Ati Performance Prods., Inc. v. Stevens , 2013 Ohio 1313 ( 2013 )

[Cite as Ati Performance Prods., Inc. v. Stevens, 2013-Ohio-1313.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
ATI PERFORMANCE PRODUCTS, INC.,
:
Plaintiff-Appellee, Case No. 12CA6
vs. :
DEAN STEVENS, AKA GERALD D. : DECISION AND JUDGMENT ENTRY
STEVENS,
:
Defendant-Appellant.
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Ryan Shepler, Kernen & Shepler, L.L.C., 158 East Main
Street, P.O. Box 388, Logan, Ohio 43138-0388
COUNSEL FOR APPELLEE: L. Jackson Henniger, 150 North Market Street, Logan,
Ohio 43138
________________________________________________________________
CIVIL CASE FROM HOCKING COUNTY COMMON PLEAS COURT
DATE JOURNALIZED: 3-26-13
ABELE, J.
{¶ 1} This is an appeal from a Hocking County Common Pleas Court judgment that
denied a Civ.R. 60(B) motion for relief from judgment filed by Dean Stevens (aka Gerald D.
Stevens), defendant below and appellant herein. Appellant assigns the following error for
review:
“THE TRIAL COURT ERRED IN OVERRULING MR.
STEVENS’ MOTION TO SET ASIDE THE DEFAULT
JUDGMENT ENTERED IN FAVOR OF THE PLAINTIFF.”
{¶ 2} ATI Performance Products, Inc. (ATI), plaintiff below and appellee herein,
HOCKING, 12CA6 2
commenced the instant action by filing a complaint that alleged that appellant owed it $16,106.14
on an account. Attached as an exhibit to ATI's complaint is a copy of an invoice, showing the
amount allegedly due and owing. While the record indicates that appellant was served with the
complaint on February 1, 2011, he did not enter an appearance. On May 5, 2011, the trial court
awarded a default judgment against him. On June 8, 2011, the trial court issued a nunc pro tunc
entry that repeated the sum of the default judgment and awarded the appellee “statutory interest.”
{¶ 3} On December 12, 2011, the trial court issued an “Order for Examination of
Judgment Debtor.” Apparently, this event prompted appellant to enter an appearance in the
action. On March 22, 2012, appellant filed a Civ.R. 60(B)(1) motion for relief from judgment
and claimed that he was not aware of the action. Appellant’s affidavit, attached as an exhibit to
that motion, attests that he was not served with the summons and complaint and did not sign a
certified mail receipt returned to the clerk of courts.
{¶ 4} At the April 16, 2012 motion hearing, appellant denied that he signed for service
of the complaint. The trial court, however, overruled the Civ.R. 60(B) motion and opined that
“considerable doubt” exists concerning appellant’s testimony. The court ultimately found that
appellant was “incredible” (or, presumably, not credible) and denied the request for relief from
the default judgment. This appeal followed.
{¶ 5} In his sole assignment of error, appellant asserts that the trial court erred by
denying his motion for relief from default judgment. We disagree with appellant.
{¶ 6} A Civ.R. 60(B) motion for relief from judgment is generally committed to the trial
court's sound discretion and should not be disturbed absent an abuse of that discretion. State ex
rel. Russo v. Deters, 80 Ohio St.3d 152, 153, 684 N.E.2d 1237 (1997); Griffey v. Rajan, 33 Ohio
HOCKING, 12CA6 3
St.3d 75, 77, 514 N.E.2d 1122 (1987). An abuse of discretion connotes more than an error of
law or judgment; rather, it implies that a trial court's attitude is unreasonable, arbitrary or
unconscionable. Landis v. Grange Mut. Ins. Co., 82 Ohio St.3d 339, 342, 695 N.E.2d 1140(1998); Malone v. Courtyard by Marriott L.P., 74 Ohio St.3d 440, 448, 659 N.E.2d 1242 (1996).
In applying the abuse of discretion standard, appellate courts must not substitute their judgment
for that of a trial court. State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728,
732, 654 N.E.2d 1254 (1995); In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181(1991). Indeed, to establish an abuse of discretion, the result must be so palpably and grossly
violative of fact or logic that it evidences not the exercise of will, but the perversity of will; not
the exercise of judgment, but the defiance of judgment; and not the exercise of reason, but,
instead, passion or bias. Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1(1996); Adams v. Adams, 4th Dist. No. 05CA63, 2006-Ohio-2897, at ¶6. With these principles
in mind, we turn our attention to the merits of appellant’s assignment of error.
{¶ 7} Appellant argues that he did not receive service of process on the complaint. To
that end, the trial court expressly found that the evidence in the case “cast considerable doubt on
[his] testimony” and that appellant’s testimony was “incredible.” When a trial court judge
serves as the trier of fact on a Civ.R. 60(B) motion, appellate courts apply those standards that
are typically applied in any other challenge to factual findings in a civil case. See e.g., Thomas v.
Thomas, 7th Dist. No. 07MA140, 2008-Ohio-6209, at ¶22; Miller v. Miller, 11th Dist. Nos.
2003-P-0008 & 2003-P- 0066, 2003-Ohio-6687, at ¶21. In other words, the appellate court
must determine if some competent and credible evidence supports the judgment.
Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, 874 N.E.2d 1198, at ¶3;
HOCKING, 12CA6 4
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, at ¶21; C.E. Morris Co.
v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578, at the syllabus (1978). This particular
standard of review is highly deferential, and even “some” evidence is sufficient to support a trial
court's judgment and prevent a reversal of the judgment. See Barkley v. Barkley, 119 Ohio
App.3d 155, 159, 694 N.E.2d 989 (4th Dist. 1997); Dyrdek v. Dyrdek, 4th Dist. No. 09CA29,
2010-Ohio-2329, at ¶16. The rationale behind this principle is that the trial court, sitting as the
trier of fact, is in the best position to view the witnesses and to observe their demeanor, gestures,
and voice inflections, and to use those observations to weigh the evidence and assess witness
credibility. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984);
Jones v. Jones, 4th Dist. No. 07CA25, 2008-Ohio-2476, at ¶18.
{¶ 8} In the case sub judice, the trial court expressly found that appellant’s testimony
was not credible. We will not second-guess that determination, as we were not present at the
hearing to hear and to observe appellant's testimony. In short, we find no error in the trial
court’s decision to reject appellant's contention that he is not the person who signed the certified
mail receipt of service of process. Thus, we find that the trial court did not err by denying the
Civ.R. 60(B) motion for relief from judgment.
{¶ 9} Accordingly, based upon the foregoing reasons, we hereby overrule appellant's
assignment of error and affirm the trial court's judgment.
JUDGMENT AFFIRMED.
[Cite as Ati Performance Prods., Inc. v. Stevens, 2013-Ohio-1313.]
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee recover of appellant costs herein
taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.