Davidenko v. King's Landscape & Bobcat Work, L.L.C.

2024 Ohio 5577

• Court: Ohio Court of Appeals
• Decided: November 26, 2024
• Docket: 2024CA00006
• Status: Published

Opinion

[Cite as Davidenko v. King's Landscape & Bobcat Work, L.L.C., 2024-Ohio-5577.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

NATALIA DAVIDENKO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellant : Hon. W. Scott Gwin, J. : Hon. Andrew J. King, J. -vs- : : Case No. 2024CA00006 : KING’S LANDSCAPE & BOBCAT : WORK, LLC, ET AL. : : Defendants-Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2023 CV 1232

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 26, 2024

APPEARANCES:

For Plaintiff-Appellant: For Defendants-Appellees:

ROBERT E. SOLES, JR. VICTORIA D. BARTO, ESQ. KARA DODSON LIBERTY MUTUAL GROUP FIELD LEGAL OFFICES Washington Square Office Park P.O. Box 68636 6545 Market Ave. North Scranton, PA 18505-6836 North Canton, OH 44721 Stark County, Case No. 2024 CA 00006 2

Delaney, P.J.

{¶1} Plaintiff-appellant Natalia Davidenko appeals from the December 13, 2023

“Judgment Entry Granting Defendants’ Motion for Relief from Judgment and Leave to File

Answer Instanter” of the Stark County Court of Common Pleas. Defendants-appellees

are King’s Landscape & Bobcat Work, LLC and Ryan DeVault.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on November 3, 2022, when DeVault was operating a

dump truck owned by his employer, King’s, and lost control of the vehicle, causing

considerable damage to appellant’s property.

{¶3} Appellant filed a claim with King’s insurance company, Liberty Mutual, and

received payment in the amount of $45,861.03. This amount did not fully compensate

appellant’s damages and she filed suit against appellees on July 13, 2023. Service was

completed against both appellees by certified mail: service on DeVault was perfected on

July 21, 2023 and service on King’s was perfected on July 27, 2023.

{¶4} Neither appellee answered.

{¶5} Appellant moved for default judgment on August 25, 2023, and the motion

was granted on August 30, 2023. A damages hearing was scheduled for October 13,

2023, and the trial court found appellant was entitled to damages in the amount of

$179,394.76 plus interest via Judgment Entry dated October 17, 2023.

{¶6} On November 22, 2023, appellees filed motions for relief from default

judgment, for relief from judgment ordering an asset exam, and for leave to file an answer

instanter. Appellant responded in opposition on December 6, 2023, and appellees replied

on December 11, 2023. Stark County, Case No. 2024 CA 00006 3

Appellees’ explanation for failure to answer

{¶7} Appellees’ motion for relief from default judgment included an affidavit of

Laura Lee, an office employee of King’s, offering an explanation why appellees failed to

timely answer appellant’s complaint.

{¶8} King’s was to be served at two different addresses: 1) a physical address

on Fohl Street, and 2) via a statutory agent. Service at the Fohl address failed entirely;

Lee stated King’s has not used the Fohl address in over four years.

{¶9} Service at the statutory agent was perfected on July 27, 2023, but King’s

remained unaware of the lawsuit. Lee stated she works in the office part-time, paying

bills and monitoring the company email. King’s “owner/member,” David King, is out of the

office doing landscape work, driving, and maintaining commercial vehicles. Lee never

received or viewed any notice of the lawsuit from the statutory agent.

{¶10} Upon receipt of the default judgment, King’s retained counsel and launched

an investigation. Only then did Lee discover a single email from the statutory agent

notifying King’s of the receipt of legal documents and containing a link to those documents

in a document repository. The statutory agent’s email went into King’s “junk” email and

was overlooked by the company.

{¶11} DeVault, in the meantime, no longer worked for King’s and had not worked

there since shortly after the November 3, 2022 accident. It was DeVault, though, who

notified David King of the existence of the lawsuit on or around November 1, 2023,

because he continued to receive documents about the lawsuit and now questioned

whether King’s was aware of it. Stark County, Case No. 2024 CA 00006 4

{¶12} Upon learning of the suit from DeVault, David King delivered the lawsuit

documents to Lee and the company’s agent at Busha-Okeson Insurance Agency, who

retained counsel on appellees’ behalf.

{¶13} Counsel then investigated the default judgment and filed the ensuing

motions for relief.

{¶14} On December 13, 2023, the trial court granted appellees’ motions for relief

from judgment and leave to file their answer instanter. Appellees answered on December

21, 2023.

{¶15} Appellant now appeals from the trial court’s Judgment Entry of December

13, 2023, granting appellees’ motion for relief from default judgment.

{¶16} Appellant raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶17} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING

APPELLEE RYAN DEVAULT’S MOTION TO VACATE WHEN DEVAULT FAILED TO

PRESENT ANY EVIDENCE TO DEMONSTRATE EITHER A MERITORIOUS DEFENSE

OR EXCUSABLE NEGLECT IN THAT HE HAD ACTUAL NOTICE OF APPELLANT’S

COMPLAINT AND TOOK ABSOLUTELY NO ACTION IN RESPONSE THERETO.”

{¶18} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING

APPELLEE KING’S LANDSCAPE & BOBCAT WORK, LLC’S MOTION TO VACATE

WHEN THE COMPANY FAILED TO PRESENT ANY EVIDENCE TO DEMONSTRATE

THAT IT HAD A MERITORIOUS DEFENSE TO APPELLANT’S CLAIMS AND FAILED

TO DEMONSTRATE EXCUSABLE NEGLECT IN THAT IT HAD NO ESTABLISHED

PROCEDURE FOR HANDLING SERVICE OF PROCESS.” Stark County, Case No. 2024 CA 00006 5

ANALYSIS

I., II.

{¶19} Appellant’s two assignments of error are related and will be considered

together. She argues the trial court erred in granting appellees’ motion for relief from

judgment. We disagree.

{¶20} When the defendant to an action fails to plead or otherwise defend an

action, default judgment may be granted pursuant to Civ.R. 55(A). Zimmerman ex rel.

Hahn v. Hamilton, 2004-Ohio-1461, ¶ 13 (5th Dist.), citing Davis v. Immediate Medical

Services, Inc., 80 Ohio St.3d 10, 14 (1997). A defendant may seek relief from default

judgment pursuant to Civ.R. 60(B). The Ohio Supreme Court set out the controlling test

for Civ.R. 60(B) motions in GTE Automatic Elec., Inc. v. Arc Industries, Inc., 47 Ohio St.2d

146 (1976) at paragraph two of the syllabus:

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)(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.

{¶21} Civ.R. 60(B) states:

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: Stark County, Case No. 2024 CA 00006 6

(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. . . . .

{¶22} The decision whether to vacate a judgment rests within the trial court's

discretion and will not be reversed absent an abuse of discretion. Zimmerman, supra, at

¶ 15, citing Doddridge v. Fitzpatrick, 53 Ohio St.2d 9, 12 (1978). An abuse of discretion

is more than simply an error of law, but rather implies that the trial court's attitude was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983).

{¶23} The Ohio Supreme Court has advised, though cautiously, that where a

defendant presents a meritorious defense in a timely manner, any doubt on the

categorization of neglect should be resolved in favor of the motion to set aside the

judgment so that cases can be decided on their merits. WFMJ Television, Inc. v. AT & T Stark County, Case No. 2024 CA 00006 7

Federal Systems CSC, 2002–Ohio–3013, at ¶ 21 (7th Dist.), citing GTE, 47 Ohio St.2d at

151.

{¶24} The instant case arose from appellee DeVault’s alleged negligent operation

of a motor vehicle in the course and scope of his employment with appellee King’s.

Appellees assert they would defend the suit on the basis of proximate causation of

appellant’s property damage and the nature and extent of the alleged damages.

Appellees allege the amount of damages claimed by appellant is excessive and would

seek discovery on the condition of the property prior to the accident.

{¶25} Both appellees asserted they were entitled to relief under Civ.R. 60(B)(1),

which provides that the court may grant relief to a party based on mistake, inadvertence,

surprise or excusable neglect, although each appellee failed to respond to the complaint

for a different reason. The Ohio Supreme Court has yet to develop a definitive definition

of excusable neglect. However, it has described it in the negative stating, “the inaction of

a defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for the

judicial system.’” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20 (1996), quoting GTE

Automatic Elec., Inc., 47 Ohio St.2d at 153. In addition, “[w]hile unusual or special

circumstances can justify neglect, if a party could have controlled or guarded against the

happening or event he later seeks to excuse, the neglect is not excusable.” National City

Bank v. Kessler, 2003–Ohio–6938, ¶ 14 (10th Dist.). The analysis of excusable neglect

turns on the facts and circumstances presented in each case. Sandifer v. Yoder, 2015-

Ohio-4270, ¶ 20 (5th Dist.), citing Cannell v. Bates, 2001 WL 224532 (10th Dist.).

{¶26} Regarding appellee King’s, it is the general principle that relief from default

judgment may be granted on excusable neglect when service is properly made on a Stark County, Case No. 2024 CA 00006 8

corporation, but a corporate employee fails to forward the summons and complaint to the

appropriate person. Sycamore Messenger, Inc. v. Barons, Inc., 31 Ohio App.3d 196 (1st

Dist. 1986). 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. Hopkins v. Quality Chevrolet, Inc., 79 Ohio App.3d 578

(4th Dist. 1992).

{¶27} The trial court found Lee’s affidavit credible. It is well-settled that it is for

the trier of fact to judge the credibility of the witnesses and not for us, as a reviewing court,

to second guess that judgment. Dewire v. Quality Stores, Inc., 1991 WL 100521, *2 (5th

Dist.). Accordingly, if there is some competent and credible evidence in the record to

support the trial court's judgment granting defendant's motion for relief from judgment, we

must affirm. Id. Resolution of factual disputes is properly left to the sound discretion of

the trial court. Bd. of Stark Cnty. Commrs. v. Janson, 1988 WL 142292, *1 (5th Dist.). In

the absence of evidence which reveals a “complete disregard for the judicial system” and

the rights of their adversary, appellees’ 60(B) motion was properly determined by the

court. Bd. of Stark Cnty. Commrs. v. Janson, 1988 WL 142292, *1 (5th Dist.), citing GTE

v. ARC, at 153; see also, Wiseman v. Fat Boys Custom Auto & Restoration, Inc., 2002-

Ohio-5954, ¶ 14 (5th Dist.) [evidence presented in a default judgment hearing, must

support the damages awarded and trial court did not abuse its broad discretion in granting

relief from judgment under these facts and circumstances]; MCF Mach. Co. v. Weststar

Industries, Inc., 1993 WL 308452, *2 (5th Dist.), internal citations omitted [determination Stark County, Case No. 2024 CA 00006 9

as to “excusable neglect” will not be disturbed absent a showing of an abuse of discretion

and generally the concept of excusable neglect must be liberally construed].

{¶28} Upon our review of Lee’s affidavit, appellees established “the general

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

wilful disregard of the process of the court * * *.’” MCF Mach. Co. v. Weststar Industries,

Inc., 1993 WL 308452, *2 (5th Dist.), citing Federal National Mortgage Assn. v. Banks

1991 WL 254652 (2d Dist.; see also, Stein v. Wyatt, 2003-Ohio-2569, ¶ 10 (5th Dist.) [no

abuse of discretion where appellees submitted an affidavit claiming meritorious defense,

evidence they failed to file a timely answer to appellants' complaint because of a medical

emergency, and as soon as they were made aware of the trial court's judgment entered

against them, they filed their motion to vacate].

{¶29} In the instant case, service of the complaint was not made at King’s physical

address. King’s did have a statutory agent, but the agent’s email went into the company’s

“junk” mail. It is evident from the record that King’s did not intentionally disregard the

legal process. We find the trial court did not abuse its discretion in relieving King’s from

judgment.

{¶30} In DeVault’s case, he stopped working for King’s shortly after the accident,

but the complaint arose from actions within the course and scope of his employment. It

was reasonable for DeVault to initially believe King’s would respond on his behalf, and

upon receipt of additional filings, DeVault realized King’s had not responded and notified

Dave King immediately. Lee also attested that DeVault had medical issues which Stark County, Case No. 2024 CA 00006 10

affected his priorities and attention. We find the trial court did not abuse its discretion in

relieving DeVault from judgment.

{¶31} Finally, we conclude appellees’ motion to set aside the default judgment

was timely. The default was entered very shortly after appellees’ answers were due, and

upon review of the procedural timeline of the case, we are satisfied appellees acted with

appropriate timeliness when they became aware of the default.

{¶32} The trial court did not abuse its discretion in finding that excusable neglect

existed in this case and it is reasonable to conclude from the record that appellees, and

those acting on their behalf, did not show disregard for the judicial system or appellant's

rights. Zimmerman, supra, ¶ 18. The trial court could have reasonably concluded that

appellees demonstrated regard for the judicial system in that they acted immediately upon

learning of the default judgment, relaying the information as soon as it was received. Id.

Obviously the best practice is to prevent notice from a statutory agent going into junk

email, but under the circumstances here it was not unreasonable, arbitrary, or capricious

for the trial court to find that this neglect was excusable. See, id.

{¶33} Appellant’s two assignments of error are therefore overruled. Stark County, Case No. 2024 CA 00006 11

CONCLUSION

{¶34} Appellant’s two assignments of error are overruled and the judgment of the

Stark County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Gwin, J. and

King, J., concur.