COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67546 : ANDREW KACZUR : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION GREG DECARA DBA CARA CONSTRUCTION : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 20, 1995 CHARACTER OF PROCEEDING: Civil appeal from Bedford Municipal Court Case No. 93-CVF-1936 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: PAMELA GILLERY MEYER, ESQ. THOMAS R. BUCHANAN, ESQ. Melling, Melling & Bell Williams, Welser & Kratcoski 31 Columbus Road 11 S. River Street P.O. Box 46311 P.O. Box 396 Bedford, Ohio 44146 Kent, Ohio 44240 - 2 - KARPINSKI, J.: Defendant-appellant Greg DeCara, individually and dba Cara Construction, appeals from an order of the Bedford Municipal Court denying his Civ.R. 60(B) motion for relief from judgment in favor of plaintiff-appellee Andrew Kaczur. Plaintiff filed a four-count complaint against defendant in the Bedford Municipal Court on June 14, 1993. Plaintiff's complaint arose out of a basement waterproofing dispute and raised claims against the defendant contractor for breach of contract, intentional and negligent misrepresentation, and breach of warranty. Plaintiff's complaint sought to recover from defendant the $8,500 cost of waterproofing the basement by a different contractor, plus unspecified punitive damages, attorney fees and costs. Defendant was served, both individually and dba Cara Construction, with a summons and copy of plaintiff's complaint on June 19, 1993. Defendant, however, subsequently failed to file an answer, appear or otherwise defend against the claims in plaintiff's complaint. On August 2, 1993, approximately two weeks after the deadline for filing an answer expired, plaintiff filed and served a motion for default judgment against defendant. Plaintiff filed a brief in opposition to defendant's motion for relief from judgment. On September 30, 1993, defendant appeared without counsel at the hearing conducted by the municipal court on plaintiff's motion for default judgment. The record on appeal - 3 - does not contain a transcript, statement of the evidence, or other adequate record of the default judgment hearing. The municipal court journalized the following judgment in favor of plaintiff on October 8, 1993: This matter came on for Proof-of-Claim hearing on September 30, 1993, parties present. The Court thru [sic] the evidence and testimony presented, finds plaintiff has established proof in support of its claim and judgment is hereby granted. It is therefore ordered that judgment be and is hereby rendered in favor of the plaintiff, against the defendants [sic], in the sum of $10,000.00, plus costs. The municipal court's journal entry recites that the order was mailed to defendant by regular mail on October 8, 1993. Defendant filed a Civ.R. 60(B) motion for relief from the default judgment approximately seven months thereafter on May 3, 1994. Defendant's motion argued that his failure to answer plaintiff's complaint resulted from "mistake, inadvertence, and/or excusable neglect." The municipal court denied defendant's motion for relief from judgment in the following order journalized June 3, 1994: This matter came on for hearing on May 31, 1994, upon defendant's Motion to Vacate and plaintiff's Brief in Opposition. The Court finds said Motion not well taken and the same is hereby denied. It is therefore ordered that the judgment entry of October 8, 1993 be and is hereby in full force and effect. Defendant timely appeals from the denial of his Civ.R. 60(B) motion for relief from judgment, raising the following two related assignments of error: THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO HOLD AN EVIDENTIARY HEARING PRIOR TO DENYING THE MOTION TO VACATE. - 4 - THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING THE MOTION TO VACATE. Defendant's two assignments of error lacks merit. Defendant's brief on appeal argues the municipal court improperly overruled his Civ. R. 60(B)(1) motion for relief from judgment without conducting an evidentiary hearing. It is well established, however, that a trial court's denial of a motion for relief from judgment will not be reversed on appeal absent an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. The Ohio Supreme Court has explained the abuse of discretion standard of review as follows: [A]n abuse of discretion involves far more than a difference in *** opinion ***. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an "abuse" in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. State v. Jenkins (1984), 15 Ohio St.3d 164, 222. Based on our review of the record in accordance with this standard, defendant has failed to demonstrate the municipal court abused its discretion by denying his motion in this case. The requirements governing motions for relief from judgment have been summarized by the Ohio Supreme Court as follows: 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), - 5 - (2) or (3), not more than one year after judgment, order or proceedings was entered and taken. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. The failure to establish all three elements of this test warrants denial of the motion. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17; Gurkovich v. AAA Mobile Home Sales (1990), 70 Ohio App.3d 572, 573. Defendant contends the municipal court abused its discretion by denying his motion for relief from judgment because (1) defendant performed the basement waterproofing contract in a workmanlike manner, (2) defendant mistakenly believed his insurance carrier was defending him against plaintiff's claims, and (3) defendant timely filed a motion for relief from judgment. However, even if defendant has a meritorious defense as he 1/ contends , the record demonstrates defendant did not present evidence to establish sufficient grounds for relief from judgment or the timeliness of his motion to warrant relief from judgment. Grounds for Relief Defendant claims he established sufficient grounds for relief from judgment under Civ.R. 60(B)(1). Defendant contends his failure to file an answer resulted from his "erroneous but genuine impression" that his insurance carrier had resolved the 1/ Defendant apparently seeks to relitigate whether he properly performed the basement waterproofing project. However, defendant has not shown that the evidence provided in connection with his motion for relief from judgment differed in any way from the evidence he provided at the prior default hearing when judgment was first entered against him. Since this court of appeals does not have a transcript of the default hearing, we give the benefit of doubt on this issue in favor of defendant. - 6 - matter and/or would take care of it. In support of his argument, defendant quotes paragraph two of the syllabus of Colley v. Bazell (1980), 64 Ohio St.2d 243, which provides as follows: Where a defendant, upon being served with a summons in a cause of action based on a claim for which he has liability insurance, relies on his carrier to defend the lawsuit, his failure to file an answer or to determine independently that his carrier has failed to file timely an answer which leads to the taking of a default judgment, may constitute "excusable neglect," depending on the facts and circumstances of the case, so as to justify relief from default judgment pursuant to Civ.R. 60(B). Id. However, this court of appeals distinguished Colley and rejected defendant's precise claim under strikingly similar circumstances in Drongowski v. Salvatore (Oct. 1, 1992), Cuyahoga App. No. 61081, unreported, stating as follows: The Colley defendant notified his insurance carrier of the lawsuit immediately and supplied information needed to defend the action. The insurance company failed to file a timely answer because "the paperwork was apparently delayed in the mail * * *" and the trial court entered a default judgment within one week of the answer date. Id. at 248. The Colley defendant filed his Civ.R. 60(B) motion eleven days later. Id. at 246. The supreme court held that under these facts, the defendant's inaction constituted excusable neglect within the meaning of Civ.R. 60(B)(1). In contrast to the Colley defendant, Salvatore presented no evidence he contacted his father's insurance company or provided the company with the information necessary to defend the lawsuit. It does not appear from the record that he took any steps to determine whether the company was, in fact, representing his interest. The trial court entered the default judgment over a month after the answer date, and Salvatore waited eleven months and eight days to file his Civ.R. 60(B) motion. We find Salvatore failed to demonstrate excusable neglect under Civ.R. 60(B)(1). - 7 - As in Drongowski v. Salvatore, the record demonstrates defendant presented some evidence that he had a meritorious defense to plaintiff's complaint; however, defendant did not present evidence to establish sufficient grounds for relief from judgment. Defendant knew that his insurance carrier denied coverage for plaintiff's claim before plaintiff filed his complaint. Defendant did not present any evidence that he even informed his insurer of plaintiff's complaint against him or that he made any effort to determine whether his insurer undertook his defense in the action. In fact, plaintiff presented evidence to the contrary indicating that defendant's insurer informed defendant that it would not represent defendant. Defendant's brief on appeal apparently concedes he knew by August 1993 his insurer had denied coverage. (Brief at p. 10.) Defendant clearly knew when he appeared at the September 30, 1993, default judgment hearing that his insurance carrier was not representing him, but defendant elected to proceed and made no request for a continuance to obtain counsel or file a belated answer. Under the circumstances, defendant has failed to demonstrate the municipal court improperly found that his neglect was inexcusable in this case. Finally, we note that even if defendant had informed his insurance carrier of the pendency of plaintiff's complaint against him in this case, the Ohio Supreme Court has held that a trial court did not abuse its discretion by denying a motion for - 8 - relief from default judgment under similar circumstances. Griffey v. Rajan, supra. Timeliness Defendant has likewise failed to demonstrate that his motion for relief from judgment was timely filed within a reasonable time. The record demonstrates an extended delay of more than seven months between the default judgment and defendant's motion for relief from judgment. In Drongowski v. Salvatore, this court recognized that a delay of such magnitude was unjustified: Salvatore filed his motion eleven months and eight days after the entry of the default judgment. He offers no explanation for this delay, and his deposition testimony taken eighteen days after the judgment indicates he was aware of the default hearing. This court has held that an unjustified delay of two and one-half months is unreasonable as a matter of law. Zerovnik v. E.F. Hutton & Co. (June 7, 1984), Cuyahoga App. No. 47460, unreported. See, also, Mount Olive Baptist Church, supra, (four-month unjustified delay precludes relief from judgment); Larson v. Umoh (1996), 33 Ohio App.3d 14 (seventy-two-day delay renders Civ.R. 60(B) motion untimely). Id. at 3. Defendant in this case personally appeared at the default hearing, received notice of the municipal court's default judgment, failed to attend two subsequent debtor's examinations, and waited another month before filing a motion for relief from judgment--a total of seven months from the default order. Although defendant's delay in filing his motion for relief from judgment in this case was less than the eleven-month period in Drongowski v. Salvatore, defendant's delay was more extensive than the cases cited therein. The amount of time elapsed, - 9 - moreover, must be viewed in relation to the excuse defendant offers. Defendant offers no reasonable basis for excusing his continuing neglect from August of 1993 to May of 1994. Under the circumstances, defendant has failed to demonstrate that his motion for relief from judgment was timely filed within a reasonable time in this case. Defendant has likewise failed to demonstrate the municipal court improperly denied his Civ. R. 60(B) motion without conducting a hearing. First, as noted above, the municipal court's journal entry denying his motion specifically recites that the "matter came on for hearing." The record contains nothing to dispute that a hearing was in fact held by the municipal court. A reviewing court cannot simply accept an assertion to the contrary (that no hearing was held) made for the first time in a brief filed on appeal. Moreover, even if the municipal court did not conduct a hearing as defendant contends, defendant has failed to demonstrate any error. It is well established that a movant is not entitled to a hearing on a motion for relief from judgment unless the movant presents evidence of operative facts which would warrant relief under Civ.R. 60(B). Salem v. Salem (1988), 61 Ohio App.3d 243; Hornyak v. Brooks (1984), 16 Ohio App.3d 105. Since defendant presented only a generalized, conclusory affidavit which failed to demonstrate sufficient grounds for relief from judgment, the municipal court did not err or abuse its discretion by denying his motion without conducting an - 10 - evidentiary hearing. Gurkovich v. AAA Mobile Home Sales, supra at 574-575. Accordingly, defendant's two assignments of error are overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant his 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 Bedford 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. DAVID T. MATIA, P.J., and O'DONNELL, J., CONCUR. DIANE KARPINSKI 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 journalization, at which time it will become the judgment and .