Maxim Financial, Inc. v. Daniel Dzina, 93-LW-5391
| Decision Date | 02 December 1993 |
| Docket Number | 93-LW-5391,65206 |
| Parties | MAXIM FINANCIAL, INC., Plaintiff-Appellee v. DANIEL DZINA, ET AL., Defendant-Appellants |
| Court | Ohio Court of Appeals |
Civil Appeal from Common Pleas Court Case No. 228378.
FOR PLAINTIFF-APPELLEE: Marc A. Melamed, Esq., Michael D. Linn Javitch, Block, Eisen & Rathbone, 601 Rockwell Building Cleveland, Ohio 44114-1601.
FOR DEFENDANT-APPELLANTS: Deborah J. Nicastro, Esq., 55 Public Square, Suite 1331, Cleveland, Ohio 44113-1901.
This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25.
Defendants-appellants, Daniel Dzina and Cleveland Industrial Square, Inc. ("CIS") appeal from the trial court's ruling in which it granted a motion to vacate a judgment of dismissal in favor of defendants against the plaintiff-appellee, Maxim Financial, Inc. Defendants claim the trial court abused its discretion in that plaintiff failed to show it had a meritorious claim; was not entitled to Civ. R. 60(B) relief; and did not move in a timely fashion. We find the trial court did not abuse its discretion in granting the relief from judgment for the reasons hereinafter stated.
On March 10, 1992, Maxim filed suit in Common Pleas Court for $69,111.22 on a written guarantee agreement signed by defendant Dzina. A copy of the guarantee was attached to the complaint. The caption of the original complaint identified defendants as follows:
DANIEL DZINA
CLEVELAND INDUSTRIAL SQUARE. INC.
On March 16, 1992, defendants moved for a more definite statement in order to determine whether CIS wad a named defendant or was merely part of the address. The court granted this motion on March 27. During this period defendants served two deposition notices which were ignored by Maxim.
On April 27, defendants filed a motion to dismiss pursuant to Civ. R. 12(E) and Civ. R. 37(D); On May 8, 1992, Naxim filed a Motion to Amend, Complaint, an Amended Complaint describing the defendants as both Dzina and CIS and a "Motion to Amend Response to Defendant's Motion to Dismiss." This latter document pointed out the deposition scheduling difficulties and that the Amended Complaint satisfied the more definite statement order.
On June 3, 1992, the lower court granted defendants' motion to dismiss, which was journalized on June 4, 1992. Inexplicably, on June 3, the trial court also signed journal entries granting the motions to file the Amended Complaint and the amended response to the motion to dismiss. These were journalized on June 8 and 4, respectively. To further add to the confusion, on June 4, the court entered another order following a pretrial which stated that "Discovery cut-off 10-15-90; post discovery pt set for 10-15-92 at 1:45 [final] pt 11-19-92 at 3:15; Trial set for 12-2-92 at 9:30."
On January 4, 1993, plaintiff Maxim moved pursuant to Civ. R 60(B)(5) to set aside the June 4, 1992 order dismissing the original complaint on the grounds that the court's June 8, 1992 order granting plaintiff leave to file the Amended Complaint solved the pleading ambiguities to which the more definite motion was addressed.
On February 22, 1993, over deferidants' opposition, the trial court granted the motion for relief from judgment without opinion or explanation. The appeal therefrom was timely filed.
Defendant's single assignment of error is set forth as follows:
THE LOWER COURT ABUSED ITS DISCRETION BY GRANTING MAXIM'S MOTION FOR RELIEF WHERE MAXIM FAILED TO SHOW THAT IT HAD A MERITORIOUS CLAIM AGAINST APPELLANT IF RELIEF WAS GRANTED; THAT AN EXTRAORDINARY SITUATION EXISTED WHICH ENTITLED IT TO RELIEF UNDER RULE 60(B)(5); AND THAT THE MOTION WAS FILED WITHIN A REASONABLE PERIOD OF TIME AFTER THE DISMISSAL OF THE COMPLAINT.
Defendant's burden on appeal is to demonstrate that the trial court abused its discretion in granting the motion for relief. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77; Middletown v. Campbell (1984), 21 Ohio App.3d 63, 64. An appellate court does not substitute its judgment for that of the trial court in applying the "abuse of discretion" standard; its review is limited to determining whether the trial court committed an error of law or judgment in which the trial court's attitude is unreasonable, arbitrary or unconscionable. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137-38; Berk v. Matthews (1990), 53 Ohio St.3d 161, 169. If it appears the trial court's judgment is supported by some competent, credible evidence as to each of the essential elements of the case, the trial court's decision should be affirmed. In re Wellesley Corp. (1985), 18 Ohio St.3d 176, 179; C.E. Morris Co. v. Foley Const. Co. (1978), 54 Ohio St.2d 279; In Re Annexation of Riveredge Twp. to Fairview Park (1988), 46 Ohio App.3d 29, 35.
The law does not favor dismissals by default any more than it favors default judgments. DeHart v. Aetna Life Ins. Co. (1982), 69 Ohio St.2d 189, 193. Therefore, it is a basic tenet of Ohio jurisprudence that cases should be decided whenever possible on their merits after giving all parties their day in court. Hopkins v. Quality Chevrolet, Inc. (1992), 79 Ohio App.3d 578, 583 citing Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 3; Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 175. This was recognized by this Court soon after the advent of the new Ohio Rules of Civil Procedure in 1970 and consideration of Civ. R. 60 which was patterned after its federal counterpart. In Antonopoulos v. Eisner (1972), 30 Ohio App.2d 187, 199, Judge Silbert exhaustively analyzed the new Ohio rule and its federal and state antecedents, and concluded:
The courts have repeatedly adhered to those basic principles since that time. It should be noted that the claim dismissed below was substantial ($69,111.22) and defendants have advanced no reasons here or below as to how they were prejudiced by plaintiff's delayin seeking relief from the default.
Our point of departure is Civ. R. 60(B) itself, which states in pertinent part as follows:
(B) 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; * * * or (5) any other reason justifying relief form the judgment. 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.
Defendants argue that Maxim has failed to demonstrate on the record that it has a meritorious claim if the dismissal is vacated. We disagree. The Amended Complaint herein has attached to it a guarantee agreement signed personally by the defendant Dzina and contains allegations that CIS' partial payment evidenced its part in the obligation. Dzina has not denied obligation under the guarantee. It would be surprising if a signed agreement guaranteeing performance of a debt payment were not prima facie evidence of a meritorious claim. "The movant's burden is to allege a meritorious defense, not to prevail with respect to the truth of the meritorious defense." Colley v. Bazell (1980), 64 Ohio St.2d 243, 247, fn 3; GMAC v. Desksins (1984), 16 Ohio App. 3d 132, 134. Plaintiff made the necessary meritorious showing for 60(B) purposes.
Defendants next argue that plaintiff failed to show a valid claim for relief under Civ. R. 60(B)(5): "any other reason justifying relief from the judgment." "Civ. R. 60(B)(5) is intended as a catch-all provision reflecting the inherent power of a trial court to relieve a person from the unjust operation of a judgment but it is not to be used as a substitute for any of the more specific provisions of Civ. R. 60(B)." Caruso-Ciresi Inc. v. Lohman (1983), 5 Ohio St.3d 64 paragraph one of syllabus. We find 60(B)(5) ideally suited to the relief from judgment granted below given the peculiar circumstances of this case.
There is considerable doubt that the judgment of dismissal was properly entered. In the first place, although the dismissal entry was journalized, no signature of the trial judge appears on the entry Secondly, on March 16, 1992, defendant moved to make the original complaint definite and certain. The trial court granted that request on April 3, 1992. Plaintiff did not respond to that motion and failed to attend depositions noticed by defendants....
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