Kay v. Marc Glassman, Inc.

Francis E. Sweeney, Sr., J.

In this case, we must decide whether the trial court abused its discretion in denying appellant’s motion for relief from judgment. For the following reasons, we believe the motion should have been granted and consequently reverse the judgment of the court of appeals.

Appellant initially contends that the trial court erred in denying its motion for relief from judgment without first conducting an evidentiary hearing. This issue was discussed in Coulson v. Coulson (1983), 5 Ohio St.3d 12, 16, 5 OBR 73, 76-77, 448 N.E.2d 809, 812. In Coulson, this court adopted the following rule set forth in Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 105, 68 O.O.2d 251, 255, 316 N.E.2d 469, 476: “If the movant files a motion for relief from judgment and it contains allegations of operative facts which would warrant relief under Civil Rule 60(B), the trial court should grant a hearing to take evidence and verify these facts before it rules on the motion.” In Coulson, we found that there was no abuse of discretion in granting a hearing, where the motion for relief from judgment and supporting affidavit contained allegations of operative facts warranting relief.

The converse is equally true. Thus, the trial court abuses its discretion in denying a hearing where grounds for relief from judgment are sufficiently alleged and are supported with evidence which would warrant relief from judgment. Adomeit v. Baltimore, supra, at 103, 105, 68 O.O.2d at 254-255, 316 N.E.2d at *20475-476. This holding is in accord with the underlying policies governing Civ.R. 60(B) and, in particular, the fact that Civ.R. 60(B) is a remedial rule to be liberally construed so that the ends of justice may be served. Colley v. Bazell (1980), 64 Ohio St.2d 243, 249, 18 O.O.3d 442, 446, 416 N.E.2d 605, 610.

With these principles in mind, we hold the trial court abused its discretion by overruling the motion for relief from judgment without first holding an evidentiary hearing. Moreover, under the facts of this case, since grounds for relief from judgment appear on the face of the record, the court should have granted the Civ.R. 60(B) motion as a matter of law.

Appellant’s motion, which was brought under Civ.R. 60(B)(1) and (5), essentially alleged “excusable neglect” under Civ.R. 60(B)(1).1 The term “excusable neglect” is an elusive concept which has been difficult to define and to apply. Nevertheless, we have previously defined “excusable neglect” in the negative and have stated that the inaction of a defendant is not “excusable neglect” if it can be labeled as a “complete disregard for the judicial system.” GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 153, 1 O.O.3d 86, 90, 351 N.E.2d 113, 117; Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 21, 520 N.E.2d 564, 567, at fn. 4. Although a movant is not required to support its motion with evidentiary materials, the movant must do more than make bare allegations that he or she is entitled to relief. Rose Chevrolet, Inc., supra, at 20, 520 N.E.2d at 566. Thus, in order to convince the court that it is in the best interests of justice to set aside the judgment or to grant a hearing, the movant may decide to submit evidentiary materials in support of its motion.

This is exactly what appellant did in this case. Rather than blankly assert that it was entitled to relief, appellant put forth evidence to substantiate its motion. Appellant’s counsel attached three separate affidavits (as well as the prepared answer and pleadings) to attest to the fact that he had timely prepared an answer but that his secretary had inadvertently placed the pleadings back into the file drawer rather than mail them to the court for filing and to opposing counsel. Counsel explained that the failure to file the answer stemmed from the reorganization of the firm’s accounting system and was simply an isolated incident and not an ongoing concern. Appellant’s counsel did precisely what the rules require of him — through the submission of affidavits and accompanying exhibits, appellant *21alleged sufficient operative facts tending to show “excusable neglect.” Since appellant supported its motion with operative facts warranting relief, the trial court should have granted appellant’s motion for relief from judgment and abused its discretion in failing to do so.

Accordingly, we reverse the judgment of the court of appeals.

Judgment reversed.

Douglas, Resnick, Pfeifer and Stratton, JJ., concur. Moyer, C.J., and Cook, J., dissent.

. There is no question that appellant has satisfied the first and third prongs of the three-part test announced in GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113. Under the first prong, appellant alleged a meritorious defense by arguing that it owed Kay no duty of care and that her injuries were not compensable, since her fall was caused by the accumulation of melting snow tracked into the store by customers. See Paschal v. Rite Aid Pharmacy (1985), 18 Ohio St.3d 203, 18 OBR 267, 480 N.E.2d 474. Appellant has also satisfied the third prong of GTE by filing its Civ.R. 60(B) motion only one day after discovering that a default judgment had been granted to appellees.