2007 Ohio 7032 | Ohio Ct. App. | 2007
{¶ 1} Appellant, Chuck Oeder, Inc. ("Oeder"), appeals from the judgment of the Akron Municipal Court which vacated its prior entry of default judgment. This Court reverses.
{¶ 3} In its second assignment of error, Oeder asserts that the trial court erred when it granted Bower's motion to vacate. We agree.
{¶ 4} The trial court's decision to grant or deny a Civ.R. 60(B) motion for relief from judgment is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Griffey v. Raj an (1987)
{¶ 5} In order for a party to prevail on a motion for relief from judgment under Civ.R. 60(B), it must demonstrate that it has met each of three requirements *3
as set forth by the Supreme Court of Ohio in GTE Automatic Electric,Inc. v. ARC Industries, Inc. (1976),
{¶ 6} In determining whether the trial court erred, we are mindful that "Civ.R. 60(B) is a remedial rule to be liberally construed with a view toward effecting a just result." Rose Chevrolet, Inc. v. Adams
(1988),
{¶ 7} In his motion, Bower relied upon Civ.R. 60(B)(1) and (5). Accordingly, we review the trial court's decision under each prong. This Court first notes, however, that the parties do not contest that Bower properly alleged a meritorious defense and that his motion to vacate was filed in a timely manner. Consequently, we review only the second prong of the GTE test.
Excusable Neglect
{¶ 8} Excusable neglect *4"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),
76 Ohio St. 3d 18 ,20 .
We have previously stated that "[o]nly where the failure to respond is coupled with a complete lack of notice of the original motion may excusable neglect lie." (Citations omitted.) Zimmerman v. Rourke, 9th Dist. No. 04CA008472,
{¶ 9} In his motion, Bower did not allege any conduct that could be labeled excusable neglect. In fact, Bower alleged no reason at all for his untimely filing. The trial court, therefore, could not rely on a finding of excusable neglect to grant Bower's motion to vacate.
Interests of Justice
{¶ 10} The "catch-all" language of Civ.R. 60(B)(5) reflects "the inherent power of a court to relieve a person from the unjust operation of a judgment." State ex rel. Gyurcsik v. Angelotta (1977),{¶ 11} In his motion, Bower did not provide any grounds to support his motion. Rather, he relied upon his alleged meritorious defense to assert that the grant of default judgment should be vacated in the interests of justice. The Ohio Supreme Court has expressly rejected this argument. "Having failed to demonstrate excusable neglect * * *, appellant could not contend it should be relieved of the default judgment pursuant to Civ.R. 60(B)(5) simply because it had a meritorious defense."Caruso-Ciresi, Inc., 5 Ohio St.3d at 66. The trial court, therefore, erred to the extent it relied on Civ.R. 60(B)(5).
{¶ 12} On appeal, Bower appears to assert that the trial court's ruling was proper because he never received notice of the default proceeding against him. Specifically, Bower argues that he filed an answer prior to judgment being entered against him and was therefore entitled to notice of default. Under Bower's final argument, the entry of default was void and he did not have to comply with Civ.R. 60(B). SeeDeutsche Bank Trust Co. v. Pearlman,
{¶ 13} Civ.R. 55 only requires notice when a party has previously appeared in an action. It is undisputed that Bower did not attempt to file an answer until after Oeder moved for default judgment. This Court has determined that "filing an untimely answer or motion for leave to plead after the application for a default *6 judgment does not constitute an appearance or entitle the defendant to notice of the default proceedings." Wingfteld, Bennett Baer, Inc. v.Armour (Apr. 3, 1991), 9th Dist. No. 14839, at *2, citing Casalinova v.Solaro (Sept. 27, 1989), 9th Dist. No. 14052, at *4. Bower's belated filing of an answer, therefore, was not an appearance under Civ.R. 55, and he was not entitled to notice of the default proceedings. Consequently, a lack of notice cannot form the basis to vacate the trial court's judgment.
{¶ 14} Based upon the above, we find that the trial court abused its discretion when it granted Bower's motion to vacate. Oeder's second assignment of error has merit.
"THE TRIAL COURT ERRED AS A MATTER OF LAW IN DEEMING DEFENDANT'S ANSWER AND COUNTERCLAIM TO HAVE BEEN FILED ON APRIL 27, 2007."
{¶ 15} In its first assignment of error, Oeder asserts that the trial court erred when it allowed Bower to file an answer. Based upon this Court's resolution of Oeder's second assignment of error, its first assignment of error is moot and we decline to address it. See App.R. 12(A)(1)(c).
Judgment reversed, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Akron Municipal Court, 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.
*8Costs taxed to Appellee.
DICKINSON, J. BAIRD, J. CONCUR
(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to, § 6(C), Article IV, Constitution.) *1
