2003 Ohio 5950 | Ohio Ct. App. | 2003
{¶ 2} On August 7, 2001, appellant filed a complaint against appellee alleging monies owed on a charge account in the amount of $10,023.56, plus interest. In the alternative, appellant alleged a cause of action for breach of contract. On September 6, 2001, appellee, acting pro se, filed an answer denying liability.
{¶ 3} According to the affidavit of appellant's attorney, W. Richard Yost, on September 17, 2001, affiant, on behalf of appellant, sent to appellee, via postage prepaid first class mail, a request for production of documents, request for admissions, and interrogatories. These documents were sent to 177 Cypress Avenue, Columbus, Ohio 43222. "Apparently," appellee received these documents. See trial court's November 20, 2002 entry. On November 20, 2001, appellant filed a motion for summary judgment, claiming that no genuine issue as to any material fact existed and appellant was entitled to judgment as a matter of law. The trial court granted appellant's motion for summary judgment, stating in its December 13, 2001 judgment entry:
In the instant case, the Plaintiff has provided the Court with an account summary and an affidavit from the records custodian indicating that the Defendant established an account with the Plaintiff which she has failed to pay. Furthermore, Defendant's failure to timely respond to Plaintiff's requests for admissions requires the Court to adopt these admissions as true and correct. * * *
In construing the facts in a light most favorable to the nonmoving party, pursuant to Civ.R. 56(C), this court finds that there is not a dispute as to a genuine issue of material fact.
{¶ 4} Subsequent to the filing of the judgment entry, appellant, as judgment creditor, attempted to collect on the judgment through wage garnishment. Despite an order of garnishment of personal earnings, which was personally served upon the garnishee on January 18, 2002, appellant was unable to collect.
{¶ 5} On July 22, 2002, appellee, represented by legal counsel, filed a motion to set aside the summary judgment pursuant to Civ.R. 60(B). In an affidavit filed with the motion to set aside the judgment, appellee stated that she did not receive the motion for summary judgment. On November 20, 2002, the trial court granted appellee's motion to set aside the summary judgment. Appellant appeals this decision and assigns the following errors:
{¶ 6} In order to prevail on a Civ.R. 60(B) motion, the moving party must demonstrate that: (1) the party has a meritorious defense or claim if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the judgment, order or proceeding was entered or taken. GTE Automatic Electric v. ARC Industries (1976),
{¶ 7} "The decision to grant a Civ.R. 60(B) motion for relief from judgment rests in the sound discretion of the trial court and may be upset on appeal only upon a showing of an abuse of discretion." Oberkonz v. Gosha, Franklin App. No. 02AP-237, 2002-Ohio-5572, at ¶ 12, citing Kaufman Cumberland v. Jalisi, Cuyahoga App. No. 80389, 2002-Ohio-4087; Blakemore v. Blakemore (1983),
{¶ 8} Because appellant's third assignment of error addresses the first prong of GTE, we will discuss it first. By its third assignment of error, appellant argues that appellee failed to demonstrate that she has a meritorious defense. Specifically, appellant argues that appellee has not set forth facts establishing a meritorious defense and that appellee is precluded from asserting any affirmative defenses because such defenses had been waived by appellee.
{¶ 9} In order to satisfy the first prong of GTE, a "movant need only allege a meritorious defense, not prove that he will prevail on that defense." Masters Tuxedo Charleston, Inc. v. Krainock, Mahoning App. No. 02 CA 80, 2002-Ohio-5235, at ¶ 8. This requires the movant party to allege operative facts "with enough specificity to allow the trial court to decide whether he or she has met that test." Syphard v. Vrable (2001),
{¶ 10} An affirmative defense is waived unless it is presented by motion before pleading pursuant to Civ.R. 12(B), affirmatively in a responsive pleading under Civ.R. 8(C), or by amendment under Civ.R. 15. Jim's Steakhouse, Inc. v. Cleveland (1998),
{¶ 11} Appellee asserts that appellant's protection plan provides her with protection on her charge account when defective goods are purchased. Appellee's defense arises from her husband's purchase of a restored antique wine bar that does not hold ordinary wine bottles. See July 3, 2002 Carleton affidavit. Appellee contends that this purchase was protected under appellant's protection plan because the wine bar was defective. Documentation was filed with the trial court that describes the protection appellant provides to "Platinum Card" members. See appellee's Exhibit C attached to appellee's July 22, 2002 motion. While the extent of protection is unclear from the record, it was not "unreasonable, arbitrary, or unconscionable" for the trial court to find that a meritorious defense had been established. Indeed, "the movant's burden is to allege a meritorious defense, not to prevail with respect to the truth of the meritorious defense." Colley v. Bazell (1980),
{¶ 12} By its first assignment of error, appellant argues that appellee failed to demonstrate that she was entitled to relief under the grounds stated in Civ.R. 60(B)(1) or (5). The second prong of GTE requires the movant to demonstrate that she was entitled to relief under at least one of the five grounds stated in Civ.R. 60(B)(1) through (5). Civ.R. 60(B) states, in pertinent part, as follows: "On motion and upon such terms as are just, the court may relieve a party * * * from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; * * * or (5) any other reason justifying relief from the judgment." (Emphasis added.)
{¶ 13} In appellee's brief before this court, and in her brief supporting her motion to set aside the summary judgment, appellee argues that she was entitled to relief under Civ.R. 60(B) because she met the requirements under Civ.R. 60(B)(1) and (5). The trial court determined that appellee established excusable neglect, but did not discuss in its judgment entry appellee's argument with respect to Civ.R. 60(B)(5). Because Civ.R. 60(B)(5) is a "catchall provision," to be used only when a more specific ground for relief is unavailable, our analysis is limited to Civ.R. 60(B)(1). See Browning v. Oakwood Mgmt. Co., Franklin App. No. 02AP-1136, 2003-Ohio-2142, at ¶ 13.
{¶ 14} We find that the trial court did not abuse its discretion when it determined that appellee established excusable neglect. Excusable neglect has been defined by the Ohio Supreme Court as follows:
* * * The term "excusable neglect" is an elusive concept which has been difficult to define and to apply. Nevertheless, we have previously defined "excusable neglect" in the negative and have stated that the inaction of a defendant is not "excusable neglect" if it can be labeled as a "complete disregard for the judicial system." * * *
(Citations omitted.) Kay v. Marc Glassman, Inc. (1996),
{¶ 15} In this case, appellee sent a letter to the trial court stating that she had not received appellant's motion for summary judgment. The trial court received this letter the same day it granted summary judgment for appellant on December 13, 2001. According to appellee's affidavit, as of July 3, 2002, she had not received the motion for summary judgment. The trial court reasoned that appellee had established excusable neglect because she had presented credible evidence that she did not receive the motion for summary judgment. The trial court did not abuse its discretion when it relied on this information and determined that appellee established excusable neglect. Thus, appellant's first assignment of error is overruled.
{¶ 16} Appellant's second assignment of error asserts that appellee failed to demonstrate that her motion for relief from judgment was filed within a reasonable time, as required by Civ.R. 60(B) and GTE. Under Civ.R. 60(B), and the third prong of GTE, a motion for relief from judgment must be "made within a reasonable time," and not more than one year after judgment if the grounds for relief is Civ.R. 60(B)(1), (2), or (3).
{¶ 17} Here, appellee's motion for relief from judgment was filed just over seven months after summary judgment was entered and, therefore, complied with the requirement that the motion to side aside judgment shall be made "not more than one year after the judgment[.]" Civ.R. 60(B). Although the motion was filed within one year of judgment, the trial court was nonetheless required to determine whether appellee's motion was "made within a reasonable time." See id. The trial court, in its November 20, 2002 entry, stated that appellee's motion to set aside summary judgment was timely filed. By implication, the trial court also found that appellee's motion was made within a reasonable time after the summary judgment entry. The trial court had discretion when it made this finding. See McSweeney v. McSweeney (1996),
{¶ 18} By its fourth assignment of error, appellant argues that the trial court erred as a matter of law and abused its discretion when it vacated the summary judgment because "all of the facts sufficient to award judgment on the issues of liability and damages were conclusively established pursuant to Civ.R. 36(B)."
{¶ 19} Appellant's appeal arises from the granting of appellee's Civ.R. 60(B) motion to set aside the summary judgment. A trial court's decision to set aside a judgment, pursuant to Civ.R. 60(B), is not a decision on the merits. Civ.R. 60(B) provides a procedural mechanism for relief from judgment if certain criteria are established. As discussed above vis-a-vis appellant's first three assignments of error, we have found that the trial court did not abuse its discretion when it found the requisite criteria and granted appellee's motion to set aside judgment. Accordingly, appellant's fourth assignment of error is overruled.
{¶ 20} Based on the foregoing, all four of appellant's assignments of error are overruled, and the judgment of the Franklin County Municipal Court is hereby affirmed.
Judgment affirmed.
Brown and Watson, JJ., concur.
