MoreLaw Receptionists and Morelaw Suites

VOIP Phone and Virtual Receptionist Services and Morelaw Virtual Offices
Call 918-582-6422 Today

Virtual Offices of Solo Practice Lawyers Starting at $200 a Month
Office With MoreLaw Suites and Let Us Answer Your Phone and Reduce Your Overhead

ATA was served with the complaint on February 22, 2019 but failed to answer
the complaint or respond in any way. On April 10, 2019, TQL moved for default judgment.
ATA did not respond to the motion, and on April 25, 2019, the trial court granted default
judgment to TQL. Garnishment proceedings were initiated and ATA first responded in the
case on June 14, 2019, by requesting a continuance of one of the garnishment hearings.
{¶ 4} On July 1, 2019, ATA filed a Civ.R. 60(B) motion for relief from judgment. ATA
alleged that it had a credit agreement with Empire and that it had mistakenly believed that
Empire was handling the claims and making arrangements to pay TQL. Attached to the
motion was an affidavit from Brandon Han, ATA's authorized agent, which stated that ATA
did not realize the lawsuit was in Ohio or that it had to file an answer. Also attached was a
May 7, 2019 email to ATA from Jimmy Ball at Empire stating that "Empire will resolve the
situation with TQL." On July 10, 2019, ATA filed a second affidavit from authorized agent
Jay Lee, which stated that ATA extended use of the credit contract to Empire for one job
only and that TQL and Empire used the contract without ATA's knowledge or consent. ATA
subsequently filed a motion for leave to file a third-party complaint against Empire.
{¶ 5} After a hearing on the merits of the motions, the trial court denied both the
request for relief from judgment and the motion for leave to file a third-party complaint. ATA
now appeals the decision of the trial court and raises two assignments of error for our
review:
{¶ 6} I. THE TRIAL COURT ERRED BY NOT GRANTING RELIEF FROM
Clermont CA2019-09-071
- 3 -
JUDGMENT WHERE APPELLANT SHOWED IT MET THE REQUIREMENTS OF THE
CIVIL RULE.
{¶ 7} ATA first argues that the trial court erred in denying its motion for relief from
judgment. To prevail on a Civ.R. 60(B) motion, the moving party must demonstrate that (1)
he has a meritorious defense or claim to present if relief is granted, (2) he is entitled to relief
under one of the grounds stated in Civ.R. 60(B), and (3) the motion is made within a
reasonable time. GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146
(1976), paragraph two of the syllabus. Failure to meet any one of these three factors is
fatal, as all three must be satisfied in order to grant relief. Scrimizzi v. Scrimizzi, 12th Dist.
Warren No. CA2018-11-131, 2019-Ohio-2793, ¶ 51.
{¶ 8} The decision to grant or deny a Civ.R. 60(B) motion lies within the trial court's
discretion, and the decision will be reversed only for an abuse of discretion. Reynolds v.
Turull, 12th Dist. Butler No. CA2018-10-197, 2019-Ohio-2863, ¶ 10. An abuse of discretion
connotes more than an error of law or judgment; it implies that the court's attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, (1983).
{¶ 9} Civ.R. 60(B)(1) provides that the court may relieve a party from a final
judgment, order or proceeding for "mistake, inadvertence, surprise or excusable neglect."
In its motion, ATA claimed excusable neglect because it believed in good faith that
representatives of Empire had resolved the case and because ATA had received an email
from Ball, confirming that Empire would pay.
{¶ 10} In denying the motion, the trial court determined that while the motion was
timely, and the issue of a meritorious defense was a "closer call," ATA had not established
excusable neglect. On appeal, ATA argues that excusable neglect exists because it relied
on Ball's email and that Ball died shortly after the email was sent. ATA argues the email
Clermont CA2019-09-071
- 4 -
"seemed to resolve the issue of Empire's indebtedness to TQL."
{¶ 11} The determination of whether neglect was excusable must take into
consideration all the surrounding facts and circumstances. Middletown App., Ltd. v. Singer,
12th Dist. Butler Nos. CA2018-08-165 and CA2018-11-224, 2019-Ohio-2378, ¶ 20.
{¶ 12} Neglect is not excusable if a party's conduct falls substantially below what is
reasonable under the circumstances, or if the inaction of a party can be regarded as a
"complete disregard for the judicial system." Kay v. Marc Glassman, Inc., 76 Ohio St.3d
18, 20, 1996-Ohio-430 (1996).
{¶ 13} Courts have determined that failure to plead or respond after admittedly
receiving a copy of a complaint is not excusable neglect. D.G.M., Inc. v. Cremeans
Concrete & Supply Co., 111 Ohio App.3d 134, 139 (4th Dist.1996). Likewise, courts have
generally held that conduct is not excusable neglect if a party or attorney could have
controlled or guarded against the circumstance. See Dispatch Printing Co. v. Recovery Ltd.
Partnership, 10th Dist. Franklin Nos. 14AP-640, 14AP-641, and 14AP-642, 2015-Ohio1368, ¶ 14.
{¶ 14} In this case, ATA received the complaint, but claims that it thought Empire
would resolve the amounts due with TQL. ATA failed to timely protect its legal rights by
filing an answer and a third-party complaint against Empire. This inaction and disregard for
the judicial process does not amount to excusable neglect. ATA failed to preserve its rights
in the action and instead relied on its belief that Empire would pay TQL the amounts due.
Moreover, as the trial court noted, Ball's email was sent on May 7, 2019, months after the
complaint was filed and after ATA's answer was due and therefore cannot be used as a
reason for failure to answer the complaint or to respond to the motion for default judgment.
{¶ 15} As mentioned above, a party filing a Civ.R. 60(B) motion must establish all
elements to be entitled to relief. Because ATA failed to establish excusable neglect, the
Clermont CA2019-09-071
- 5 -
motion for relief from judgment was properly denied. Accordingly, we find the trial court did
not abuse its discretion in denying ATA's motion for relief from judgment. ATA's first
assignment of error is overruled.
{¶ 16} II. THE TRIAL COURT ERRED IN NOT GRANTING LEAVE TO FILE THE
THIRD PARTY COMPLAINT WHEN THERE WERE NO GROUNDS FOR A DENIAL.
{¶ 17} As mentioned above, the trial court denied ATA's motion to file a third-party
complaint against Empire on the basis that, because the Civ.R. 60(B) motion had been
denied, there was a final judgment in the case. Because we find no error in the trial court's
decision to deny ATA's motion for relief from judgment, we also find no error in the trial
court's decision to deny the request to file a third-party complaint. ATA's second
assignment of error is therefore overruled.

Outcome: Judgment affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: