[Cite as Strinka v. Witten, 2012-Ohio-539.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
BRIAN STRINKA C.A. No. 11CA009984
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TOM WITTEN COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 08CV157227
DECISION AND JOURNAL ENTRY
Dated: February 13, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} Brian Strinka and Tom Witten strongly disagree about the factual circumstances
surrounding this lawsuit. According to Mr. Strinka, Mr. Witten committed fraud and violated the
Consumer Sales Practices Act by failing to properly repair his truck and misrepresenting various
facts in the process. Mr. Witten denies all of Mr. Strinka’s allegations and tells a very different
story about Mr. Strinka’s truck. When Mr. Witten failed to timely oppose a motion for summary
judgment, the trial court ruled in favor of Mr. Strinka. Mr. Witten then moved for relief from
that judgment, and the trial court granted it. Mr. Strinka has appealed. This Court affirms
because Mr. Witten supported his motion with sufficient grounds for the trial court to reasonably
conclude that he has a meritorious defense to the claims and that his failure to respond to the
summary judgment motion was excusable neglect caused by his lawyer having withdrawn his
representation just before the response deadline.
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BACKGROUND
{¶2} In December 2006, Mr. Strinka took his truck to Affordable Auto Repair for a
tune-up and some electrical work. According to Mr. Strinka, he spent the next year dealing with
truck problems caused by Mr. Witten failing to adequately perform various repairs. Mr. Witten
has testified that the truck had over 100,000 miles on it when this saga began and that he did his
best to help Mr. Strinka keep it running. According to Mr. Witten, he performed all repairs
appropriately, charged reasonable rates, and did not misrepresent anything. In June 2008, Mr.
Strinka sued Mr. Witten, doing business as Affordable Auto Repair, for breach of contract,
violations of the Consumer Sales Practices Act, and fraud.
{¶3} After Mr. Strinka obtained service and Mr. Witten failed to answer, Mr. Strinka
moved for default judgment. The trial court entered default judgment against Mr. Witten, but
later vacated it after Mr. Witten moved for relief from the judgment, arguing that he was not
properly served.
{¶4} In August 2010, Mr. Strinka moved for summary judgment. The trial court
established a deadline of September 28 for Mr. Witten’s response. On September 10, Mr.
Witten’s lawyer moved to withdraw, and the trial court granted that motion on September 15.
Six weeks later, on October 27, the trial court granted the pending summary judgment motion
and entered judgment for Mr. Strinka in the amount of $39,050.45. Less than one month later, a
different lawyer entered an appearance on behalf of Mr. Witten and moved for relief from
judgment. At the hearing on the motion for relief from judgment, the parties agreed to submit
the issue on the briefs, so the trial court did not take any additional evidence. The trial court later
granted the motion for relief from judgment and vacated its October 27, 2010, judgment entry.
Mr. Strinka has appealed that decision.
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RELIEF FROM JUDGMENT
{¶5} Mr. Strinka’s assignment of error is that the trial court incorrectly granted Mr.
Witten’s motion for relief from judgment. Unless a trial court’s judgment is void, a motion to
vacate or motion for relief from final judgment is governed by Rule 60(B) of the Ohio Rules of
Civil Procedure. EMC Mortgage Co. Inc. v. Atkinson, 9th Dist. No. 25067, 2011–Ohio–59, at
¶2–3 (explaining that civil rules eliminated trial courts’ common law authority to vacate or
modify their judgments).
{¶6} Under Civil Rule 60(B), a trial court “may relieve a party . . . from a final
judgment . . . for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence . . . ; (3) fraud . . . , misrepresentation or other misconduct of an
adverse party; (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 . . . was entered
or taken.” Civ. R. 60(B). Interpreting the rule, the Ohio Supreme Court has held that, “[t]o
prevail on a motion brought under [Civil Rule] 60(B), the movant 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 . . . .” GTE Automatic Elec. Inc. v. ARC Indus. Inc., 47 Ohio St. 2d 146,
paragraph two of the syllabus (1976). Whether the neglect is excusable or inexcusable and
whether the failure to oppose the summary judgment motion was inadvertent are factual
determinations for the trial court. Rose Chevrolet Inc. v. Adams, 36 Ohio St. 3d 17, 20 (1988)).
If the trial court’s determination is supported by some evidence, this Court applies an abuse of
discretion standard of review to those questions. See id.
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EXCUSABLE NEGLECT
{¶7} Mr. Strinka has argued that Mr. Witten’s failure to timely oppose the summary
judgment motion was part of a pattern of disregarding the judicial system and delaying justice.
Mr. Witten has argued that the delay was due to excusable neglect because his lawyer withdrew
from the case without warning or explanation while the summary judgment motion was pending,
but before responding to it or even informing Mr. Witten of the response deadline. Mr. Witten
submitted an affidavit in support of his motion for relief from judgment, testifying that he was
unaware that the court had set a deadline for him to respond to the motion and that his response
was delayed by his inability to obtain his case file from his former lawyer.
{¶8} Mr. Strinka has acknowledged that Mr. Witten’s motion was timely filed, but has
argued that, in order to serve the principles of justice, this Court must vacate the trial court’s
order because it gives Mr. Witten a third bite at the apple. Early in the case, Mr. Witten
successfully moved for relief from judgment after the trial court rendered default judgment
against him. The merits of that first motion for relief from judgment cannot be rehashed here,
however, because Mr. Strinka did not appeal the trial court’s ruling on that earlier motion. This
appeal addresses only the merits of Mr. Witten’s more recent motion for relief from judgment.
{¶9} Mr. Witten testified that, seven days after his lawyer first mentioned Mr. Strinka’s
motion for summary judgment to him via letter, the lawyer moved the court for permission to
withdraw his representation. According to Mr. Witten, he did not learn of the motion to
withdraw until the day the trial court granted it. At that time, he did not know that he had only
two weeks to respond to the summary judgment motion.
{¶10} Mr. Witten testified by affidavit that, despite repeated attempts to contact his
former lawyer, he did not receive a return call or a copy of his case file. He then contacted
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another lawyer, Daniel Wightman, who told him to get the file from his former lawyer. Mr.
Witten testified that he went to his former lawyer’s office three times, but was turned away
without the file. When he received a copy of a judgment entry from the trial court directing Mr.
Strinka to file an affidavit of damages, he quickly gave it to Mr. Wightman.
{¶11} Mr. Wightman submitted an affidavit confirming that Mr. Witten asked him for
help on or about October 20, 2010, and that he advised him to get the file from his former
lawyer. According to Mr. Wightman, when he realized Mr. Witten could not get the file on his
own, he called the former lawyer’s office and arranged for Mr. Witten to pick up the file. Mr.
Witten reported back to him that, despite that intervention, he still could not get his file. After
Mr. Witten gave Mr. Wightman the trial court’s entry regarding the request for an affidavit of
damages, Mr. Wightman went to the trial court’s chambers and to the clerk of courts in search of
a copy of the motion for summary judgment. He could not find the motion in the court’s file.
The trial court granted summary judgment on October 27, and Mr. Witten testified that he
received a copy of that entry on October 30.
{¶12} Mr. Witten testified that, once the trial court granted summary judgment, he was
advised to consult a different lawyer, Brent English. Mr. Witten testified that he contacted Mr.
English on November 4, 2010. On November 22, Mr. English filed a notice of appearance and,
the next day, he moved for relief from judgment.
{¶13} The conduct Mr. Witten and Mr. Wightman describe is not indicative of a
complete disregard for the judicial system and the rights of Mr. Strinka. According to Mr.
Witten, when he learned that his lawyer had moved to withdraw from the case, he began trying
to contact the lawyer’s office, but was not successful. Less than five weeks later, he gave up and
consulted Mr. Wightman. Although Mr. Wightman tried to help Mr. Witten get his file from the
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former lawyer, he was also unsuccessful. He could not even locate a copy of the summary
judgment motion by tracking down the file at the courthouse. Just seven days after Mr.
Wightman learned of the problem, the trial court granted summary judgment to Mr. Strinka.
According to his affidavit, Mr. Witten contacted Mr. English five days after he learned that the
trial court had entered judgment against him. Two weeks later, Mr. English entered an
appearance and moved for relief from that judgment. On this basis, the trial court could have
reasonably concluded that Mr. Witten’s neglect in failing to timely oppose the summary
judgment motion was excusable.
MERITORIOUS CLAIM OR DEFENSE
{¶14} Mr. Strinka has also argued that Mr. Witten failed to demonstrate that he had a
meritorious claim or defense to present. “[Civil Rule] 60(B) is a remedial rule to be liberally
construed so that the ends of justice may be served.” Kay v. Marc Glassman Inc., 76 Ohio St. 3d
18, 20 (1996). A party moving under Civil Rule 60(B) is only required to “allege a meritorious
defense, not . . . prove that he will prevail on [it].” Rose Chevrolet Inc. v. Adams, 36 Ohio St. 3d
17, 20 (1988).
{¶15} Mr. Strinka’s claims against Mr. Witten are all based on his allegations that he
had been without his truck for approximately six months out of twelve while Mr. Witten
repeatedly returned it without successfully completing the necessary repairs. In the end,
according to Mr. Strinka, he was left with a “non-drivable vehicle that had lost most of its
value.” Mr. Witten has refuted most of Mr. Strinka’s factual allegations and has asserted eight
affirmative defenses. Mr. Witten has testified by affidavit that he completed each repair in a
workmanlike manner only after quoting a reasonable price and receiving Mr. Strinka’s
permission to proceed. Thus, the allegations are completely dependent on facts that Mr. Witten
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has specifically denied. If Mr. Witten can prove his side of the story is true, he would have a
meritorious defense to each of Mr. Strinka’s claims. He need not prove those defenses at this
point. Under Rule 60(B) of the Ohio Rules of Civil Procedure, his only burden is to allege a
meritorious defense. Rose Chevrolet Inc. v. Adams, 36 Ohio St. 3d 17, 20 (1988). Mr. Witten
has carried that burden. The trial court’s decision to grant Mr. Witten relief from judgment was
supported by sufficient grounds as required by Civil Rule 60(B) and GTE Automatic Electric Inc.
v. ARC Industries Inc., 47 Ohio St. 2d 146, paragraph two of the syllabus (1976). Mr. Strinka’s
assignment of error is overruled.
CONCLUSION
{¶16} Mr. Strinka’s assignment of error is overruled because Mr. Witten’s motion for
relief from judgment was supported by sufficient grounds for the trial court to reasonably
conclude that he had a meritorious defense and that his failure to timely oppose summary
judgment was due to excusable neglect. The judgment of the Lorain County Common Pleas
Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
BELFANCE, P. J.
CARR, J.
CONCUR
APPEARANCES:
JACK MALICKI, Attorney at Law, for Appellant.
BRENT L. ENGLISH, Attorney at Law, for Appellee.