Sycamore Messenger, Inc. v. Cattle Barons, Inc.

509 N.E.2d 977, 31 Ohio App. 3d 196, 31 Ohio B. 423, 1986 Ohio App. LEXIS 10147

• Court: Ohio Court of Appeals
• Decided: December 31, 1986
• Docket: C-860094
• Status: Published

Opinions

Per Curiam.

This cause came on to be heard upon the appeal from the Hamilton County Municipal Court. 1

Appellee purchased weekly advertising space in appellant’s newspaper. Ap-pellee was charged for the advertising on a weekly basis, appellant keeping a running account of the balance due. In March 1985, appellee’s balance exceeded $2,000. Appellee made a payment on July 10, 1985. On September 25,1985, appellant filed the within complaint for the balance due on the account. Certified mail service on appellee was returned “unclaimed.” Ordinary mail service was issued. Appellee failed to respond. On December 9, 1985, the trial court granted appellant a default judgment in the amount of $1,879.54 plus interest of $78.

Appellee filed a Civ. R. 60(B) motion to set aside the default judgment on December 20, 1985. In support of its motion, appellee submitted the affidavit of one of its officers, John Reherman. The affidavit stated that Reherman dealt with appellant’s representatives concerning the account. A dispute arose over the amount which appellee owed to appellant. Appellee had requested a written contract for the advertising services. No contract was ever executed. The affidavit also stated that the appel-lee had approved only a $70 per month advertising service. Further, the affidavit stated that when the certified mail summons and ordinary mail summons were effected, appellee’s bookkeeper failed to forward the papers to the appropriate person. Therefore, appellee argues, it did not have proper notice of the lawsuit. The bookkeeper was subsequently fired by appellee. Based upon the affidavit and arguments of counsel, on January 14, 1986, the trial court granted appellee’s motion to set aside the default judgment. Appellant timely appealed.

Appellant’s sole assignment of error alleges the trial court abused its discretion in granting appellee’s Civ. R. 60(B) motion for relief from the default judgment rendered against it. Following a complete review of the record, we find the trial court’s decision to grant relief from the default judgment in this case does not constitute an abuse of discretion. See Oberle v. Valihora Motor Transp., Inc. (June 5, 1985), Hamilton App. No. C-840549, unreported.

In Oberle, supra, defendant Vali-hora Motor Transportation, Inc. was served with a summons. Valihora did not respond to the complaint within the time allotted. Plaintiffs were granted a default judgment. Approximately four and one-half months later, Valihora moved the court to grant it relief from judgment. At the evidentiary hearing on its Civ. R. 60(B) motion, Valxhora produced evidence that its newly hired office manager had received a copy of the complaint, the summons, and the motion for a default judgment. The manager erroneously mailed the material to Vali-hora’s insurance carrier, expecting the insurance carrier to defend the action, as it had handled the case previously. The trial court granted Valihora’s Civ. R. 60(B) motion. This court affirmed the trial court’s judgment, holding the court below had not abused its discretion in granting the motion.

GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St. 2d 146, 1 O.O. 3d 86, 361 N.E. 2d 113, provides that in order for a defendant-movant to prevail on a Civ. R. 60(B) motion, he must demonstrate that: (1) he has a meritorious defense to present if relief is granted; (2) he is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) he has made his motion within a reasonable time, and except with respect to the grounds provided in Civ. R. 60(B)(4) and (5), the motion must be made within one year after judgment. In support of its Civ. R. 60(B) motion, appellee submitted the affidavit of John Reherman, an officer of appellee. The affidavit stated that when certified mail service and ordinary mail service were effected, appellee’s bookkeeper failed to forward the summons to the appropriate person. Therefore, appellee argues, it did not have proper notice of the lawsuit. The bookkeeper was subsequently fired by ap-pellee.

The trial court did not abuse its discretion in determining from the aforementioned evidence that two parts of the three-pronged GTE Automatic Electric test were met: (1) appellee was entitled to relief because of excusable neglect on its part in defending the suit, provided as a ground for relief in Civ. R. 60(B)(1), Colley v. Bazell (1980), 64 Ohio St. 2d 243, 18 O.O. 3d 442, 416 N.E. 2d 605; (2) likewise there is adequate evidence to support a determination that appellee’s Civ. R. 60(B) motion was made within a reasonable time.

With respect to the third requirement of the GTE Automatic Electric test, that appellee demonstrate it has a meritorious defense to present, appellee satisfied that requirement by producing evidence indicating that it approved only a $70 per month advertising service and that, therefore, it owes only a portion of the amount claimed by appellant.

Appellant’s sole assignment of error is overruled and the judgment of the trial court is affirmed.

Judgment affirmed.

Doan, P.J., and Keefe; J., concur. Black, J., dissents.

1 This court has sua sponte removed this case from its accelerated calendar and placed it on the court’s regular calendar.