Auer v. Paliath

2014 Ohio 2994

• Court: Ohio Court of Appeals
• Decided: July 3, 2014
• Docket: 25888
• Status: Published

Opinion

[Cite as Auer v. Paliath, 2014-Ohio-2994.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

TORRI AUER :

Plaintiff-Appellant : C.A. CASE NO. 25888

v. : T.C. NO. 08CV9673

JAMIE PALIATH, dba THE INVESTMENT : (Civil appeal from GENIE REALTY GROUP, et al. Common Pleas Court)

Defendants-Appellees :

:

..........

OPINION

Rendered on the 3rd day of July , 2014.

LAURENCE A. LASKY, Atty. Reg. No. 002939, One First National Plaza, 130 W. Second Street, Suite 830, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant

GARY J. LEPPLA, Atty. Reg. No. 0017172 and PHILIP J. LEPPLA, Atty. Reg. No. 0089075, 2100 S. Patterson Blvd., Dayton, Ohio 45409 Attorneys for Defendant-Appellee, Hari Paliath

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Torri Auer, filed

August 30, 2013. Auer appeals from the August 15, 2013 “Decision Order and Entry Sustaining

Motion of Hari Paliath for Relief from Judgment.” We hereby affirm the judgment of the trial 2

court.

{¶ 2} The underlying facts herein are set forth in the trial court’s decision as follows:

This case involves certain real estate transactions initiated by Defendant

Jamie Paliath. Trial in the above captioned matter was held in March 2012,

which resulted in jury verdicts against Defendants Jamie Paliath and Keller

Williams Hometown Realty, Inc. and a directed verdict rendered against

Defendants Hari Paliath (“Defendant”) in the amount of $427,000. The directed

verdict is memorialized in the Judgment Entry of this Court dated March 29,

2012. Defendants Jamie Paliath and Keller Williams Hometown Realty, Inc.

timely appealed the judgments against them. On June 30, 2012, Defendant filed

the instant motion for relief from judgment.

Defendant did not participate in the trial of this matter. He argues that he

is entitled to relief from the judgment against him because he had no specific

knowledge that his attorney, Michael McNamee (“McNamee”), had withdrawn

from the case and that he received no notice of any pleadings or other actions,

including the Final Pretrial Order, in this case following this withdrawal. A

review of the docket reveals that Defendant was not noticed personally on any

pleadings or other filings after McNamee was permitted to withdraw. McNamee

did continue to be noticed on court filings for some time. However, Defendant

correctly points out that he received no notice of the Final Pretrial Order in this

case.

Defendant filed an affidavit and testified at the June 11, 2013 hearing as to 3

his defenses to Plaintiffs’ causes of action. Defendant, who is divorced from

Defendant Jamie Paliath, contends that the divorce decree between them required

Jamie Paliath to indemnify him and take on individual responsibility for all

business liabilities. He further claims that he was simply [a] member of the

limited liability corporation through which Jamie Paliath conducted her business

and that he took no actions with respect to that business which would subject him

to individual liability.

{¶ 3} The trial court concluded as follows:

In the case at bar, Defendant has met the requirements entitling him to

relief from judgment under Ohio Civ.R. 60(B)(1). While the Court finds that

Defendant and his former attorney should have been in better contact regarding

McNamee’s withdrawal from the case, there is no dispute that Defendant was not

properly noticed on pleadings and other filings following the withdrawal.

Further, Defendant has established that he has a meritorious defense to the claims

against him and he filed his motion approximately three months after the directed

verdict was rendered.1 Thus, Defendant is entitled to relief from the judgment

rendered against him in the amount of $427,000.[00] as memorialized in the

Judgment Entry of this Court dated March 29, 2012.

{¶ 4} Auer asserts one assigned error herein as follows:

“THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR RELIEF FROM

JUDGMENT PURSUANT TO OHIO CIVIL RULE 60(B)(1).”

1 Consideration of Defendant’s motion was delayed in part due to the 4

{¶ 5} Civ.R. 60(B) allows trial courts to relieve parties from a final judgment for “(1)

mistake, inadvertence, surprise or excusable neglect.” As this Court this Court has noted:

To prevail on a motion brought under Civ.R. 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), and (3) the motion is made within a reasonable time and, for

reasons under Civ.R. 60(B)(1)-(3), not more than one year after judgment. GTE

Automatic Elec., Inc. v. ARC Industries, Inc. 47 Ohio St.2d 146, 351 N.E.2d 113

(1976), paragraph two of the syllabus. All of these requirements must be

satisfied, and the motion should be denied if any one of the requirements is not

met. Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994);

Cincinnati Ins. Co. v. Schaub, 2d Dist. Montgomery No. 22419, 2008-Ohio-4729,

¶ 15.

Love v. Ryan, 2d Dist. Montgomery No. 25485, 2013-Ohio-3279,¶ 9.

{¶ 6} “Motions for relief from judgment under Civ.R. 60(B) are addressed to the sound

discretion of the trial court, and the court’s ruling ‘will not be disturbed on appeal absent a

showing of abuse of discretion.’ * * *.” Jackson v. Hendrickson, 2d Dist. Montgomery No.

21921, 2008-Ohio-491, ¶ 28. “‘Abuse of discretion’ has been defined as an attitude that is

unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeons, Inc., 19 Ohio St.3d 83,

482 N.E.2d 1248 (1985). A decision is unreasonable if there is no sound reasoning process that

would support that decision. AAAA Enterprises, Inc. v. River Place Community Urban

pending appeals.” 5

Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990).” Feldmiller v. Feldmiller, 2d

Dist. Montgomery No. 24989, 2012-Ohio-4621, ¶ 7.

{¶ 7} The record reflects that at the hearing on Hari’s motion, he testified that he was a

defendant in the underlying lawsuit, represented by Michael McNamee. He stated that when the

suit was initiated, in January of 2009, he and Jamie were married. He stated that he only met

McNamee one time at his office with Jamie, and that McNamee filed an Answer in response to

the complaint. Hari stated that he went to India on February 3, 2009 and returned on April 17,

2009. He stated that Jamie tried to prevent him from returning to this country. Hari stated that

when he returned from India, Jamie locked him out of their home. He stated that he retained an

attorney, and that his divorce from Jamie was final in October, 2009.

{¶ 8} Hari testified that he did not know that McNamee withdrew from the underlying

matter. He stated that he learned that Jamie had filed for bankruptcy protection, and he learned

from her that the underlying matter was accordingly dismissed. Hari identified a copy of his

divorce decree and stated his understanding that pursuant to the decree, Jamie was required to

indemnify him from any judgments against The Investment Genie Realty Group. According to

Hari, he never received notice that the underlying matter was reactiviated. Hari stated that he

learned about the judgment against him by happenstance in May, 2012. He stated that he did not

receive notice before the judgment against him was issued.

{¶ 9} The court’s docket reflects that the underlying action was commenced on

October 24, 2008, and that Hari was named in the complaint as “ Harie (sic) Paliath DBA the

Investment Genie Realty Group AKA TIG Realty Group.” The docket reflects that McNamee

filed a motion to withdraw as counsel on June 4, 2009, that counsel for Plaintiffs opposed the 6

motion, and that McNamee filed a reply in support of the motion to withdraw. On July 3, 2009,

the court sustained McNamee’s motion. The docket reflects that the matter was dismissed

without prejudice by the court on February 4, 2010, due to federal bankruptcy proceedings. The

docket reflects that the matter was reinstated on November 18, 2010, upon the application of

counsel for plaintiffs.

{¶ 10} Hari’s affidavit, which is attached to his motion for relief from judgment,

provides:

***

3. That he had no idea that he was unrepresented after Michael McNamee

withdrew from representation in his case, and relied upon his ex-wife, her

attorney, and the court to protect him, and received no notice ever to the contrary;

4. That he received no notices concerning any events in this case from

other counsel, from the court, or otherwise concerning the case after Michael

McNamee withdrew, that he had no knowledge of the approved withdrawal of Mr.

McNamee, and that the Court’s docket reflects no sharing of a scheduling order,

pleadings or other filings of any nature with him as what he now understands to

have been a continuing unrepresented defendant herein;

5. That the attached divorce decree, which he understood and relied upon,

required his wife to indemnify him and take on individual responsibility for all

business liabilities * * *;

6. That he never had personal responsibility for any activities associated

with the subject claims herein, did not have a “dba” or any LLC, has a complete 7

and total personal defense to any claims set forth against him individually and as a

“dba” insofar as he never acted as an individual in any business matters and was at

worst simply a “member” of an LLC, who simply did some estimates as an

employee for Miami Valley Home Improvement, LLC having no role with

“Investment Genie” as a dba or otherwise;

7. That he first learned of this judgment, by happenstance, in reviewing

credit information in May, 2012;

8. That any failure to previously act is excusable given his lack of any

knowledge of Ohio legal process;

9. That he has a complete defense to the claims herein;

10. That he has acted promptly to seek legal counsel in this matter

promptly (sic) after he learned of the judgment.

{¶ 11} The attached final decree of divorce between Hari and Jamie provides in part as

follows:

5. Business Entities

IT IS ORDERED that the Plaintiff/Wife shall retain as her separate

property all right, title and interest in the following business entities, free and clear

of any claims by the Defendant/Husband:

Miami Valley Custom Homes, LLC; Miami Valley Home Improvements, LLC; A-1 Property Management Services, Ltd.; The Investment Genie Realty Group, LLC;

IT IS ORDERED that the Plaintiff/Wife shall retain any and all assets of 8

the aforesaid business entities including, but not limited to real estate, vehicles,

equipment, bank accounts, accounts receivable, or any other assets of said

businesses, free and clear of any claims by the Defendant/Husband.

IT IS ORDERED that the Plaintiff/Wife shall be responsible for any and

all debts associated with the aforesaid business entities including, but not limited

to ordinary and necessary business expenses, mortgages, credit card debts,

accounts payable, judgment against any of the business entities or any other debts

of said businesses, and shall indemnify and hold the Defendant/Husband

completely harmless thereon.

{¶ 12} As the trial court correctly noted, Hari demonstrated that he has a meritorious

defense to the claims against him, namely that he was merely a member of an LLC through which

Jamie conducted business, that he took no action with respect to the LLC that would subject him

to individual liability, and that the final decree of divorce requires Jamie to indemnify him on all

liabilities related to the business. Further, Hari established that he is entitled to relief under

Civ.R. 60 (B)(1). As the trial court noted, after McNamee withdrew from the case, Hari

received no notice of subsequent filings, including the Final Pretrial Order. He testified that he

learned from Jamie that the matter had been dismissed, and he only learned of the judgment

against him by happenstance. The judgment of March 29, 2012, reflects that copies thereof were

sent to counsel for Jamie and counsel for Keller Williams, and it does not reflect notice to Hari.

Finally, Hari’s motion for relief from judgment was timely filed, as the trial court noted, three

months after judgment was entered against him, and a month after he became aware it. Since

Hari is entitled to relief from judgment for “mistake, inadvertence, surprise or excusable neglect,” 9

an abuse of discretion is not demonstrated. The Appellants’ assigned error is overruled, and the

judgment of the trial court is affirmed.

FROELICH, P.J. and HALL, J., concur.

Copies mailed to:

Laurence A. Lasky Gary J. Leppla Philip J. Leppla Paul M. Courtney Christopher S. Peifer Hon. Barbara P. Gorman