CLAYCRAFT MOTORS, LLC. v. BULLDOG AUTO SALES, INC., ET AL
Case No. 13-CA-70
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 12, 2014
2014-Ohio-2086
Hon. W. Scott Gwin, P.J.; Hon. John W. Wise, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court of Common Pleas, Case No. 2011 CV 01002. JUDGMENT: Affirmed.
For Plaintiff-Appellant
DAVID A. SKROBOT
JOHN RIDGE
BRETT SHERAW
FISHER, SKROBOT & SHERAW, LLC
471 East Broad St., Ste. 1810
Columbus, OH 43215
For Defendants-Appellees
STEVEN KOKENSPARGER
KOKENSPARGER & RYAN, LLC
140 Mill Street, Suite B
Gahanna, OH 43004
{¶1} Appellant appeals the May 8, 2012 judgment entry by the Fairfield County Court of Common Pleas and the September 13, 2013 judgment entry clarifying the May 8th judgment entry and granting appellees’ motion to vacate judgment.
Facts & Procedural History
{¶2} On October 5, 2011, appellant Claycraft Motors, LLC, filed a complaint against appellees Bulldog Auto Sales, Inc. and its owner, Theodore Johnson (“Johnson“), for monies due and owing over the sale of motor vehicles to appellees. Appellant alleged appellees agreed to purchase five motor vehicles from appellant and appellees failed to pay for the vehicles after appellant delivered them. On October 7, 2011, certified mail receipts were returned to the Fairfield County Clerk of Courts and the notation on the docket indicates the signature was illegible on each receipt. Appellant filed a motion for default judgment on November 17, 2011 and included the affidavit of James Hornberger, a member of appellant‘s LLC. Hornberger stated appellant entered into several contracts where appellees agreed to purchase motor vehicles from appellants. Further, appellant delivered the vehicles to appellees and appellees failed to pay for five vehicles for a total of $39,800. By judgment entry filed the same date, the trial court granted the motion and found in favor of appellant in the amount of $39,800, plus interest and costs.
{¶3} In January of 2012, the trial court issued an order setting a judgment debtor examination for February 27, 2012. On February 23, 2012, Johnson filed a pro se motion to continue the debtor‘s exam to obtain counsel. The trial court granted the motion to continue on February 24, 2012.
{¶5} The trial court held an evidentiary hearing on May 7, 2012. Johnson testified at the hearing and stated he did not sign for the complaint and was not sure who did. Further, that the service to him personally was sent to the business address and not his home address. Johnson stated, at the time the complaint would have been served on him, he was involved in a contested divorce and was served with multiple legal papers with regard to the divorce case. Johnson testified the 2003 BMW M3 was never delivered to him by appellant, the 2003 Chevrolet diesel truck was a title swap so no checks were exchanged between the parties, he paid for both a 2008 Ford Escape and a 2000 Chevy Tahoe, and appellant refused to pick up a 2008 ATV after appellees determined they were not going to purchase the vehicle.
{¶6} The trial court granted appellees’ motion on May 8, 2012 and vacated the default judgment. The trial court found the
{¶7} Appellant appeals the May 8, 2012 and September 13, 2013 judgment entries of the Fairfield County Court of Common Pleas and assigns the following as error:
{¶8} “I. THE TRIAL COURT ERRED IN GRANTING THEODORE JOHNSON AND BULLDOG AUTO SALES, INC.‘S MOTION TO VACATE JUDGMENT BECAUSE
I.
{¶9} The order from which appellant has appealed vacated the earlier judgment granted by the trial court. This Court, therefore, has jurisdiction pursuant to
{¶10}
{¶11} In this case, there is no dispute that appellees set forth a meritorious defense. Johnson testified he paid for the vehicles at issue, either by check or with a title swap, and introduced Exhibit A, a check for payment of one of the vehicles at issue.
Timeliness of Motion
{¶12} Appellant argues appellees’ motion was not timely because the motion was filed more than six months after the complaint and summons were served and more than five months after default judgment was granted. We disagree.
{¶14} In this case, Johnson testified he learned of the default judgment against him in January of 2012 and, soon after he got the notice of the debtor‘s exam, filed a motion to continue the February 2012 debtor‘s exam in order to obtain counsel and determine how to address the complaint filed in October of 2011 and the default judgment in November of 2011. Counsel for appellees subsequently filed the motion to vacate on April 20, 2012, less than two months after appellees’ motion to continue the debtor‘s exam. Johnson testified that, during this time, he was going through a complicated divorce proceeding. Upon review of the record and in light of the evidence presented for the trial court‘s consideration, we find appellant failed to establish the trial court‘s conclusion that appellees’ motion to vacate was made within a reasonable time constituted an abuse of discretion.
60(B)(5)
{¶15} Appellant contends the trial court improperly utilized
{¶17} In this case, appellees attached to their motion to vacate the sworn affidavit of Johnson stating he did not receive service of the complaint against him. At the evidentiary hearing on appellees’ motion, Johnson testified he was not properly served with the complaint and he did not receive any actual notice of the action against him at the time the default judgment was granted. Johnson stated he was going through a difficult and contested divorce at the time appellant‘s complaint was filed and the default judgment was granted. Johnson was being served with multiple documents on a regular basis for his divorce, but stated he did not receive notice of appellant‘s complaint. Johnson could not tell who signed for the complaint and the Clerk of Courts
{¶18} Appellant opposed the motion to vacate and stated it obtained valid service on appellees because they complied with the civil rules. However, appellant did not contradict Johnson‘s testimony that appellees never received actual service of the complaint and were unaware of the pendency of the case until January of 2012. The trial court was faced with competing interests in ruling on the motion. “On one hand is the principle of finality of judgment and the non-moving party‘s right to have his judgment enforced. On the other hand is the principle that cases should be decided on their merits and the right of all parties to be heard.” Robinson, 2011-Ohio-3017. The trial court was in the best position to balance these competing interests. Further, the trial court‘s reference to
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur