COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60455 BETTER MEAT PRODUCTS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION KOULA, INC., ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : May 14, 1992 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-158403 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: LAURA J. GENTILCORE PATRICK J. PEROTTI Joseph W. Diemert, Jr. & DWORKEN & BERNSTEIN CO., L.P.A. Associates, Co., L.P.A. 153 East Erie Street, #304 1360 S.O.M. Center Road Painesville, OH 44077 Cleveland, OH 44124 - 2 - COX, J.: This is an appeal by plaintiff-appellant, the Better Meat Products Co. (hereafter "appellant") from the granting of defendant-appellees', Credit Management Services and Transworld Systems, Inc. (hereafter "appellees") Motion to Vacate a default 1 judgment. On October 18, 1988, appellant filed a complaint against Koula, Inc., Kim Aspiotis, Mike Kafantaris, Credit Management Services, and Transworld Systems, Inc. Appellant alleged that Koula, Inc., Mike Kafantaris and Kim Aspiotis made fraudulent representations in an application for credit. Additionally, appellant alleged breach of contract against appellees for "a lack of action over a period of nine months" in connection with debt collection services performed by appellees. Appellant maintained it authorized appellees to litigate on March 30, 1987 and appellees failed to do so. Appellant sought recovery of $19,017.37 from the defendants. Appellees responded to appellant's suit by letter dated November 2, 1988. Enclosed was a copy of the contract between appellant and appellees. Appellees maintained they proceeded to the extent contracted for as lay collectors and, thus, requested they be dismissed from the suit. On or about November 9, 1988, appellees' outside counsel, Kirt Zeigler, telephoned appellant's 1 Credit Management Services is a division of Transworld Systems, Inc. and is not a separate corporation or legal entity. - 3 - attorney to request leave to plead if appellees were not dismissed and to discuss the suit and why it should not be pursued against the appellees. In the conversation Zeigler reiterated that under the agreement between the parties there was no obligation providing for litigation during the early phases of the collection process and that the appellees did everything they contracted to do under the terms of the agreement. This phone conversation was confirmed in a letter from Zeigler to appellant's attorney dated December 19, 1988. Therein, Zeigler requested that appellees be dismissed and a copy of the dismissal be sent to him in California. On March 29, 1989, defendants failed to appear at a pretrial. Thereafter, appellant moved for a default judgment as to all the defendants, including appellees. Appellant served a copy of a Motion for Default Judgment on appellees' California business address. Appellant did not send notice to Zeigler, appellees' outside counsel. Following a May 9, 1989 hearing, default judgment was rendered but the entry failed to list the defendants individually. Upon appellant's motion, an amended order was entered by the court on December 28, 1989 naming each of the defendants individually. On April 4, 1990, appellees filed their motion for relief from judgment. Appellant filed a brief opposing the motion for relief. Upon consideration, the trial court granted the motion - 4 - for relief from judgment, thereby vacating the default judgment as to appellees. The instant appeal followed. Appellant's two assignments of error are interrelated and will be discussed together. They provide: I. THE TRIAL COURT ABUSED IT (SIC.) DISCRETION IN GRANTING DEFENDANT- APPELLEE'S 60(B) MOTION IN THAT DEFENDANT-APPELLEE FAILED TO MEET THE TRIPARTITE SHOWING NECESSARY TO OBTAIN RELIEF FROM JUDGMENT UNDER RULE 60(B). II. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR RELIEF FROM JUDGMENT IN THAT PLAINTIFF- APPELLANT'S BRIEF IN OPPOSITION WAS NOT SUPPORTED BY AFFIDAVIT. Appellant contends the trial court abused its discretion in granting appellees' motion to vacate default judgment pursuant to Civ. R. 60(B). Appellant's contentions lack merit. Civ. R. 60(B) provides: Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. 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 should have prospective application; or (5) any other reason justifying relief from the judgment. The - 5 - 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. Furthermore, In order to prevail on a motion for relief from judgment pursuant to Civ. R. 60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement to relief under one of the grounds stated in Civ. F. 60(B)(1) through (5); and timeliness of the motion. GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St. 2d 146, 1 O.O. 3d 86, 351 N.E.2d 113, paragraph two of the syllabus. If any of these three requirements is not met, the motion should be overruled. Svoboda v. Brunswick (1983), 6 Ohio St. 3d 348, 351, 6 OBR 403, 406, 453 N.E.2d 648, 651. The question of whether relief should be granted is addressed to the sound discretion of the trial court. Griffey v. Rajan (1987), 33 Ohio St. 3d 75, 77, 514 N.E.2d 1122, 1123. (Emphasis added.) Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St. 3d 17, 20. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. Initially, we find appellees demonstrated a meritorious defense. Under Civ. R. 60(B), a movant's burden is to allege a meritorious defense, not to prove that he will prevail on that defense. Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St. 3d 64, 67. Herein, appellees allege there was no breach of contract. George Macauley, Vice-President of appellee stated - 6 - that appellee complied with all provisions of the contract: it sent timely letters; it transferred the account in a timely fashion to Phase Two of the collections process; and the collector immediately pursued the matter, all of which was in compliance with the terms of the contract. Further, Macauley indicated that the contract and federal law precluded the taking of action against a debtor in bankruptcy and when appellee discovered Koula, Inc. was filing bankruptcy, it notified the appellant and ceased the collection process. Secondly, appellees are entitled to relief for excusable neglect under Civ. R. 60(B)(1). The affidavit of Kirt Zeigler, appellees' outside counsel stated that he personally spoke with appellant's attorney on November 9, 1988. Zeigler confirmed their conversation in a letter dated December 19, 1988. In his affidavit, Zeigler stated that appellant was formally advised appellees were represented by counsel as of November, 1988. Further, based on their conversation and correspondence, he thought the appellees would be dismissed from the suit. Despite appellant's attorney's knowledge that appellees were represented by counsel, neither Zeigler nor his firm was notified by the appellant that a motion for default was filed and granted. According to Zeigler's affidavit, he first became aware of the default when appellant served appellees with an Application for Entry of Judgment on a Sister State Judgment. - 7 - In determining whether excusable neglect exists, all the surrounding circumstances and facts must be taken into consideration. Colley v. Bazell (1980), 64 Ohio St. 2d 243, 245. After conducting such a review, we are persuaded, as was the trial court, that the appellees' affidavits and documentary evidence sufficiently demonstrate excusable neglect to justify relief. Lastly, appellees' motion for relief from default judgment was made within one year of the judgment from which it sought relief. Civ. R. 60(B). The record reveals that appellees filed their motion for relief from judgment on April 3, 1990, almost eleven months after the original entry of default and three months after amendment. Default judgment was originally entered on May 10, 1989. However, California courts refused to assess the judgment until each of the defendants was named individually in the order. Pursuant to appellant's motion, the entry was amended on December 28, 1989 naming the individual defendants. Given that the motion for relief from judgment was made within one year of the entry of default judgment and that appellees' attorney was not personally served with appellant's motion for default or the granting thereof, it does not constitute an abuse of discretion to conclude that the motion for relief from judgment was filed within a reasonable time. Herein, appellant has failed to make a clear showing of abuse of discretion. - 8 - An application for relief under Rule 60(B) is addressed to the sound discretion of the trial court. Adomeit v. Baltimore (1974), 39 Ohio App. 2d 97. Adomeit sets forth the rule on review as follows: It is discretionary with the trial court whether the motion will be granted and in the absence of a clear showing of abuse of discretion the decision of the trial court will not be disturbed on appeal. 39 Ohio App. 2d at 103. It is widely recognized that where the judgment to be vacated is a default judgment, any doubt should be resolved in favor of the movant so that cases can be decided on their merits. GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St. 2d 146. It was within the sound discretion of the trial court to grant relief from the default judgment entered against appellees. We find no abuse of discretion in the trial court's decision that this case should be decided on the merits. Accordingly, appellant's assignments of error are overruled. Judgment affirmed. - 9 - It is ordered that appellees recover of appellant their 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 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. DYKE, P.J., FRANCIS E. SWEENEY, J., CONCUR. JUDGE EDWARD A. COX* (*SITTING BY ASSIGNMENT: Edward A. Cox, Judge of Court of Appeals of Ohio, Seventh Appellate District) 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. .