Summit at St. Andrews Home Owners Assn. v. Kollar

[Cite as Summit at St. Andrews Home Owners Assn. v. Kollar, 2012-Ohio-1696.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
SUMMIT AT ST. ANDREWS )
HOME OWNERS ASSOCIATION, ) CASE NO. 11 MA 49
)
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
JENNIFER KOLLAR, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from County Court No. 5,
Case No. 10 CVF 29 CNF.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Carl D. Rafoth
Friedman & Rummell Co., LPA
100 E. Federal St., Suite 300
City Centre One
Youngstown, OH 44503-1810
For Defendant-Appellant: Jennifer Kollar, Pro-se
6520 St. Andrews Dr., #3
Canfield, OH 44406
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Dated: March 28, 2012
[Cite as Summit at St. Andrews Home Owners Assn. v. Kollar, 2012-Ohio-1696.]
DeGenaro, J.
{¶1} Pro-se Defendant-Appellant Jennifer T. Kollar, appeals the judgment of the
Mahoning County Court No. 5 denying her motion to vacate the default judgment entered
in favor of Plaintiff-Appellee Summit at St. Andrews Home Owners Association. Kollar
asserts that the trial court abused its discretion by denying her request for relief pursuant
to Civ.R. 60(B). Kollar's arguments are meritless, because Kollar failed to prove a basis
for setting aside the default judgment pursuant to Civ.R. 60(B)(1)-(15). Accordingly, the
judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} Kollar owns a condominium unit in the Summit at St. Andrews development
in Canfield, which is managed by appellee Summit. On January 25, 2010, Summit filed a
complaint on an account in the Mahoning County Court No. 5 against Kollar, alleging that
she owed Summit $665.52 for condominium maintenance fees and a retaining wall
assessment, plus continuing condominium fees in the amount of $136.20 per month,
water/sewer fees, retaining wall assessments, miscellaneous fees and charges, and late
fees until judgment, plus the costs of the action. Attached to the complaint was an
invoice that showed Kollar's account had an outstanding balance of $665.52.
{¶3} Kollar was served with the complaint on February 16, 2010. On March 9,
2010, Kollar filed a 72-page pleading in response. Summit motioned the court for an
order requiring Kollar to file a response that complied with the civil rules. Specifically,
Summit took issue with the fact that Kollar's "answer" was not formatted pursuant to
Civ.R. 10(B) and that Kollar's "counterclaim" did not comply with Civ.R. 12(E) in that it
was so vague and ambiguous that Summit could not be reasonably required to frame a
response. Thus, Summit also moved for a more definite statement of the counterclaim
pursuant to Civ.R. 12(E). On June 24, 2010, the trial court granted Summit's motion and
ordered Kollar to comply with the applicable civil rules.
{¶4} Kollar failed to file an amended pleading that complied with the civil rules
and thus Summit filed a combined motion to strike, for sanctions and for default judgment
on September 17, 2010, notice of which was sent to Kollar. Attached to this motion was
an affidavit from Gary Broderick of the property management company that kept the
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accounts and records for Summit, along with a detailed ledger report showing that Kollar's
account had a balance of $692.32 as of August 16, 2010. Kollar filed a response in
opposition on September 30, 2010.
{¶5} On October 15, 2010, the trial court granted Summit's motion, thereby
striking Kollar's "answer and counterclaim," pursuant to Civ.R. 12(F), granting default
judgment, and ordering Kollar to pay Summit's attorney fees, for a total judgment of
$1,320.32 plus costs.
{¶6} On October 29, 2010, Kollar filed a motion for a new trial and relief from
judgment, which was opposed by Summit. After holding a hearing on the motion, the trial
court denied it. From that judgment, Kollar timely appeals. Kollar filed a stay of execution
of judgment with the trial court. The trial court never issued a ruling on the stay.
{¶7} Kollar also filed a motion for stay with this court, along with a request to
waive bond, and an order to enjoin Summit from shutting off water service to her unit.
This court denied those requests and further ruled that since this appeal was taken from a
ruling on Kollar's motion for relief from judgment, and not the earlier default judgment,
that this appeal would be limited to a review of the order denying the motion for relief from
judgment.
Denial of Civ.R. 60(B) Motion
{¶8} In her sole assignment of error, Kollar asserts:
{¶9} "The Appellant will show that where the trial court erred and abused
discretion [sic], when the court failed to follow the Ohio Revised Code, Ohio Civil Rules,
State of Ohio Consumer Protection Laws and Federal Consumer Protection Laws. Such
trial court errors and abuse of discretions [sic] transpired, when the trial court denied the
Appellant's October 29, 2010 Relief from Default Judgment filing.
{¶10} Motions to set aside a judgment are governed by Civ.R. 60(B). The Ohio
Supreme Court set forth the controlling test for Civ.R. 60(B) motions in GTE Automatic
Elec., Inc. v. Arc Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976). In order to
prevail on a Civ.R. 60(B) motion, the movant must demonstrate: "(1) the party has a
meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief
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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, order or proceeding was entered or
taken." Id. at paragraph two of the syllabus.
{¶11} The enumerated grounds for relief under Civ.R. 60(B) are as follows:
(1) [M]istake, 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 should have prospective application; or (5) any other
reason justifying relief from the judgment. Civ.R. 60(B).
{¶12} "The Supreme Court acknowledges the fine line this rule forces courts to
tread, as the preference to hear a case on its merits must be balanced with the necessity
of enforcing pleading rules and deadlines." E. Grace Communications, Inc. v.
BestTransport.com, Inc., 7th Dist. No. 02 JE 4, 2002-Ohio-7175, ¶11, citing WFMJ
Television, Inc. v. AT&T Federal Systems CSC, 7th Dist. No. 01CA69, 2002-Ohio-3013,
¶10, citing Griffey v. Rajan, 33 Ohio St.3d 75, 79, 514 N.E.2d 1122 (1987). The decision
whether to grant a Civ.R. 60(B) motion rests within the sound discretion of the trial court,
and will not be reversed absent an abuse of that discretion. WFMJ at ¶10. An abuse of
discretion cannot be found merely because the reviewing court would have decided it
differently, but rather the trial court's decision must be unreasonable, arbitrary or
unconscionable. Syphard v. Vrable , 141 Ohio App.3d 460, 463, 751 N.E.2d 564 (7th
Dist.2001).
{¶13} Although a hearing was held on the motion for relief from default judgment,
Kollar failed to order a transcript for inclusion in the appellate record. Absent a transcript,
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we presume the regularity of the proceedings. Knapp v. Edwards Laboratories , 61 Ohio
St.2d 197, 199, 400 N.E.2d 384 (1980). Thus, we are constrained by the limited record
before us. Further, within her motion for relief from judgment, Kollar also requested a
judgment notwithstanding the verdict (JNOV) pursuant to Civ.R. 50(B) and a new trial
pursuant to Civ.R. 59. Since there was no trial in this case and Summit was granted a
default judgment, the court properly denied relief on these grounds.
{¶14} Regarding Kollar's motion for relief from judgment, there is no dispute as to
whether it was timely, thus we need only resolve whether the first and second GTE
prongs were satisfied.
{¶15} With regard to the first prong, Kollar has alleged a meritorious defense.
While a party requesting Civ.R. 60(B) relief from judgment is only required to allege a
meritorious defense, not to prove she will prevail on that claim or defense, the movant
must allege operative facts with enough specificity to allow the trial court to decide
whether she has met that test. See State Farm Ins. Co. v. Valentino, 7th Dist. No. 02-CA-
119, 2003-Ohio-3487, ¶18; Syphard, 141 Ohio App.3d at 463. A proffered defense is
meritorious if it is not a sham and when, if true, it states a defense in part, or in whole, to
the claims for relief set forth in the complaint. Amzee Corp. v. Comerica Bank-Midwest,
10th Dist. No. 01AP-465, 2002-Ohio-3084, ¶20. To simply state that a party has a
meritorious defense, without more, is insufficient to satisfy the GTE standard. Domestic
Linen Supply & Laundry Co. v. King, 7th Dist. No. 05-MA-62, 2006-Ohio-756, ¶14. Kollar
asserts that she was not obligated to pay the retaining wall assessment and Summit
erroneously calculated the amount due on her account.
{¶16} However, Kollar did not demonstrate that she was entitled to relief under
one of the grounds stated in Civ.R. 60(B)(1) through (5). Kollar raises several main
arguments as to why the trial court erred by denying her motion for relief from judgment.
{¶17} First, she contends that Summit's attorney acted unethically because he
purportedly represented the condominium developer in the past. While a
misrepresentation or fraud by the opposing party or its counsel could be grounds for
vacating a judgment pursuant to Civ.R. 60(B)(3), see, e.g., Gursky v. Gursky, 11th Dist.
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No. 2003-P-0010, 2003-Ohio-5697, Kollar does not claim any misrepresentation occurred
in this case. Unsupported assertions that opposing counsel had a conflict of interest do
not constitute sufficient grounds to vacate a judgment.
{¶18} Second, Kollar contends that the affidavit and account ledger attached to
Summit's motion for default judgment were "fraudulent," but she provides no evidence of
fraud. She is merely disputing her obligation to pay the condo assessment, which goes to
the element of stating a meritorious defense.
{¶19} Third, Kollar claims the trial court failed to consider her October 19, 2010
response to Summit's default judgment motion. However, the record reveals that the
October 19, 2010 response was actually a sur-reply; Kollar had already filed one
response to Summit's default judgment motion on September 30, 2010. Pursuant to the
county court's local rules, it was not required to consider the sur-reply as Kollar did not
move prior to filing it. See Mahoning County Court Local Rule 8(D). Further, the October
19, 2010 sur-reply was not filed until after the trial court had granted the default judgment
on October 15, 2010.
{¶20} Fourth, Kollar contends that the trial court failed to serve her with several
judgment entries during the course of the proceedings; for example, the trial court's order
requiring her to file an answer and counterclaim that complied with the civil rules.
However, "[a] court * * * generally acts and speaks only through its journal by means of
orders. Civ.R. 5(A) does not require the service of orders unless the order is 'required by
its terms to be served.'" (Internal citations omitted.) Ohio Valley Radiology Assoc., Inc. v.
Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 118, 124, 502 N.E.2d 599. All the entries
at issue were properly docketed, and a certificate of service from the clerk at the bottom
of the court's order requiring Kollar to comply with the civil rules indicates that Kollar was
sent a copy of that judgment. Accordingly, this is not a proper basis for vacating the
default judgment.
{¶21} Civ.R. 55(A) governs motions for default judgment:
When a party against whom a judgment for affirmative relief is sought has
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failed to plead or otherwise defend as provided by these rules, the party
entitled to a judgment by default shall apply in writing or orally to the court
therefor; but no judgment by default shall be entered against a minor or an
incompetent person unless represented in the action by a guardian or other
such representative who has appeared therein. If the party against whom
judgment by default is sought has appeared in the action, he (or, if
appearing by representative, his representative) shall be served with written
notice of the application for judgment at least seven days prior to the
hearing on such application. If, in order to enable the court to enter
judgment or to carry it into effect, it is necessary to take an account or to
determine the amount of damages or to establish the truth of any averment
by evidence or to make an investigation of any other matter, the court may
conduct such hearings or order such references as it deems necessary and
proper and shall when applicable accord a right of trial by jury to the
parties. (Emphasis added.) Civ.R. 55(A).
{¶22} Here Kollar filed a responsive pleading which did not conform to the Civil
Rules, and the trial court ordered her to file a proper answer. Despite this previous order,
Kollar chose not to file a proper answer. After four months elapsed without Kollar filing a
proper answer, on Summit’s motion the trial court struck the non-conforming answer from
the record. See Civ.R. 12(F):
Upon motion made by a party before responding to a pleading or, if no
responsive pleading is permitted by these rules, upon motion made by a
party within twenty-eight days after the service of the pleading upon him or
upon the court's own initiative at any time, the court may order stricken
from any pleading any insufficient claim or defense or any redundant,
immaterial, impertinent, or scandalous matter.
{¶23} Once Kollar's response was struck from the record, this became a situation
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where "a party against whom a judgment for affirmative relief is sought has failed to plead
or otherwise defend as provided by these rules." Civ.R. 55(A). See T.S. Expediting
Servs., Inc. v. Mexican Industries, Inc., 6th Dist. No. WD-01-060, 2002-Ohio-226(applying Civ.R. 55(A) where a defendant files an answer that is out of rule.)
{¶24} The Civ.R. 55(A) procedural requirements were met in this case. Since
Kollar appeared in the action, Civ.R. 55(A) provides that she must receive written notice
of the application of default judgment. The certificate of service attached to Summit's
default judgment motion demonstrates that Kollar was provided notice of the motion. In
addition, instead of filing a conforming answer, Kollar filed what the trial court treated as a
brief in opposition to default judgment on September 30, 2010, which it considered when
ruling on the motion for default judgment after a hearing on the motion. Again, given the
lack of a transcript of the default judgment hearing, the Knapp presumption controls our
review. Accordingly, the trial court reasonably concluded that there was no basis for
setting aside the default judgment.
{¶25} Further, to the extent that Kollar raises issues on appeal beyond the
propriety of the trial court's denial of her Civ.R. 60(B) motion, this court lacks jurisdiction
to consider them. Kollar did not appeal from the default judgment order and this court
has already ruled that "this appeal is limited to a review of the order denying the motion
for relief from judgment."
{¶26} In sum, the trial court did not abuse its discretion by denying Kollar's Civ.R.
60(B) motion. Thus, Kollar's sole assignment of error is meritless, and the judgment of
the trial court is affirmed.
Waite, P.J., concurs.
Donofrio, J., concurs.