COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59718 INDUSTRIAL LIFT TRUCK SERVICE : INC. : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ASBURY EVANS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 26, 1991 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 142,902 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: JAMES X. PIKUS Attorney at Law 877 East 185 Street Cleveland, Ohio 44119 For defendant-appellant: JOHN W. HICKEY Attorney at Law 3794 Pearl Road Cleveland, Ohio 44109 - 2 - FRANCIS E. SWEENEY, J.: Defendant-appellant, Asbury Evans, timely appeals the judg- ment of the court of common pleas which denied his motion to vacate default judgment brought pursuant to Civ. R. 60(B). For the reasons that follow, we affirm. On January 19, 1988, plaintiff-appellee, Industrial Lift Truck Service, Inc., filed a complaint for $2,010.70 on an open account against appellant, d.b.a. E & M Automotive. Service was made at the E & M Automotive business address by certified mail and signed by a person named "Carver." Appellant failed to plead or otherwise defend, so default judgment was entered June 15, 1988 upon appellee's motion. Thereafter, appellee caused an Examination in Aid of Execu- tion to be served upon appellant at the same address the original complaint was served. Appellant appeared before the municipal court on September 1, 1988, along with a friend, Jay D'Ambrosio. Mr. D'Ambrosio, by way of affidavit, avers that he spoke with appellee's attorney and explained that appellant "did not work for, was not employed by, nor did he act on behalf of E & M Salvage Company at any time." Mr. D'Ambrosio further avers that appellee's attorney was satisfied with these representations. - 3 - Mr. D'Ambrosio then informed appellant that the matter was taken care of. Appellant, by way of affidavit, avers that after speaking with Mr. D'Ambrosio, he was satisfied "everything was taken care of." Appellant realized otherwise when he attempted to sell his house in early May, 1989 and discovered that a lien had been placed on his home. Finally, appellee's attorney, by way of affidavit, states that appellant was informed of the de- tails concerning the instant judgment and answered questions regarding his assets at the hearing. After discovering the lien, appellant contacted an attorney for the first time and filed the instant motion to vacate default judgment on May 26, 1989. Attached to said motion was appel- lant's affidavit, which avers that he does not do business as E & M Automotive at the address marked on the certified mail receipt; he does not owe any money to plaintiff; he does not have any control or authority over the E & M Automotive Company, nor has he ever asked for credit from plaintiff; and he did not sign the certified mail receipt. Appellee filed a brief in response to appellant's motion to vacate, and appellant filed a response and accompanying affidavits to appellee's brief. Based upon the above evidence, the trial court denied appel- lant's motion. Appellant timely appeals, raising the following sole assignment of error: - 4 - THE TRIAL COURT ERRED IN DISMISSING DEFENDANT-APPELLANT'S MOTION TO VACATE DEFAULT JUDGMENT WHERE THE DEFENDANT- APPELLANT PRESENTED TO THE COURT A SWORN AND UNCONTRADICTED STATEMENT THAT THE DEFENDANT- APPELLANT WAS NEVER SERVED WITH A COPY OF THE COMPLAINT. Appellant argues the trial court erred in denying his motion to vacate default judgment contending he was never served with a copy of the complaint and that he has a meritorious defense. The standard for determining whether a motion for relief from judgment should be granted under Civ. R. 60(B) is found in GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St. 2d 146. In that case, the court held: To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim 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, order or proceeding was entered or taken. Id., syllabus. Furthermore, in Adomeit v. Baltimore (1974), 39 Ohio App. 2d 97, at 103, this court stated: The movant has the burden of proving that he is entitled to the relief requested or to a hearing on the motion. Therefore, he must submit factual material which on its face demonstrates the timeliness of the motion, reasons why the motion should be granted and that he has a defense. (Emphasis added.) An appellate court will not disturb an order denying relief from judgment unless the trial court has abused its discretion - 5 - by that ruling. Associated Estates Corp. v. Fellows (1983), 11 Ohio App. 3d 112, paragraph 3 of court's syllabus. In the present case, appellant has not identified under which subsection of Civ. R. 60(B) he brings the present motion. We note, however, that said motions attacking the sufficiency of process have been brought under Civ. R. 60(B)(1) or (5). See, generally, Fancher v. Fancher (1982), 8 Ohio App. 3d 79, ftnt. 3; and Grant v. Ivy (1980), 69 Ohio App. 2d 40, 43. For present purposes, it is immaterial which subsection applies in that appellant has failed to demonstrate insufficiency of process or timeliness of his motion. Appellant first argues he never received proper service of summons and complaint. Appellee asserts that service was sent to appellant's place of business. Civ. R. 4.1 does not necessarily require actual service upon the party receiving the notice, but is effective upon certified delivery. Castellano v. Kosydar (1975), 42 Ohio St. 2d 107, 110. Service of process, however, in order to satisfy the requirement of due process, must be reason- ably calculated, under all the circumstances, to apprise inter- ested parties of the pendency of the action and afford them an opportunity to present their objections. Regional Airport Authority v. Swinehart (1980), 62 Ohio St. 2d 403, 406. Thus, certified mail service sent to a business address can comport with due process if the circumstances are such that successful notification could be reasonably anticipated. Id. - 6 - In the present case, the only evidentiary material submitted with appellant's motion is his affidavit, which generally avers that he was not served with process advising him of the instant suit and that his signature does not appear on the certified mail receipt. Appellant further avers that he does not do business as E & M Automotive, nor does he have any authority or control over E & M Automotive. These latter averments generally support the proposition that appellant has a meritorious defense. Generally, appellant argues that service of process at the E & M Automotive business address, signed by a person named "Carver," is not reasonably calculated to notify him of the instant suit. Although there is a presumption of proper service where the civil rules are followed, this may be rebutted when the party seeking to vacate judgment makes an uncontradicted sworn state- ment that he never received service. Rafalski v. Oates (1984), 17 Ohio App. 3d 65. That presumption, however, may be disre- garded when the party contradicts himself or makes admissions tending to support the claim of service. Id. Although appel- lant's affidavit states he did not receive service of process, it does not provide any indication that service of process at the E & M Automotive business address was not, under all the circum- stances, reasonably calculated to provide him such notice. This weakness in appellant's case is highlighted by the fact that his second affidavit states he appeared at the examination hearing "in compliance with the order of the court to appear ..." The - 7 - court, however, sent such notice to appellant at the E & M Auto- motive business address. Therefore, it cannot be said that service of process was not reasonably calculated to appraise appellant of the instant suit considering that appellant appeared before the court at the examination hearing "in compliance with the order of the court to appear" and that appellant has not provided any indication that service at the E & M Automotive business address was not reasonably calculated to provide such notice. The present case is distinguishable from Regional Airport Authority, supra, in that affidavits demonstrated that the defendant therein did not maintain an office on the premises of the business where service was attempted. Rather, the defendant therein only sporadically visited the business where service was attempted, usually two to three times per month. As such, ser- vice at the business address therein, under the circumstances, did not comport with due process. The instant case is marked by contradiction in appellant's affidavits and an absence of any explanation as to why service of the complaint and motion for default judgment at the E & M Automotive business address was improper in the first instance while notice of the examination hearing at the same address was sufficient to notify appellant of said hearing in the second instance. Appellant has also failed to demonstrate his motion was made within a reasonable time. In the present case, appellant was - 8 - made aware of the default judgment, at the latest, on September 1, 1988 at the examination hearing. Appellant, however, argues that upon speaking with his friend, who spoke with appellee's attorney, he believed everything was taken care of. Appellant then claims he realized otherwise when he discovered the lien on his property sometime in early May, 1989. Appellant states he then contacted an attorney and filed the instant motion. This argument demonstrates neither excusable neglect nor timeliness. It is well established that the neglect of an individual to seek legal assistance after being served with court papers is not excusable. See, Associated Estates Corp. v. Fellows (1983), 11 Ohio App. 3d 112, 116; and see cases cited therein. In the present case, appellant was, at the least, made aware of the default judgment as of September 1, 1988, at the examination hearing. However, appellant neglected to seek legal assistance and, instead, chose to rely on the representation of his friend, Jay D'Ambrosio, that everything had been taken care of. It wasn't until May, 1989, approximately eight months later, that appellant sought legal assistance. The instant motion was then filed on May 26, 1989. We have previously held that a motion to vacate a default judgment which is filed nearly seven months after actual notice of the action and more than four months after default judgment was not, on its face, a reasonable time within which to file a motion pursuant to Civ. R. 60(B)(5) in the absence of any evidence explaining the delay. Mount Olive - 9 - Baptist Church v. Pipkins Paints (1979), 64 Ohio App. 2d 285, 289. Similarly, a motion to vacate a default judgment which is filed approximately eight months after actual notice of a default judgment is not, on its face, a reasonable time within which to file a motion pursuant to Civ. R. 60(B) where appellant's only evidence explaining the delay is that he believed the matter was taken care of upon speaking with a friend who spoke with appel- lee's attorney. Appellant further relies on Rafalski v. Oates (1984), 17 Ohio App. 3d 65 and Lin v. Reid (1983), 11 Ohio App. 3d 232, as authority to support his argument before this court. However, these cases are readily distinguishable from the present case. In Rafalski, supra, this court held that a motion to vacate a default judgment was properly granted where the appellant had made an uncontroverted statement that she never received service of a complaint. However, the present case is marked by contra- diction in appellant's own affidavits wherein appellant admits to appearing before the court at the examination hearing "in com- pliance with the order of the court to appear," but contends he never received service of process or was made aware of the instant suit prior to default judgment. Further, the order of the court, with respect to the examination hearing, was sent to the E & M Automotive business address, the same address to which service of the complaint was sent. Appellant provides no expla- nation as to why notice of the examination hearing reached him - 10 - while service of the complaint did not. Further, the evidentiary materials in Rafalski demonstrated the timeliness of the com- plaint which was filed within one week of discovery of the default judgment. In the present case, appellant has failed to satisfactorily demonstrate the timeliness of the motion, but rather asserts that he believed everything was taken care of after speaking with his friend who spoke with appellee's attor- ney. Likewise, in Lin, supra, the plaintiff therein clearly established, without contradiction by anyone, that he had not actually received any mailed notices of a counter-claim and that he was not aware of a default judgment until notified of such by a policeman. More importantly, under R.C. 1925.05, concerning notice and service in small claims court, the plaintiff therein had no reason to anticipate the filing of a counter-claim as even an answer to a small claim was not necessary. In the present case, appellant failed to demonstrate without contradiction that service of process at the E & M Automotive business address was not reasonably calculated to provide him with notice of the present action. Therefore, the trial court did not abuse its discretion in overruling appellant's motion to vacate judgment. Accordingly, appellant's sole assignment of error lacks merit. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J. PATTON, J. CONCUR JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .