Bates & Springer, Inc. v. Stallworth

• Decision Date: 23 March 1978
• Citation: 10 O.O.3d 227,56 Ohio App.2d 223,382 N.E.2d 1179
• Court: Ohio Court of Appeals
• Parties: , 10 O.O.3d 227, 26 UCC Rep.Serv. 1181 BATES & SPRINGER, INC., Appellant, v. STALLWORTH, Appellee.

Page 223

56 Ohio App.2d 223

382 N.E.2d 1179, 10 O.O.3d 227, 26 UCC Rep.Serv. 1181

BATES & SPRINGER, INC., Appellant, v. STALLWORTH, Appellee.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 23, 1978.

Syllabus by the Court

1. The mere filing of a motion for relief from judgment under Civ.R. 60(B) does not automatically entitle the movant to a hearing on the motion or to vacation of the judgment. The movant has the burden of demonstrating that he is entitled to the relief requested in accordance with the requirements of GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113.

2. When a movant under Civ.R. 60(B) fails to submit sufficient evidentiary material to justify relief from judgment, a trial court may summarily deny the motion but it is within the sound discretion of the trial court whether to hold an evidentiary hearing on such motion.

3. If a trial court exercises its discretion and grants a hearing on a motion for relief from judgment under Civ.R. 60(B), any appeal taken from the court's order will not be decided upon the material submitted with the motion but upon whether the evidence introduced at the hearing demonstrates that the party has a meritorious defense or claim to present if relief is granted, that the party is entitled to relief under one of the grounds stated in Civ.R. 60(B) (1) through (5), and that the motion is timely filed.

4. An order vacating a judgment under Civ.R. 60(B) is a final appealable order, and an appeal therefrom must be taken within 30 days. Therefore, when a trial court vacates a judgment under Civ.R. 60(B) and the case is tried on the merits, an appeal taken from the ultimate decision on the merits in which the appellant assigns as error the trial court's vacation of the judgment is not timely filed unless the appeal is filed within 30 days of the trial court's order vacating the judgment.

5. R.C. 1303.36(A) provides that when the effectiveness of a signature to an instrument becomes an issue in a case the burden of establishing it is on the party claiming under the signature. The signature is presumed genuine and authorized, but this presumption is rebuttable and may be overcome by evidence to the contrary. If the party denying the signature introduces sufficient evidence to overcome the rebuttable presumption, then the case is decided upon all of the evidence introduced at trial with the party claiming under the signature having the burden of establishing the effectiveness of the signature by a preponderance of the evidence as in other civil cases. R.C. 1303.36(A) requires that in order to rebut the presumption of the authenticity of a signature on an instrument the party denying the signature must introduce evidence to support his denial which if believed would be sufficient to permit, yet not require, the trier of fact to make a finding in his favor.

Stanley E. Stein, Cleveland, for appellant.

Conrad J. Morgenstern, Cleveland, for appellee.

KRENZLER, Presiding Judge.

On May 24, 1974, the plaintiff-appellant, Bates & Springer, Inc., hereinafter referred to as the appellant, took a cognovit judgment against the defendant-appellee, McKinley Stallworth, hereinafter referred to as the appellee, in the Cleveland Municipal Court. The appellant's cognovit judgment was based upon a promissory note containing a confession of judgment purportedly signed by the appellee which was incorporated within a lease agreement between the parties dated June 1, 1973. ¹

On January 8, 1976, the appellee filed a motion for relief from judgment under Civ.R. 60(B). The motion requested an oral hearing and alleged that:

" * * * this Defendant was not given Notice of the filing of the Complaint nor of any hearing upon the Complaint, and that he was not given an opportunity to be heard at the time of the alleged final hearing and presentation of the evidence; that Defendant has a good, valid and complete defense to the Plaintiff's allegation that a Lease existed upon which its claim is founded, when in fact, no written Lease was ever executed by this Defendant."

The appellant submitted a brief but no affidavits or other evidentiary material with his motion.

The appellant filed nothing in opposition to the motion. Acting on the appellee's motion, the court granted the request for a hearing. After the hearing, the trial court by entry dated March 1, 1976, vacated the judgment. The appellant did not take an appeal from the trial court's order vacating the judgment.

The appellee promptly filed an answer to the appellant's original complaint denying that he was indebted to the appellant in any amount; that a written lease was executed between the parties; and that the lease instrument was complete and regular on its face when executed.

The case went to trial, and on May 27, 1976, the court entered judgment for the appellee. At the appellant's request the court made findings of fact and conclusions of law which are summarized for convenience as follows:

On or about June 1, 1973, the appellee rented an apartment in a building managed by the appellant. At the request of the building custodian employed by the appellant, the appellee signed a blank receipt form printed at the bottom of a document captioned, "Rental Application, Lease and Receipt." This document was admitted in evidence at trial as Plaintiff's Exhibit No. 1. ²

Based upon the appellee's testimony, the court found that the appellee signed the receipt form but did not sign the lease agreement which contained the promissory note and that when he signed the receipt the document was not completed.

The appellant presented no evidence to refute the appellee's testimony.

The appellee occupied the apartment starting on June 15, 1973, paid each month's rent thereafter as agreed upon, and vacated the apartment on December 31, 1973, leaving the premises in good condition.

In its conclusions of law the court stated that the appellee was the only witness to the purported lease execution present at trial and that his testimony was uncontroverted. The court concluded that the appellee was a month-to-month tenant and that judgment should be in his favor.

The appellant filed a notice of appeal from the judgment of the Cleveland Municipal Court on June 18, 1976, and indicated upon its praecipe for the record on appeal that the appellant relies upon the original papers and exhibits filed in the trial court, the certified copy of the docket and journal entries prepared and filed below, and the findings of fact and conclusions of law entered by the trial judge. Consequently, with respect to both the hearing on the motion for relief from judgment and the trial on the merits, we have neither a verbatim transcript of proceedings nor a narrative statement of the evidence prepared pursuant to App.R. 9(B) or 9(C), respectively.

Three assignments of error are set forth for our determination:

1. The trial court erred in granting appellee's motion for relief from judgment filed beyond the reasonable time period prescribed in Civil Rule 60(B).

2. The trial court erred in invalidating the leasehold agreement based on matters not affirmatively pled, matters not properly proved, and a nonexistent duty of lessor to deliver a copy of the written lease.

3. All other errors apparent on the record.

For his first assignment of error the appellant contends that the trial court erred in granting the appellee relief from judgment because the motion was not filed "within a reasonable time" as required by Civ.R. 60(B).

Before addressing the dispositive issue with respect to this assignment of error, some background comments about the procedures for obtaining relief under Civ.R. 60(B) are warranted.

In GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, the Ohio Supreme Court established the following guidelines for obtaining relief from judgment:

"To prevail on his motion 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."

The GTE decision stressed that these three requirements are "independent and in the conjunctive, not the disjunctive." Id. at 151, 351 N.E.2d at 116. Thus, a three part test is developed for use by a reviewing court when the granting or denial of relief from judgment is challenged on appeal.

Prior to GTE, this court addressed the procedural aspects for obtaining a hearing upon a motion under Civ.R. 60(B) as well as ultimate relief from judgment in Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 316 N.E.2d 469. The procedural requirements were summarized as follows:

"A person filing a motion for relief from judgment under Civil Rule 60(B) is not automatically entitled to such relief nor to a hearing on the motion. The movant has the burden of proving that he is entitled to the relief requested or to a hearing on the motion. Therefore, he must submit factual material which on its face demonstrates the timeliness of the motion, reasons why the motion should be granted and that he has a defense." Id. at 103, 316 N.E.2d at 475.

In the present appeal the appellant in effect contends that if an applicant for relief from judgment under Civ.R. 60(B) does not demonstrate in his motion and accompanying materials the operative facts which entitle him to relief, then as a matter of law no hearing on the motion should be held and the motion must be denied.

There is no question that a court can rule upon a motion under Civ.R. 60(B) without a hearing. Where the movant submits with his motion sufficient evidence on all three issues as required by GTE, the trial court may grant...