COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61041 GEORGE ZANE, d.b.a. : YORK SQUARE : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION D.D.M., INC., ET AL. : : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. CP-144803 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: KEVIN P. WEILER 8920 Brecksville Road Brecksville, Ohio 44141 For Defendant-Appellees: JOSEPH CORSO 706 Citizens Building 850 Euclid Avenue Cleveland, Ohio 44114 - 2 - KRUPANSKY, J.: Plaintiff-appellant George Zane, d.b.a. York Square appeals from a judgment of the trial court granting a Civ. R. 60(B) motion for relief from default judgment filed by defendant- appellee John Papouras. Plaintiff filed the underlying complaint in the trial court February 19, 1988 against three defendants, viz., D.D.M. Inc., John Papouras and Konstantinos Telides. Plaintiff alleged that D.D.M., Inc. and John Papouras agreed to lease certain property to operate a restaurant pursuant to a series of agreements. Plaintiff alleged that Telides subsequently purchased D.D.M., Inc. from Papouras and that the defendants thereafter ceased conducting business and paying rent. Telides filed a pro se answer to the complaint April 13, 1988 and subsequently retained counsel who entered an appearance on his behalf July 5, 1988. The record demonstrates plaintiff's counsel received a letter dated November 3, 1988 indicating plaintiff had filed suit against the "wrong John Papouras" and that this defendant John Papouras was not "in any way connected" with D.D.M., Inc. Plaintiff's counsel acknowledged receipt of the November 3, 1988 letter in correspondence dated November 11, 1988 to defendant John Papouras' counsel. Plaintiff subsequently filed a motion for a default judgment against defendants D.D.M., Inc. and John Papouras February 16, 1989. The certificate of service attached to the motion indicates that no copy of the motion was served on D.D.M., Inc., - 3 - counsel for Papouras or Papouras. On March 8, 1989 the trial court granted plaintiff's motion for default judgment against both defendants in the amount prayed for of $150,000 together with statutory interest. On March 20, 1989 the trial court's record reveals Papouras pro se filed a letter with the trial court informing the trial court of his misidentification and stating that he had notified plaintiff's counsel of the misidentification. On February 20, 1990, approximately eleven months after the default judgment was entered against Papouras, counsel for Papouras filed a Civ. R. 60(B) motion for relief from the default judgment contending he was misidentified as the "John Papouras" who signed the lease with plaintiff. The trial court granted the Civ. R. 60(B) motion filed by Papouras in an entry journalized November 28, 1990 expressly stating there was "no 1 just cause for delay" pursuant to Civ. R. 54(B). Plaintiff timely appeals from the order of the trial court granting Papouras' relief from the $150,000 default judgment raising the following three related assignments of error: I. WHERE A PARTY FILES A MOTION FOR RELIEF FROM JUDGMENT AND THE UNDISPUTED FACTUAL RECORD INDICATES THAT SAID MOTION WAS NOT FILED WITHIN A REASONABLE PERIOD OF TIME FROM THE DATE OF ENTRY OF THE JUDGMENT FROM WHICH RELIEF IS SOUGHT, IT IS ERROR TO GRANT SAID MOTION FOR RELIEF FROM JUDGMENT. 1 The record demonstrates that defendant D.D.M., Inc. did not file a Civ. R. 60(B) motion and D.D.M., Inc. is not a party to this appeal. - 4 - II. IN A MOTION FOR RELIEF FROM JUDGMENT, THE BURDEN OF PROOF IS ON THE MOVING PARTY TO PROVE THAT HE IS ENTITLED TO THE RELIEF REQUESTED AND THE TRIAL COURT ERRS IN GRANTING RELIEF FROM JUDGMENT WHERE SUCH RIGHT TO RELIEF IS NOT CLEARLY SHOWN. ADOMEIT V. BALTIMORE, 39 OHIO APP. 2D (1974). III. WHERE A MOTION FOR RELIEF FROM JUDGMENT IS FILED AND FROM THE FACE OF THE PLEADINGS, A DISPUTE EXISTS AS TO THE IDENTITY OF A PARTY, THE TRIAL COURT ERRS IN GRANTING THE MOTION FOR RELIEF FROM JUDGMENT WITHOUT CONDUCTING A FACTUAL HEARING. Plaintiff's three assignments of error lack merit. The Ohio Supreme Court has stated the requirements governing motions for relief from judgment as follows: 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. R. 60(B)(1) through (5); and (3) 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. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St. 3d 17, 20 (Emphasis added). Civ. R. 60(B) motions for relief from judgment are addressed to the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Better - 5 - Meat Products v. Koula, Inc. (May 14, 1992), Cuyahoga App. No. 60455, unreported at 7-8 (citing Adomeit v. Baltimore (1974), 39 Ohio App. 2d 97, 103). Plaintiff contends in its three assignments of error that the trial court abused its discretion in granting Papouras relief from the default judgment without conducting a hearing since the Civ. R. 60(B) motion filed by Papouras failed to sufficiently demonstrate a meritorious defense, grounds for such relief pursuant to Civ. R. 60(B) and was not made within a reasonable time of the default judgment. Plaintiff's three assignments of error address the tripartite test necessary to prevail on a Civ. R. 60(B) motion and, therefore, will be addressed collectively. Meritorious Defense The affidavits filed with defendant's Civ. R. 60(B) motion allege the meritorious defense of misidentification and the notification of plaintiff's counsel of such defense through the correspondence described above. Defendant's affidavit stated that his name was "John P. Papouras," the proper defendant should have been "John A. Papouras," and that he had "never been the President, an officer, a stockholder, nor in any way connected with the corporation known as D.D.M., Inc." The evidentiary materials submitted by plaintiff in opposition contain the assertion in an affidavit by plaintiff's counsel that he believes "said John Papouras is, in fact, the correct defendant in the within case" based upon information provided by his client. - 6 - However, plaintiff neither submitted an affidavit on his own behalf nor an affidavit from anyone with personal knowledge of the underlying facts or sought to depose the John Papouras named as a defendant in the case to establish whether the defendant had been correctly identified. It is well-established that a movant seeking relief from judgment must merely allege the existence of a meritorious defense to satisfy the requirement for demonstrating a meritorious defense and need not demonstrate that he will ultimately prevail on such issue. Moore v. Emmanuel Family Training Center (1985), 18 Ohio St. 3d 64, 67. As a result, plaintiff's claim defendant failed to prove that he was misidentified prior to granting defendant's Civ. R. 60(B) motion is misplaced. The trial court did not err in failing to conduct an evidentiary hearing on this issue since plaintiff did not produce any competent evidence to contradict defendant's testimony concerning his misidentification by plaintiff to warrant such a hearing. Civ. R. 60(B) Grounds for Relief from Judgment Defendant's motion and accompanying evidentiary materials likewise demonstrated sufficient grounds to warrant relief pursuant to Civ. R. 60(B)(1) and (B)(5). Defendant's November 3, 1988 letter to plaintiff's counsel cannot be construed to constitute an "appearance" in the action to warrant prior notice of plaintiff's motion for default judgment under Civ. R. 55(A) - 7 - since the letter was not timely filed with the trial court. However, this Court has recognized that such correspondence between the parties in lieu of an answer may constitute sufficient "excusable neglect" pursuant to Civ. R. 60(B)(1) under appropriate circumstances. Better Meat Products v. Koula, Inc., supra at 6-7. The docket fails to reflect the trial court was aware of the defense of misidentification prior to granting the default judgment. It is well-established that doubt, if any, concerning the grounds for a motion under Civ. R. 60(B)(1) through (5) should be resolved in favor of a motion to vacate a default judgment when a movant timely alleges a meritorious defense so that disputes may be resolved on their merits. Id. at 8 (citing GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St. 2d 146); GMAC v. Deskins (1984), 16 Ohio App. 3d 132. This is particularly true where the amount of the default judgment is substantial as the $150,000 judgment in the case sub judice. The record demonstrates plaintiff proceeded with a motion for the default judgment despite knowledge of a substantial flaw in his case without providing prior notice to defendant of its motion for default judgment. Under the circumstances sub judice, the trial court could conclude defendant demonstrated sufficient "excusable neglect" for failing to file an answer. As a result, plaintiff has not demonstrated the trial court abused its - 8 - discretion in finding "excusable neglect" pursuant to Civ. R. 60(B)(1). See Better Meat Products, supra. Plaintiff has likewise failed to demonstrate the trial court abused its discretion in vacating the default judgment in the case sub judice pursuant to the alternative Civ. R. 60(B)(5) grounds raised by defendant's motion. Based upon the facts described above, defendant's motion and supporting evidentiary materials adequately demonstrated that vacating the default judgment would serve the interests of justice sufficient to qualify as "any other reason justifying relief from the judgment." Timeliness of Civ. R. 60(B) Motion Plaintiff has likewise failed to demonstrate the trial court abused its discretion in finding defendant's Civ. R. 60(B) motion was timely filed in the case sub judice. The record demonstrates defendant's motion was filed approximately eleven months after the underlying $150,000 default judgment was entered and did not exceed the applicable time limits set forth in Civ. R. 60(B)(1) as in Better Meat Products, supra. Plaintiff likewise failed to demonstrate defendant's motion was untimely on the alternative Civ. R. 60(B)(5) grounds. Therefore, the trial court could properly find under the totality of the circumstances in the case sub judice that the Civ. R. 60(B) motion was filed within a reasonable time. Also noteworthy is the fact that the same trial judge determined both the original motion for default - 9 - judgment and the subsequent motion to vacate the default judgment. We have no record of the evidence relied upon by the trial court in granting the $150,000 default judgment, and the trial court evidently thought the issue of misidentification coupled with the evidence it heard, if any, to grant the default judgment was sufficient to vacate the default judgment. There is no evidence to hold the trial court abused its discretion in granting defendant's Civ. R. 60(B) motion. Based upon the record sub judice, plaintiff has failed to exemplify any error and we must presume regularity of the proceedings and validity of the trial court's judgment granting defendant's Civ. R. 60(B) motion and affirm. We decline plaintiff's request to substitute our judgment for that of the trial court when the record does not demonstrate the trial court abused its discretion or that its judgment was arbitrary or unsupported by the evidence. Accordingly, plaintiff's three assignments of error are overruled. Judgment affirmed. - 10 - It is ordered that appellee(s) recover of appellant(s) 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 Common Pleas 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. DYKE, P.J., CONCURS; FRANCIS E. SWEENEY, J., DISSENTS (See Dissenting Opinion, Francis E. Sweeney, J., attached) JUDGE BLANCHE KRUPANSKY 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61041 GEORGE ZANE : : Plaintiff-appellant : : vs. : DISSENTING OPINION : D.D.M.,INC. : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 3, 1992 FRANCIS E. SWEENEY, J., DISSENTING: I respectfully dissent from the majority's affirmance of the trial court's grant of appellee's motion for relief from default judgment for the reason that appellee failed to file his motion within a "reasonable" period of time under Civ. R. 60(B). The supreme court in Adomeit v. Baltimore (1974), 39 Ohio App.2d 97 held that where a defendant made no attempt to protect his rights for eleven months after receiving notice of a complaint and took no action for five months after default judgment was entered, a motion for relief from default judgment was not filed within a "reasonable" time even though filed within a year. - 2 - Similarly, in the present case, appellee's attorney filed no answer or other pleading with the court to protect his client's rights, and filed no notice of appearance with the court, for over a year after receiving notice of the complaint and another eleven months after default judgment was entered. Based upon the failure of appellee and appellee's attorney to present any legal claim or defense to the action for almost two years, I would find that appellee did not file his motion for relief from judgment within a "reasonable time" under Civ. R. 60(B). .