First Internet Bank of Indiana v. Equine Transp. Acceptance Co.

[Cite as First Internet Bank of Indiana v. Equine Transp. Acceptance Co., 2011-Ohio-5804.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
FIRST INTERNET BANK JUDGES:
OF INDIANA, Hon. William B. Hoffman, P.J.
Hon. John W. Wise, J.
Plaintiff-Appellee, Hon. Patricia A. Delaney, J.
v. Case No. 2011CA00094
EQUINE TRANSPORTATION
ACCEPTANCE COMPANY ET AL., OPINION
and
JONATHAN MAAS,
Defendant-Appellant.
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2010CV00003
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 7, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROSEMARY TAFT MILBY R. SCOT HARVEY
MATTHEW G. BURG Fisher & Phillips LLP
Lakeside Place, Suite 200 9150 South Hills Blvd., Suite 300
323 West Lakeside Avenue Cleveland, Ohio 44147-3506
Cleveland, Ohio 44113
Stark County, Case No. 2011CA00094 2
Hoffman, P.J.
{¶ 1} Defendant-appellant Jonathan Maas appeals the March 25, 2011
Judgment Entry entered by the Stark County Court of Common Pleas denying his Civil
Rule 60(B) motion for relief from judgment from a prior judgment entered in favor of
Plaintiff-appellee First Internet Bank of Indiana.
STATEMENT OF THE CASE
{¶ 2} On January 4, 2010, Appellee initiated the within action against Equine
Transportation Acceptance Company, LLC, an Ohio Limited Liability Company, of which
Appellant was the sole and managing member; Cross Country Capital, LLC; and
Appellant individually. The complaint included a claim of fraud against Appellant.
{¶ 3} Appellant filed an answer to the complaint on April 7, 2010, denying the
allegations in the complaint, and asserting the complaint failed to state a claim upon
which relief could be granted and further asserting the complaint failed to plead fraud
with particularity as required by Ohio Civil Rule 9(B).
{¶ 4} The trial court scheduled the case for trial on April 22, 2010. The parties
filed a joint motion for continuance on April 21, 2010. The trial court denied the motion.
However, via Judgment Entry of April 23, 2010, the trial court rescheduled the trial for
May 21, 2010.
{¶ 5} According to the trial court’s docket, a “Statement of Record” was filed
with the Court on May 20, 2010.
{¶ 6} On May 25, 2010, the trial court issued a Judgment Entry finding Appellant
personally liable to Appellee on the fraud claim, thereby rendering judgment against
Stark County, Case No. 2011CA00094 3
Appellant in favor of Appellee in the amount of $210,673.10 plus attorney fees in the
amount of $40,000.
{¶ 7} On August 19, 2010, Appellant filed for Chapter 7 Bankruptcy protection.
{¶ 8} On February 25, 2011, Appellant filed a motion for relief from judgment
pursuant to Ohio Civil Rule 60(B).
{¶ 9} Via Judgment Entry of March 25, 2011, the trial court denied Appellant’s
motion for relief from judgment.
{¶ 10} Appellant now appeals, assigning as error:
{¶ 11} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE
MOTION OF DEFENDANT-APPELLANT JONATHAN MAAS FOR RELIEF FROM THE
TRIAL COURT’S JUDGMENT ENTRY ISSUED ON MAY 25, 2010.”
{¶ 12} Civ.R. 60 Relief from Judgment or Order, provides
{¶ 13} “ * * *
{¶ 14} “(B) Mistakes; inadvertence; excusable neglect; newly discovered
evidence; fraud; etc.
{¶ 15} “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; (2) newly discovered
evidence which by due diligence could not have been discovered in time to move for a
new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment
has been satisfied, released or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer equitable that the judgment
Stark County, Case No. 2011CA00094 4
should have prospective application; or (5) any other reason justifying relief from 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. A motion under this subdivision (B) does not affect the finality of a judgment or
suspend its operation.
{¶ 16} “The procedure for obtaining any relief from a judgment shall be by motion
as prescribed in these rules.”
{¶ 17} To prevail on a motion to vacate a judgment pursuant to Civ. R. 60(B), the
movant must demonstrate that: (1) the party has a meritorious defense 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. GTE Automatic Electric Company, Inc. v. ARC Industries, Inc. (1976), 47
Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus.
{¶ 18} Where timely relief is sought from a default judgment, and the movant has
a meritorious defense, doubt should be resolved in favor of the motion to set aside the
judgment so that cases may be decided on their merits. GTE Automatic, supra. at
paragraph three of the syllabus. The GTE Automatic factors are “independent and
conjunctive, not disjunctive.” Blaney v. Kerrigan (Aug. 4, 1986), Fairfield App. No. 12–
CA–86. “[F]ailing to meet one is fatal, for all three must be satisfied in order to gain
relief.” Id. at 5.
{¶ 19} Our standard of review of a court's decision as to whether to grant a Civ.R.
60(B) motion is abuse of discretion. GTE at 148, 351 N.E.2d 113.
Stark County, Case No. 2011CA00094 5
{¶ 20} Civil Rule 60(B) relief is not a substitute for a direct appeal, and where an
issue is capable of being raised on direct appeal a 60(B) motion cannot be used a
substitute for an appeal and does not toll the time for filing the appeal. Key v. Mitchell
81 Ohio St.3d 89, 1998-Ohio-643; Bobardier Captial, Inc. v. W.W. Cycles, Inc. 155
Ohio App.3d 484, 2003-Ohio-6716; See, Vasko v. Vasko, 2005-Ohio-3188.
{¶ 21} Appellant’s Civil Rule 60(B) motion asserts the complaint herein failed to
present the essential elements of a fraud claim, and his actions were not the result of
fraud. Appellant’s arguments are barred by the doctrine of res judicata as they were
capable of being raised on direct appeal, and Appellant cannot now substitute his Civil
Rule 60(B) motion for a direct appeal.
{¶ 22} Appellant additionally claims he does “not recall” receiving notice of the
rescheduled trial date. However, the trial court docket indicates on April 23, 2010, via
Judgment Entry, the trial court issued an order rescheduling the date for trial; Appellant
was notified by both certified mail, which went unclaimed, and by ordinary mail. The
address to which the notice was sent was the same address as that listed in the original
complaint. We find the trial court did not abuse its discretion in finding Appellant has not
demonstrated excusable neglect, particularly when Appellant does not affirmatively aver
he did not receive notice.
{¶ 23} Appellant did not file the Rule 60(B) motion for nine months after final
judgment, as he assumed the judgment would be discharged in his bankruptcy filing,
and upon learning otherwise, he filed the motion. Appellant asserts ignorance of the
law and excusable neglect as grounds for the 60(B) motion; however, the record does
not support such a finding.
Stark County, Case No. 2011CA00094 6
{¶ 24} For the reasons set forth above, we find the trial court did not abuse its
discretion in denying Appellant’s Civil Rule 60(B) motion for relief from judgment. The
March 25, 2011 Judgment Entry of the Stark County Court of Common Pleas is
affirmed.
By: Hoffman, P.J.
Wise, J. and
Delaney, J. concur
/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise______________________
HON. JOHN W. WISE
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Stark County, Case No. 2011CA00094 7
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
FIRST INTERNET BANK :
OF INDIANA, :
:
Plaintiff-Appellee, :
:
v. : JUDGMENT ENTRY
:
EQUINE TRANSPORTATION :
ACCEPTANCE COMPANY ET AL., :
:
and :
:
JONATHAN MAAS, :
:
Defendant-Appellant. : Case No. 2011CA00094
For the reasons stated in our accompanying Opinion, the March 25, 2011
Judgment Entry entered by the Stark County Court of Common Pleas is affirmed. Costs
to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________
HON. JOHN W. WISE
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY