Ayetenew Best Buy, Inc. v. Warsaw Supermarket, Inc.

• Decision Date: 22 June 1995
• Docket Number: 95-LW-2282,67877 & 67878
• Parties: AYETENEW BEST BUY, INC., Plaintiff-Appellant v. WARSAW SUPERMARKET, INC., Defendant-Appellant [v. JULIUS AND JOHANNA FEITL, Claimants-Appellees]
• Court: Ohio Court of Appeals

AYETENEW BEST BUY, INC., Plaintiff-Appellant v. WARSAW SUPERMARKET, INC., Defendant-Appellant

NOS. 67877 & 67878.

95-LW-2282 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

June 22, 1995

Civil appeal from Parma Municipal Court Case No. 94-CVJ-1599.

For plaintiff-appellant, Ayetenew Best Buy, Inc.: James M Harding, 653 Broadway Avenue, Suite 204, Bedford, Ohio 44146.

For defendant-appellant, Warsaw Supermarket, Inc.: Teddy Sliwinski, 3717 East 65th Street, Cleveland, Ohio 44105.

For claimants-appellees, Julius and Johanna Feitl: Michael J Manuszak, 20600 Chagrin Boulevard, Suite 700, Shaker Heights Ohio 44122.

OPINION

NAHRA J.

These consolidated appeals result from an action for satisfaction of a judgment. In App. No. 67877, defendant-appellant Warsaw Supermarket, Inc. ("Warsaw") appeals from the trial court orders which first granted a default judgment to third-party claimants-appellees Julius and Johanna Feitl ("Feitl") and then denied Warsaw's subsequent motion to vacate judgment. In App. No. 67878, plaintiff-appellant Ayetenew Best Buy, Inc. ("Best Buy") appeals from those same orders. The facts as gleaned from the App.R. 9(A) record on appeal follow.

On May 23, 1994, Best Buy obtained a $16,762.05 judgment against Warsaw in the Cuyahoga County Court of Common Pleas. Thereafter, on June 7, 1994, Best Buy filed its certificate of the judgment in the Parma Municipal Court.

The following day, June 8, 1994, Best Buy filed a "precipe,"(fn1) instructing the clerk of the municipal court to "levy on all equipment and merchandise." The accompanying instructions to the bailiff were more detailed, requesting the bailiff to "levy on all equipment and merchandise (according to (1) attached purchase agreement * * * and (2) Exhibit "A"-Merchandise list, (3) Exhibit "B"-Equipment List; in order to satisfy judgment * * *."(fn2)

Attached to the accompanying writ of execution was "Exhibit 'B':" an "equipment list" of thirty-seven items, and an "inventory evaluation report" dated November 23, 1993 totaling "59,951.34."

The record reflects that on June 13, 1994, the bailiff went to 6163 State Road, Parma, where Warsaw's store was located and served notice of the writ of execution and its accompanying documents by presenting a certificate of levy. The certificate stated the bailiff "appointed Julius Feitl as my custodian."

On June 17, 1994, Feitl filed in the trial court both a motion to intervene in the action(fn3) and a motion for a stay of the proceedings in execution accompanied by an affidavit.

In his affidavit, Feitl averred in pertinent part that 1) he was the owner of the property located at 6163 State Road, Parma; 2) at the time of his purchase of it in 1987, certain property was affixed to the premises as fixtures; 3) Best Buy had levied upon some of the fixtures; and 4) he had "priority interest over such property as fixtures * * * ."

On June 23, 1994, the trial court ordered a stay in the proceedings in execution on the property until "further Order of this Court."

On June 30, 1994, the trial court journalized an entry stating Feitl's motion to stay was granted and setting the matter for "Jury Trial on July 15, 1994, at 9:00 a.m. pursuant to R.C. 2329.84 et seq."(fn4) The record further reflects notice of the trial was sent to Best Buy and Warsaw.

On July 28, 1994, the trial court issued an order stating as follows:

This matter came on for jury trial before The Honorable Timothy P. Gilligan on the 15th of July, 1994, pursuant to Sec. 2329.84 et seq. of the Ohio Revised Code, upon the claim of Third Party Claimants, JULIUS FEITL and JOHANNA FEITL, the parties being duly notified thereof, and it appearing to the Court that such Third Party Claimant was present at 9:00 a.m., the time specified, with counsel and with evidence in support of such claim, and it further appearing the Plaintiff, AYETENEW BEST BUY, INC., was not so present at that time despite adequate notice, and it further appearing that individuals appeared on behalf of such plaintiff in court well after the specified time without counsel and not prepared to go forward, and it further appearing that individuals on behalf of Defendant, WARSAW SUPERMARKET, INC., appeared in court without counsel and not prepared to go forward, it is hereby ORDERED, ADJUDGED, and DECREED, that judgment is granted to the Third Party Claimants by default.

It is further ORDERED, ADJUDGED, and DECREED, that all non-consumer items located in the building located at 6163 State Road, Parma, Ohio, are owned by and belong to Third Party Claimants,, JULIUS FEITL and JOHANNA FEITL, as owners of such building.

It is further ORDERED, ADJUDGED, and DECREED, that all proceedings in execution instituted by Plaintiff, AYETENEW BEST BUY, INC., with respect to such non-consumer items are permanently stayed.

* * *

(Emphasis added.)

On August 18, 1994, Warsaw filed in the trial court a Civ.R. 60(B) motion "to vacate judgment." The motion was accompanied only by a brief in support in which Warsaw argued proper parties to the action were not joined and the trial court lacked "adequate knowledge" to render a decision. Warsaw also requested the trial court to transfer the case to the Court of Common Pleas to be consolidated with an "eviction action" filed by Feitl.

On August 19, 1994, Feitl filed a brief in opposition to Warsaw's motion, essentially arguing it was unsupported by sufficient evidentiary materials.

On August 22, 1994, Best Buy also filed a "motion to vacate judgment" pursuant to Civ.R. 60(B)(1). Attached to the motion was the affidavit of Best Buy's president and several documents.

In its brief in support of the motion, Best Buy argued it was entitled to relief because it "did not fully understand the nature of the legal proceeding" and because it should be allowed to establish if Feitl "waived" any claim to the equipment on the premises.

While the Civ.R. 60(B) motions were pending in the trial court, on August 26, 1994, both Warsaw and Best Buy filed notices of appeal in this court, which were respectively designated App. Nos. 67877 and 67878.

Subsequently, on September 1, 1994, in a single journal entry, the trial court overruled Warsaw's motion "to vacate judgment and to consolidate" and overruled Best Buys motion "to vacate judgment."

I.

In App. No. 67877, Warsaw presents five assignments of error for this court's review. The first three are related; therefore, they are addressed together as follows:

I. THE COURT ERRED IN GRANTING A DEFAULT JUDGMENT WHERE THE PARTIES HAVE APPEARED FOR TRIAL AND NO NOTICE OF A DEFAULT WAS GIVEN.

II. THE COURT ERRED IN GRANTING A DEFAULT JUDGMENT IN CONTRAVENTION TO THE MANDATES OF O.R.C. 2329.84 ET SEQ.

III. THE COURT ERRED IN GRANTING A DEFAULT JUDGMENT WITHOUT ANY EVIDENCE OF OWNERSHIP, VALUE OR PROOF OF DAMAGES.

In these assignments of error, appellant challenges the trial court's action in granting judgment to Feitl on his third party claim.(fn5)

Appellant first asserts the trial court failed to comply with the requirements of Civ.R. 55. It contends it "appeared" in the action but received no "notice" a default hearing would be held.

Civ.R. 55 states in pertinent part:

RULE 55 Default

(A) Entry of judgment. 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 therefor; * * * . If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right of trial by jury to the parties.

(B) Setting aside default judgment. If a judgment by default has been entered, the court may set it aside in accordance with Rule 60(B).

(C) Plaintiffs, counterclaimants, cross-claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff or a party who has pleaded a cross-claim or counterclaim. * * *.

* * *

(Emphasis added.)

A review of the record in this case persuades this court that the requirements of Civ.R. 55 were adequately met. Perez v. Bush (1993), 63 Ohio Misc.2d 423; cf., Reese v. Proppe (1981), 3 Ohio App.3d 103.

First, it is clear that after Feitl filed his claim for affirmative relief, the trial court set this case for trial and duly notified the parties fifteen days prior to the date set. In the interval, Warsaw filed no motions; moreover, the record does not reflect it contacted either Feitl or his attorney. Cf., Standard Oil Co. v. Noble (1982), 4 Ohio App.3d 76; Miamisburg Motel v. Huntington Natl. Bank (1993), 88 Ohio App.3d 117.

Furthermore, Warsaw, as a corporate entity, never actually "appeared" in this case for purposes of Civ.R. 55(A). Union Savings Assn. v. Home Owners Aid (1970), 23 Ohio St.2d 60; Perez v. Bush, supra; cf., Columbus Show Case Co. v. CEE Contracting, Inc. (1992), 75 Ohio App.3d 559. See, also, AMCA Internatl. Corp. v. Carlton (1984), 10 Ohio St.3d 88; Gagliardi v. Flowers (1984), 13 Ohio App.3d 238; Breeding v. Herberger (1992), 81 Ohio App.3d 419.

R.C 2329.84 provides the remedy for determining ownership of goods that have been levied...