COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69870 SEEGOTT, INC. : : ACCELERATED DOCKET Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CHILD SAFETY SCIENCES, ET AL. : : PER CURIAM Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION: MAY 30, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 269690 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendants-appellants: AARON H. BULLOFF, ESQ. MICHAEL DRAIN, ESQ. JAMES H. ROWND, ESQ. 41 North Main Street KADISH, HINKEL & WEIBEL Chagrin Falls, Ohio 44022 2112 East Ohio Building Cleveland, Ohio 44114 - 2 - PER CURIAM: Appellee filed a complaint against Child Safety Sciences, Inc., Medvial, Inc. and CWC R&D, Inc. The complaint alleged nonpayment on delivered goods, totaling $42,981.00, plus service charges of $5,357.00. After four months none of the defendants had filed an answer to the complaint. Appellee filed a motion for default judgment on September 8, 1994. Affidavits were attached to the motion verifying that no answers had been filed by August 31st and that the service charges had increased to $7,936.00. A default judgment was entered against the appellants on September 29, 1994. Appellants filed a motion to vacate this judgment under Civ.R. 60(B) on September 26, 1995. The trial court denied the motion without a hearing. Appellants filed a timely notice of appeal from the denial of the motion, asserting two assignment of error. I THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHERE IT FAILED TO VACATE A DEFAULT JUDGMENT AFTER APPELLANTS PRESENTED A MERITORIOUS DEFENSE AND OTHER LEGALLY SUFFICIENT REASONS TO DO SO. Appellants argue that the motion to vacate the default judgment should have been granted because appellants had a meritorious defense and because the failure to defend was due to excusable neglect. Appellants' argument is without merit. To establish that they were entitled to relief appellants would be required to allege facts to demonstrate that: (1) [They had] a meritorious defense or claim to present if relief is granted; (2) [they are] entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) - 3 - 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. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. Civ.R. 60(B) permits a judgment to be vacated, at the trial court's discretion, 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. Appellants asserted as their meritorious defense that the products delivered to Medvial, Inc. were sold by the Internal Revenue Service at an auction of Medvial, Inc.'s property. At this auction, appellants assert that appellee bought back its products and resold them on the market. This asserted windfall to appellee is appellants' defense to owing appellee for the initial purchase of these products, prior to the Internal Revenue Service's auction. Appellants' argument is without merit. Regardless of what company purchased the products at the auction, appellee remained entitled to the $42,981.00 agreed upon price, plus the accrued service charge. Appellee has not received a windfall in buying back the products and selling them a second time. Appellee experienced a - 4 - loss each time it made these products available for sale, the first time to appellants and the second time to another purchaser. To realize a profit, it was necessary for appellee to receive payment on both sales. Appellants' argument does not support the first element under GTE Automatic Electric, supra. As to the claim of excusable neglect, appellants assert that the scheduled default hearing date was October 17, 1994. Appellants' neglect in responding to the motion for default can be excused because no hearing ever took place on October 17th, according to appellants' argument. There is a journal entry in the record setting the hearing date of October 17th. However, no response was received on appellee's motion for default from the September 8th filing date until the September 29th journal entry granting the motion. Furthermore, a postcard addressed to Child Safety Sciences in Delaware, and contained in the record, gave notice of a default hearing scheduled on September 19, 1994. The first indication of a defense in this case occurred with the filing of this Civ.R. 60(B) motion on September 26, 1995. Appellants' assertion that their neglect was excusable is without merit. Appellants therefore failed to support the third prong of the GTE Automatic Electric, supra, standard of proof. Appellants failed to assert arguments which would entitle them to Civ.R. 60(B) relief from the default judgment against them. Appellants' first assignment of error is overruled. II - 5 - THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO CONDUCT AN EVIDENTIARY HEARING WHERE APPELLANTS' MOTION ALLEGED THE REQUIREMENTS FOR A CIV.R. 60(B) MOTION. Appellants assert that they were entitled to a hearing on their Civ.R. 60(B) motion to vacate the default judgment against them. Appellants' argument is not well taken. A movant is not entitled to a hearing unless the Civ.R. 60(B) motion and attached affidavits contain allegations of operative facts which would warrant relief under Civ.R. 60(B). Salem v. Salem (1988), 61 Ohio App.3d 243; Twinsburg Banking Co. v. Rhea Constr. Co. (1983), 9 Ohio App.3d 39; and, Adomeit v. Baltimore (1974), 39 Ohio App.2d 97. Appellants failed to allege operative facts which would entitle them to Civ.R. 60(B) relief from judgment. Appellants' second assignment of error is overruled. The trial court's decision to deny appellants' motion to vacate the default judgment against them is affirmed. - 6 - 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 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. _________________________________ ANN DYKE, PRESIDING JUDGE _________________________________ TERRENCE O'DONNELL, JUDGE _________________________________ JOHN T. PATTON, 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 order of the court and time period for review will begin to run. .