MAXIM ENTERPRISES, INC., Plaintiff v. STEPHEN T. HALEY, et al., Defendants and STEPHEN T. HALEY, Appellant v. STEPHEN A. MAXIM, et al., Third-Party Defendants and BAC FIELD SERVICES CORPORATION, Appellee
C.A. No. 26348
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
July 31, 2013
2013-Ohio-3348
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS CASE No. CV 2008-07-5093
Dated: July 31, 2013
MOORE, Presiding Judge.
{¶1} Defendant Stephen T. Haley appeals from the judgment of the Summit County Court of Common Pleas. We reverse and remand this matter for further proceedings consistent with this opinion.
{¶2} Countrywide Field Services (“Countrywide“) provided real property inspections and maintenance services to mortgage servicers. Countrywide contracted with Maxim Enterprises, Inc. (“Maxim“) to provide these services on properties located in Ohio. Maxim subcontracted this work to several subcontractors. The subcоntractors claimed to have provided services to the properties, but denied having received payment from Maxim. Mr. Haley entered into agreements with the subcontractors, wherein thе subcontractors assigned their accounts receivable and claims to Mr. Haley. Mr. Haley claimed that he contacted Maxim for payment and that Maxim responded that it had not providеd payment to the subcontractors because Countrywide had not provided payment to Maxim.
{¶3} In 2008, Maxim filed a complaint against several parties, including Mr. Haley, wherein Maxim alleged that Mr. Haley engaged in tortious interference with a business relationship and civil conspiracy. Thereafter, Mr. Haley filed a third-party complaint against several parties, including Countrywide. This initial third-party cоmplaint was dismissed in 2009. Later that year, Mr. Haley again filed a third-party complaint against several parties, including “Bank of America fka Countrywide Field Services Corporation,” (“Bank of America“). Bаnk of America failed to answer the third-party complaint, and Mr. Haley moved for default judgment, which the trial court granted in 2010.
{¶4} On April 16, 2010, Mr. Haley filed a praecipe for a writ of execution against Bаnk of America dba Merrill Lynch. On April 28, 2010, “BAC Field Services Corporation” (“BAC“) filed a motion to stay execution of judgment. In its motion, BAC argued, in part, that it was also known as “Bank of America Field Services,” but it was “improperly named in the third party complaint * * * as ‘Bank of America f/k/a Countrywide Field Services Corporation[.]‘” BAC
{¶5} The trial court granted BAC‘s motion in an order dated June 18, 2010. Mr. Haley then attempted to appeal from the June 18, 2010 order, and we dismissed his appeal for lack of a final appealable order. Sеe Maxim Ents., Inc. v. Haley, 9th Dist. Summit No. 25459, 2011-Ohio-6734. Thereafter, the trial court issued another order granting BAC‘s motion to vacate the default judgment, and including language that there was “no just reason for delay” pursuant to
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN VACATING THE DEFAULT JUDGMENT AGAINST BANK OF AMERICA F/K/A COUNTRYWIDE FIELD SERVICES AS A NON-ENTITY AS IT OPERATED AS SUCH AND IT ENTIRELY DISREGARDED THE JUDICIAL PROCESS.
{¶6} In his sole assignment of error, Mr. Haley argues that the trial court erred in granting BAC‘s motion to vacatе judgment against “Bank of America fka Countrywide Field Services Corporation.”
{¶7} In its order granting BAC‘s motion to vacate the judgment, the trial court ruled as follows:
The [c]ourt is satisfied that [Mr.] Haley‘s default judgment is against a non-entity, to wit: Bank of America fka Countrywide Field Services. BAC Field Services Corporation has now appeared in the instant litigation and appears prepared to defend itself against [Mr.] Haley‘s claims. The Court finds in the interest of justice that the March 17, 2010 default judgment against Bank of America fka Countrywide Field Services shall be vacated and held for naught.
{¶8} We conclude that, due to apparent inconsistencies in the trial court‘s reasoning above, we are unable to review the trial court‘s order.
{¶9} As set forth above, BAC moved the court to dismiss the complaint pursuant to
{¶10}
On motion and upon such terms as are just, the court may relieve a party or his legal representative 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 under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an advеrse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment shоuld have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one yеar after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.
{¶12} Only parties to an action may request relief from judgment pursuant to
The opening sentence of
Civ.R. 60(B) states that “[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding * * *.” (Emphasis added.) From this language, it has been held that a pеrson or entity who is neither a party nor a legal representative of a party may not properly obtain relief from a judgment by way ofCiv.R. 60(B) , unless that person or entity first becomes a party thrоugh intervention underCiv.R. 24 . See Hardman v. Chiaramonte, 39 Ohio App.3d 9, 10 (9th Dist.1987) (holding that the administrator of an estate could not file aCiv.R. 60(B) motion in a parentage action when he had never made a motion to intervene as a party in the actiоn); Pliable Veneers, Inc. v. Omni Store Fixtures Corp., 6th Dist. Lucas No. L-96-145, 1997 WL 276214, *3 (May 23, 1997), fn. 5, (stating that a corporation could not file aCiv.R. 60(B) motion in an action in which it was not a party).
Nicholas v. State Farm Ins., 11th Dist. Trumbull No. 99-T-0030, 2000 WL 757355, *4 (June 9, 2000).
{¶13} The record before us does not disclose any mechanism by which BAC appeared as a party below.
{¶14} In its motion, BAC claimed that its security guard had received the re-filed third-party complaint, but, despite protocol requiring BAC employees to forward legal documents to the company‘s legal department, BAC attorneys never received the third-party complaint. BAC claimed this constituted excusable neglect pursuant to
{¶15} Despite BAC‘s primary reliance on
{¶16} Therefore, on one hand, because the trial court held that “BAC” had now “appeared” and was prepared to defend itself against Mr. Haley‘s claims, it appears that the trial court accepted BAC‘s pleadings as constituting pleadings of the named party, Bank of America. See
{¶17} On the other hand, it appears that the trial court vacated judgment based only upon its finding that Bank of America was a non-entity, in accordance with the trial court‘s inherent authority to vacate a void judgment. See Thomas at *2. However, if this is the case, then we cannot discern how BAC could have “appeared” in the instant action without having filed a motion to intervene in accordance with
{¶18} Because we cannot determine the basis that the trial court utilized in vacating default judgment, we remand the cause, with an instruction that the trial court clarify its reasoning.
III.
{¶19} The judgment of the Summit County Court of Common Pleas is reversed, and the matter is remanded with the instruction that the court set forth its reasoning in vacating its default judgment.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that а special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandatе, pursuant to App.R. 27.
Costs taxed to Appellee.
CARLA MOORE
FOR THE COURT
BELFANCE, J.
WHITMORE, J.
CONCUR.
APPEARANCES:
JEFFREY C. MILLER, Attorney at Law, for Appellant.
JAMES S. WERTHEIM and MONICA LEVINE LACKS, Attorneys at Law, for Appellee.