GTE Automatic Elec., Inc. v. ARC Industries, Inc., 75-1011

Citation351 N.E.2d 113,1 O.O.3d 86,47 Ohio St.2d 146,1 O.O.2d 146
Decision Date21 July 1976
Docket NumberNo. 75-1011,75-1011
Parties, 1 O.O.3d 86 GTE AUTOMATIC ELECTRIC, INC., Appellee, v. ARC INDUSTRIES, INC., Appellant.
CourtUnited States State Supreme Court of Ohio

Page 146

47 Ohio St.2d 146
351 N.E.2d 113, 1 O.O.3d 86
No. 75-1011.
Supreme Court of Ohio.
July 21, 1976.

Syllabus by the Court

1. An order setting aside a default judgment pursuant to Civ.R. 55(B) is a final appealable order, as provided in R.C. 2505.02 (Price v. McCoy Sales & Service, 2 Ohio St.2d 131, 207 N.E.2d 236, followed.)

2. To prevail on a motion brought 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.

3. Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits.

[351 N.E.2d 114] 4. As a general rule, the neglect of a party's attorney will be imputed to the party for the purposes of Civ.R. 60(B)(1). (Link v. Wabash R. R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 N.Ed.2d 734, followed.)

On November 30, 1973, appellee, GTE Automatic Electric, Inc. ('GTE'), filed suit against appellant, ARC Industries,

Page 147

Inc. ('ARC'), based upon the failure of ARC to pay an account allegedly due GTE. ARC was duly served with the complaint, interrogatories and request for admissions on December 7, 1973. ARC failed to plead or otherwise defend, and, on January 10, 1974, GTE took a default judgment against ARC in the amount of $11,187.49.

GTE thereafter began proceedings in aid of execution. ARC was ordered to appear for a judgment debtor examination on February 15, 1974. There is no evidence in the record that ARC appeared as ordered. On May 6, 1974, an order was entered by the court attaching appellant's funds held by City National Bank and requiring the bank to apply the $7,501.90 it held to the judgment.

On May 14, 1974, ARC made a motion to vacate the default judgment. A hearing on the motion was held before a referee of the court on October 16, 1974.

At the hearing, it developed that ARC would, if relief were granted, introduce evidence tending to show that the goods underlying the account sued upon by GTE were purchased by Miller-Dobbs, Inc., not appellant, and that appellant had not assumed the liabilities of Miller-Dobbs, Inc. The president of ARC also testified with respect to his version of the above scenario. He testified that when he received the complaint and other papers, he turned them over to legal counsel. (That fact is denied by the attorney, who is not now associated with the case.) At that time counsel purportedly told him there was nothing to worry about, and he 'didn't.' It was not until well after the default judgment had been entered and shorty before GTE attached the bank account that the president again spoke to the attorney. The attorney then denied that he had been given the original papers. It was at this time that ARC terminated their relationship with the attorney.

The referee's report, relying upon Berea Bus Lines v. Seminatore (1969), 17 Ohio App.2d 31, 244 N.E.2d 527, and Antonopoulos v. Eisner (1972), 30 Ohio App.2d 187, 284 N.E.2d 194, found that the neglect of the attorney should not be imputed to ARC. The trial court adopted

Page 148

that report and vacated the default judgment.

The Court of Appeals rejected the rule adopted by the trial court and followed the federal rule that an attorney's conduct should be imputed to the client when the determination is made whether relief should be granted unde Civ.R. 60(B). The Court of Appeals reversed the judgment of the trial court and ordered the default judgment reinstated.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Zacks, Luper & Wolinetz and Frederick M. Luper, Columbus, for appellee.

Van Heyde, Zuper & Rothgeb and Robert L. Van Heyde, Columbus, for appellant.

C. WILLIAM O'NEILL, Chief Justice.

The question presented by this appeal is whether it was an abuse of discretion for the trial court to grant appellant's motion, under Civ.R. 60(B), to vacate the default judgment previously entered. Since this court finds that the trial court did abuse its discretion under the facts of this case, the judgment of the Court of Appeals must be affirmed.

Initially, however, the court must first determine that an order vacating a default [351 N.E.2d 115] judgment is a final order and, therefore, appealable. Section 3(B)(2), Article IV of the Ohio Constitution.

The general rule in the federal courts is that an order vacating a default judgment is not a final order. United States v. Agne (C.A.3, 1947), 161 F.2d 331; Stathatos v. Arnold Bernstein S. S. Corp. (C.A.2, 1953), 202 F.2d 525; 7 Moore's Federal Practice, Paragraph 60.30(3). See, also, Annotation, 8 A.L.R.3d 1272, for a summary of cases on the state level.

In the second paragraph of the syllabus in Chandler & Taylor Co. v. Southern Pacific Co. (1922), 104 Ohio St. 188, 135 N.E. 620, this court held:

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'An order vecating a default judgment upon motion of the defendant, filed at the same term, but more than three days after its rendition, is not a final determination of the rights of the parties and is not reviewable unless the court abuses its discretion in making it.'

Although Chandler has not been expressly overruled by this court, much has changed since it was decided. Insofar as Chandler may have implied that an otherwise interlocutory order can be made final and appealable by an abuse of discretion in the making of that order, that notion was laid to rest in Klein v. Bendix-Westing-house Co. (1968), 13 Ohio St.2d 85,...

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