[Cite as Replex Mirror Co. v. Solar Tracking Skylights, Inc., 2011-Ohio-2650.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
REPLEX MIRROR COMPANY dba JUDGES:
REPLEX PLASTICS Hon. John W. Wise, P. J.
Hon. Julie A. Edwards, J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
-vs- Case No. 10 CA 23
SOLAR TRACKING SKYLIGHTS, INC.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 09 BR 12-0729
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 27, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KIM M. ROSE CAROLYN KAYE RANKE
ADAM B. LANDON 323 West Lakeside Avenue
CRITCHFIELD, CRITCHFIELD Lakeside Place
& JOHNSTON, LTD Suite 420
10 South Gay Street, P. O. Box 469 Cleveland, Ohio 44113
Mount Vernon, Ohio 43050
Knox County, Case No. 10 CA 23 2
Wise, P. J.
{¶1} Defendant-Appellant Solar Tracking Skylights, Inc. appeals the decision of
the Court of Common Pleas, Knox County, which denied its motion to vacate a default
judgment previously granted in favor of Plaintiff-Appellee Replex Mirror Company, dba
Replex Plastics. The relevant facts leading to this appeal are as follows.
{¶2} Appellant STS (buyer in this instance) manufactures solar lighting and
tracking systems. It is headquartered in Chicago, Illinois and has a worldwide customer
base. Appellee Replex (seller in this instance) supplies some of the parts used in
appellant’s manufactured products. A dispute arose between the parties regarding
purported non-conforming parts sold by appellee, leading to appellant’s decision to
withhold certain payments to appellee.
{¶3} On December 4, 2009, appellee filed a civil complaint against appellant in
the Knox County Court of Common Pleas, seeking monetary damages. It is undisputed
that appellee’s complaint was duly served by certified mail on appellant’s Chicago-
based statutory agent, Timothy Lavender, on or about December 15, 2009.
{¶4} On January 19, 2010, appellee filed a motion for default judgment against
appellant. The trial court granted same in the amount of $57,183.99, plus interest, on
February 2, 2010.
{¶5} In July 2010, appellee obtained a transfer of the Knox County default
judgment to Cook County, Illinois for the purpose of garnishment and collection
proceedings.
{¶6} On September 2, 2010, appellant filed a motion for relief from judgment
under Civ.R. 60(B), with a request for hearing, claiming it lacked actual knowledge of
Knox County, Case No. 10 CA 23 3
the December 4, 2009 action filed by appellee. Appellee filed a brief in opposition on
September 10, 2010, to which appellant replied on September 15, 2010.
{¶7} On November 3, 2010, the trial court denied appellant’s motion for relief
from judgment and request for hearing thereon.
{¶8} On December 6, 2010, appellant filed a notice of appeal.1 It herein raises
the following two Assignments of Error:
{¶9} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
BY DENYING THE MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO RULE
60(B) OF THE OHIO RULES OF CIVIL PROCEDURE.
{¶10} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
BY DENYING THE MOTION FOR RELIEF FROM JUDGMENT WITHOUT
AFFORDING APPELLANT WITH AN ORAL HEARING.”
I., II.
{¶11} In its First and Second Assignments of Error, appellant contends the trial
court erred in denying its motion for relief from judgment and doing so without
conducting a hearing. We disagree.
{¶12} Civ.R. 60(B) states in pertinent part as follows:
{¶13} “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
1
The trial court docket in this case is unclear as to service of the final judgment entry
under appeal. See In re Mills, Richland App.No. 01 CA 96, 2002-Ohio-2503. However,
pursuant to an interim order by this Court, appellant satisfactorily demonstrated that
appellate jurisdiction had been properly invoked under App.R. 4(A).
Knox County, Case No. 10 CA 23 4
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. ***.”
{¶14} Civ.R. 60(B) represents an attempt to strike a proper balance between the
conflicting principles that litigation must be brought to an end and justice should be
done. Colley v. Bazell (1980), 64 Ohio St.2d 243, 248, 416 N.E.2d 605 (citation
omitted). A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound
discretion of the trial court and a ruling will not be disturbed absent an abuse of
discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122.
Furthermore, ‘[i]t is an abuse of discretion for a trial court to overrule a Civ.R. 60(B)
motion for relief from judgment without first holding an evidentiary hearing only if the
motion or supportive affidavits contain allegations of operative facts which would
warrant relief under Civ.R. 60(B).” In re Estate of Kirkland, Clark App.No. 2008-CA-57,
2009-Ohio-3765, ¶ 17, quoting Boster v. C & M Serv., Inc. (1994), 93 Ohio App.3d 523,
526, 639 N.E.2d 136 (emphasis in original).
{¶15} The case of Boyd v. Ace Doran Hauling and Rigging (Sept. 4, 1986),
Marion App.No. 9-84-45, 1986 WL 9665, is instructive in the present appeal. In that
case, a corporate defendant had conceded that the plaintiffs’ civil complaint was served
Knox County, Case No. 10 CA 23 5
on its statutory agent, but the defendant asserted that its claims department had been
under reorganization and notice of the filing had never been given to defendant's
counsel. In holding that the trial court had not abused its discretion in denying the
defendant’s motion for relief from judgment, the Third District Court in part relied on
Security Ins. Co. v. Regional Transit Auth. (1982), 4 Ohio App.3d 24, paragraph three of
the syllabus, which states: “Where a corporation is served with process at its principal
office, and thereafter suffers a default judgment when it fails to answer the complaint or
otherwise defend, judgment will not be vacated pursuant to Civ.R. 60(B)(5) merely
because the corporation's counsel was not notified of the suit, absent proof that the
corporation's failure to respond was caused by some extraordinary circumstance not the
fault of the corporation.”
{¶16} In MCF Machine Co., Inc. v. Weststar Industries, Inc. (Aug. 2, 1993), Stark
App.No. CA-9196, 1993 WL 308452, this Court recognized: “It is the general principle
that relief from default judgment may be granted on excusable neglect when service is
properly made on a corporation, but a corporate employee fails to forward the summons
and complaint to the appropriate person.” Id., citing Sycamore Messenger, Inc. v.
Barons, Inc. (1986), 31 Ohio App.3d 196. However, we also noted: “The affidavit to
support such relief and in proof of excusable neglect is sufficient when it establishes the
following: (1) that there is a set procedure to be followed in the corporate hierarchy for
dealing with legal process, and (2) that such procedure was, inadvertently, not followed
until such time as a default judgment had already been entered against the corporate
defendant.” Id., citing Hopkins v. Quality Chevrolet, Inc. (1992), 79 Ohio App.3d 578.
We further held: “It is incumbent upon the moving party *** to establish the general
Knox County, Case No. 10 CA 23 6
overall process or the usual procedure steps in order to satisfy the court that the failure
to respond was not in ‘ * * * consequence of the parties' own carelessness, inattention,
or willful disregard of the process of the court * * *.’ ” Id., citing Federal National
Mortgage Assn. v. Banks (Dec. 6, 1991), Montgomery App.No. 12692, 1991 WL
254652.
{¶17} The record in the case sub judice includes the affidavit of appellant’s
principal, George Kramerich, who averred in pertinent part as follows:
{¶18} “8. I was unaware of the lawsuit pending in Knox County, Ohio filed by
Replex until after the transfer of the judgment to Cook County, Illinois. I do not dispute
that the statutory agent was served. However, due to my travel schedule, I was clearly
unaware of its filing and the necessity to defend the lawsuit.
{¶19} “ *** ”
{¶20} Although appellant's motion herein recites 60(B)(1), (3), and (5), we find it
essentially goes to the issue of “excusable neglect.” Our reading of Kramerich’s affidavit
in toto does not reveal further details regarding the time and geographical facets of his
travels, nor does it set forth what steps the company had taken to delegate
responsibilities in his absence, particularly as to responding to legal process. Moreover,
documentation of Kramerich’s correspondence with appellee’s president Mark Schuetz,
appears to contradict Kramerich’s assertion of lack of knowledge of the complaint, or at
least indicates he was at least aware that a lawsuit was forthcoming. In a December
2009 e-mail, Kramerich wrote Schuetz: “Got your voice message and the legal notice
from [Law Firm] Critchfield.” Kramerich added that his company was “not contesting the
payment obligation.” Schuetz responded, via e-mail: “We only reverted to the legal
Knox County, Case No. 10 CA 23 7
approach when all voice mails and emails were being ignored and zero payment was
being received.” See Replex’s Memorandum Contra the Motion to Vacate.
{¶21} Accordingly, pursuant to the guidance set forth in MCF Machine and Boyd,
supra, we are unable to conclude the trial court abused its discretion in refusing to find
‘excusable neglect’ pursuant to Civ.R. 60(B)(1) so as to warrant relief from the default
judgment, and we likewise find no abuse of discretion in the court’s decision to decide
the issue without conducting a hearing.
{¶22} Accordingly, appellant's First and Second Assignments of Error are
overruled.
{¶23} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Knox County, Ohio, is affirmed.
By: Wise, P. J.
Edwards, J., and
Delaney, J., concur.
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JUDGES
JWW/d 0505
Knox County, Case No. 10 CA 23 8
IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
REPLEX MIRROR COMPANY :
dba REPLEX PLASTICS :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
SOLAR TRACKING SKYLIGHTS, INC. :
:
Defendant-Appellant : Case No. 10 CA 23
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Knox County, Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES