Buckingham, Doolittle & Burroughs, L.L.P. v. Healthcare Imaging Solutions, L.L.C.Buckingham, Doolittle & Burroughs, L.L.P. v. Healthcare Imaging Solutions, L.L.C.
CARR, Judge.
{¶1} Appellant, Buckingham, Doolittle and Burroughs, L.L.P., appeals the judgment of the Summit County Court of Common Pleas. This Court reverses.
I.
{¶2} In March of 2006, appellees, Healthcare Imaging Solutions L.L.C. (“Healthcare Imaging“) and Mr. Jeffrey M. Mandler, retained the law firm of Buckingham, Doolittle and Burroughs, L.L.P. (“Buckingham“) to assist with the development of a healthcare imaging business. Mr. Mandler served as the managing member of Healthcare Imaging. Appellees’ retention of Buckingham was evidenced by an engagement letter dated March 6, 2006. The letter was addressed to both Healthcare Imaging and Mr. Mandler and set forth the hourly rates of Buckingham‘s attorneys, indicated that invoices were to be paid within thirty days of receipt, and outlined other terms of retention.
{¶4} On February 23, 2009, Buckingham started the process of executing the default judgment by filing bank attachment paperwork with the trial court. After Buckingham had initiated this process, Healthcare Imaging and Mr. Mandler entered a notice of appearance by filing a motion to vacate the default judgment, as well as a motion to stay, on March 13, 2009. Subsequently, on March 27, 2009, the trial court granted the motion to vacate judgment and the motion to stay. The trial court then vacated judgment against both Healthcare Imaging and Mr. Mandler. The trial court held that service of process on Mr. Mandler “may have been improper” and, furthermore, that Healthcare Imaging and Mandler had asserted a meritorious defense. Notably, service of process was never challenged with regard to Healthcare Imaging. On April 9, 2009, Buckingham filed a notice of appeal from the trial court‘s March 13, 2009 judgment entry.
{¶5} On appeal, Buckingham raises three assignments of error. This Court consolidates Buckingham‘s assignments of error to facilitate review.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN VACATING THE DEFAULT JUDGMENT AGAINST HEALTHCARE IMAGING SOLUTIONS, LLC ON GROUNDS OF LACK OF SERVICE OF PROCESS BECAUSE HEALTHCARE IMAGING SOLUTIONS, LLC DID NOT ARGUE LACK OF SERVICE AND, IN FACT, IMPLICITLY ADMITTED THAT IT WAS PROPERLY SERVED.”
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED IN VACATING THE DEFAULT JUDGMENT AGAINST JEFFREY M. MANDLER LLC (sic) ON GROUNDS OF LACK OF SERVICE OF PROCESS BECAUSE HE ADMITTEDLY RECEIVED SERVICE OF PROCESS AND HAD ACTUAL NOTICE OF THE LAWSUIT.”
ASSIGNMENT OF ERROR III
“THE TRIAL COURT ERRED IN VACATING THE DEFAULT JUDGMENT AGAINST APPELLEES BECAUSE THEY FAILED TO SATISFY THE THREE ELEMENTS NECESSARY TO VACATE A DEFAULT JUDGMENT UNDER [CIV.R.] 60(B).”
{¶6} In its first and second assignments of error, Buckingham argues the trial court erred in finding that process had not been properly served on Healthcare Imaging and Mr. Mandler. In its third assignment of error, Buckingham argues the trial court erred in finding that Healthcare Imaging and Mr. Mandler satisfied the requirements necessary to grant a motion to vacate judgment pursuant to
{¶7} The trial court considered the issue of service of process within the context of its analysis of whether Healthcare Imaging and Mr. Mandler were entitled to relief from judgment pursuant to
{¶8} The decision to grant or deny a motion to vacate judgment pursuant to
{¶9}
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.
“The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules”
“(1) the party has a meritorious defense or claim to present 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 Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, paragraph two of the syllabus.
{¶11} Generally, the moving party‘s failure to satisfy any of the three requirements will result in the motion being overruled. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. A movant is no longer required to submit documentary evidence to support its contention that it can satisfy the requirements set forth in GTE. Id. at 20-21. “However, the movant must allege operative facts with enough specificity to allow the court to decide whether it has met that test.” Elyria Twp. Bd. of Trustees v. Kerstetter (1993), 91 Ohio App.3d 599, 601, citing Montpoint Properties, Inc. v. Waskowski (Apr. 6, 1988), 9th Dist. No. 13320.
{¶12} As noted above, the trial court found that the Healthcare Imaging and Mr. Mandler had a valid reason for seeking relief from judgment because their failure to respond to the complaint was due to excusable neglect. This finding was premised on the trial court‘s conclusion that “service may have been improper.” “The Ohio Supreme Court has explained that, since ‘[t]he burden is upon the movant to demonstrate that the interests of justice demand the setting aside of a judgment normally accorded finality,’ ‘the least that can be required of [him] is to enlighten the court as to why relief should be granted.‘” Asset Acceptance L.L.C. v. Allen, 9th Dist. No 24676, 2009-Ohio-5150, at ¶8, quoting Rose Chevrolet, Inc., 36 Ohio St.3d at 21. “A mere allegation that the movant‘s failure to file a timely answer was due to ‘excusable neglect and inadvertence,’ without any elucidation, cannot be expected to warrant relief.” Rose Chevrolet, Inc., 36 Ohio St.3d at 21.
{¶14}
{¶15} “Service of process may be made at an individual‘s business address pursuant to
{¶16} This Court has held that “there is a presumption of proper service where the Civil Rules on service are followed.” Erie Ins. v. Williams, 9th Dist. No. 23157, 2006-Ohio-6754, at ¶6. However, this presumption is rebuttable if the defendant presents credible evidence that he or she did not, in fact, receive the summons and complaint. Id. In this case, the trial court found the February 10, 2009 default judgment to be void ab initio because “the Declaration submitted by Defendant Mandler establishe[d] that service may have been improper as to this Defendant.” In the motion to vacate the default judgment which was filed on March 13, 2009, Healthcare Imaging did not argue that it had not received the summons and the complaint. Therefore, no evidence was presented that Healthcare Imaging was not served with process. Notably, the trial court never made a finding that service was improper with regard to Healthcare Imaging prior to granting the motion to vacate the default judgment.
{¶17} The trial court did conclude that service of process may have been improper with regard to Mr. Mandler. In his motion for relief from judgment filed on March 13, 2009, Mr. Mandler cited Rafalski v. Oates (1984), 17 Ohio App.3d 65, for the proposition that an affidavit of a party which indicates that he or she was not served is generally sufficient to find a default
{¶18} Therefore, because Mr. Mandler conceded that he had received and reviewed the complaint, the trial court erred in finding that the default judgment was void. Furthermore, it was improper to grant the motion to vacate judgment pursuant to
{¶19} It follows that Buckingham‘s assignments of error are sustained.
III.
{¶20} Buckingham‘s assignments of error are sustained. The judgment of the Summit Count Court of Common Pleas is reversed, and the cause remanded for further proceedings consistent with this decision.
Judgment reversed, and cause remanded.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellees.
DONNA J. CARR FOR THE COURT
MOORE, P. J. CONCURS
DICKINSON, J. CONCURS, SAYING:
{¶21} I concur in the majority‘s reversal and most of its opinion. While I acknowledge that the Ohio Supreme Court has written that an abuse of discretion standard applies to the review of a ruling on a motion for relief from judgment, in practice the Court has applied a de novo standard: “In order for a party to prevail on a motion for relief from judgment under Civ.R. 60(B), the movant must demonstrate the following . . . . These requirements are independent and in the conjunctive; thus the test is not fulfilled if any one of the requirements is not met.” Strack v. Pelton, 70 Ohio St. 3d 172, 174 (1994). In this case, Mr. Mandler and Healthcare Imaging
APPEARANCES:
ALAN P. DIGIROLAMO, and MICHAEL J. MATASICH, Attorneys at Law, for Appellant.
JAMES R. RUSSELL, Attorney at Law, for Appellees.