Sunrise Cooperative, Inc. v. Durbin , 2021 Ohio 4416 ( 2021 )

[Cite as Sunrise Cooperative, Inc. v. Durbin, 2021-Ohio-4416.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SUNRISE COOPERATIVE, INC. JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellant Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 21 CA 000015
BRENNAN DURBIN
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 20BR07-0180
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: December 14, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
DAVID J. WIGHAM JACK L. MOSER
EMILY K. ANGLEWICZ JACK MOSER LAW MTV, CO. LPA
JEREMY D. MARTIN 120 East High Street
ROETZEL & ANDRESS, LPA Suite 100
222 South Main Street, Suite 400 Mt. Vernon, Ohio 43050
Akron, Ohio 44308
Knox County, Case No. 21 CA 000015 2
Wise, J.
{¶1} Appellant Sunrise Cooperative, Inc. (“Appellant”) appeals a judgment of the
Court of Common Pleas of Knox County, Ohio, which granted a Motion to Vacate in favor
of Appellee, Brennan Durbin (“Appellee”). The relevant facts leading to this appeal are as
follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On July 13, 2020, Appellant filed a complaint against Appellee for breach of
contract and other claims in the Knox County Court of Common Pleas. Appellant
attempted service on Appellee at 17745 Nashville Road, Danville, Ohio on that date via
certified mail.
{¶3} On August 17, 2020, Appellant’s service by certified mail was determined
to be unsuccessful.
{¶4} On August 20, 2020, Appellant requested that the summons be issued by
regular mail.
{¶5} On October 2, 2020, Appellant filed its Motion for Default Judgment.
{¶6} The trial court granted the Motion on November 12, 2020.
{¶7} On January 7, 2021, the clerk notified Appellant’s Attorney there was no
service of summons.
{¶8} On January 15, 2021, Appellant filed a Complaint in Foreclosure in Knox
County Court of Common Pleas.
{¶9} On February 10, 2021, the Knox County Sheriff served the Complaint in
Foreclosure on Appellee.
Knox County, Case No. 21 CA 000015 3
{¶10} On April 13, 2021, Appellee filed a Motion under Civ.R. 60(B) to vacate the
Default Judgment issued November 12, 2020, a Motion for Leave to Plead Out of Rule,
and a Proposed Answer and Counterclaim. In his Motion, Appellee asserted he had not
been properly served with the Complaint, he did not have actual or constructive notice of
the action, and that not until the service of the Complaint in Foreclosure did Appellee
know that Appellant had filed a Complaint against him.
{¶11} On April 16, 2021, the trial court granted Appellee’s Motion for Relief from
Judgment.
ASSIGNMENT OF ERROR
{¶12} Appellant timely filed a notice of appeal and herein raises the following
Assignment of Error:
{¶13} “I. THE TRIAL COURT ERRED BY GRANTING APPELLEE’S MOTION TO
VACATE THE DEFAULT JUDGMENT ENTERED AGAINST HIM.”
I.
{¶14} In Appellant’s sole Assignment of Error, Appellant argues the trial court
erred by granting Appellee’s Motion for Relief from Judgment without allowing Appellant
an opportunity to respond, and that Appellee failed to rebut the presumption of proper
service.
a. Standard of Review
{¶15} The decision of whether or not to vacate a judgment rests within the trial
court’s discretion and will not be reversed absent an abuse of discretion. Doddridge v.
Fitzpatrick, 53 Ohio St.2d 9, 12, 371 N.E.2d 214 (1978). In order to find an abuse of
discretion, we must determine the trial court’s decision was unreasonable, arbitrary, or
Knox County, Case No. 21 CA 000015 4
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217, 450 N.E.2d 1140 (1983).
b. Appellant’s Opportunity to Respond to
Appellee’s Motion for Relief Judgment
{¶16} Knox County Local Rule 5.01 provides:
All motions shall be accompanied with a memorandum in support
stating the grounds and citing applicable authorities, with an Order granting
the relief requested. The party shall serve any responsive pleading on or
before the fourteenth day after the date of service. The moving party shall
serve any reply on or before the seventh day after the date of service. On
the twenty-eighth day after the motion is filed, the motion shall be deemed
submitted to the Court.
{¶17} Clearly this rule contemplates a response in opposition to a motion if so
desired by the opposing party. In addition, Civ.R. 6(C)(1), in pertinent part, states:
“Responses to a written motion, other than motions for summary judgment, may be
served within fourteen days after service of the motion.”
{¶18} In Matter of K.H., 5th Dist. Muskingum No. CT2017-0059, 2018-Ohio-1137,
the appellee filed a motion to dismiss on August 17, 2017. The trial court granted the
motion four days later. Id. The Rules of Civil Procedure and Rules of Juvenile Procedure
both contemplate the opportunity for opposition response. Id. This Court held that granting
the motion four days after the motion was filed did not afford the appellant an opportunity
to respond. Id. The trial court acted prematurely. Id.Knox County, Case No. 21 CA 000015 5
{¶19} In the case sub judice, Appellee filed his Motion for Relief from Judgment
on April 13, 2021. On April 16, 2021, three days later, the trial court granted the Motion
before Appellant had an opportunity to respond.
{¶20} We find that in granting the Motion for Relief from Judgment three days after
the motion was filed, Appellant was not afforded an opportunity to respond according to
the Rules of Civil Procedure and Knox County Local Rules. The trial court ruled
prematurely.
{¶21} Upon review, we find the trial court abused its discretion in granting the
Motion for Relief from Judgment prematurely. We remand the matter to the trial court to
afford Appellant the opportunity to file a response in opposition.
c. Appellee failed to rebut the presumption of proper service.
{¶22} Due to our disposition of the first issue raised, we find this issue not yet ripe
for our review until the trial court has afforded Appellant the opportunity to file a response
in opposition to Appellee’s Motion for Relief from Judgment.
Knox County, Case No. 21 CA 000015 6
{¶23} Appellant’s sole Assignment of Error is sustained.
{¶24} For the foregoing reasons, the judgment of the Court of Common Pleas of
Knox County, Ohio, is reversed, and the matter is remanded for further proceedings
consistent with this opinion.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
JWW/br 1207