Herlihy Moving & Storage, Inc. v. NickisonHerlihy Moving & Storage, Inc. v. Nickison
Rendered on December 30, 2010
Vorys, Sater, Seymour & Pease LLP, and Kimberly Weber Herlihy, for plaintiffs-appellees.
Shaw & Miller, and Mark J. Miller, for defendant-appellant.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Defendant-appellant, William H. Nickison, III (“appellant“), appeals from the judgment of the Franklin County Court of Common Pleas denying his motion for relief
{¶2} On October 10, 2008, plaintiffs-appellees, Herlihy Moving and Storage, Inc., and Herlihy Logistics, Inc. (collectively referred to as “HMS“), filed a complaint against appellant, his wife Shannon Nickison (“Ms. Nickison“), and Charter One Financial1 (“Charter One“). The complaint alleged that between July 2005 and June 2008, Ms. Nickison improperly diverted approximately $200,000 in cash and checks from HMS to her personal bank account at Charter One. The complaint also set forth an unjust enrichment claim against appellant based on Ms. Nickison‘s actions.
{¶3} Because the Nickisons failed to file an answer, HMS moved for a default judgment against them on December 12, 2008. An entry granting default judgment in favor of HMS and against Ms. Nickison and appellant for $203,284.65, plus court costs and post judgment interest, was filed on December 24, 2008. After garnishment proceedings were initiated against appellant‘s wages, both appellant and Ms. Nickison filed on March 30, 2009 individual requests for “reversal of judgment due to lack of due process.” On April 6, 2009, appellant and Ms. Nickison filed a joint “motion” to have all money returned to them upon reversal of the judgment. On June 12, 2009, appellant filed a motion for relief from judgment pursuant to
{¶4} Because appellant‘s March 30, 2009 filing did not specify the rule pursuant to which it was being made, the trial court construed it as a
{¶5} On November 24, 2009, appellant filed, this time through counsel, a motion for relief from judgment pursuant to
{¶6} On April 26, 2010, the trial court, finding that appellant‘s arguments could have been raised in his initial motion, denied the November motion for relief from judgment based on the doctrine of res judicata. The trial court went on to find, however, that even if not barred by res judicata, appellant was not entitled to relief from judgment because he not only failed to establish excusable neglect, but, also, failed to raise a
{¶7} This appeal followed, and appellant brings the following three assignments of error for our review:
- The trial court erred in holding that res judicata barred Appellant from raising his Motion for Relief From Default Judgment pursuant to Rule 60(B).
- The trial court erred in denying Appellant‘s Motion for Relief From Default Judgment pursuant to Rule 60(B).
- The trial court abused its discretion in denying Appellant‘s Motion for Relief From Default Judgment pursuant to Rule 60(B) without first holding an evidentiary hearing.
{¶8} For ease of discussion, we address appellant‘s assignments of error out of order. In his second assignment of error, appellant contends the trial court erred in denying his November 24, 2009 motion for relief from judgment because he had in fact satisfied the requirements of
{¶9} “A motion for relief from judgment under
{¶10} When applying an abuse-of-discretion standard, an appellate court may not substitute its judgment for that of the trial court. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169; Stockdale v. Baba, 153 Ohio App.3d 712, 2003-Ohio-4366, ¶54; State v. Congrove, 10th Dist. No. 06AP-1129, 2007-Ohio-3323, ¶9. ” ‘[A]n abuse of discretion involves far more than a difference in * * * opinion * * *. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an “abuse” in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’ ” Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, quoting State v. Jenkins (1984), 15 Ohio St.3d 164, 222.
{¶11} Here, appellant sought relief from judgment, pursuant to
{¶12} “[T]o prevail on a
{¶13} In the instant case, the trial court denied appellant‘s November motion for several reasons: (1) appellant failed to establish excusable neglect; (2) appellant failed to raise a meritorious defense; and (3) the motion was not timely. Any one of these findings would preclude relief from judgment under
{¶14} Whether a
{¶15} A motion to vacate a default judgment, which is filed nearly seven months after actual notice of the action and more than four months after default judgment was entered, does not, on its face, satisfy the reasonable time requirement; in the absence of any evidence explaining the delay, the movant has failed to demonstrate the timeliness of the motion. Mt. Olive Baptist Church v. Pipkins Paints & Home Improvement Ctr., Inc. (1979), 64 Ohio App.2d 285, paragraph two of the syllabus; Angel v. Angel (Feb. 18, 1993), 4th Dist. No. 92CA2071. In other words, an unexplained or unjustified delay in making the motion after discovering a ground for relief may put the motion beyond the pale of a reasonable time. Minnis, citing 2 Browne, Klein & Murtaugh, Baldwin‘s Ohio Civil Practice (1988) 118, T. 53.05; Fouts v. Weiss-Carson (1991), 77 Ohio App.3d 563, 567; Sec. Fed. S. & L. Assn. of Cleveland v. Keyes (June 29, 1990), 11th Dist. No. 89-G-1524 (trial court‘s granting of a
{¶16} Undisputedly, this complaint was filed on October 10, 2008, service was perfected on October 18, 2008, and default judgment was granted against appellant on
{¶17} Though appellant suggests he did not receive the complaint until July 2009, the record is clear and undisputed, as evidenced by appellant‘s own filings, that he was aware of these proceedings in March 2009. In fact, appellant filed his first pro se request for relief from judgment on March 30, 2009. Thus, even if appellant did not see the actual complaint that was served at his residence until July 2009, such fact is irrelevant because clearly he was aware of and had access to the file and complaint as early as March 2009.
{¶18} Similarly irrelevant is the fact that appellant did not retain counsel until November 2009 to file a “proper”
{¶19} Consequently, we find no abuse of discretion in the trial court‘s determination that appellant‘s motion for relief from judgment, pursuant to
{¶20} By his third assignment of error, appellant contends the trial court abused its discretion by failing to hold an evidentiary hearing concerning his
{¶21} “[I]f the
{¶22} A “trial court abuses its discretion in denying a hearing where grounds for relief from judgment are sufficiently alleged and are supported with evidence which would warrant relief from judgment.” Kay at 19-20, citing Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 103. Such a holding “is in accord with the underlying policies governing
{¶23} Our review reveals appellant‘s November 24, 2009 motion for relief from judgment failed to allege operative facts, which, if proven, would give rise to a finding that the trial court abused its discretion in determining that under the facts presented here appellant‘s motion was not made within a reasonable time. As discussed under appellant‘s second assignment of error, even taken as true, the facts asserted by
{¶24} Given our disposition of appellant‘s second and third assignments of error, appellant‘s first assignment of error is overruled as moot, and we need not address appellant‘s arguments that the trial court erred in denying his
{¶25} In conclusion, appellant‘s second and third assignments of error are overruled, appellant‘s first assignment of error is overruled as moot, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
TYACK, P.J., and BRYANT, J., concur.
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