News-Herald v. BahrNews-Herald v. Bahr
{¶ 2} On September 5, 2001, appellee, The News-Herald, filed a complaint against appellant, Raymond A. Bahr, Jr. ("Raymond Bahr"), and Rest Assured, Inc. ("Rest Assured"), alleging breach of contrаct and unjust enrichment. On September 6, 2001, copies of the summons and complaint were issued by certified mail to appellant and Rest Assured at 7601 Mentor Avenue, Mentor, Ohio, 44060, and Raymond Bahr at 1445 Mentor Avenue, Painesville, Ohio, 44077, which were not deliverable as addressed. On January 3, 2002, appellee reissued service by сertified mail to appellant and Raymond Bahr at 31501 Marginal Road, Willowick, Ohio, 44095, which were returned unclaimed on January 23, 2002. On February 15, 2002, service was reissued to appellant and Raymond Bahr by ordinary mail to the foregoing Marginal Road address, as well as to Rest Assured at the above Mentor Avenue address, pursuant to
{¶ 3} On April 1, 2002, appellee filed a motion for default judgment pursuant to
{¶ 4} The facts of the case are as follows: appellant was a named defendant in case no. 99 CV 001632, which was filed by appellee on November 9, 1999, and later dismissed by appellee on February 6, 2001. The matter was re-filed on September 5, 2001 with additional defendants, case no. 01 CV 001378, from which this appeаl now stems.
{¶ 5} Appellee filed suit in order to obtain money owed on an advertising space contract with appellant. On September 1, 1998, the advertising space contract was signed by appellant as President on behalf of Sleep World or Today's Mattress.1 Sleep World and Today's Mattress went out оf business leaving an unpaid balance to appellee in the principal amount of $33,247.52, with interest.
{¶ 6} James Frustere ("Frustere") is appellee's Chief Financial Officer and Controller. Pursuant to Frustere's December 13, 2000 deposition, The News-Herald is a trade name for Northeast Publishing Company, Incorporated. Frustеre testified that the advertising space contract appeared to be a corporate account since appellant checked the corporation box and indicated that he was the president. Frustere stated that he had no knowledge of appellant contracting with appellee in his individual capacity.
{¶ 7} Pursuant to the August 16, 2002 deposition testimony of Janice Bahr ("Janice"), appellant's mother, appellant has made his home with her at 8072 Mulberry Road, Chesterland, Ohio, 44026, his primary residence on and after September 1999.
{¶ 8} According to appellant's August 19, 2002 deposition, оn or about September 1999 through the present, appellant moved in with Janice and has made his primary residence at her Chesterland home. Appellant stated that on or after September 1999, he has not resided at 31501 Marginal Road, Willowick, Ohio. Appellant testified that he is the owner of the condominium lоcated at 31501 Marginal Road in Willowick, Ohio, but has used said property as rental property. Appellant stated that he never resided at 7610 Mentor Avenue, Mentor, Ohio, which was an old business address that has not been occupied by appellant since on or about August 1999. Also, according to appellаnt, he never resided at 1445 Mentor Avenue, Painesville, Ohio, which was also an old business address that has not been occupied by appellant since on or about June 1998. Appellant testified that he did not enter into the advertising space contract with appellee in his personal capacity and was never served with a summons or any other notice of the lawsuit at issue.
{¶ 9} On November 4, 2002, the trial court denied appellant's motion for relief from judgment. It is from that judgment that appellant filed a timely notice of appeal on November 27, 2002, and makes the following assignments of error:
{¶ 10} "[1.] The trial court committed рrejudicial error and abused its discretion by not granting the [Civ.R.] 60(B) motion filed by appellant.
{¶ 11} "[2.] The trial court committed prejudicial error and abused its discretion by not granting an evidentiary hearing after appellant met all of the elements of GTE.
{¶ 12} "[3.] The trial court committed prejudicial error and abused its discretion by allowing [appellee's] brief in opposition to [appellant's] motion for relief from judgment pursuant to
{¶ 13} In his first assignment of error, appellant argues that the trial court committed prejudicial error and abused its discretion by not granting his
{¶ 14} This court stated in Godec v. Hastings (June 26, 1998), 11th Dist. No. 97-L-128,
{¶ 15}
{¶ 16} In GTE Automatic Elec., Inc. v. ARC Indus., Inc. (1976),
{¶ 17}
{¶ 18} This court determined in McCullough Builders, Inc. v.Waterfield Financial Corp., 11th Dist. No. 2001-L-142,
{¶ 19} In the case at bar, appellant alleges that he was not properly served, but rather gained knowledge of the lawsuit when his attorney was checking the docket of some othеr pending cases and inadvertently came across the filing of this lawsuit on August 5, 2002. As such, appellant contends that the trial court mistakenly believed that he was properly served and, thus, is entitled to relief from judgment pursuant to
{¶ 20} The record reflects that on September 6, 2001, a copy of the summons and complaint was issued by certified mail to appellant at the Mentor Avenue address, which was not deliverable as addressed. On January 3, 2002, appellee reissued service by certified mail to appellant at the Marginal Road address, which was returned unclaimed on January 23, 2002. On February 15, 2002, service was reissued to appellant by ordinary mail to the foregoing Marginal Road address pursuant to
{¶ 21} Also, appellant's argument that
{¶ 22} In his second assignment of error, appellant alleges that the trial court erred to his prejudice and abused its discretion by not granting an evidentiary hearing after he met all of the elements of GTE.
{¶ 23} "It is well-established that a court does not have to conduct a hearing or take evidence on a
{¶ 24} In the instant matter, appellant contends that the trial court abused its discretion by failing to hold an evidentiary hearing prior to denying his motion for relief from judgment after he had presented operative facts that his motion was timely аnd that it was based on a meritorious defense or claim. Appellant argues that the trial court simply assumed, without considering any evidence, that regular mail service to his old Marginal Road address equated to proper service. We disagree.
{¶ 25} As thoroughly addressed in the preceding assignment of error, рursuant to GTE, appellant lacks a meritorious procedural as well as a substantive defense and fails to raise a ground for relief under
{¶ 26} In his third assignment of error, appellant contends that the trial court erred to his prejudice and abused its discretion by allowing appellee's brief in opposition to his motion for relief from judgment to be filed outside of the time permitted.
{¶ 27} Loc.R. III(D)(3) of the Court оf Common Pleas of Lake County, General Division, provides that a state's brief in opposition is due within fourteen days of the filing of a defendant's motion.
{¶ 28} In State v. Vernon, 11th Dist. No. 2001-L-102,
{¶ 29} It is within the sound discretion of the trial court to grant untimely motions or pleadings and they will not be disturbed on appeal absent a showing of an abuse of discretion. McGowan v. CuyahogaMetro. Hous. Auth. (Aug. 23, 2001), 8th Dist. No. 79137,
{¶ 30} In the case sub judice, appellant alleges that appellee's brief in opposition was filed in direct violation of Loc.R. III(D)(3) of the Court of Common Pleas of Lake County, General Division. Appellant stresses that he filed his motion for relief from judgment on August 20, 2002, therefore, appellee was required to file a brief in opposition on or before September 3, 2002. However, appellee did not submit its leave to filе a brief in opposition to appellant's motion for relief from judgment instanter until nine days after the due date on September 12, 2002, without a showing of good cause. Appellant argues that if the untimely brief in opposition was stricken from the record, then appellee's speculation and misrepresentation to the court would not have wrongly impacted the trial court's analysis in denying his
{¶ 31} As previously discussed in the foregoing assignments of error, appellant lacks a meritorious defense and fails to raise a ground for relief under
{¶ 32} For the foregoing reasons, appellant's assignments of error are not well-taken. The judgment of the Lake County Court of Common Pleas is affirmed.
Judgment affirmed.
WILLIAM M. O'NEILL and CYNTHIA WESTCOTT RICE, JJ., concur.