DG INDUSTRIAL, L.L.C. v. RALPH K. McCLURE
CASE NOS. 11 MA 59, 11 MA 69
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
August 27, 2012
2012-Ohio-4035
CHARACTER OF PROCEEDINGS: Civil Appeal from the Area County Court Number 3 of Mahoning County, Ohio Case Nos. 10 CVF 296; 10 CVF 297. JUDGMENT: Affirmed.
For Plaintiff-Appellee: Atty. Kenneth Cardinal, P.O. Box 207, 758 North 15th Street, Sebring, Ohio 44672
For Defendant-Appellant: Atty. Rhys B. Cartwright-Jones, 42 North Phelps Street, Youngstown, Ohio 44503-1130
JUDGES: Hon. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro
Summary
{¶1} Dean E. Grindley, III, filed two separate suits against Appellant Ralph K. McClure. In his personal capacity, Mr. Grindley sought civil recovery for alleged theft convictions concerning a credit card account. As the representative for DG Industrial, L.L.C., Mr. Grindley sought payment of the balance owed on personal loans Appellant had partially repaid to the company. Appellant received service of both complaints, which were signed for by his wife on September 28, 2010. Appellant filed no answer or other motion in response to the complaints. Mr. Grindley sought and received default judgment in both cases on November 3, 2010. Although the motions and judgment entries were filed with the Court, they were not properly docketed or indexed. At some point after Appellant received notice of the judgment entries, he sought to have both entries set aside and vacated. The trial court denied Appellant‘s motions to set aside default judgment and he appealed. His notice or notices of appeal, however, do not appear on the docket or index of either case and may have been filed untimely. Due to some ambiguity as to when the judgment entries denying his motions were mailed to Appellant, we have allowed both appeals to proceed, despite the appearance of untimeliness. On review, because Appellant received service, was in default, and failed to demonstrate that he had a meritorious defense to present, the judgment of the trial court is affirmed in both cases.
Facts and Procedural History
{¶3} Subsequent to obtaining service, no activity appears on the docket or in the record of either case until November 3, 2010. On that date, motions seeking default judgment in both cases were filed and journal entries granting default judgment were stamped by the clerk and filed, however the motions and judgment entries granting the motions were mistakenly combined and entered on both dockets
{¶4} Two copies of the docket were transmitted for the business case, 2010 CV 00296. The second copy is the “corrected” docket which accompanied several documents that appear to have been mis-captioned and initially mis-filed. The motion for default judgment in the business case appears as pages 2 and 3 of docket entry No. 17 in the corrected docket and as docket entry 8 in the original docket. The three pages entered in the record as one document consist of both the motion and the signed judgment entry. Both copies of the docket for the business case summarize the November 3, 2010 entry as: “DEFAULT JUDGMENT GRANTED TO THE PLAINTIFF IN THE AMOUNT: $10,099.00 WITH INT AT 5% FROM MAY 28, 2008 * * * COPIES OF JUDGMENT ENTRY MAILED TO ALL PARTIES.”
{¶5} In the personal case, 2010 CV 00297, the motion for default judgment filed on November 3, 2010 appears in the record as pages one and two of docket entry 4, which is summarized on the docket: “DEFAULT JUDGMENT GRANTED TO THE PLAINTIFF IN THE AMOUNT: $ 8,862.31 INTEREST FROM: DATE OF JUDGMENT INTEREST RATE: 5% AND COSTS. /S/DIANE VETTORI COPIES OF JUDGMENT MAILED TO ALL PARTIES.” The summary entry does not mention the motion for default judgment, nor is there a separate docket entry identifying the motion. The actual document in the record forwarded to this Court, time-stamped November 3, 2010, is a motion for default judgment. The signed judgment entry itself is absent from this file. However, neither party disputes that judgment was granted
{¶6} On November 18, 2010, in the case personally filed by Mr. Grindley, Appellant responded to default judgment by simultaneously filing a motion for leave to plead, a brief in opposition to plaintiff‘s motion for default judgment, and a motion to set aside default judgment. Grindley responded to Appellant‘s filing. The trial court denied Appellant‘s motion to set aside default judgment on February 17, 2011. The instant appeal appears to have been filed from this ruling.
{¶7} The final docket entries in the personal case, entered on March 17, 2011, concern an issue as to costs. Neither a notice of appeal nor a praecipe for the transmission of the record was docketed under this case number. The record transmitted to us does include a notice of appeal, stamped both March 17, 2011 and April 6, 2011, but the document is captioned DG Industrial, L.L.C. v. McClure (the caption for the business case, 2010 CV 00296), and although the case number is correctly listed as 2010 CV 00297, the notice was never docketed or indexed under either case, despite its appearance in the case file. The record also includes several motions and a judgment entry denying stay of execution pending appeal, which are dated from April through June of 2011. All of these documents have the same apparent error in the caption. They appear to have been originally included in the record of the business case, 2010 CV 00296, but do not appear on the docket of either case.
{¶9} In the case filed by Grindley‘s business, DG Industrial, L.L.C., default judgment was also entered on November 3, 2010. Appellant then filed a November 18, 2010 motion to set aside judgment, to which Appellee responded. The trial court denied this motion on February 17, 2011. Appellant‘s notice of appeal, praecipe, and docketing statement are combined in a single document that appears to have been filed on April 27, 2011. However, there is no docket entry for these documents.
{¶10} This Court, on May 17, 2011, allowed what would otherwise have been an untimely appeal, due to ambiguity in the record concerning service of the trial court‘s February 17, 2011 judgment entries. Had we not granted leave, the April 27, 2011 notice of appeal as it regards the business case, which does not appear on the docket or index of this case, appears to have been filed more than forty days late.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BOTH IN ENTERING DEFAULT JUDGMENT IN FAVOR OF THE PLAINTIFFS IN THESE CASES, AND IN DENYING THE DEFENDANT‘S MOTION FOR RELIEF FROM DEFAULT JUDGMENT.
{¶12} Appellant makes two arguments under his sole assignment of error: (1) neither Appellee filed a motion for default judgment in either case and default judgment cannot be granted by the court sua sponte; and (2) Appellant presented sufficient grounds for relief under
{¶13} Appellant does not dispute receiving the complaints, the motions for default judgment, and the judgment entries granting default judgment in both cases. Because Appellant was properly served with the complaints, but never entered an appearance or filed an answer in either case, he was not entitled seven days notice prior to hearing on the motions for default judgment.
{¶14} The only remaining issue is whether Appellant presented sufficient evidence to support his motion to set aside default judgment. Pursuant to
[T]he court may relieve a party * * * 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 * * * (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 it is no longer equitable * * * (5) any other reason justifying relief.
{¶15} A party seeking relief from judgment under
{¶16} The party seeking relief from judgment must allege operative facts with enough specificity to allow the trial court to decide whether a meritorious defense exists. Syphard v. Vrable, 141 Ohio App.3d 460, 751 N.E.2d 564 (2001). Actual evidence supporting the defense is not necessary. Kay v. Marc Glassman Inc., 76 Ohio St.3d 18, 665 N.E.2d 1102 (1996). A reviewing court will not disturb a trial court‘s decision concerning motions filed under
{¶17} In the matter below, Appellant filed two virtually identical motions in response to the motions for default judgment filed by Grindley and his business. In the business case, Appellant filed a motion to set aside default judgment. In the personal case, a nearly identical document was instead captioned, “brief in opposition to plaintiff‘s motion for default judgment.” Both documents were filed on November 18, 2010. Excepting the captions and differing typos on the third page of
{¶18} With regard to the first prong of the test, which requires some showing of a meritorious defense, Appellant offers a single sentence: “In fact, Defendant has legitimate grounds to challenge and defend this case on its merits.” (Brief in Opposition to Plaintiff‘s Motion for Default Judgment, p. 4.) No further information concerning any defense was provided in either of the matters below. On appeal, for the first time, Appellant now argues that it was error for the court to grant default judgment when there were open questions as to whether the alleged loans were valid under the statute of frauds and where “there is no plea of consideration.” (Appellant‘s Brf., p. 5.) The statute of frauds is an affirmative defense, which is generally waived if not raised in the pleadings. See, e.g., Houser v. Ohio Historical Soc., 62 Ohio St.2d 77, 79, 403 N.E.2d 965, 967 (1980);
{¶20} Again, in order to prevail on appeal, Appellant must show that he meets all these prongs of the GTE test. Due to Appellant‘s failure to discharge his burden for either case under the first prong, we need not determine whether his failure to move or plead in response to the complaint was the result of excusable neglect. Because Appellant failed to demonstrate that he had a meritorious defense to
Conclusion
{¶21} Appellant‘s sole assignment of error is without merit. The trial court‘s entries granting default judgment were based on a written motion filed by Appellee which appear in the record of each case. The trial court‘s decision denying relief from judgment was not an abuse of discretion because Appellant failed to meet his burden to identify a meritorious defense in either case before the trial court. Appellant‘s assignment of error is overruled. The judgment of the trial court in both cases is affirmed.
Vukovich, J., concurs.
DeGenaro, J., concurs.