Minkin v. Ohio State Home Servs., Inc.Minkin v. Ohio State Home Servs., Inc.
Rendered on September 13, 2016
On brief: David A. Goldstein Co., LPA, and David A. Goldstein, for appellees. Argued: David A. Goldstein.
On brief: Michael C. DeJohn, for appellant. Argued: Michael C. DeJohn.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{1} Defendant-appellant, Ohio State Home Services, Inc. (“OSHS“), appeals from a judgment of the Franklin County Court of Common Pleas denying its motion to vacate pursuant to
I. Background Facts and Procedural History
{2} In June 2013, plaintiffs-appellees, Rebecca and Matthew Minkin filed suit against OSHS asserting various claims arising from a waterproofing contract entered between the Minkins and OSHS, d.b.a. Everdry Waterproofing of Columbus, concerning the Minkins’ residence. OSHS did not file an answer or responsive pleading to the complaint, and in September 2013 the Minkins moved for default judgment. In October
{3} In April 2014, OSHS moved to vacate the default judgment pursuant to
{4} OSHS timely appeals.
II. Assignments of Error
{5} OSHS assigns the following errors for our review:
[1.] Appellant‘s motion to vacate was denied in error because appellant established that default was obtained due to excusable neglect on the part of the appellant.
[2.] Appellant‘s motion to vacate was denied in error because appellant established that the default 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 should have prospective application.
[3.] The lower court erred in not dismissing the action because it lacked subject-matter jurisdiction over the claims.
{6} To prevail on a
{7} An appellate court reviews a trial court‘s denial of a
IV. Discussion
A. First Assignment of Error –
{8} In its first assignment of error, OSHS asserts that the trial court erred in not finding that it established excusable neglect under
{9}
{10} Here, the facts support the trial court‘s determination that OSHS failed to demonstrate excusable neglect. OSHS does not challenge service of process, or that it received timely notices as the case progressed in the trial court. OSHS argues that its Columbus manager believed that the dispute with the Minkins was fully resolved in early 2013 when the Minkins negotiated a $4,000 check from OSHS. The trial court viewed this belief with skepticism based on its review of the evidence. However, even if OSHS‘s management believed the dispute was fully resolved before the Minkins filed their lawsuit, that belief did not excuse them from responding to the lawsuit. See Hicks v. Walcher, 6th Dist. No. H-05-017, 2006-Ohio-3382, ¶ 10 (belief that a complaint asserts meritless claims is not an excusable basis to fail to appear and defend). Thus, the trial court reasonably determined that OSHS‘s inaction in response to the lawsuit was a complete disregard for the judicial system and not excusable neglect.
{11} Because the trial court did not abuse its discretion in finding no excusable neglect, we overrule OSHS‘s first assignment of error.
B. Second Assignment of Error –
{12} OSHS‘s second assignment of error alleges that the trial court erred in not finding it is entitled to relief under
{13}
{14} Here, OSHS argued that the parties reached a settlement before the Minkins initiated their lawsuit. Thus, OSHS relied on alleged events occurring prior to the judgment as a basis to vacate the judgment under
C. Third Assignment of Error – Arbitration and Subject-Matter Jurisdiction
{15} In its third assignment of error, OSHS asserts that the trial court erred in not dismissing the action for lack of subject-matter jurisdiction. OSHS argues that, because its contract with the Minkins contained a mandatory arbitration clause, the trial court should have dismissed the action for lack of subject-matter jurisdiction. This argument is unpersuasive.
{16} Ohio law strongly favors arbitration. See, e.g., Pearson v. ManorCare Health Servs., 11th Dist. No. 2014-L-047, 2015-Ohio-5460, ¶ 25 (“The strong public policy favoring arbitration has also been declared by the Ohio General Assembly through enactment of the Ohio Arbitration Act, R.C. 2711.01 et seq.“). Pursuant to
{17} Unlike subject-matter jurisdiction, which can be raised at any time, the right to arbitrate may be waived. State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75 (1998); Murtha v. Ravines of McNaughton Condo. Assn., 10th Dist. No. 09AP-709, 2010-Ohio-1325, ¶ 20. “A party asserting waiver must prove that the waiving party knew of the existing right to arbitrate and, based on the totality of the circumstances, acted inconsistently with that known right.” Dispatch Printing Co. v. Recovery Ltd. Partnership, 10th Dist. No. 10AP-353, 2011-Ohio-80, ¶ 21. A defendant can “save” its right to arbitrate pursuant to a written agreement by filing an application to stay legal proceedings pending arbitration pursuant to
{18} In this case, the trial court determined that, even assuming the existence of an arbitration clause in the contract between the parties, OSHS waived any right to arbitrate. We agree. As outlined above, OSHS took no steps to respond to the claims against it in this litigation until the Minkins initiated garnishment proceedings. Not only did OSHS not move for a stay pursuant to
V. Disposition
{19} Having overruled OSHS‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., and BRUNNER, J., concur.