IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
LEBANON AUTO PARTS dba NAPA :
AUTO PARTS,
:
Plaintiff-Appellee, CASE NO. CA99-09-110
:
O P I N I O N
- vs - : 4/17/2000
:
MANNY DRACAKIS, et al.,
:
Defendants-Appellants.
:
Paul A. Becker, 1701 South Breiel Blvd., Middletown, Ohio 45044, for plaintiff-appellee
Konrad Kircher, 8805 Governor's Hill Drive, Suite 163, Cincinnati, Ohio 45249, for defendant-appellant
POWELL, P.J. Defendant-appellant, Manny Dracakis, appeals the decision of the Lebanon Municipal Court denying his motion for relief from default judgment. We affirm the decision of the trial court.
On April 2, 1998, plaintiff-appellee, Lebanon Auto Parts Company, filed a complaint in the Lebanon Municipal Court seeking damages for breach of contract. The complaint named appellant as defendant, as well as All Season Tire Service and All American Tire and Service, which are two Ohio corporations of which appellant is an officer and a shareholder. Appellant received service of the complaint and a summons on April 13, 1998.
On July 14, 1998, appellee filed a motion for default judgment alleging that the defendants failed to answer or otherwise defend against the complaint. The trial court entered a default judgment on behalf of appellee on July 16, 1998.
After receiving a copy of the default judgment, appellant appeared in the trial court on July 27, 1998. Appellant exhibited a copy of a handwritten answer dated April 4, 1998 which he claimed he faxed to the clerk's office on May 5, 1998. The alleged answer did not bear a time stamp and there was no record of the answer in the transcript of docket and journal entries for the case. However, the trial court, on its own motion, stayed execution on the default judgment and scheduled a hearing for August 27, 1998 to allow appellant and the defendant corporations to demonstrate that the answer was timely filed. The trial court reminded appellant, who made his appearance in court pro se, that he was able to represent his personal interest in the action, but not the corporate entities.
At the August 27 hearing, despite the trial court's advice, appellant again appeared pro se and the defendant corporations were not represented. In an attempt to prove that he filed a timely answer, appellant produced only a notarized statement from the office supply company which allegedly faxed the answer to the clerk of courts. The trial court held that the notarized statement was inadmissible hearsay. In an entry filed October 19, 1998, the trial court held that appellant did not demonstrate that his answer was properly filed and removed the stay of execution on the default judgment.
Appellant retained counsel and filed a motion for relief from judgment pursuant to Civ.R. 60(B) on March 25, 1999. The trial court denied appellant's motion on April 23, 1999. From the trial court's decision, appellant filed a timely appeal and raises one assignment of error.
THE TRIAL COURT ERRED IN DENYING THE MOTION FOR RELIEF FROM JUDGMENT, WHERE [APPELLANT] ESTABLISHED EXCUSABLE NEGLECT AND A MERITORIOUS DEFENSE.
In his assignment of error, appellant argues that the trial court erred by denying his Civ.R. 60(B) motion for relief from judgment. Appellant contends that he is entitled to relief from judgment on either of two grounds. First, appellant maintains that the clerk of courts prevented his answer from being recorded due to a "clerical error." Alternately, appellant argues that his failure to personally deliver his answer to the clerk of courts was due to excusable neglect.
Civ.R. 60(B) provides in relevant part:
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 *** (4) the judgment has been satisfied, released or discharged ***; 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 year after the judgment, order or proceeding was entered or taken ***.
Civ.R. 60(B) represents a balance between "the legal principle that there should be finality in every case, so that once a judgment is entered it should not be disturbed, and the requirements of fairness and justice, that given the proper circumstances, some final judgments should be reopened." Advance Mortgage Corp. v. Novak (1977), 53 Ohio App.3d 289, 291.
To prevail on a motion brought under Civ.R. 60(B), the moving party must demonstrate that:
(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken.
GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. The moving party must establish all three requirements for the motion to be granted. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20.
The decision whether to grant relief from judgment is within the sound discretion of the trial court. Id. Absent a showing of an abuse of discretion, the decision of the trial court with respect to a Civ.R. 60(B) motion will not be disturbed on appeal. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. "The term '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 (1983), 5 Ohio St.3d 217, 219.
Appellant argues that he is entitled to relief from judgment under Civ.R. 60(B)(1) and (5). Appellant asserts as his defense that he should not be individually liable for the debts of the defendant corporations. It is not really disputed that appellant's defense is meritorious. Under Civ.R. 60(B), the movant's burden is only to allege that he has a meritorious defense, not to prove that the defense will prevail should a retrial occur. Rose Chevrolet, 36 Ohio St.3d at 20. Therefore, to prevail under Civ.R 60(B), appellant must demonstrate that his motion was made within a reasonable time and that he is entitled to relief under one of the grounds stated in subdivisions (B)(1) through (5).
Appellant filed his motion for relief from judgment approximately eight months after the trial court entered the default judgment against him. Under Civ.R. 60(B), the absolute outer limit for filing a motion on the basis of excusable neglect is one year. In all cases, Civ.R. 60(B) motions must be filed within a reasonable time and the movant has the burden of presenting "allegations of operative facts to demonstrate that he is filing his motion within a reasonable period of time." Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 103. Although the absolute length of time is not dispositive in determining what constitutes a reasonable time under Civ.R. 60(B), Taylor v. Haven (1993) 91 Ohio App.3d 846, 852, appellant has failed to demonstrate or even allege that his motion was made within a reasonable time.
Appellant had actual notice of the lawsuit when he received a copy of the complaint on April 13, 1998. The trial court entered default judgment on July 27, 1998 and removed the stay of execution on the judgment on October 19, 1998. Appellant did not file a motion to vacate the judgment until March 25, 1999. There is no evidence in the record to explain the delay and appellant offers no explanation for the delay in his motion before the trial court or in his brief on appeal. We conclude that, in this case, a motion to vacate a default judgment, which is filed nearly one year after actual notice of the action and more than seven months after the trial court entered default judgment, is not a reasonable time to file the motion since appellant has failed to demonstrate the timeliness of the motion. See, also, Mount Olive Baptist Church v. Pipkins Paints(1979), 64 Ohio App.2d 285, 289 (holding that "a motion to vacate a default judgment filed nearly seven months after actual notice of the action and more than four months after default judgment is not, on its face, a reasonable time within which to file the motion").
Even assuming appellant filed his motion for relief from judgment in a reasonable time, appellant has not met his burden to demonstrate that he is entitled to relief under one of the provisions of Civ.R. 60(B)(1) through (5).
Appellant claims that his failure to personally deliver his answer to the court constitutes excusable neglect under Civ.R. 60(B)(1). Generally, the determination of whether conduct constitutes "excusable neglect" involves considering all of the surrounding facts and circumstances and balancing the need for finality of judgments with the interests of fairness and justice. Rose Chevrolet, 36 Ohio St.3d at 21; Colley v. Bazell (1980), 64 Ohio St.2d 243, 249. Conduct which "reveals a complete disregard for the judicial system and the rights of the [other party]" is not excusable neglect. GTE, 47 Ohio St.2d at 153. Although a party has a right to represent himself, pro se litigants are subject to the same rules and procedures as counsel and they must accept the results of their owns mistakes and errors. Meyers v. First Natl. Bank (1981), 3 Ohio App.3d 209, 210. Courts should not use Civ.R. 60(B)(1) to relieve pro se litigants who are careless or unfamiliar with the legal system. Ohio Savings Bank v. Sabatino (July 7, 1993), Summit App. No. 15991, unreported; Cowart v. Lanum (Aug. 23, 1990), Cuyahoga App. No.59147, unreported.
Appellant did not prove that he filed any answer with the clerk of the court. It was the duty of appellant to be certain that the court received his answer in a timely manner and failure to do so is not excusable neglect. Thus, appellant is not entitled to relief from judgment under Civ.R. 60(B)(1).
Appellant also maintains that he should be entitled to relief from judgment under the "catch-all" provision of Civ.R. 60(B)(5). Appellant appears to claim that his failure to personally deliver a copy of his answer to the clerk of courts should also merit relief from judgment under Civ.R 60(B)(5). Alternatively, appellant claims that relief from judgment is proper because he alleges that a clerical error on the part of the clerk of courts prevented his answer from being filed with the record.
Civ.R. 60(B)(5) is catch-all provision that reflects the inherent power of a court to relieve a person from the unjust operation of a judgment. Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, paragraph one of the syllabus. However, the grounds for invoking Civ.R. 60(B)(5) must be substantial and the provision is not to be used as a substitute for any of the more specific provisions of Civ.R. 60(B). Id. at paragraphs one and two of the syllabus. Moreover, "[i]t is well-established that the 'other reason' clause of Civ.R. 60(B) will not protect a party who ignores its duty to protect its interest." Baptist Church, 64 Ohio App.2d at 288.
There is no evidence in the record to support appellant's claim that the clerk of courts failed to properly record his answer. The trial court concluded that the notarized statement purporting to demonstrate that appellant faxed his answer was inadmissible hearsay.1 The allegations in appellant's brief are not evidence and cannot support his claim for relief. The record is also devoid of any efforts on the part of appellant to protect his interest by assuring that the court received and recorded his answer. It would not be in the interest of fairness or justice to provide relief to a litigant who, without any proof otherwise, blames the clerk of courts for the lack of a filed answer. To do so would allow any litigant who fails to protect his interest with timely filed pleadings to retroactively obtain relief from judgment
to the prejudice of the other party.
In addition, since we have determined that appellant's conduct does not constitute excusable neglect to merit relief from judgment under the specific provision of Civ.R. 60(B)(1), it follows that appellant is not entitled to relief under Civ.R.60(B)(5) for failing to take adequate measures to be certain that his answer was received by the court.
Therefore, we hold that the trial court did not abuse its discretion by denying appellant's motion for a new trial. Appellant's assignment of error is overruled.
Judgment affirmed.
YOUNG and WALSH, JJ., concur.
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
LEBANON AUTO PARTS dba NAPA :
AUTO PARTS,
:
Plaintiff-Appellee, CASE NO. CA99-09-110
:
O P I N I O N
- vs - : 4/17/2000
:
MANNY DRACAKIS, et al.,
:
Defendants-Appellants.
:
Paul A. Becker, 1701 South Breiel Blvd., Middletown, Ohio 45044, for plaintiff-appellee
Konrad Kircher, 8805 Governor's Hill Drive, Suite 163, Cincinnati, Ohio 45249, for defendant-appellant
POWELL, P.J. Defendant-appellant, Manny Dracakis, appeals the decision of the Lebanon Municipal Court denying his motion for relief from default judgment. We affirm the decision of the trial court.
On April 2, 1998, plaintiff-appellee, Lebanon Auto Parts Company, filed a complaint in the Lebanon Municipal Court seeking damages for breach of contract. The complaint named appellant as defendant, as well as All Season Tire Service and All American Tire and Service, which are two Ohio corporations of which appellant is an officer and a shareholder. Appellant received service of the complaint and a summons on April 13, 1998.
On July 14, 1998, appellee filed a motion for default judgment alleging that the defendants failed to answer or otherwise defend against the complaint. The trial court entered a default judgment on behalf of appellee on July 16, 1998.
After receiving a copy of the default judgment, appellant appeared in the trial court on July 27, 1998. Appellant exhibited a copy of a handwritten answer dated April 4, 1998 which he claimed he faxed to the clerk's office on May 5, 1998. The alleged answer did not bear a time stamp and there was no record of the answer in the transcript of docket and journal entries for the case. However, the trial court, on its own motion, stayed execution on the default judgment and scheduled a hearing for August 27, 1998 to allow appellant and the defendant corporations to demonstrate that the answer was timely filed. The trial court reminded appellant, who made his appearance in court pro se, that he was able to represent his personal interest in the action, but not the corporate entities.
At the August 27 hearing, despite the trial court's advice, appellant again appeared pro se and the defendant corporations were not represented. In an attempt to prove that he filed a timely answer, appellant produced only a notarized statement from the office supply company which allegedly faxed the answer to the clerk of courts. The trial court held that the notarized statement was inadmissible hearsay. In an entry filed October 19, 1998, the trial court held that appellant did not demonstrate that his answer was properly filed and removed the stay of execution on the default judgment.
Appellant retained counsel and filed a motion for relief from judgment pursuant to Civ.R. 60(B) on March 25, 1999. The trial court denied appellant's motion on April 23, 1999. From the trial court's decision, appellant filed a timely appeal and raises one assignment of error.
THE TRIAL COURT ERRED IN DENYING THE MOTION FOR RELIEF FROM JUDGMENT, WHERE [APPELLANT] ESTABLISHED EXCUSABLE NEGLECT AND A MERITORIOUS DEFENSE.
In his assignment of error, appellant argues that the trial court erred by denying his Civ.R. 60(B) motion for relief from judgment. Appellant contends that he is entitled to relief from judgment on either of two grounds. First, appellant maintains that the clerk of courts prevented his answer from being recorded due to a "clerical error." Alternately, appellant argues that his failure to personally deliver his answer to the clerk of courts was due to excusable neglect.
Civ.R. 60(B) provides in relevant part:
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 *** (4) the judgment has been satisfied, released or discharged ***; 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 year after the judgment, order or proceeding was entered or taken ***.
Civ.R. 60(B) represents a balance between "the legal principle that there should be finality in every case, so that once a judgment is entered it should not be disturbed, and the requirements of fairness and justice, that given the proper circumstances, some final judgments should be reopened." Advance Mortgage Corp. v. Novak (1977), 53 Ohio App.3d 289, 291.
To prevail on a motion brought under Civ.R. 60(B), the moving party must demonstrate that:
(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken.
GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. The moving party must establish all three requirements for the motion to be granted. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20.
The decision whether to grant relief from judgment is within the sound discretion of the trial court. Id. Absent a showing of an abuse of discretion, the decision of the trial court with respect to a Civ.R. 60(B) motion will not be disturbed on appeal. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. "The term '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 (1983), 5 Ohio St.3d 217, 219.
Appellant argues that he is entitled to relief from judgment under Civ.R. 60(B)(1) and (5). Appellant asserts as his defense that he should not be individually liable for the debts of the defendant corporations. It is not really disputed that appellant's defense is meritorious. Under Civ.R. 60(B), the movant's burden is only to allege that he has a meritorious defense, not to prove that the defense will prevail should a retrial occur. Rose Chevrolet, 36 Ohio St.3d at 20. Therefore, to prevail under Civ.R 60(B), appellant must demonstrate that his motion was made within a reasonable time and that he is entitled to relief under one of the grounds stated in subdivisions (B)(1) through (5).
Appellant filed his motion for relief from judgment approximately eight months after the trial court entered the default judgment against him. Under Civ.R. 60(B), the absolute outer limit for filing a motion on the basis of excusable neglect is one year. In all cases, Civ.R. 60(B) motions must be filed within a reasonable time and the movant has the burden of presenting "allegations of operative facts to demonstrate that he is filing his motion within a reasonable period of time." Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 103. Although the absolute length of time is not dispositive in determining what constitutes a reasonable time under Civ.R. 60(B), Taylor v. Haven (1993) 91 Ohio App.3d 846, 852, appellant has failed to demonstrate or even allege that his motion was made within a reasonable time.
Appellant had actual notice of the lawsuit when he received a copy of the complaint on April 13, 1998. The trial court entered default judgment on July 27, 1998 and removed the stay of execution on the judgment on October 19, 1998. Appellant did not file a motion to vacate the judgment until March 25, 1999. There is no evidence in the record to explain the delay and appellant offers no explanation for the delay in his motion before the trial court or in his brief on appeal. We conclude that, in this case, a motion to vacate a default judgment, which is filed nearly one year after actual notice of the action and more than seven months after the trial court entered default judgment, is not a reasonable time to file the motion since appellant has failed to demonstrate the timeliness of the motion. See, also, Mount Olive Baptist Church v. Pipkins Paints(1979), 64 Ohio App.2d 285, 289 (holding that "a motion to vacate a default judgment filed nearly seven months after actual notice of the action and more than four months after default judgment is not, on its face, a reasonable time within which to file the motion").
Even assuming appellant filed his motion for relief from judgment in a reasonable time, appellant has not met his burden to demonstrate that he is entitled to relief under one of the provisions of Civ.R. 60(B)(1) through (5).
Appellant claims that his failure to personally deliver his answer to the court constitutes excusable neglect under Civ.R. 60(B)(1). Generally, the determination of whether conduct constitutes "excusable neglect" involves considering all of the surrounding facts and circumstances and balancing the need for finality of judgments with the interests of fairness and justice. Rose Chevrolet, 36 Ohio St.3d at 21; Colley v. Bazell (1980), 64 Ohio St.2d 243, 249. Conduct which "reveals a complete disregard for the judicial system and the rights of the [other party]" is not excusable neglect. GTE, 47 Ohio St.2d at 153. Although a party has a right to represent himself, pro se litigants are subject to the same rules and procedures as counsel and they must accept the results of their owns mistakes and errors. Meyers v. First Natl. Bank (1981), 3 Ohio App.3d 209, 210. Courts should not use Civ.R. 60(B)(1) to relieve pro se litigants who are careless or unfamiliar with the legal system. Ohio Savings Bank v. Sabatino (July 7, 1993), Summit App. No. 15991, unreported; Cowart v. Lanum (Aug. 23, 1990), Cuyahoga App. No.59147, unreported.
Appellant did not prove that he filed any answer with the clerk of the court. It was the duty of appellant to be certain that the court received his answer in a timely manner and failure to do so is not excusable neglect. Thus, appellant is not entitled to relief from judgment under Civ.R. 60(B)(1).
Appellant also maintains that he should be entitled to relief from judgment under the "catch-all" provision of Civ.R. 60(B)(5). Appellant appears to claim that his failure to personally deliver a copy of his answer to the clerk of courts should also merit relief from judgment under Civ.R 60(B)(5). Alternatively, appellant claims that relief from judgment is proper because he alleges that a clerical error on the part of the clerk of courts prevented his answer from being filed with the record.
Civ.R. 60(B)(5) is catch-all provision that reflects the inherent power of a court to relieve a person from the unjust operation of a judgment. Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, paragraph one of the syllabus. However, the grounds for invoking Civ.R. 60(B)(5) must be substantial and the provision is not to be used as a substitute for any of the more specific provisions of Civ.R. 60(B). Id. at paragraphs one and two of the syllabus. Moreover, "[i]t is well-established that the 'other reason' clause of Civ.R. 60(B) will not protect a party who ignores its duty to protect its interest." Baptist Church, 64 Ohio App.2d at 288.
There is no evidence in the record to support appellant's claim that the clerk of courts failed to properly record his answer. The trial court concluded that the notarized statement purporting to demonstrate that appellant faxed his answer was inadmissible hearsay.1 The allegations in appellant's brief are not evidence and cannot support his claim for relief. The record is also devoid of any efforts on the part of appellant to protect his interest by assuring that the court received and recorded his answer. It would not be in the interest of fairness or justice to provide relief to a litigant who, without any proof otherwise, blames the clerk of courts for the lack of a filed answer. To do so would allow any litigant who fails to protect his interest with timely filed pleadings to retroactively obtain relief from judgment
to the prejudice of the other party.
In addition, since we have determined that appellant's conduct does not constitute excusable neglect to merit relief from judgment under the specific provision of Civ.R. 60(B)(1), it follows that appellant is not entitled to relief under Civ.R.60(B)(5) for failing to take adequate measures to be certain that his answer was received by the court.
Therefore, we hold that the trial court did not abuse its discretion by denying appellant's motion for a new trial. Appellant's assignment of error is overruled.
Judgment affirmed.
YOUNG and WALSH, JJ., concur.
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