Hicks v. Extended Family Concepts

[Cite as Hicks v. Extended Family Concepts, 2011-Ohio-3227.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

: JUDGES:
ANDREA S. HICKS, EXECUTOR OF : W. Scott Gwin, P.J.
THE ESTATE OF THELMA A. : Julie A. Edwards, J.
GREDICK : Patricia A. Delaney, J.
:
Plaintiff-Appellee : Case Nos. 2010CA00159 &
: 2010CA00183
-vs- :
:
: OPINION
EXTENDED FAMILY CONCEPTS,
DBA HEATHER RIDGE COMMONS

Defendant-Appellant

CHARACTER OF PROCEEDING: Civil Appeal from Stark County
Court of Common Pleas Case No.
2010CV01383

JUDGMENT: Affirmed In Part and Reversed
and Remanded In Part

DATE OF JUDGMENT ENTRY: June 27, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JAMES R. RECUPERO D. CHERYL ATWELL
4450 Belden Village Street, N.W. W. BRADFORD LONGBRAKE
Suite 403 ANDREW D. JAMISON
Canton, Ohio 44718 Reminger Co., LPA
200 Courtyard Square
80 South Summit Street
Akron, Ohio 44308

JOHN RAMSEY
Tzangas, Plakas, Mannos & Reis
220 Market Avenue, South
Canton, Ohio 44702
[Cite as Hicks v. Extended Family Concepts, 2011-Ohio-3227.]

Edwards, J.

{¶1} Defendant-appellant, Extended Family Concepts dba Heather Ridge

Commons, appeals from the May 17, 2010, May 21, 2010, and July 6, 2010, Judgment

Entries of the Stark County Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE

{¶2} On or about October 7, 2008, Thelma Gredick, a resident patient at

Heather Ridge Commons, fell out of her wheelchair while being transported by one of its

employees. As a result of her injuries, she later died.

{¶3} Thereafter, on April 5, 2010, appellee Andrea Hicks, Executor of the

Estate of Thelma A. Gredick, filed a complaint for wrongful death, negligence, negligent

hiring, negligent supervision and violation of R.C. 3721 et seq. (Nursing Home Patient

Bill of Rights) against appellant. Appellant was served with a copy of the summons and

complaint on April 8, 2010.

{¶4} On May 14, 2010, appellee filed a Motion for Default Judgment against

appellant. Pursuant to an Order filed on May 17, 2010, the trial court granted such

motion and scheduled a damage hearing for May 21, 2010. As memorialized in a

Judgment Entry filed on May 21, 2010, the trial court granted appellee judgment against

appellant in the amount of $255,000.00 plus interest.

{¶5} Subsequently, on June 7, 2010, appellant filed a Motion for Relief from

Judgment pursuant to Civ.R. 60(B)(1) and (5). Attached to such motion was an affidavit

from D. Cheryl Atwell in which she stated, in relevant part, as follows:

{¶6} “2. In November 2009, counsel for Plaintiff mailed a 180-day letter to

Defendant Extended Family Concepts. A true and accurate copy of that letter is
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 3

attached hereto as Exhibit A. As a result of that 180-day letter I was retained to

represent Defendant Extended Family Concepts.

{¶7} “3. In addition to performing an initial investigation regarding the claim

represented by the 180-day letter, I identified myself as counsel for purposes of any

such claim or Complaint arising there from to counsel for Plaintiff in an e-mail. A true

and accurate copy of the e-mail sent to counsel for Plaintiff is attached hereto as Exhibit

B.

{¶8} “4. I was never provided a courtesy copy of the Complaint, nor was I

served with any Pleading or Notice with regard to the lawsuit.

{¶9} “5. We first became aware of the pending lawsuit and the entry of default

on June 1, 2010.”

{¶10} The e-mail from Atwell to appellee’s counsel, which was sent on

November 23, 2009, stated as follows: “I have been provided a copy of your

correspondence to Heather Ridge assisted living, and will be representing the assisted

living entity. Please direct your communications to me regarding any claim or complaint

as to Heather Ridge.”

{¶11} Appellant, in support of its motion, also filed a supplemental affidavit on

June 15, 2010, from Gloria Prose, the owner of Heather Ridge Commons who was the

administrator and general manager of Heather Ridge until April 19, 2010. Prose, in her

affidavit, stated that on March 4, 20011, an action for foreclosure and for the

appointment of a Receiver had been filed against appellant in the Stark County Court of

Common Pleas by Coastline Ohio, LLC. Prose, in her affidavit, further stated that the

trial court had granted the motion for the appointment of a Receiver on March 23, 2010
1
While Prose states 2001, she clearly meant 2010.
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 4

and then, on March 30, 2010, the trial court, ex parte, had filed another order appointing

SAK Management-Ohio, LLC as the Receiver. According to Prose’s affidavit, on April 1,

2010, the trial court issued a stay of the March 30, 2010, order and then, on April 8,

2010, again entered an order appointing SAK Management-Ohio, LLC as the Receiver.

The following is an excerpt from Prose’s affidavit:

{¶12} “7. Between April 9, 2010 and the date of my termination on April 19,

2010, I had discussions and meetings with representatives of SAK Management about

the claim of the family of Thelma Gredick. I advised SAK Management representatives,

including the current Administrator and the current Nurse consultant, of the litigation,

and we discussed the issues associate with the claim. At that time, I provided all other

documents relative to this matter to the SAK Management representatives, and I also

advised them that information relative to this claim had, prior to the filing of the litigation,

been provided to the Church Mutual insurance company, the insurance provider for

Heather Ridge/Extended Family Concepts.

{¶13} “8. At the time of my termination on April 19, 2010, I assumed that the

representatives of SAK Management had contacted or would contact the insurance

company and advise of the complaint. Apparently, representatives of the Receiver

thought that the insurance company had been contacted prior to my termination.

However, given the confusion and total disarray of the management and operation at

Heather Ridge due to the numerous court orders and the takeover by the Receiver on

March 31st, it is very possible that due to inadvertence and neglect, Church Mutual was

inadvertently not timely advised of the filing of the complaint.”
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 5

{¶14} On June 21, 2010, appellant filed a Notice of Appeal from the trial court’s

May 21, 2010, Judgment Entry granting appellee judgment against appellant in the

amount of $255,000.00 plus interest. The appeal was assigned Case No.

2010CA00159.

{¶15} On July 6, 2010, the trial court denied appellant’s Motion for Relief from

Judgment. On July 14, 2010, appellant filed a Notice of Appeal from the trial court’s July

6, 2010, Judgment Entry. The appeal was assigned Case No. 2010CA00183.

{¶16} As memorialized in a Judgment Entry filed on July 23, 2010, this Court

consolidated the two cases for purposes of appeal.

{¶17} Appellant now raises the following assignments of error on appeal:

{¶18} “I. THE TRIAL COURT ERRED IN GRANTING DEFAULT JUDGMENT IN

FAVOR OF APPELLEE ANDREA S. HICKS ABSENT WRITTEN NOTICE TO

DEFENSE COUNSEL WHO HAD MADE AN APPEARANCE.

{¶19} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

FOR RELIEF FROM DEFAULT JUDGMENT PURSUANT TO RULE 60(B).

{¶20} “III. THE TRIAL COURT ERRED WHEN IT DID NOT GRANT AN

EVIDENTIARY HEARING TO APPELLANT AFTER APPELLANT TIMELY FILED A

MOTION FOR RELIEF FROM DEFAULT JUDGMENT.

{¶21} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING

APPELLEE $255,000 IN DAMAGES WITHOUT EVIDENCE OR SUFFICIENT

TESTIMONY TO ESTABLISH APPELLEE’S DAMAGES.”
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 6

I

{¶22} Appellant, in its first assignment of error, argues that the trial court erred in

granting default judgment in favor of appellee absent written notice to defense counsel.

Appellant contends that it was entitled to such notice because it had entered an

appearance in the action. We disagree.

{¶23} Civ. R. 55(A) provides in pertinent part:

{¶24} “When a party against whom a judgment for affirmative relief is sought has

failed to plead or otherwise defend as provided by these rules, the party entitled to a

judgment by default shall apply in writing or orally to the court therefore; * * * If the party

against whom judgment by default is sought has appeared in the action, he* * * shall be

served with written notice of the application for judgment at least seven days prior to the

hearing on such application. * * * ”

{¶25} The law disfavors default judgments. Suki v. Blume (1983), 9 Ohio App.3d

289, 459 N.E.2d 1311. Cases should be decided on their merits whenever possible.

National Mutual Insurance Company v. Papenhagen (1987), 30 Ohio St.3d 14, 15, 505

N.E.2d 980.

{¶26} Courts have frequently addressed the issue of when a party has made an

appearance sufficient to trigger the requirement of notice before a default judgment is

entered. In AMCA International Corporation v. Carlton (1984), 10 Ohio St.3d 88, 461

N.E.2d 1282, the Ohio Supreme Court found a party who had filed a notice of appeal

from an order of the Industrial Commission, and later conducted a telephone

conversation with opposing counsel with regard to a default judgment motion, has made

opposing counsel sufficiently aware the party intended to defend the action. The Ohio
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 7

Supreme Court found under these conditions, the party had made an “appearance” and

was entitled to the seven day notice. The Supreme Court recognized Civ. R. 55's notice

requirement is intended to protect parties who failed to appear in a formal sense by

timely filing a pleading, but have otherwise indicated to the opposing party a clear

purpose to defend the suit. AMCA, supra, at 91.

{¶27} In Kebler v. Prudential Property & Casualty Insurance Company,

Muskingum App. No. CT2002-0036, 2003-Ohio-2145, an estate had notice the

opposing party was represented by counsel. The estate did not notify the court of this

when it filed for default judgment. This Court ruled the default judgment was premature

and invalid.

{¶28} A defendant who appears at a case management conference pro se has

entered an appearance even though he has not filed an answer. Mattress Distributors,

Inc. v. Cook, Cuyahoga App. No. 81794, 2003-Ohio-1361. Courts have found even

where a defendant's filing is subsequent to the plaintiff's motion for default but prior to

the court's ruling on it, the defendant has made an appearance. See Hartmann v. Ohio

Crime Victims Reparations Fund (2000), 138 Ohio App.3d 235, 741 N.E.2d 149; Lexus-

Nexus Division of Reed Elsevier, Inc. v. Robert Binns Association, Inc. (December 1,

1998), Franklin App. No. 98 AP-228, 1999 WL 41064.

{¶29} By contrast, where a corporate officer telephoned the employee's attorney,

this did not constitute appearance on behalf of the employee, because the call was

merely to inform the employee's attorney the corporation's counsel was unavailable for

a court appearance. Alliance Group, Inc. v. Rosenfield (1996), 115 Ohio App.3d 380,

685 N.E.2d 570. Likewise, a phone call made to the county prosecutor's office two years
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 8

after an in rem foreclosure action was filed, and one month after the sheriff's sale of the

property, did not demonstrate a clear intention to defend the foreclosure action or to

redeem the property. Hall v. Trapper John's Canoe Livery, Inc. (1996), 15 Ohio App.3d

162, 684 N.E.2d 1277.

{¶30} Recently, in Sylvester v. Keister, Stark App. No. 2010CA00078, 2011-

Ohio-77, this Court addressed the issue of whether a party had made an appearance

sufficient to trigger the notice requirement before a default judgment was entered. Such

case arose out of an automobile accident on December 21, 2007. Attorney Douglas

Bond became the appellees' counsel after their original counsel withdrew from the case.

Bond worked unsuccessfully with the insurance adjuster for the appellant's insurance

company to settle the case. The appellees filed their complaint on December 18, 2009,

and the appellant was served on January 2, 2010.

{¶31} Sometime in late January or early February of 2010, Attorney Bond spoke

with the insurance adjuster, who offered a settlement of $10,000.00 for appellee

Heather Sylvester's claim only. On February 3, 2010, Attorney Bond faxed a letter to the

insurance adjuster rejecting the offer. He included a courtesy copy of the complaint.

{¶32} On two occasions the appellant personally called Attorney Bond's office

and left messages. On the second occasion, he asked Attorney Bond if he needed an

attorney. On February 15 and 17, Attorney David Sims' office called and left messages

referencing the case. The messages did not indicate that Attorney Sims was

representing the appellant.

{¶33} After the appellees, in Keister, filed their motion for default judgment on

February 16, 2010, and the court sustained the motion the same day, the court
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 9

scheduled a hearing on damages for March 5, 2010. After damages were awarded, the

appellant appealed, arguing, in part, that the trial court had erred in granting default

judgment because he was entitled to notice at least seven days before the hearing on

the motion for default. In Keister, this Court held, in relevant part, as follows: “The

record in this case demonstrates appellant personally called Attorney Bond on two

occasions, the second time leaving a message to ask if he needed a lawyer. Neither of

these messages demonstrates a clear intent to defend the lawsuit. Likewise, the contact

between the insurance adjuster and counsel, while constituting efforts to settle the case,

did not demonstrate a clear intent to defend, particularly when the adjuster received a

courtesy copy of the complaint but apparently did nothing in response. Finally, the

messages from Attorney David Sims' office referenced the case but did not indicate

Sims or appellant had a specific intent to defend.

{¶34} “We find the trial court did not err in finding appellant failed to show his

failure to answer was caused by excusable neglect, and therefore, he was not entitled

to notice in the hearing required in Civ. R. 55(A).” Id at paragraphs 21-22.

{¶35} In the case sub judice, the e-mail from Atwell to appellee’s counsel, which

was sent on November 23, 2009, after the 180 day notice was received, stated as

follows: “I have been provided a copy of your correspondence to Heather Ridge

assisted living, and will be representing the assisted living entity. Please direct your

communications to me regarding any claim or complaint as to Heather Ridge.” We find

the e-mail sent nearly five months before the complaint was filed did not demonstrate a

clear intention to defend appellant in the case sub judice. We find that the trial court,
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 10

therefore, did not err in granting default judgment to appellee without providing notice to

appellant.

{¶36} Appellant’s first assignment of error is, therefore, overruled.

II

{¶37} Appellant, in its second assignment of error, argues that the trial court

erred in denying appellant’s Motion for Relief from Judgment pursuant to Civ.R. 60(B).

We disagree.

{¶38} Civ.R. 60(B) states as follows: “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

(whether heretofore denominated intrinsic or extrinsic), misrepresentation or other

misconduct of an adverse party; (4) 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 (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. A motion under this

subdivision (B) does not affect the finality of a judgment or suspend its operation.”

{¶39} A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's

sound discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 514 N.E.2d 1122. In order

to find an abuse of that discretion, we must determine the trial court's decision was
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 11

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. In GTE Automatic

Electric Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113,

paragraph two of the syllabus, the Supreme Court of Ohio held the following: “To prevail

on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the

party has 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.”

{¶40} Appellant, in the case sub judice, alleged that it was entitled to relief from

judgment under Civ.R. 60(B)(1) and (5). Appellant argued that the default judgment

should be vacated because it had not received written notice under Civ.R. 55(A) and

also that “[i]t is due to the confusion resulting from Defendant’s other ongoing litigation

and the uncertain legal status as to the operation of the facility at the time the Summons

was served which resulted in an Answer” not being timely filed. The trial court, in its

July 6, 2010, Judgment Entry, found that appellant had not shown excusable neglect for

the failure to file an answer in a timely fashion and also that appellant had not provided

sufficient evidence of a meritorious defense.

{¶41} Upon review of the entire record in this matter, we find the trial court did

not abuse its discretion in overruling appellant's Civ.R. 60(B) Motion. We concur with

the trial court that appellant failed to show excusable neglect. Gloria Prose, in her

affidavit, admitted receiving the summons and complaint “at least by April 9, 2010” and
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 12

that the same remained on the desk in her office that she maintained at Heather Ridge

Commons. In her affidavit, she further stated that due to the confusion over the

management and operations at Heather Ridge, “it is very possible that due to

inadvertence and neglect, Church Mutual [insurance company] was inadvertently not

timely advised of the filing of the complaint.” (Emphasis added). Moreover, while

appellant argues that it was entitled to relief under Civ.R. 60(B) because, having

entered an appearance, it was entitled to written notice at least seven days prior to a

hearing on the motion for default judgment, as is stated above in our disposition of

appellant’s first assignment of error, we disagree.

{¶42} We further find that appellant failed to provide sufficient evidence of a

meritorious defense.

{¶43} In the case sub judice, D. Cheryl Atwell, in her affidavit that was attached

to appellant’s motion stated, in relevant part as follows:

{¶44} “7. In response to the 180-day letter I investigated the facts and

circumstance surrounding Plaintiff’s potential claim. It is my opinion that Defendant has

meritorious defenses to liability and damages including, but not limited to, differences in

application of rules regarding restraint application to residents by assisted living facilities

versus nursing homes, defendant’s (sic) multiple medical condition, as well as

procedural defenses.”

{¶45} We concur with the trial court that, appellant, through these generic

conclusory assertions by Atwell “has not provided sufficient evidence of a meritorious

defense as required by Rule 60(B).”
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 13

{¶46} Based on the foregoing, we find that the trial court did not abuse its

discretion in denying appellant’s Motion for Relief from Judgment pursuant to Civ.R.

60(B).

III

{¶47} Appellant, in its third assignment of error, argues that the trial court erred

in failing to hold an evidentiary hearing on appellant’s Motion for Relief from Judgment

pursuant to Civ.R. 60(B). We disagree.

{¶48} The standard for when an evidentiary hearing on a Civ.R. 60(B) motion is

necessary is set forth in Cogswell v. Cardio Clinic of Stark County, Inc. (October 21,

1991), Stark App. No. CA-8553, 1991 WL 242070. In Cogswell, this Court held under

Civ.R. 60(B), a hearing is not required unless there exist issues supported by

evidentiary quality affidavits. A trial court must hold an evidentiary hearing when the

motion and supporting evidence contain sufficient allegations of operative facts which

would support a meritorious defense to the judgment. Cogswell; BancOhio National

Bank v. Schiesswohl (1988), 51 Ohio App.3d 130, 554 N.E.2d 1362.

{¶49} As is discussed above with respect to appellant’s second assignment of

error, we concur with the trial court that appellant failed to provide sufficient evidence of

a meritorious defense as required by Civ.R. 60(B) and failed to show excusable neglect

for failing to file a timely answer. In short, we find that appellant failed to allege

operative facts which would warrant relief under Civ.R. 60(B). We find, therefore, that

the trial court did not err in failing to hold an evidentiary hearing.

{¶50} Appellant’s third assignment of error is, therefore, overruled.
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 14

IV

{¶51} Appellant, in its fourth assignment of error, argues that the trial court

abused its discretion in awarding appellee $255,000.00 in damages. We agree.

{¶52} A reviewing court will not reverse a trial court's decision regarding its

determination of damages absent an abuse of discretion. Kaufman v. Byers, 159 Ohio

App.3d 238, 2004-Ohio-6346, 823 N.E.2d 520, at ¶ 37. In order to find abuse of

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable. Blakemore, supra.

{¶53} Appellant specifically argues that there was insufficient evidence or

testimony to support an award of $255,000.00 in damages.

{¶54} At the May 21, 2010 damages hearing, appellee testified that Thelma

Gredick was her mother. Appellee testified that, in addition to herself, there were three

other beneficiaries. The following testimony was adduced when she was asked about

her relationship with her mother:

{¶55} “A. We were very close. Um, did many activities together. Always had

holidays, spent all holidays together. Um, most, most holidays I, I would cook and have

everyone at my place. Um, always had birthday parties, um, cookouts for Memorial Day

and July 4th. Um, always visiting. Had some lunches and some dinners together.

{¶56} “Q. How long had your mom been at Heather Ridge?

{¶57} “A. She went to Heather Ridge in the middle of 2005.

{¶58} “Q. Okay. And while she was in Heather Ridge did you visit with her

regularly?

{¶59} “A. Yes, I was usually at Heather Ridge once a week to visit her.
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 15

{¶60} “Q. Okay. Did you enjoy the visits that you had with her?

{¶61} “A. Yes.

{¶62} “Q. Could you tell whether she was enjoying the visits with you?

{¶63} “A. Yes, she was.

{¶64} “Q. Other than visiting your mom had you kept in contact with her by

telephone or other means while she was staying at Heather Ridge?

{¶65} “A. Yes. I would call to see how she was doing.” Transcript at 6-7.

{¶66} Appellee also testified that her mother had fallen 10 to 12 times before

while at Heather Ridge, but had never been hospitalized before for her falls. She

testified that she missed her mother and that, if her mother were still alive, she would

have been visiting her regularly. Finally, appellee testified that she believed that the

funeral costs for her mother were close to $5,000.00.

{¶67} Based on the foregoing, we find that there was insufficient evidence

supporting the trial court’s award of $255,000.00 in damages.
Stark County App. Case Nos. 2010CA00159 & 2010CA00183 16

{¶68} Appellant’s fourth assignment of error is, therefore, sustained.

{¶69} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed in part and reversed and remanded in part.

By: Edwards, J.

Gwin, P.J. and

Delaney, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/d0419
[Cite as Hicks v. Extended Family Concepts, 2011-Ohio-3227.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

ANDREA S. HICKS, EXECUTOR OF :
THE ESTATE OF THELMA A. GREDICK :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
EXTENDED FAMILY CONCEPTS, :
DBA HEATHER RIDGE COMMONS :
:
Defendant-Appellant : CASE NOS. 2010CA00159 &
: 2010CA00183

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed in part and reversed

and remanded in part. Costs assessed 65% to appellants and 35% to appellee.

_________________________________

_________________________________

_________________________________

JUDGES