Brenner v. Shore

• Decision Date: 23 January 1973
• Parties: , 63 O.O.2d 373 BRENNER, Appellee, v. SHORE, d. b. a. C. O. A. T. Paving, Inc., et al., Appellants.
• Court: Ohio Court of Appeals

Page 209

34 Ohio App.2d 209

297 N.E.2d 550, 63 O.O.2d 373

BRENNER, Appellee, v. SHORE, d. b. a. C. O. A. T. Paving, Inc., et al., Appellants.

Court of Appeals of Ohio, Tenth District, Franklin County.

Jan. 23, 1973.

Syllabus by the Court

The proponents of a motion, filed pursuant to and in compliance with Civ.R. 60(B), to vacate a default judgment on the grounds of excusable neglect, must be afforded a hearing to determine the validity of the claim, if such motion is accompanied by facts indicating a valid defense.

Maugan, Vacca & Braun, Columbus, for appellee.

Harris, Lias & Strip Co., L. P. A., and John Wm. Hoppers, Columbus, for appellants.

HOLMES, Judge.

This matter involves an appeal of a judgment of the Court of Common Pleas of Franklin County denying the defendant-appellant's motion to vacate a prior judgment entered on April 20, 1972, in favor of plaintiff, the appellee, and against appellant.

The facts in brief which gave rise to such motion for relief from judgment, and thence to this appeal, are as follows:

The plaintiff, Mr. A. E. Brenner, filed a complaint against the defendant-appellant on February 22, 1972, in the common pleas court, alleging that the plaintiff and the defendant had entered into a written contract for surfacing, grading, and paving certain of the plaintiff's land.

The complaint further alleges that the defendant failed to complete such work as contracted, and that it would be necessary that the plaintiff complete such work, and that the plaintiff would be damaged thereby in the amounts as set forth in such complaint.

Also, the plaintiff alleged in the complaint that the defendant had left certain equipment on the lands of the plaintiff, and that the plaintiff would be entitled to ground rental therefor.

Personal service was had upon the defendant on February 25, 1972. No answer was thereafter filed by the defendant within the prescribed time as established by the civil rules.

A motion for a default judgment was filed by the plaintiff on April 4, 1972, and a hearing was set for April 20, 1972.

By entry dated April 20th, it appears that such a default judgment hearing was conducted by the trial court, and that the court, upon the evidence adduced, entered a judgment for the plaintiff and against the defendant in the amount of $20,190.09.

On July 11, 1972, the defendant filed a motion to vacate the judgment. Such motion was accompanied by a memorandum in support, which memorandum stated that the motion was filed pursuant to Civil R. 60(B) which in effect provides relief from judgment for the reasons of '(1) mistake, inadvertence, surprise or excusable neglect * * *.'

The defendant then set forth in his memorandum that he had failed to answer the complaint as filed against him because he was undergoing a period of 'servere emotional strain as a result of business reverses, and that the said strain culminated in his being hospitalized in June of 1972 for what was diagnosed as 'complete physical and mental collapse."

'On the date of the filing of such motion for relief from judgment, the defendant filed a tendered answer to the complaint, alleging the following affirmative defenses:

'2. Plaintiff was in breach of the written agreement by failure to make payments agreed under the terms of the contract.

'3. Plaintiff attempted to fraudulently obtain credits against amounts owed on the contract by misrepresentation to the Defendant that claims were made by third parties as a result of Defendant's actions.

'4. Plaintiff made completion of the contract impossible by his actions.'

The defendant also filed a sworn affidavit which, in effect, set forth that the defendant, during the period within which he was to answer, was experiencing severe mental and emotional strain and pressure, that he had been hospitalized for such condition in the spring of the year, and that he was recuperating therefrom.

Further, such affidavit stated that the defendant 'can make good faith denials to the claims of the plaintiff if allowed to present his defenses.'

On August 11, 1972, the trial court entered the following judgment entry:

'After careful consideration of the Memoranda, Affidavit and Exhibits filed herein, the Court finds defendants' Motion to Vacate Judgment not well taken and overrules the same.'

The defendant argues that the trial court erred in refusing to grant his motion to vacate the default judgment as previously entered and that the denial of such motion, in light of the defendant's affidavit claiming valid defenses, was an abuse of discretion.

As set forth previously, the applicable Civil Rule pertinent to this matter is Civ.R. 60(B), which, in pertinent part, is as follows:

'Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc. 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 * * *. 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. * * *

'The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules.'

Civ.R. 7(B) relating to motions, states in pertinent part: '* * * A motion, whether written or oral, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. * * *'

There is no question that the instant motion for relief from judgment was filed within one year from such judgment.

The question then to be answered is whether the trial court followed the correct procedure as provided by case law as well as the rules in considering such motion.

We believe that a review of a number of cases, particularly two as decided by this court, one before the enactment of the Civil Rules and one after, indicates the answer to such question.

In the case of Canal Winchester Bank v. Exline (1938), 61 Ohio App. 253, 22 N.E.2d 528, we find that this court, then the second district court of appeals, set forth the procedure to suspend a judgment, during the term in which it was taken, in the following language, to be found at page 258 of the opinion, 22 N.E.2d at page 531:

'If any of the grounds set forth in Section 11631, General Code, are assigned as a reason for the action sought, then it is necessary, first, that the court find that the ground set forth in the motion is well made and further that the provision of Section 11637, General Code, has been met.

With the motion an answer should be tendered for filing. Section 11637, General Code, says that a judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment was rendered; that this adjudication is requisite to the suspension of a judgment has been held many times in Ohio. Follett v. Alexander, 58 Ohio St. 202, 50 N.E. 720; Lee v. Benedict, 82 Ohio St. 302, 92 N.E. 492; Watson v. Paine, 25 Ohio St. 340. * * *'

Further, the court in the Canal Winchester case spelled out what was needed to be submitted to the trial court in such a procedure, as follows, at page 259 of the opinion, 22 N.E.2d at page 531:

'Obviously the prerequisites to an adjudication of a valid defense require more than a general denial of the averments of the petition which would be sufficient to state a defense before judgment. It is essential that the judge, who is called upon to suspend the judgment, must have enough factual information before him to require determination that the defendant has a valid defense. If the party moving to suspend the judgment can within the rules of pleading set out in his answer sufficient facts to apprise the court that he has a defense, this should be done and the adjudication can be made upon the averments of the answer. If, to set foth enough facts to disclose his defense, he would offend the rules of pleadings by setting them out in his answer, then they should...