed a writ of
garnishment against any Florida branch of Fifth Third Bank where Mr. Scott had an account.
(See R. 1 Complaint ¶21) The bank garnished Plaintiffs account in the amount of $11,918.98.1
(R. 1 Complaint ¶23) and at the conclusion of the garnishinent proceedings, ISPC received
$6,315.39 in satisfaction of its judgment, and the balance of $5,603.59 was returned to Mr. Scott.
(See R. 1 Complaint ¶27; R. 24 Notice of Filing Discovery Material, ISPC Payment History
0009-10)
C. Mr. Scott filed suit in Ohio to declare the Florida judgment void and forother affirmative relief.
On December 1, 2011, nearly two years after the Florida court entered a judgment against
him, Mr. Scott filed a coinplaint in Ohio raising four causes of action: (1) violations of the Ohio
CSPA, (2) violation of the Ohio HSSA, (3) malicious prosecution, and (4) abuse of process. (R.
1 Complaint ¶¶30-51) Mr. Scott's complaint asks the court to: (1) declare the Florida judgment
"void ab initio" and unenforceable on the grounds the Florida court had no personal jurisdiction
over the Plaintiff;" (2) declare "the selection of forum and choice of law provisions are
unenforceable;" (3) declare that all of "Defendant.'s conduct...violated the CSPA;" (4) award
"actual and treble damages under the CSPA;" (5) order that the underlying contract be rescinded;
i Fla. Stat. § 77.19 permits a bank, as garnishee, to retain up to twice the amount of the writ of garnishment.
BEH/JP.4C/01350357.3026190.000004
-4-
and (6) award punitive damages for abuse of process and malicious prosecution. (R. 1 Complaint
pp. 8-9)
D. The Appellate Court affirmed summaiy judgment in favor of ISPC.
The trial court granted summary judgment to ISPC and dismissed all of Mr. Scott's
claims and the court of appeals affirmed. On appeal, the court found Mr. Scott could not
collaterally attack the Florida judgment because the Florida court had jurisdiction over Mr. Scott
pursuant to a valid forum-selection clause, and therefore, the judgment was not void. The court
of appeals also found that because Mr. Scott's CSPA claims were based on the forum-selection
clause and the resulting Florida litigation, they, too, failed. Finally, the court found that even
though the wrong date was filled in on the ISPC Agreement, the Agreement still informed Mr.
Scott that he had three days to cancel. Thus, the court held, the incorrect date was not a violation
or a deceptive act under the HSSA.
II:I. ARGUMENT IN OPPOSITION TO PROPOSITIONS OF LAW
Proposition of Law 1: Ohio's Uniform Enforcement of Foreign Judgments Act, R.C.§2329.021, et seq. as interpreted by the 2nd District Court of Appeals limiting thecourt's jurisdiction to only foreign judgments which are registered is anunconstitutional invasion of judicial powers.
Mr. Scott's first proposition of law relates to the appellate court's suggestion that the only
way for Mr. Scott to collaterally attack the Florida judgment is through Ohio's Uniform
Enforcement of Foreign Judgments Act, R.C. §2329.021, et seq. (UEFJA).
The UEFJA is intended to satisfy the Full Faith and Credit Clause of the Constitution,
which requires the State of Ohio to recognize a valid foreign judgment and give the judgment
"the salne faith and credit as they have by law or usage in the courts of the state from which they
are taken." Holzemer v. Urbanski, 86 Ohio St.3d 129, syllabus, 712 N.E.2d 713 (1999); R.C.
2329.027. The UEFJA provides a. procedure by which foreign judgments can be enforced in the
BEH/JMC%01350357.3026140.000004
-5-
same manner as judgments of Oliio's courts of general jurisdiction by filing a certificate of the
foreign judgment with the clerk of courts for the county in which enforcement of the judgment is
sought. Dressler v. Bowling, 24 Ohio St. 3d 14, 15, 492 N.E.2d 446, 448 (1986). It also permits a
judgment debtor to collaterally attack and vacate a foreign judgment. R.C. 2329.022
Together, the Full Faith and Credit Clause and the UEFJA provide constitutional and
statutory protections to Ohio citizens who contend a foreign judgment is void. The appellate
court's application of these two laws did not invade the judiciary or deprive Mr. Scott of due
process. Indeed, despite the court's statement that it would presume the Florida judgment was
valid because Mr. Scott did not follow the procedure set forth in the UEFJA, the court did not
actually treat the judgment as such. Rather, like the trial court, the appellate court proceeded to
evaluate whether the Florida judgment was, indeed, valid (i.e. whether it was procured by fraud
and whether the Florida court lacked jurisdiction) and entitled to be recognized under the Full
Faith and Credit Clause. Both courts correctly found that the judgment was valid because the
Florida court had jurisdiction. Despite the appellate court's statement, there was no invasion of
or limitation on the cour-t's authority or jurisdiction.
Proposition of Law 2: A judgment issued in a foreign jurisdiction against an Ohioresident where the court in that jurisdiction had no personal jurisdiction over theOhio resident is void and entitled to no presumption of validity.
Mr. Scott's second proposition of law simply reiterates long-standing law that the lower
courts properly applied in this case. It is well-settled that "[w]hen a judgment was issued without
jurisdiction...it is void and is subject to collateral attack." Ohio Pyro, Inc. v. Ohio Dept. of
Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, ¶25, citing Coe v. Erb, 59 Ohio St. 259, 271,
52 N.E. 640 ( 1898).
Here, the courts below found that the forum-selection clause in the ISPC Agreement gave
the Florida court personal jurisdiction over Mr. Scott, and therefore, the Florida judgment was
BEH/JMC/01350357.3026190.000004
-6-
not void. There was no misapplication or misunderstanding of the law on this point. The second
proposition of law does not raise a constitutional issue, nor is it a matter of public or great
general interest and the Court should decline jurisdiction.
Proposition of Law 3: A forum selection clause does not give a foreign Statepersonal jurisdiction over a non-resident consumer. The court is required tocomplete a minimum contacts analysis.
Mr. Scott's third proposition of law improperly asks this Court to declare forum-selection
clauses contained in consumer contracts per se unenforceable. Such a broad declaration is
unnecessary and contrary to Ohio law. While this Court has recognized that forum-selection
clauses are less readily enforceable against consumers, they are still enforceable. See Preferred
Capital, Inc. v. Power Engineering Group, Inc., 112 Ohio St.3d 429, 2007-Ohio-257, ¶8, citing
Information. Leasing Corp. v. Jaskot, 151 Ohio App.3d 546, 2003-Ohio-566, 784 N.E.2d 1192,
¶13 (emphasis added). Indeed, the consumer nature of the clause is only one of three factors used
by Ohio courts to determine whether a forurn-selection clause is valid in Ohio. See Kennecorp
llloytgage Brokers, Inc. v. Country Club Convalescent Ilosp., Inc., 66 Ohio St.3d 175, 610
N.E.2d 987 (1993). The other two factors consider whether there is evidence of fraud or
overTeaching and whether enforcement of the clause would be unreasonable and unjust. Id.
Further, when determining whether a foreign court has personal jurisdiction, Ohio courts
must review the foreign state's own laws for determining personal jurisdiction. Litsinger Sign
Co. v. Ana. Sign Co., 11 Ohio St. 2d 1, 5-6, 227 N.E.2d 609 (1967); Speyer v. Continental Sports
Cars, Inc., 34 Ohio App.3d 272, 518 N.E.2d 39, paragraph one of the syllabus (10th Dist.1986).
Here, the Florida court had personal jurisdiction over Mr. Scott under Florida law. Forum-
selection clauses are presumptively valid under Florida law. See Am. Safety Casualty Insurance
Co. v. Mijaa°es Golding Co., 76 So. 3d 1089, 1090 (Fla. Dist. Ct. App. 2011), citing Corsec, S.L.
v. VMC Int'l Franchising, LLC, 909 So.2d 945, 947 (Fla. Dist. Ct. App. 2005).
BEH/JMC1013503573026190.000004
-7-
In Manrique v. Fabbri, 493 So.2d 437, 440 (Fla. 1986), the Florida Supreme Court held
"Florida courts should recognize the legitimate expectations of contracting parties" and that
"forum-selection clauses should be enforced in the absence of a showing that enforcement would
be unreasonable or unjust." However, "the test of unreasonableness is not mere inconvenience or
additional expense." Id. at n.4. Rather, "the enforcement is unreasonable only when the
designated forum amounts to `no forum at a11. "' Am. Safety, 909 So.2d at 947 (emphasis in
original). The burden of proof is on the party "seeking to escape his contract" who must show
that "trial in the contractual forum will be so gravely difficult and inconvenient that he will for
all practical purposes be deprived of his day in court." Nlanrique at 440, n.4. As a result of the
forum-selection clause in the parties' contract, personal jurisdiction was valid in Florida, leading
to the Hillsborough County court entering judgment against Mr. Scott.
The issues in this case are comparable to the issues presented in Hawkins v. Integrity
House, Inc., llth. Dist. Lake No. 2008-L-120, 2009-Ohio-5893. In Hawkins, the plaintiff,
Hawkins, wliile living in Ohio, signed a contract to send his daughter to a boot camp for troubled
teens offered by Integrity House in the state of Utah. Id. at ¶3. The contract contained a forum-
selection clause designating Utah courts as the proper forum for resolving disputes. Integrity
House sued Hawkins in Utal1 for breach of contract for nonpayment and served him with
summons in Ohio. Id. at ¶5. Hawkins did not file an answer or otherwise defend and the Utah
court subsequently entered a default judgment against him. Id. When Integrity House attempted
to domesticate the Utah judgment in Ohio, Hawkins filed a counterclaim asking the court to
declare the Utah default judgment void for lack of personal jurisdiction. Id. at ¶6. The trial court
grarlted summary judgment to Integrity and dismissed Hawkins' complaint, finding that "the
BEH/JMG/01350357.3026190.000004
-8-
forum-selection clause is valid and enforceable [under Utah law], and the Utah court had
personal jurisdiction over [Hawkins]." Id. at ¶8.
The appellate court in Hawkins reasoned that because the consumer contract contained an
express choice of jurisdiction and choice of law provision, "the question of whether the Utah
court had personal jurisdiction over appellant must be decided under Utah law." Id. at ¶8. The
appellate court upheld the trial court's finding that the forum-selection clause was valid and
explicitly rejected Hawkins' contention that Ohio public policy preveiits asserting jurisdiction
over consumers through the use of forum-selection clauses. Id. at ¶31. This Court declined
jurisdiction to hear Hawkins' appeal of the case, dismissing the appeal "as not involving any
substantial constitutional question." Hawkins v. Integrity House, Inc. Case No. 09-2311, Entry
(Mar. 10, 2010). Hawkins' memorandum in support of jurisdiction included a proposition of law
remarkably similar to Mr. Scott's third proposition of law: "Forum-selection clauses within
consumer contracts, do not, in and of themselves, confer personal jurisdiction over Ohio
consumers." Hawkins v. Integrity House, Inc., Case No. 09-2311, Memorandum in Support of
Jurisdiction of Appellant Hawkins (Dec. 29, 2009).
Forum-selection clauses contained in consumer contracts do not abdicate the rights of
Ohio citizens where the citizen is not denied his day in court. See e.g. Caa°nival Cruise Lines, Inc.
v. Shute, 499 U.S. 585 (1991) (forum-selection clause in a consumer form contract is enforceable
unless fundamentally unfair). Here, Mr. Scott was not denied his day in court, nor was the
forum-selection clause in the parties' agreement the result of fraud or overreaching.
Because the forum-selection clause was enforceable under Florida law, there was no need
to complete a minimum contacts analysis. Like Hawkins, this case does not involve a substantial
constitutional question, nor is it a matter of public or great general interest. The lower courts
BEIL'JMCf01350357.3026190.000004
-9-
correctly determined that the Florida court had personal jurisdiction over Mr. Scott, and
therefore, judgment was not void. The Court should decline jurisdiction.
Proposition of Law 4: Courts are required to apply the clear language of the HomeSolicitation Sales Act, R.C. §1345.02 mandating the seller fill in the correct date ofcancellation.
Mr. Scott's final proposition of law involves a routine claim under the HSSA for an
alleged technical violation that had no bearing on the transaction between the parties, but was an.
afterthought in contemplation of litigation. It was only after the Florida judgment was fully
satisfied that Mr. Scott filed suit in Ohio and first raised the issue of the three-day notice.
The HSSA gives a buyer the right to cancel a home solicitation sale until rnidnight of the
third business day after the day on which the buyer signs an agreement or offer to purchase. R.C.
1345.22. This notice of the buyer's right to cancel, must appear on all notes or other evidence of
indebtedness given pursuant to any home solicitation sale. Id. Here, there is no question that the
ISPC Agreement (in addition to the actual purchase agreement Mr. Scott entered into with
Easton), contained the following on the first page:
YOU, THE BUYER, MAY CANCEL THIS TRANSACTION ATANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESSDAY OF THIS TRANSACTION. SEE THE "BUYER'S RIGHTTO CANCEL" ON THE BACK OF CUSTOMER COPY OFDISCLOSURES. ALSO SEE THE COPIES OF THE "NOTICEOF CANCELLATION" ATTACHED HERETO.
Easton, lio`vever, filled in the "Cancellation Deadline" as the saine date the parties signed the
agreement - "9-21-07." (R. 1 Complaint Ex. A, p. 1) Despite this incorrect date being listed,
there is no dispute that Mr. Scott was otherwise informed of, and was given, the three days to
cancel the agreement, which he chose not to do. The technical violation had no bearing on Mr.
Scott's decision to enter into the contract for the purchase of the water conditioning system and
BEH/JMC101350357.3026190.000004
-10-
was never at issue between the parties. As the appellate court found, under such circumstances,
there should be no finding of a deceptive act.
Additionally, though not addressed by the appellate court, the trial court correctly found
that the HSSA claim was a compulsory counterclaim and should have been raised in Florida, or
alternatively, was time-barred by the two-year statute of limitations. Both the Ohio and Florida
Rules of Civil Procedure govern when compulsory counterclaims must be brought. See Civ. R.
13(A) and Fla.R.Civ.P. 1.170. This Court has held that "[a]ll existing claims between opposing
parties that arise out of the same transaction or occurrence must be litigated in a single lawsuit
pursuant to Civ. R. 13(A), no matter which party initiates the action." Rettig Enters. v. Koehler,
68 Ohio St.3d 274, at ¶1 of syllabus, 626 N.E.2d 99 (1993). To determine whether claims arise
out of the same transaction or occurrence, "courts most frequently utilize the 'logical relation
test,"' and under that test "a compulsory counterclaim is one which `is logically related to the
opposing party's claim where separate trials on each of their respective claims would involve a
substantial duplication of effort and time by the parties and the court. "' Id. at 278, citing Staff
Notes (1970) to Civ.R.13 and quoting Gr•eat Lakes Rubber Corp. v. Herbert Cooper Co., 286
F.2d 631, 634 (3d Cir. 1964).
Mr. Scott's HSSA claim alleging an error in the completion of the 3-day notice of
cancellation is directly related to the ISPC Agreement, which was the subject of the Florida
litigation. Thus, the time for Mr. Scott to raise this claim was either prior to or in response to the
Florida action. By not raising these counterclaims at the appropriate time, Mr. Scott has now
waived them. Mr. Scott was notified by the Florida court that he had the right to contest the
claims and to dispute venue. His failure to take any action until two years later operates as a
waiver of these compulsory counterclaims. Alternatively, as the trial court found, Mr. Scott's
BEH/JMC101350357.3026190.000004
-11-
HSSA claim was barred by the two-year statute of limitations contained in the Ohio CSPA, R.C.
§1345.10(C). See Loveday v. Wolny, 9th Dist. Medina No. 2617-M, 1997 Ohio App. LEXIS
3037, *12 (July 16, 1997).
In short, ISPC obtained a valid judgment in a Florida court under Florida law. Many
months later, after failed attempts to satisfy the judgment voluntarily, ISPC obtained a writ of
garnishment and garnished Mr. Scott's bank account through a Florida branch of his bank.
Although ISPC did not take action to domesticate the Florida judgment in Ohio, nothing
prevented Mr. Scott from domesticating the judgment here in Ohio and raising any defenses and
counterclaims under Ohio law. Mr. Scott also could have sought relief in a Florida court under
Florida law by opposing the claim, filing a motion for relief from judgment or pursuing his
appellate rights. Mr. Scott took none of these actions and, instead, waited nearly two years after
judgment was entered to file this action in Ohio.
The courts below properly found that Mr. Scott's claims fail because he is asking an Ohio
court to now declare a valid Florida judgment unenforceable in Florida, which is antithetical to
the Full Faith and Credit doctrine. Now that the Florida judgment has been fully satisfied under
Florida law, the judgment no longer exists and neither an Ohio court nor a Florida court can
vacate the judgment.
Mr. Scott's failure to act does not now create a constitutional question or matter of public
or great general interest. The satisfaction of the judgment in Florida necessarily brings an end to
the controversy. Once the contract was reduced to judgment and the judgment fully satisfied,
there is nothing left for a court to vacate, cancel or rescind. Any violation of the three-day notice
had no bearing on the parties during the course of their transaction, but was instead an
BEH./JMC%01350357.30263 90.000004
-12-
afterthought in contemplation of litigation. Therefore, the lower courts were correct in
concluding Mr. Scott has failed to state a claim for violation of the HSSA.
IV. CONCLUSION
This case does not involve a constitutional question, nor does it involve a matter of public
or great general interest. Mr. Scott purchased a water conditioning system and stopped nzaking
payments on it a year later. ISPC exercised its rights under the parties' financing agreement and
obtained a judgment against Mr. Scott in Florida pursuant to a valid forum-selection clause. The
judgment was not void and has been fully satisfied and Mr. Scott's failure to timely act does not
now create a basis for this Court to accept jurisdiction.
For the foregoing reasons, the Court should decline jurisdiction.
Respectfully submitted,
CARLILE PATCHEN & MURPHY LLP
4
By: 9^5 ^ ^.Brigid E. Heid 047142)bheid(c^cpmlaw.com366 East Broad StreetColumbus, Ohio 43215Phone: (614) 228-6135Fax: (614) 221-0216
Attorney f'oN AppelleeIndependent Savings Plan Company,dba ISPC
CERTIFICATE OF SERVICE
Undersigned counsel hereby certifies that the foregoing Appellee's Memorandum InOpposition To Jurisdiction was served by regular U.S. Mail, postage pre-paid, this 3rd day ofJuly, upon Miriam H. Sheline, Attorney for Appellant, at Pro Seniors, Inc., 7162 Reading Road,Suite 1150, Cincinnati, Ohio 45237.
)L,Brigid E. (®04714TJL^d
BEH/J1VIC/01350357.3026190.000004
-13-