THOMAS SELL, et al., PLAINTIFFS-APPELLEES, VS. LARRY BROCKWAY, et al., DEFENDANTS-APPELLANTS.
CASE NO. 11 CO 30
STATE OF OHIO, COLUMBIANA COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
September 28, 2012
2012-Ohio-4552
OPINION; Civil Appeal from Common Pleas Court, Case No. 08CV40.; JUDGMENT: Reversed; Judgment Vacated; Remanded.
JUDGMENT: Reversed; Judgment Vacated; Remanded.
APPEARANCES:
For Plaintiffs-Appellees: Attorney Kyde Kelly, Attorney Virginia Barborak, 120 South Market Street, Lisbon, Ohio 44432
For Defendants-Appellants: Attorney Michael Georgiadis, 135 Pine Avenue, S.E., Suite 211, Warren, Ohio 44481
JUDGES: Hon. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Mary DeGenaro
Dated: September 28, 2012
{1} Defendant-appellant Arthur Brockway appeals the decision of the Columbiana County Common Pleas Court denying his
{2} For the reasons expressed more fully below, we find that the facts of this case warrant application of
Statement of the Case
{3} In January 2008, the Sells filed a complaint against Timber Consulting, LLC, Jed Coldwell and Jared Coldwell seeking monetary damages for the unauthorized removal of trees from the Sells property and for the cost of cleanup that did not occur after the unauthorized removal. In February 2008, Larry Brockway, Arthur Brockway and Matthew Brockway were substituted as parties and the Coldwells and Timber Consulting, LLC, were dismissed as parties. An amended complaint was then filed asserting the same facts and cause of action against the Brockways.
{4} In August 2008, the Brockways filed an answer. Included in the answer was an averment that Arthur Brockway had not been part of the logging business for two years.
{5} The cause was then referred to mediation and a settlement agreement was reached. The cause was dismissed with prejudice, but the trial court retained jurisdiction to enforce the settlement. 08/04/09 J.E.
{6} The record does not include a copy of the settlement agreement. However, from the parties’ pleadings it appears that the Brockways agreed to pay the
{7} Arthur Brockway paid the $4,500 in damages and was informed in December 2009 that clean-up had occurred.
{8} In June 2010, the Sells filed a motion to enforce the settlement claiming that clean-up had not occurred and they were entitled to $3,000 or the cost of clean-up, whichever is greater. A copy of that motion was sent to Attorney Kenneth Shaw, who represented the Brockways during the earlier proceedings. In September, 2010, Attorney Shaw was suspended from the practice of law for one year.
{9} After a few continuances by the Sells, a hearing was set for November 18, 2010. A notice of that hearing, which indicated that the hearing was for the Motion to Enforce Settlement, was sent certified mail to Arthur Brockway. His wife, Ella Benson, signed for it.
{10} The hearing was held on November 18, 2010. No one appeared on behalf of the Brockways. After hearing the evidence, the magistrate issued a decision ordering Arthur Brockway to pay damages to the Sells in the amount of $13,600. The trial court adopted that decision. 12/16/10 J.E.
{11} On July 1, 2011, Arthur Brockway filed a
First and Second Assignments of Error
{13} “The trial court erred in its findings in ignoring that legal counsel for defendant-appellant did not receive proper notice of the November 18th hearing.”
{14} Due to the commonality of the arguments raised in the assignments of error, they are addressed together.
{15} In order to prevail on a motion for relief from judgment under
{16} The grounds for relief under
- mistake, inadvertence, surprise or excusable neglect;
- newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B);
- fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
- 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 should have prospective application; or
- any other reason justifying relief from the judgment.
{17} The rule further provides that the motion for relief must be made within a reasonable time and that for reasons (1), (2) and (3) it cannot be made more than one year after the judgment, order or proceeding was entered or taken.
{18} The relief from judgment motion was based on excusable neglect and any other reason justifying relief. It was filed within six months of the judgment. All parties and the trial court agreed that the motion was timely made. Thus, our analysis will solely focus on the first and second prongs of the GTE test.
{19} As referenced above, the first prong is a meritorious claim or defense. In response to the 2008 complaint filed by the Sells that named Arthur Brockway as a defendant, he asserted that he was not involved in the logging business and was not involved in the incident that damaged the Sells’ property. However, instead of pursuing that defense, he entered into a settlement agreement. He paid the liability portion on the settlement of $4,500. Part of the settlement agreement was for clean up; if clean up did not occur then the Sells were entitled to $3,000 or the cost of clean-up, whichever was greater. In the appellate brief, it appears that Arthur Brockway is asserting that while he paid the liability portion of the settlement agreement, he only did so to resolve the matter on behalf of his grandson, Matthew Brockway. Arthur Brockway asserts that the agreement does not cause him to be personally liable for the clean-up in this matter.
{20} This is not a valid defense. Under Ohio law, “a settlement agreement is a contract designed to terminate a claim by preventing or ending litigation and * * * such agreements are valid and enforceable by either party.” Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501, 502, 660 N.E.2d 431 (1996). Further, “[t]he result of a valid settlement agreement is a contract between parties, requiring a meeting of the minds as well as an offer and an acceptance thereof.” Rulli v. Fan Co., 79 Ohio St.3d 374, 376, 683 N.E.2d 337 (1997). Arthur Brockway entered into the settlement agreement and chose to be bound by the terms of it. Thus, he has abandoned his position that he was not a
{21} That said, Arthur Brockway‘s counsel at oral argument conceded this point. The meritorious defense or claim argument instead focused on the opportunity to defend the amount of damages Sells is alleging for the clean-up. We have previously held that a dispute concerning the amount of damages can constitute a meritorious defense or claim under the first prong of the GTE test. Syphard v. Vrable, 141 Ohio App.3d 460, 464, 751 N.E.2d 564 (2001). See also Oberkonz v. Gosha, 10th Dist. No. 02AP-237, 2002-Ohio-5572 (amount of damages in a negligence action constitutes allegation of defense even though it is not an alleged defense to liability). Accordingly, we find that a meritorious defense or claim has been alleged and the first GTE prong is satisfied.
{22} We now move to the second prong of the GTE test, grounds for relief. Arthur Brockway argues that his counsel of record, Attorney Shaw, had his law license suspended and that constituted either excusable neglect or any other reason justifying relief for failing to appear and defend the motion to enforce settlement. He further argues that Attorney Shaw did not receive notice of the hearing and that also constituted excusable neglect and/or any other reasons justifying relief.
{23} The Ohio Supreme Court has stated that excusable neglect is an “elusive concept” that is difficult to define. Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996). Nevertheless, the Court has defined it in the negative and has stated that the inaction of a defendant is not “excusable neglect” if it can be labeled as a “complete disregard for the judicial system.” Id., citing, GTE, 47 Ohio St.2d 146, 153; Rose Chevrolet, Inc., 36 Ohio St.3d 17, 21. Because the determination of what constitutes excusable neglect in a given case is intensely fact specific, the inquiry must necessarily take into account all the surrounding facts and circumstances. Colley v. Bazell, 64 Ohio St.2d 243, 249, 416 N.E.2d 605 (1980).
{24} Courts ordinarily impute the neglect of a party‘s attorney to that party when determining whether the facts demonstrate excusable neglect. GTE,
{25}
{26} Here, the record shows that the motion to enforce settlement was sent to Arthur Brockway and that a notice of the hearing was served on Arthur Brockway. Affidavit of Arthur Brockway. Likewise, the record also shows that copy of the motion to enforce settlement was sent to Attorney Shaw on June 10, 2010. However, that was prior to Attorney Shaw‘s suspension, which occurred in September 2010. Furthermore, it is undisputed that Attorney Shaw did not receive notice of the November 2010 hearing and at the time of that hearing he was suspended from the practice of law.
{27} While we are not persuaded that excusable neglect applies given these facts, we are of the opinion that, in the interests of justice, the catch-all provision should be applied. The failure of counsel to receive notice of the hearing taken in conjunction with his suspension creates a somewhat extraordinary or unusual situation. Thus, Arthur Brockway has provided a ground for relief under the second prong of the GTE test. This is especially the case when the ground for relief is taken in conjunction with the argument made under the alleged meritorious defense of being given the opportunity to defend the amount of damages for the clean-up.
Donofrio, J., concurs.
DeGenaro, J., dissents; see dissenting opinion.
{29} Arthur Brockway failed to establish both a meritorious defense and grounds for relief under
{30} A few procedural points must be addressed. First, the judgment entry awarding damages was entered December 16, 2010. The docket shows that the certificate of mailing was returned December 20, 2010 for Arthur Brockway. Thus, he received notice of the damage award. Instead of filing a timely notice of appeal as required by
{31} Second, Brockway failed to file a transcript of the hearing. The judgment entry stated that testimony was heard from both Plaintiffs, the settlement agreement was submitted to the court and the court “reviewed an estimate submitted into evidence by Plaintiffs in the amount of $13,600.00 to satisfy paragraph five (5) of the settlement agreement.” Again, it is settled law in Ohio that in the absence of a transcript of proceedings, an appellate court must presume the regularity of the proceedings before the trial court. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). Without a transcript to facilitate our review, we cannot test whether the trial court was presented with competent, credible evidence sufficient to support the damages award, and whether it abused its discretion in denying 60(B) relief.
{32} Third, for the first time in this case, at oral argument, counsel argued that Brockway should have an opportunity to defend the amount of damages. I cannot join my colleagues in permitting Brockway to assert this as his meritorious defense at this late date. The party moving to vacate the judgment “has the burden ‘to allege operative facts which would constitute a meritorious defense if found to be true.‘” Home Savings & Loan Co. v. Captiva Hong Kong Ltd. 7th Dist. No. 03 MA 167, 2004-Ohio-6375, ¶22, quoting Fouts v. Weiss-Carson, 77 Ohio App.3d 563,
{33} Turning to the merits, I disagree with my colleagues that the catch-all provision of
{34} As the trial court soundly reasoned:
The fact that Mr. Brockway‘s attorney may not have received notice of the hearing or was even suspended from the practice of law for a period of time is of no consequence, as those facts do not constitute a claim or defense to the claims of the Plaintiffs. Moreover, Mr. Brockway does not provide evidence that he tried to contact his counsel to discuss the motion or its legal significance. Mr. Brockway also did not request a continuance of the hearing on the basis that his counsel was unavailable. Instead he admits that he basically ignored the notice and did not attend the scheduled hearing based upon his mistaken belief that the case was settled and closed. While Mr. Brockway had a ‘mistaken belief’ regarding the hearing, his lack of legal training does not entitle him to relief from judgment.
{36} Significantly, Attorney Shaw‘s affidavit does not assert that there was any contact between Brockway and him about Brockway‘s course of action regarding the motion. “‘[I]f either the party or her attorney could have controlled or guarded against the happening of the special or unusual circumstance, the neglect is not excusable.‘” Hai v. Flower Hosp., 6th Dist. No. L-07-1423, 2008-Ohio-5295, ¶21, quoting Vanest v. Pillsbury Co., 124 Ohio App.3d 525, 536, 706 N.E.2d 825 (1997).
{37} This case and Brockway‘s situation are neither extraordinary nor unusual. The parties reached a settlement and now there is an allegation that the terms of the settlement have not been met. Although Attorney Shaw was not aware of the hearing, Brockway was. Brockway received both the motion and the notice of the November 2010 hearing, yet he did not contact his attorney or the court, and did not attend the hearing. Because Brockway could have guarded against the judgment being rendered against him, the catchall provision of
{38} In conclusion, mindful of our standard of review, I would affirm the trial court‘s decision. Brockway failed to establish a basis for relief pursuant to