JOHN SOLIDAY FINANCIAL GROUP, LLC v. ANGEL MONCREACE
CASE NO. 09 JE 11
STATE OF OHIO, JEFFERSON COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
March 22, 2011
2011-Ohio-1471
Hоn. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro
OPINION
JUDGMENT: Reversed. Default Judgment Reinstated.
APPEARANCES:
For Plaintiff-Appellant: Atty. Jackson T. Moyer, Cheek Law Offices, LLC, 471 E. Broad Street, 12th Floor, Columbus, Ohio 43215
For Defendant-Appellee: Atty. Thomas E. Zani, Southeastern Ohio Legal Services Program, 100 N. Third Street, Steubenville, Ohio 43952
JUDGES: Hon. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro
WAITE, P.J.
{2} This case is governed by GTE Automatic Elec., Inc. v. Arc Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, which requires a party to establish three things in order to obtain relief from judgment: 1) a meritorious defense; 2) an entitlement to relief under one of the grounds stated in
{3} On October 14, 2004, Appellee purchased a 1997 Chrysler Cirrus from ProCar Auto Group in Steubenville. She signed a retail installment credit contrаct with Atlantic Financial Services, Inc., with a principal amount of $7,996.55, plus interest at a rate of 24.95% per annum. She was required to make payments every two weeks in the amount of $147.87. Appellee failed to make payments on the loan, and Soliday, claiming to be the assignee of the lоan, filed suit to collect the debt.
{4} The breach of contract complaint was filed on May 23, 2008. Appellee did not respond to the complaint. On August 1, 2008, Soliday filed a motion for default judgment in the amount of $4,653.91 plus interest in the amount of $1,891.03 through July 25, 2008, and future interest to accrue at 24.95% per annum. The court scheduled a hearing for September 15, 2008, and sent notice to the parties. Again, Appellee failed to respond in any way and failed to attend the hearing. The trial court granted the motion on December 30, 2008, and entered judgment as Soliday had requested, approximately seven months after the complaint was filed. No appeal was taken of this judgment entry by Appellee.
{5} A certificate of judgment lien against land and tenements was entered on January 12, 2009.
{6} Appellee subsequently obtained counsel, and on February 17, 2009, she filed a
{7} On March 9, 2009, Soliday filed a memorandum contra defendant‘s motion for relief from judgment. Soliday argued that Appellee was required to establish excusable neglect, a meritorious defensе, and timeliness of the motion, in order for the court to grant the motion. Soliday argued that Appellee simply ignored the complaint. Inaction is not a legally acceptable form of excusable neglect. Soliday also argued that the motion was untimely and that no meritorious defense was established.
{8} Appellee filed a further reply on March 12, 2009. The court held a hearing on the motion on March 16, 2009. Most of the hearing dealt with whether Appellee had any meritorious defenses. Soliday presented little challenge to the alleged defenses, but did emphasize that, аs a threshold matter, Appellee presented no excusable neglect because Appellee simply ignored the complaint, as well as all the other court filings. (Tr., p. 3.) Appellee‘s counsel argued that Appellant did not know of the possible legal defenses she might havе had because she was not a lawyer, and did not realize her car could be repossessed simply by failing to pay her loan installments. (Tr., pp. 6-7.) She supposedly understood her possible defenses only after she obtained counsel. The trial court appears to have accepted this
ASSIGNMENT OF ERROR
{9} “The trial court abused its discretion by holding that Appellee‘s failure to appear or answer Appellant‘s complaint was ‘excusable neglect’ that entitled Appellee to relief from judgment pursuant to
{10} Soliday contends that the trial court should not have granted Appellee‘s motion for relief from judgment because she did not establish excusable neglect for failing to defend against the complaint. The law surrounding
{12} When reviewing a trial court‘s decision regarding a
{13} In this appeal, Soliday is not challenging whether Appellee may have had a possible meritorious defense or that her motion for relief from judgment was timely filed. The sole issue on appeal is whether thе trial court abused its discretion when it concluded that Appellee‘s failure to respond to the complaint was the result of excusable neglect.
{14} The determination of whether a particular failure is excusable neglect “must be made from all the individual facts and circumstances in each case.” D.G.M., Inc. v. Cremeans Concrete & Supply Co., Inc. (1996), 111 Ohio App.3d 134, 138, 675 N.E.2d 1263. The Ohio Supreme Court has articulated that neglect is not excusable if it is an act of complete disregard for the judicial system. Kay, supra, at 20. Excusable neglect is not present if the party could have prevented the
{15} The instant case is similar to the situation that occurred in Associated Estates, Corp. v. Fellows (1983), 11 Ohio App.3d 112, 463 N.E.2d 417. In Associated Estates, Corp., the defendant failed to plead or respond in any way to the complaint despite his admitted receipt of the complaint. The complaint was for unpaid rent. After the defendant received the complаint, he simply waited to see what would happen next instead of answering the complaint. He claimed that he did not appreciate the significance of the court documents and did nothing. The Eighth District Court of Appeals overruled appellant‘s claims, stating that “[t]he neglect of an individuаl to seek legal assistance after being served with court papers is not excusable.” Id. at 116, 463 N.E.2d 417.
{16} This Court itself has held that “[a] party who is informed of court action against him and fails to seek legal assistance does so at his risk and such conduct cannot be said to constitute ‘excusable neglect’ under
{17} Similar cases can be found in nearly every appellate district. Equilease Corp. v. Thompson (July 6, 1978), 8th Dist. No. 37510 (defendant‘s failure to answer because of an upcoming vacation is not excusable); Tom Sweeney, Inc. v. Porter (April 30, 1999), 1st Dist. No. C-980337 (failure to seek counsel because it would be expensive is not excusable neglect); Wilson v. Patel (Feb. 1, 1995), 2d Dist. No. 14634 (it was not excusable neglect for defendant to fail to answer the civil complaint for battery simply because he thought he was not civilly liable after he had been absolved of criminal liability for assault); Katko v. Modic (1993), 85 Ohio App.3d 834, 621 N.E.2d 809 (Eleventh District holds that ignorance оf the law is not excusable neglect under
{18} Although Soliday argues that Appellee has experience with litigation from a prior divorce, this evidence is not in the record. Whether Appellee did or did not have prior experience with using an attorney would not determine the outcome of this case. See, e.g., Colley v. Bazell (1980), 64 Ohio St.2d 243, 249, 416 N.E.2d 605 (the experience and understanding of the defendant with respect to litigation matters is a relevant consideration but not a decisive factor in establishing excusable neglect).
{19} Appellee‘s argument, both to the trial court and before us, is primarily that her defenses to the complaint are so strong that she did not need to establish exсusable neglect, or that any excuse at all should constitute excusable neglect because “any doubt on the categorization of neglect should be resolved in favor of the motion to set aside the judgment so that cases can be decided on their merits.”
{20} Appellee‘s reliance on Wilson v. Lee, 172 Ohio App.3d 791, 2007-Ohio-4542, is also unwarranted. In Wilson, the plaintiff filed an amended personal injury complaint against the tenant and landlord of a building after he was bitten in the face by a dog on the рremises. Mr. O‘Shea, the landlord, received a copy of the complaint because he was one of the defendants, but he thought that he was just being notified that one of his tenants was being sued. He did not answer the complaint, and default judgment was granted on the liability aspect of the comрlaint. At this point, O‘Shea
{21} In this case, the complaint is directed only to Appellee and there could be no confusion about whether she was the intended defendant; she did not file any type of response until after final judgment was rendered and a judgment lien was issued; and the damages are $4,653, which is a relatively low amount and nothing like the $70,000 at issue in the Wilson case. Although Appellee relies on Wilson, the facts and circumstances of Wilson are much more supportive of Soliday‘s argument.
{22} We are aware that this is a very rare case in which we are overruling a trial court‘s decision to grant a motion for relief from judgment, but the record does not reflect even a scintilla of evidence on which to base any excusable neglect. Appellee has simply presented no excusable reason why she failed to respond in any way to the legal proceedings until after a judgment lien was issued. While there does
{23} Soliday‘s argument is persuasive and his assignment of error is sustained. Appellee‘s only excuses for not answering Soliday‘s complaint are that she did not know her possible defenses because she was not an attоrney, and she did not think of hiring an attorney until after the judgment lien was imposed. These types of arguments, offered to form the basis for excusable neglect, have been rejected time and time again. There is simply nothing in the record on which to base such a finding, here. The judgment of the trial court sustaining Appellee‘s motion for relief from judgment is hereby reversed and the default judgment reinstated.
Vukovich, J., concurs.
DeGenaro, J., concurs.