[Cite as Hicks v. Extended Family Concepts, 2011-Ohio-3227.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: ANDREA S. HICKS, EXECUTOR OF : W. Scott Gwin, P.J. THE ESTATE OF THELMA A. : Julie A. Edwards, J. GREDICK : Patricia A. Delaney, J. : Plaintiff-Appellee : Case Nos. 2010CA00159 & : 2010CA00183 -vs- : : : OPINION EXTENDED FAMILY CONCEPTS, DBA HEATHER RIDGE COMMONS
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from Stark County Court of Common Pleas Case No. 2010CV01383
JUDGMENT: Affirmed In Part and Reversed and Remanded In Part
DATE OF JUDGMENT ENTRY: June 27, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES R. RECUPERO D. CHERYL ATWELL 4450 Belden Village Street, N.W. W. BRADFORD LONGBRAKE Suite 403 ANDREW D. JAMISON Canton, Ohio 44718 Reminger Co., LPA 200 Courtyard Square 80 South Summit Street Akron, Ohio 44308
JOHN RAMSEY Tzangas, Plakas, Mannos & Reis 220 Market Avenue, South Canton, Ohio 44702 [Cite as Hicks v. Extended Family Concepts, 2011-Ohio-3227.]
Edwards, J.
{¶1} Defendant-appellant, Extended Family Concepts dba Heather Ridge
Commons, appeals from the May 17, 2010, May 21, 2010, and July 6, 2010, Judgment
Entries of the Stark County Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE
{¶2} On or about October 7, 2008, Thelma Gredick, a resident patient at
Heather Ridge Commons, fell out of her wheelchair while being transported by one of its
employees. As a result of her injuries, she later died.
{¶3} Thereafter, on April 5, 2010, appellee Andrea Hicks, Executor of the
Estate of Thelma A. Gredick, filed a complaint for wrongful death, negligence, negligent
hiring, negligent supervision and violation of R.C. 3721 et seq. (Nursing Home Patient
Bill of Rights) against appellant. Appellant was served with a copy of the summons and
complaint on April 8, 2010.
{¶4} On May 14, 2010, appellee filed a Motion for Default Judgment against
appellant. Pursuant to an Order filed on May 17, 2010, the trial court granted such
motion and scheduled a damage hearing for May 21, 2010. As memorialized in a
Judgment Entry filed on May 21, 2010, the trial court granted appellee judgment against
appellant in the amount of $255,000.00 plus interest.
{¶5} Subsequently, on June 7, 2010, appellant filed a Motion for Relief from
Judgment pursuant to Civ.R. 60(B)(1) and (5). Attached to such motion was an affidavit
from D. Cheryl Atwell in which she stated, in relevant part, as follows:
{¶6} “2. In November 2009, counsel for Plaintiff mailed a 180-day letter to
Defendant Extended Family Concepts. A true and accurate copy of that letter is Stark County App. Case Nos. 2010CA00159 & 2010CA00183 3
attached hereto as Exhibit A. As a result of that 180-day letter I was retained to
represent Defendant Extended Family Concepts.
{¶7} “3. In addition to performing an initial investigation regarding the claim
represented by the 180-day letter, I identified myself as counsel for purposes of any
such claim or Complaint arising there from to counsel for Plaintiff in an e-mail. A true
and accurate copy of the e-mail sent to counsel for Plaintiff is attached hereto as Exhibit
B.
{¶8} “4. I was never provided a courtesy copy of the Complaint, nor was I
served with any Pleading or Notice with regard to the lawsuit.
{¶9} “5. We first became aware of the pending lawsuit and the entry of default
on June 1, 2010.”
{¶10} The e-mail from Atwell to appellee’s counsel, which was sent on
November 23, 2009, stated as follows: “I have been provided a copy of your
correspondence to Heather Ridge assisted living, and will be representing the assisted
living entity. Please direct your communications to me regarding any claim or complaint
as to Heather Ridge.”
{¶11} Appellant, in support of its motion, also filed a supplemental affidavit on
June 15, 2010, from Gloria Prose, the owner of Heather Ridge Commons who was the
administrator and general manager of Heather Ridge until April 19, 2010. Prose, in her
affidavit, stated that on March 4, 20011, an action for foreclosure and for the
appointment of a Receiver had been filed against appellant in the Stark County Court of
Common Pleas by Coastline Ohio, LLC. Prose, in her affidavit, further stated that the
trial court had granted the motion for the appointment of a Receiver on March 23, 2010 1 While Prose states 2001, she clearly meant 2010. Stark County App. Case Nos. 2010CA00159 & 2010CA00183 4
and then, on March 30, 2010, the trial court, ex parte, had filed another order appointing
SAK Management-Ohio, LLC as the Receiver. According to Prose’s affidavit, on April 1,
2010, the trial court issued a stay of the March 30, 2010, order and then, on April 8,
2010, again entered an order appointing SAK Management-Ohio, LLC as the Receiver.
The following is an excerpt from Prose’s affidavit:
{¶12} “7. Between April 9, 2010 and the date of my termination on April 19,
2010, I had discussions and meetings with representatives of SAK Management about
the claim of the family of Thelma Gredick. I advised SAK Management representatives,
including the current Administrator and the current Nurse consultant, of the litigation,
and we discussed the issues associate with the claim. At that time, I provided all other
documents relative to this matter to the SAK Management representatives, and I also
advised them that information relative to this claim had, prior to the filing of the litigation,
been provided to the Church Mutual insurance company, the insurance provider for
Heather Ridge/Extended Family Concepts.
{¶13} “8. At the time of my termination on April 19, 2010, I assumed that the
representatives of SAK Management had contacted or would contact the insurance
company and advise of the complaint. Apparently, representatives of the Receiver
thought that the insurance company had been contacted prior to my termination.
However, given the confusion and total disarray of the management and operation at
Heather Ridge due to the numerous court orders and the takeover by the Receiver on
March 31st, it is very possible that due to inadvertence and neglect, Church Mutual was
inadvertently not timely advised of the filing of the complaint.” Stark County App. Case Nos. 2010CA00159 & 2010CA00183 5
{¶14} On June 21, 2010, appellant filed a Notice of Appeal from the trial court’s
May 21, 2010, Judgment Entry granting appellee judgment against appellant in the
amount of $255,000.00 plus interest. The appeal was assigned Case No.
2010CA00159.
{¶15} On July 6, 2010, the trial court denied appellant’s Motion for Relief from
Judgment. On July 14, 2010, appellant filed a Notice of Appeal from the trial court’s July
6, 2010, Judgment Entry. The appeal was assigned Case No. 2010CA00183.
{¶16} As memorialized in a Judgment Entry filed on July 23, 2010, this Court
consolidated the two cases for purposes of appeal.
{¶17} Appellant now raises the following assignments of error on appeal:
{¶18} “I. THE TRIAL COURT ERRED IN GRANTING DEFAULT JUDGMENT IN
FAVOR OF APPELLEE ANDREA S. HICKS ABSENT WRITTEN NOTICE TO
DEFENSE COUNSEL WHO HAD MADE AN APPEARANCE.
{¶19} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR RELIEF FROM DEFAULT JUDGMENT PURSUANT TO RULE 60(B).
{¶20} “III. THE TRIAL COURT ERRED WHEN IT DID NOT GRANT AN
EVIDENTIARY HEARING TO APPELLANT AFTER APPELLANT TIMELY FILED A
MOTION FOR RELIEF FROM DEFAULT JUDGMENT.
{¶21} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
APPELLEE $255,000 IN DAMAGES WITHOUT EVIDENCE OR SUFFICIENT
TESTIMONY TO ESTABLISH APPELLEE’S DAMAGES.” Stark County App. Case Nos. 2010CA00159 & 2010CA00183 6
I
{¶22} Appellant, in its first assignment of error, argues that the trial court erred in
granting default judgment in favor of appellee absent written notice to defense counsel.
Appellant contends that it was entitled to such notice because it had entered an
appearance in the action. We disagree.
{¶23} Civ. R. 55(A) provides in pertinent part:
{¶24} “When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these rules, the party entitled to a
judgment by default shall apply in writing or orally to the court therefore; * * * If the party
against whom judgment by default is sought has appeared in the action, he* * * shall be
served with written notice of the application for judgment at least seven days prior to the
hearing on such application. * * * ”
{¶25} The law disfavors default judgments. Suki v. Blume (1983), 9 Ohio App.3d
289, 459 N.E.2d 1311. Cases should be decided on their merits whenever possible.
National Mutual Insurance Company v. Papenhagen (1987), 30 Ohio St.3d 14, 15, 505
N.E.2d 980.
{¶26} Courts have frequently addressed the issue of when a party has made an
appearance sufficient to trigger the requirement of notice before a default judgment is
entered. In AMCA International Corporation v. Carlton (1984), 10 Ohio St.3d 88, 461
N.E.2d 1282, the Ohio Supreme Court found a party who had filed a notice of appeal
from an order of the Industrial Commission, and later conducted a telephone
conversation with opposing counsel with regard to a default judgment motion, has made
opposing counsel sufficiently aware the party intended to defend the action. The Ohio Stark County App. Case Nos. 2010CA00159 & 2010CA00183 7
Supreme Court found under these conditions, the party had made an “appearance” and
was entitled to the seven day notice. The Supreme Court recognized Civ. R. 55's notice
requirement is intended to protect parties who failed to appear in a formal sense by
timely filing a pleading, but have otherwise indicated to the opposing party a clear
purpose to defend the suit. AMCA, supra, at 91.
{¶27} In Kebler v. Prudential Property & Casualty Insurance Company,
Muskingum App. No. CT2002-0036, 2003-Ohio-2145, an estate had notice the
opposing party was represented by counsel. The estate did not notify the court of this
when it filed for default judgment. This Court ruled the default judgment was premature
and invalid.
{¶28} A defendant who appears at a case management conference pro se has
entered an appearance even though he has not filed an answer. Mattress Distributors,
Inc. v. Cook, Cuyahoga App. No. 81794, 2003-Ohio-1361. Courts have found even
where a defendant's filing is subsequent to the plaintiff's motion for default but prior to
the court's ruling on it, the defendant has made an appearance. See Hartmann v. Ohio
Crime Victims Reparations Fund (2000), 138 Ohio App.3d 235, 741 N.E.2d 149; Lexus-
Nexus Division of Reed Elsevier, Inc. v. Robert Binns Association, Inc. (December 1,
1998), Franklin App. No. 98 AP-228, 1999 WL 41064.
{¶29} By contrast, where a corporate officer telephoned the employee's attorney,
this did not constitute appearance on behalf of the employee, because the call was
merely to inform the employee's attorney the corporation's counsel was unavailable for
a court appearance. Alliance Group, Inc. v. Rosenfield (1996), 115 Ohio App.3d 380,
685 N.E.2d 570. Likewise, a phone call made to the county prosecutor's office two years Stark County App. Case Nos. 2010CA00159 & 2010CA00183 8
after an in rem foreclosure action was filed, and one month after the sheriff's sale of the
property, did not demonstrate a clear intention to defend the foreclosure action or to
redeem the property. Hall v. Trapper John's Canoe Livery, Inc. (1996), 15 Ohio App.3d
162, 684 N.E.2d 1277.
{¶30} Recently, in Sylvester v. Keister, Stark App. No. 2010CA00078, 2011-
Ohio-77, this Court addressed the issue of whether a party had made an appearance
sufficient to trigger the notice requirement before a default judgment was entered. Such
case arose out of an automobile accident on December 21, 2007. Attorney Douglas
Bond became the appellees' counsel after their original counsel withdrew from the case.
Bond worked unsuccessfully with the insurance adjuster for the appellant's insurance
company to settle the case. The appellees filed their complaint on December 18, 2009,
and the appellant was served on January 2, 2010.
{¶31} Sometime in late January or early February of 2010, Attorney Bond spoke
with the insurance adjuster, who offered a settlement of $10,000.00 for appellee
Heather Sylvester's claim only. On February 3, 2010, Attorney Bond faxed a letter to the
insurance adjuster rejecting the offer. He included a courtesy copy of the complaint.
{¶32} On two occasions the appellant personally called Attorney Bond's office
and left messages. On the second occasion, he asked Attorney Bond if he needed an
attorney. On February 15 and 17, Attorney David Sims' office called and left messages
referencing the case. The messages did not indicate that Attorney Sims was
representing the appellant.
{¶33} After the appellees, in Keister, filed their motion for default judgment on
February 16, 2010, and the court sustained the motion the same day, the court Stark County App. Case Nos. 2010CA00159 & 2010CA00183 9
scheduled a hearing on damages for March 5, 2010. After damages were awarded, the
appellant appealed, arguing, in part, that the trial court had erred in granting default
judgment because he was entitled to notice at least seven days before the hearing on
the motion for default. In Keister, this Court held, in relevant part, as follows: “The
record in this case demonstrates appellant personally called Attorney Bond on two
occasions, the second time leaving a message to ask if he needed a lawyer. Neither of
these messages demonstrates a clear intent to defend the lawsuit. Likewise, the contact
between the insurance adjuster and counsel, while constituting efforts to settle the case,
did not demonstrate a clear intent to defend, particularly when the adjuster received a
courtesy copy of the complaint but apparently did nothing in response. Finally, the
messages from Attorney David Sims' office referenced the case but did not indicate
Sims or appellant had a specific intent to defend.
{¶34} “We find the trial court did not err in finding appellant failed to show his
failure to answer was caused by excusable neglect, and therefore, he was not entitled
to notice in the hearing required in Civ. R. 55(A).” Id at paragraphs 21-22.
{¶35} In the case sub judice, the e-mail from Atwell to appellee’s counsel, which
was sent on November 23, 2009, after the 180 day notice was received, stated as
follows: “I have been provided a copy of your correspondence to Heather Ridge
assisted living, and will be representing the assisted living entity. Please direct your
communications to me regarding any claim or complaint as to Heather Ridge.” We find
the e-mail sent nearly five months before the complaint was filed did not demonstrate a
clear intention to defend appellant in the case sub judice. We find that the trial court, Stark County App. Case Nos. 2010CA00159 & 2010CA00183 10
therefore, did not err in granting default judgment to appellee without providing notice to
appellant.
{¶36} Appellant’s first assignment of error is, therefore, overruled.
II
{¶37} Appellant, in its second assignment of error, argues that the trial court
erred in denying appellant’s Motion for Relief from Judgment pursuant to Civ.R. 60(B).
We disagree.
{¶38} Civ.R. 60(B) states as follows: “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 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. A motion under this
subdivision (B) does not affect the finality of a judgment or suspend its operation.”
{¶39} A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's
sound discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 514 N.E.2d 1122. In order
to find an abuse of that discretion, we must determine the trial court's decision was Stark County App. Case Nos. 2010CA00159 & 2010CA00183 11
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. In GTE Automatic
Electric Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113,
paragraph two of the syllabus, the Supreme Court of Ohio held the following: “To prevail
on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the
party has 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.”
{¶40} Appellant, in the case sub judice, alleged that it was entitled to relief from
judgment under Civ.R. 60(B)(1) and (5). Appellant argued that the default judgment
should be vacated because it had not received written notice under Civ.R. 55(A) and
also that “[i]t is due to the confusion resulting from Defendant’s other ongoing litigation
and the uncertain legal status as to the operation of the facility at the time the Summons
was served which resulted in an Answer” not being timely filed. The trial court, in its
July 6, 2010, Judgment Entry, found that appellant had not shown excusable neglect for
the failure to file an answer in a timely fashion and also that appellant had not provided
sufficient evidence of a meritorious defense.
{¶41} Upon review of the entire record in this matter, we find the trial court did
not abuse its discretion in overruling appellant's Civ.R. 60(B) Motion. We concur with
the trial court that appellant failed to show excusable neglect. Gloria Prose, in her
affidavit, admitted receiving the summons and complaint “at least by April 9, 2010” and Stark County App. Case Nos. 2010CA00159 & 2010CA00183 12
that the same remained on the desk in her office that she maintained at Heather Ridge
Commons. In her affidavit, she further stated that due to the confusion over the
management and operations at Heather Ridge, “it is very possible that due to
inadvertence and neglect, Church Mutual [insurance company] was inadvertently not
timely advised of the filing of the complaint.” (Emphasis added). Moreover, while
appellant argues that it was entitled to relief under Civ.R. 60(B) because, having
entered an appearance, it was entitled to written notice at least seven days prior to a
hearing on the motion for default judgment, as is stated above in our disposition of
appellant’s first assignment of error, we disagree.
{¶42} We further find that appellant failed to provide sufficient evidence of a
meritorious defense.
{¶43} In the case sub judice, D. Cheryl Atwell, in her affidavit that was attached
to appellant’s motion stated, in relevant part as follows:
{¶44} “7. In response to the 180-day letter I investigated the facts and
circumstance surrounding Plaintiff’s potential claim. It is my opinion that Defendant has
meritorious defenses to liability and damages including, but not limited to, differences in
application of rules regarding restraint application to residents by assisted living facilities
versus nursing homes, defendant’s (sic) multiple medical condition, as well as
procedural defenses.”
{¶45} We concur with the trial court that, appellant, through these generic
conclusory assertions by Atwell “has not provided sufficient evidence of a meritorious
defense as required by Rule 60(B).” Stark County App. Case Nos. 2010CA00159 & 2010CA00183 13
{¶46} Based on the foregoing, we find that the trial court did not abuse its
discretion in denying appellant’s Motion for Relief from Judgment pursuant to Civ.R.
60(B).
III
{¶47} Appellant, in its third assignment of error, argues that the trial court erred
in failing to hold an evidentiary hearing on appellant’s Motion for Relief from Judgment
pursuant to Civ.R. 60(B). We disagree.
{¶48} The standard for when an evidentiary hearing on a Civ.R. 60(B) motion is
necessary is set forth in Cogswell v. Cardio Clinic of Stark County, Inc. (October 21,
1991), Stark App. No. CA-8553, 1991 WL 242070. In Cogswell, this Court held under
Civ.R. 60(B), a hearing is not required unless there exist issues supported by
evidentiary quality affidavits. A trial court must hold an evidentiary hearing when the
motion and supporting evidence contain sufficient allegations of operative facts which
would support a meritorious defense to the judgment. Cogswell; BancOhio National
Bank v. Schiesswohl (1988), 51 Ohio App.3d 130, 554 N.E.2d 1362.
{¶49} As is discussed above with respect to appellant’s second assignment of
error, we concur with the trial court that appellant failed to provide sufficient evidence of
a meritorious defense as required by Civ.R. 60(B) and failed to show excusable neglect
for failing to file a timely answer. In short, we find that appellant failed to allege
operative facts which would warrant relief under Civ.R. 60(B). We find, therefore, that
the trial court did not err in failing to hold an evidentiary hearing.
{¶50} Appellant’s third assignment of error is, therefore, overruled. Stark County App. Case Nos. 2010CA00159 & 2010CA00183 14
IV
{¶51} Appellant, in its fourth assignment of error, argues that the trial court
abused its discretion in awarding appellee $255,000.00 in damages. We agree.
{¶52} A reviewing court will not reverse a trial court's decision regarding its
determination of damages absent an abuse of discretion. Kaufman v. Byers, 159 Ohio
App.3d 238, 2004-Ohio-6346, 823 N.E.2d 520, at ¶ 37. In order to find abuse of
discretion, we must determine the trial court's decision was unreasonable, arbitrary or
unconscionable. Blakemore, supra.
{¶53} Appellant specifically argues that there was insufficient evidence or
testimony to support an award of $255,000.00 in damages.
{¶54} At the May 21, 2010 damages hearing, appellee testified that Thelma
Gredick was her mother. Appellee testified that, in addition to herself, there were three
other beneficiaries. The following testimony was adduced when she was asked about
her relationship with her mother:
{¶55} “A. We were very close. Um, did many activities together. Always had
holidays, spent all holidays together. Um, most, most holidays I, I would cook and have
everyone at my place. Um, always had birthday parties, um, cookouts for Memorial Day
and July 4th. Um, always visiting. Had some lunches and some dinners together.
{¶56} “Q. How long had your mom been at Heather Ridge?
{¶57} “A. She went to Heather Ridge in the middle of 2005.
{¶58} “Q. Okay. And while she was in Heather Ridge did you visit with her
regularly?
{¶59} “A. Yes, I was usually at Heather Ridge once a week to visit her. Stark County App. Case Nos. 2010CA00159 & 2010CA00183 15
{¶60} “Q. Okay. Did you enjoy the visits that you had with her?
{¶61} “A. Yes.
{¶62} “Q. Could you tell whether she was enjoying the visits with you?
{¶63} “A. Yes, she was.
{¶64} “Q. Other than visiting your mom had you kept in contact with her by
telephone or other means while she was staying at Heather Ridge?
{¶65} “A. Yes. I would call to see how she was doing.” Transcript at 6-7.
{¶66} Appellee also testified that her mother had fallen 10 to 12 times before
while at Heather Ridge, but had never been hospitalized before for her falls. She
testified that she missed her mother and that, if her mother were still alive, she would
have been visiting her regularly. Finally, appellee testified that she believed that the
funeral costs for her mother were close to $5,000.00.
{¶67} Based on the foregoing, we find that there was insufficient evidence
supporting the trial court’s award of $255,000.00 in damages. Stark County App. Case Nos. 2010CA00159 & 2010CA00183 16
{¶68} Appellant’s fourth assignment of error is, therefore, sustained.
{¶69} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed in part and reversed and remanded in part.
By: Edwards, J.
Gwin, P.J. and
Delaney, J. concur
______________________________
JUDGES
JAE/d0419 [Cite as Hicks v. Extended Family Concepts, 2011-Ohio-3227.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANDREA S. HICKS, EXECUTOR OF : THE ESTATE OF THELMA A. GREDICK : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : EXTENDED FAMILY CONCEPTS, : DBA HEATHER RIDGE COMMONS : : Defendant-Appellant : CASE NOS. 2010CA00159 & : 2010CA00183
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed in part and reversed
and remanded in part. Costs assessed 65% to appellants and 35% to appellee.
_________________________________