J.P. MORGAN CHASE BANK, PLAINTIFF-APPELLEE, VS. ALMA MACEJKO, ET AL., DEFENDANTS-APPELLANTS.
CASE NOS. 07-MA-148 08-MA-242
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
June 30, 2010
2010-Ohio-3152
Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 05CV3114. JUDGMENT: Affirmed.
For Plaintiff-Appellee Attorney Jerry M. Bryan Attorney Jeremy R. Teaberry 6 Federal Plaza Central, Suite 1300 Youngstown, Ohio 44503
For Defendants-Appellants Atty. James E. Lanzo 4126 Youngstown-Poland Rd. Youngstown, Ohio 44514
Atty. T. Robert Bricker 106 South Broad Street Canfield, Ohio 44406
{¶1} Defendants-appellants, Alma Macejko, et al, appeal decisions of the Mahoning County Common Pleas Court awarding summary judgment in favor of plaintiff-appellee J.P. Morgan Chase Bank (Chase) on its claims of fraudulent transfers and the court‘s subsequent decision denying their motion for relief from that judgment.
{¶2} In 2002, Chase obtained and recorded a $436,350.30 judgment against Patricia Macejko, Donald Macejko (Patricia‘s husband), DWT Realty, Inc. (whose statutory agent is Donald Macejko), and Mary Ann Barnett.
{¶3} On August 24, 2005, Chase sued defendants-appellants herein Patricia Macejko, Billie Jo Brown, Alma Macejko, and Stanley Zedek (hereinafter collectively referred to as appellants) for four counts of fraudulent transfer under
{¶4} Patricia Macejko also allegedly transferred funds to Billie Jo Brown in Scottrade, a discount retail brokerage firm, for the benefit of herself. She also gave Stanley Zedek a security interest in her personal belongings and transferred cash to him which he utilized to purchase real estate located at 2521 Redgate Lane in Youngstown, Ohio.
{¶5} Chase submitted requests for admissions, interrogatories, and requests for production of documents to each of the appellants.
{¶7} The magistrate granted Chase summary judgment on October 19, 2006. (Docket 121.) The magistrate issued a detailed twelve-page decision. The magistrate deemed appellants’ failure to respond to discovery requests as admissions and noted that their memorandum in opposition to summary judgment contained only broad, sweeping statements lacking any evidentiary support.
{¶8} On November 2, 2006, appellants filed objections to the magistrate‘s decision. (Docket 128.) The attorney who prepared the objections argued: (1) he had not had enough time to familiarize himself with the case;1 (2) the magistrate had failed to issue findings of fact and conclusions of law (despite the detailed twelve-page decision); and (3) appellants had in fact responded to discovery requests.
{¶9} On November 14, 2006, appellants filed a motion to stay the proceedings because Patricia Macejko had filed for bankruptcy in case no. 06-15797. (Docket 133.) The trial court sustained the motion two days later. (Docket 134.)
{¶11} The trial court held a hearing on appellants’ objections on July 17, 2007. (Docket 143.) On July 26, 2007, the trial court adopted the magistrate‘s decision. (Docket 141.) Appellants appealed that decision under appellate case 07-MA-148.
{¶12} On August 22, 2007, appellants filed a motion to vacate the trial court‘s July 26, 2007 decision and Chase filed a reply brief in opposition. (Docket 147, 166.) The sole basis of the motion was that a bankruptcy stay in Patricia Macejko‘s case no. 06-15797 was still in place at the time the trial court entered its order adopting the magistrate‘s decision. The trial court overruled the motion on October 30, 2008. (Docket 169.) Appellants also appealed that decision this time under appellate case number 08-MA-242. Subsequently, this court consolidated both appeals.
{¶13} In their first appeal (case number 07-MA-148), appellants’ sole assignment of error states:
{¶14} “THE TRIAL COURT ERRED IN GRANTING APPELLEE‘S MOTION FOR SUMMARY JUDGMENT, AS APPELLANT WAS NOT GIVEN AN OPPORTUNITY TO RESPOND, THUS DENYING APPELLANT‘S DUE PROCESS.”
{¶15} The trial court initially granted Chase‘s summary judgment motion. (Docket 60.) However, upon appellants’ motion, a magistrate vacated that judgment because appellants had not been given an adequate opportunity to respond to Chase‘s motion for summary judgment. (Docket 62, 74.) Appellants argue that after vacating that judgment, the trial court did not notify the parties when it would proceed to rule upon Chase‘s summary judgment motion.
{¶16} Contrary to appellants’ assertion, the trial court clearly stated when Chase‘s summary judgment motion would be ruled upon. In the judgment entry
{¶17} Appellants also assert that the trial court granted their motion for additional time the same day that it awarded Chase summary judgment, implying that the trial court gave them additional time within which to file an additional or renewed responsive motion to Chase‘s summary judgment motion. The record simply does not support this contention. The same day the trial court granted Chase summary judgment, appellants filed a motion to continue the hearing set for October 17, 2006. The hearing set for October 17, 2006, pertained to three show cause motions. The trial court re-set the show cause hearing for October 23, 2006. Appellants asked for additional time again and the trial court re-set the show cause hearing for November 28, 2006. The show cause hearing had nothing to with Chase‘s summary judgment motion. The August 24, 2006 date set by the magistrate for non-oral hearing on Chase‘s summary judgment motion remained intact and unaffected. Appellants’ motion for additional time pertained only to the show cause hearings.
{¶18} Turning to appellants’ last argument under this assignment of error, the trial court granted Chase‘s summary judgment based, in part, on appellants’ failure to respond to Chase‘s request for admissions. Under
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{¶24} Appellants’ failure to timely respond to Chase‘s request was without justification and showed a lack of diligence on appellants’ behalf. See Clause v. Freshwater (June 30, 1998), 7th Dist. No. 97-JE-37 (finding untimely responses presented nine days before trial prejudicial to plaintiff). We recognize the importance of having an action decided upon the merits, and the adverse effect of the trial court‘s decision has on appellants. See id. However, we must also take into account the fact that Chase was justified in presuming that the matters had been admitted by appellants and in relying on the admissions when it moved for summary judgment. See id. Allowing the untimely responses, which were submitted over a year after they were due, would have been prejudicial to Chase. See id. For all of the foregoing reasons, the trial court‘s decision that the request for admissions be deemed admitted was not an abuse of discretion.
{¶25} Accordingly, appellants’ sole assignment of error under case number 07-MA-148 is without merit.
{¶26} In their second appeal (case number 08-MA-242), appellants’ sole assignment of error states:
{¶27} “THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANTS’ MOTION TO VACATE JUDGMENT.”
{¶29} A trial court may only grant relief from judgment in the manner provided by
{¶30} The Ohio Supreme Court set out the controlling test for
{¶31} “To prevail on a motion brought under
{¶32} The grounds for relief under the second GTE element are:
{¶33} “(1) [M]istake, 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
{¶34} In this case, appellants’ motion to vacate failed to satisfy the first two prongs of GTE – (1) that they had a meritorious defense or claim to present if relief is granted and (2) that they were entitled to relief under one of the grounds stated in
{¶35} Turning to the second prong, the only ground that might apply to appellants is
{¶36} “It is well-settled that an appellant cannot present new arguments for the first time on appeal. Havely v. Franklin Cty. Ohio, 10th Dist. No. 07AP-1077, 2008-Ohio-4889, fn. 3, quoting State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections (1992), 65 Ohio St.3d 175, 177, 602 N.E.2d 622; see also Republic Steel Corp. v. Bd. of Revision of Cuyahoga Cty. (1963), 175 Ohio St. 179, 192 N.E.2d 47, syllabus; Miller v. Wikel Mfg. Co., Inc. (1989), 46 Ohio St.3d 76, 78, 545 N.E.2d 76. Indeed, appellate courts typically will not consider arguments that were never presented to the trial court whose judgment is sought to be reversed. See State ex rel. Quarto Mining Co. v. Foreman (1997), 79 Ohio St.3d 78, 81, 679 N.E.2d 706, quoting Goldberg v. Indus. Comm. (1936), 131 Ohio St. 399, 404, 3 N.E.2d 364. Finally, with specific regard to
{¶37} Applying these rules of appellate law to the arguments presented herein, it becomes clear that we need not consider appellants’ arguments concerning the absence of Donald Macejko as a party defendant. This argument was not raised before the trial court in appellants’ motion to vacate. Because appellant failed to raise this argument before the trial court, we find that he has waived it on appeal. We cannot find that the trial court abused its discretion in denying
{¶38} The sole basis of appellants’ motion to vacate was that there was a bankruptcy stay in Patricia Macejko‘s case no. 06-15797 in effect at the time the trial court entered its judgment. However, Chase‘s reply brief provided evidence to the contrary. Exhibit A, attached to the brief, is an order by the bankruptcy court in Patricia‘s case clearly stating that the stay terminated on the “30th day after November 13, 2006.” This date was well before the trial court entered its judgment. Although the order reflects that the matter of when the stay expired had been the subject of some dispute, it nevertheless clearly stated when it expired. Therefore, there was no bankruptcy stay in effect at the time the trial court entered its judgment on July 26, 2007. Even if there had been a bankruptcy stay in effect, at least one court has held that when a bankruptcy stay was in effect at the time when a judgment was entered but was later lifted before the filing of a motion to vacate the judgment, using the bankruptcy stay as a basis for a
{¶39} Accordingly, appellants’ sole assignment of error under case number 08-MA-242 is without merit.
Waite, J., concurs.
DeGenaro, J., concurs.