COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59740 : CLEVELAND ELECTRIC ILLUMINATING : COMPANY : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : WILLIAM L. TOMSON, JR. : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT FEBRUARY 6, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Cleveland Municipal Court Case No. 86-CVF-14329 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: HOWARD A. EISENHARDT WILLIAM L. TOMSON, pro se 1215 Superior Avenue 11221 Pearl Road 4th Floor Strongsville, Ohio 44136 Cleveland, Ohio 44114 Cleveland, Ohio 44114 -2- PATRICIA A. BLACKMON, J.: William L. Tomson, Jr., Defendant-Appellant ("Appellant"), timely appeals the decision of the lower court denying his motion to intervene, or alternatively, motion to vacate the judgment in favor of Cleveland Electric Illuminating Company, Plaintiff-Appellee ("Appellee"). Because we hold that the trial court did not abuse its discretion, we affirm. On or about May 28, 1986, Appellee filed a complaint against William L. Tomson "aka" William L. Tomson, Jr. for money damages only, which Appellee claimed was on an account with its company. The complaint was sent by certified mail to the business office of William L. Tomson, Jr., an attorney. The basis of the account was an unpaid balance for utility services provided by Appellee. The summons and complaint were signed for at the business office of Appellant. However, Appellant argued that he was not the one who signed the service. There was a letter contained in the record and dated April 18, 1985 from Appellant to counsel for Appellee. In this correspondence, Appellant offered an explanation of how the account remained in his name, which he claimed was in error. Appellant also expressed a willingness to settle the matter. A default judgment was obtained in favor of Appellee in the amount of Two Thousand and Eighty-Six Dollars and Thirty Cents ($2,086.30) on July 9, 1986. There was additional correspondence in the record and dated September 1, 1988 from Appellant to counsel for Appellee. In -3- this letter, Appellant apparently enclosed a payment in the amount of Three Hundred Dollars ($300.00). Appellant's letter further stated: "I am aware of the fact that your claim has proceeded to judgment. I did not contest the matter and let it go to default. One reason for this was that legally I know I was obligated; notwithstanding the fact that the bill was for electric for a house in which I never lived." Additionally, the letter contained a request for the parties to contemplate settlement. On or about September 21, 1989, slightly over three years after the judgment was obtained against Appellant, he filed a motion to intervene or, alternatively, a motion to vacate judgment. A hearing was conducted on these motions before a referee in the Cleveland Municipal Court. Counsel for Appellee was present as was Appellant. The referee's report, finding in favor of Appellee, was approved and confirmed by the trial court in March, 1990. The judgments that Appellant now appeals were the denial of both the motion to intervene and the alternative motion to vacate the judgment. Likewise, the initial judgment was reinstated with full force and effect, and the stay was terminated. The trial court also ordered that any and all funds held by the court should be paid to Appellee. Finally, Appellee's motion for sanctions was denied. Appellant's first assignment of error states: -4- THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO INTERVENE. Civ. R. 24(A) reads in pertinent part: (A) Intervention of right. "Upon timely application anyone shall be permitted to intervene in an action: (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." Appellant was originally named a party to the lawsuit; he was named as a party in the complaint, validly served with a copy of the summons and complaint at his place of business; he ack- nowledged his acquiescence to the judgment in a letter to opposing counsel. Therefore, the trial court's decision to deny his motion to intervene was proper. Furthermore, the decision to grant or deny a motion to intervene is within the sound discretion of the trial court. In the case of Likeover v. Cleveland (1978), 60 Ohio App. 2d 154, this court acknowledged that discretion and held that absent an abuse of that discretion a decision to deny a motion to intervene will not be reversed. On these facts, we cannot hold the denial of Appellant's motion to intervene to be an abuse of the trial court's discretion. Appellant was aware of this claim in April of 1985 and admits to his obligation in September, 1988. The motion was filed one year later. -5- The issue of time will be more thoroughly discussed in assignment of error two, which states: THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO VACATE. Civ. R. 60(B)(5) empowers the trial court to relieve a party from a judgment for "any other reason justifying relief from the judgment. However, Appellant was also obligated to demonstrate that the motion was filed within a reasonable time, to include in the motion a set of operative facts which would demonstrate Appellant's entitlement to relief from judgment under subsection (5), and as the trial court stated Appellant had to show a meritorious defense. Adomeit v. Baltimore (1974), 39 Ohio App. 2d 97. The decision of the trial court must be viewed in terms of an abuse of discretion standard. On the instant facts, we cannot hold that it was an abuse of discretion for the trial court to deny Appellant's motion. The requirement of timeliness was not satisfied. Appellant's argument is not well taken that Civ. R. 60(B)(5) permits the filing of a motion to vacate at anytime. The time must be reasonable on the facts and circumstances. Appellant was aware of this claim in April, 1985 and admitted to his legal obligation in September, 1988. Yet, it still took Appellant one year to file his motion to vacate. It was not an abuse of discretion to deem this an unreasonable amount of time. -6- Secondly, Appellant argues that he was never properly served and that his father was the named defendant. We disagree. Appellant's name appeared on the complaint as William L. Tomson, aka William L. Tomson, Jr. He was served at his place of business, and stated in a letter that he actually allowed the claim to go to a default judgment. Therefore, Appellant was a named defendant and properly served with the summons and complaint. It was not an abuse of discretion for the trial court to adopt the referee's findings that Appellant had no equitable grounds upon which to base his motion. Lastly, Appellant argued that Appellee was not authorized to place the account in his name. However, in a letter signed by Appellant dated September, 1988, he admitted to owing the money. Therefore, it was not an abuse of discretion for the trial court to find that Appellant had no meritorious defense since Appellant admitted that he was legally obligated and without a defense. Although this case comes close to frivolity, we decline to award sanctions which Appellee requested during oral argument. However, it is behavior such as the kind exhibited in this case that is unacceptable. It is unacceptable for a lawyer, who is a party to the lawsuit to unnecessarily avoid the process because his skill and expertise affords to him the opportunity. This we do not condone, especially because it was unjustified and unnecessary. Both assignments of error are overruled. Judgment affirmed. -7- 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 Cleveland Municipal Court 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. Exceptions. PATTON, P.J., and HARPER, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .