Kadish, Hinkel Weibel Co., L.P.A. v. Rendina , 128 Ohio App. 3d 349 ( 1998 )

Appellant Paul A. Rendina appeals a decision by the trial court in favor of appellee Kadish, Hinkel Weibel Co., L.P.A. (the "law firm") in its breach-of-contract action. Rendina assigns the following error for our review:

"The trial court erred and abused its discretion in denying appellant's motion to vacate judgment."

Having reviewed the record and the legal arguments of the parties, we reverse the judgment of the trial court. The apposite facts follow.

On December 15, 1995, the law firm filed a complaint against Paul and Janet Rendina for nonpayment of fees for legal services rendered. The law firm alleged in its complaint that the Rendinas owed it $21,441.01 with ten percent interest from April 30, 1995. Subsequently, the law firm voluntarily dismissed Janet Rendina without prejudice, and Paul Rendina filed his answer on March 4, 1996.

On May 22, 1996, the case was referred to arbitration. On November 7, 1996, the arbitration panel found for the law firm in the amount of $13,500 plus costs. On November 22, 1996, Rendina filed a motion for leave to file an amended answer and counterclaim. The trial court denied the motion on December 6, 1996 and issued notice to all the parties that trial was scheduled for January 29, 1997.

Rendina did not appear for trial on January 29, 1997 because he was out of the country. Patrick D. Quinn, Rendina's counsel, appeared for the trial, though late. Upon his arrival, Quinn informed the court that Rendina had recently discharged him as his attorney and requested permission to withdraw as counsel. Quinn did not ask for a continuance on Rendina's behalf prior to asking the court's permission to withdraw as counsel. Thereafter, trial commenced ex parte. The trial court's verdict was in the law firm's favor in the amount of $21,441.01 with ten percent interest at the date of judgment with costs.

Rendina filed a motion to vacate judgment on March 10, 1997. Rendina attached the following affidavit to his motion:

"2. I first received notice of the January 29, 1997 trial date in this case on January 7, 1997, pursuant to a fax from my former attorney, Patrick D. Quinn.

"3. The postmark on the copy of the trial notice mailed by the Clerk of Courts to attorney Quinn's office and received by me from him on January 7, 1997, was dated December 17, 1996, which was 3 weeks prior to my receipt of the trial notice from attorney Quinn.

"4. On January 7, 1997, upon my receipt of the trial notification, I notified attorney Quinn's office that I would be out-of-the [sic] country on January 29, 1997 and unable to attend the trial; and I further instructed attorney Quinn to seek a continuance of the trial date for that reason.

"* * *

"6. The appearance docket in this lawsuit reflects that a formal written motion to continue * * * was never filed on my behalf.

"7. On January 28, 1997, at approximately 6:00 p.m., attorney Quinn informed me by telephone that he was not able to obtain a continuance without myself appearing in Court on January 29, 1997. At that time, I was out-of-the [sic] country and not scheduled to return until later in the day on January 29, 1997.

"8. On January 28, 1997, after my telephone conversation with attorney Quinn, I faxed a letter to attorney Quinn, * * * in which I discharged attorney Quinn in the event a continuance of the January 29, 1997 trial was not obtained.

"9. * * * I did return to Cleveland later in the day on January 29, 1997; and I thereupon went directly to Court, but I was advised that a disposition of this lawsuit had already occurred."

The trial court denied his motion on April 3, 1997. This appeal followed.

The issue in Rendina's sole assignment of error is whether the trial court abused its discretion when it denied his motion to vacate judgment. Rendina argues that he was out of the country and asked his lawyer far in advance of the trial date to seek a continuance. We agree with Rendina's arguments.

The standard of review of a Civ.R. 60 (B) motion is abuse of discretion. See GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113. "To prevail on a motion brought under Civ.R. 60 (B), the movant must demonstrate that: (1) [he] has a meritorious defense or claim to present if relief is granted; (2) [he] 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 * * *" Id. at paragraph two of the syllabus. The court abuses its discretion if it denies relief where the movant has demonstrated all three factors. See Mt. Olive Baptist Church v. Pipkins Paints HomeImprovement Ctr., Inc. (1979), 64 Ohio App.2d 285, 18 O.O.3d 319,413 N.E.2d 850.

GTE requires Rendina to show that he has a meritorious defense. A meritorious defense exists when the movant specifically alleges operative facts that support a defense to the judgment. SeeElyria Twp. Bd. of Trustees v. Kerstetter (1993), 91 Ohio App.3d 599,632 N.E.2d 1376, citing BancOhio Natl. Bank v. Schiesswohl (1988), 51 Ohio App.3d 130, 131, 554 N.E.2d 1362.

The Ohio Supreme Court has set forth the form that the movant's defense must take. For example, the movant's answer to the original complaint has been held to be a sufficient defense. RoseChevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17,520 N.E.2d 564. Furthermore, in Rose Chevrolet, the court held the movant is not required to submit supporting evidence of his defense. Id. at 20, 520 N.E.2d at 566-567. However, the movant's allegations must set forth the defense or his evidence must demonstrate that content exists in his allegations. Elyria at 602,632 N.E.2d at 1378-1379. Above all, his allegations must aid the trial court in its decision on the motion.

Here, Rendina set forth his defense in his answer to the law firm's complaint and in his affidavit to his motion for relief from judgment. In both, he alleged that he and the law firm did not specifically agree on a fee. However, when he received the law firm's bill, he did contact the firm. Rendina alleged that the attorney who worked on his case, Mr. Bender, acknowledged that the fee bill was probably excessive and agreed to a smaller amount. Rendina alleged that he owes an amount but disputes the amount claimed by the law firm. He also alleged that the arbitration panel ruled that the amount owed was at least $13,500. Rendina further alleges that he found in the law firm's bill specific charges attached to him that related to a different case and a different client. Rendina also questioned the time spent on the case by a junior associate, David Lambert. Rendina alleged that after his conversation with Mr. Bender, he was told not to worry.

Since Rendina is not required to show the truthfulness of his alleged defenses, we conclude that the defenses alleged are meritorious and deserve a hearing. See Gen. Motors AcceptanceCorp. v. Deskins (1984), 16 Ohio App.3d 132, 16 OBR 140,474 N.E.2d 1207. Consequently, the first GTE factor has been satisfied.

The second GTE factor requires that Rendina show that he is entitled to relief under one of the grounds in Civ.R. 60 (B)(1) through (5). Rendina argues that he is entitled to relief under both Civ.R. 60 (B)(1) and (5). Civ.R. 60 (B)(1) states that a party is relieved from final judgment for "mistake, inadvertence, surprise or excusable neglect," so long as the motion is made within one year. Civ.R. 60 (B)(5) is the justice catchall clause that requires that relief be granted for "any, other reason justifying relief from judgment." However, the motion cannot be made under this section to avoid he operation of the one-year limitation applicable in Civ.R. 60 (B)(1)(2)(3). Caruso —Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 5 OBR 120,448 N.E.2d 1365.

Rendina specifically argues that Civ.R. 60 (B)(1) applies because he was out of town and his actions should be excused. Rendina had informed his lawyer that he would be out of town on January 29, 1997, and asked his lawyer to seek a continuance. He left town before verifying whether this had been done. The day before the hearing, his lawyer called him to inform him that he needed to be at the hearing in order to request a continuance. Because he was out of the country, this could not be done. Consequently, he argues that his failure to appear and defend this action is excusable under Civ.R. 60. We agree.

It is undisputed that Rendina was out of the country on January 29, 1997, that before leaving, he asked his attorney to seek a continuance, that no continuance was sought, and that he learned from his lawyer on January 28, 1997 that the case was going forward on January 29, 1997. No evidence exists that Rendina completely ignored the trial date. Based on these facts, we conclude that Rendina's failure to appear was excusable. Because of this ruling, it is unnecessary to decide whether Civ.R. 60 (B)(5) applies.

Finally, it is undisputed that Rendina's motion for relief from judgment was timely. The trial court ruled against him on January 29, 1997. He filed his Civ.R. 60 (B) motion on March 14), 199R Accordingly, it was filed within a reasonable time; consequently, the third factor of GTE has been satisfied.

Rendina's sole assigned error has merit and this matter is reversed and remanded to the trial court for proceedings consistent with this ruling.

Judgment reversed and cause remanded.

PORTER, J., concurs.

O'DONNELL, J., dissents.