COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70547 CLOSEOUT CONNECTION, INC. : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : KITTRICH CORPORATION : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-290452. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: James P. Cullen, Esq. Joseph P. Fegen, Esq. Rego, Cullen & Hagan, L.P.A. 21270 Lorain Road Fairview Park, Ohio 44126 For Defendant-appellant: Mark I. Wachter, Esq. Mays, Karberg & Wachter Suite 250, Corporate Circle 30100 Chagrin Boulevard Cleveland, Ohio 44124-5705 - 2 - PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusionary decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Defendant-appellant Kittrich Corporation appeals the trial court's refusal to grant its motion for relief from judgment pursuant to Civ.R. 60(B). The court awarded a default judgment against the appellant to the plaintiff-appellee Closeout Connections, Inc. in the sum of $150,000.00 plus costs. The appellee filed its complaint for breach of contract on June 5, 1995. The summons was issued by certified mail, and on June 23, 1995, the return receipt was signed by Paul Garcia, an employee of McAdams Mail Courier. No answer was filed. On August 2, 1995, the appellee filed its motion for default judgment. A hearing was held on September 22, 1995, and judgment was awarded to the appellee. The appellant filed its motion for relief from judgment on February 20, 1996, the appellee filed its brief in opposition, and the court denied the motion. Attached to the motion for relief from judgment are the affidavits of Kimberly Scott, the executive assistant to the president of Kittrich; Rosina Sanchez, the receptionist for McAdams; Richard Sherman, attorney for Kittrich; and Arthur Blumenthal, vice president of Kittrich. - 3 - Ms. Scott affirmed that she processes the legal documents received by the appellant and that the summons and complaint in this case were never delivered to nor received by the appellant. Ms. Scott identified the signature of Paul Garcia, the employee of Kittrich's mail delivery service, McAdams Mail Courier. Certified mail requiring a return receipt is signed for by McAdams and then noted on a log to be countersigned by the appellant. McAdams searched its log and no countersignature exists. The first knowledge Ms. Scott had of the existence of this action was the receipt of a postcard indicating that a default hearing had been set for September 22, 1995, at 9:30 a.m. Rosina Sanchez affirmed that she files the log sheets evidencing receipt and delivery of certified mail. Paul Garcia was employed by McAdams during this time frame, but is no longer an employee. Ms. Sanchez diligently searched, but found no record of delivery of the summons and complaint to the appellant. Richard Sherman affirmed that he is an attorney in good standing with the California Bar; that he was contacted on this case on September 20, 1995; and that he contacted James Cullen, counsel for the appellee, on the same day and informed him that he was in receipt of the complaint with jury demand. Mr. Sherman affirmed that he requested an extension of 30 days; that he informed Mr. Cullen that Kittrich indicated that the value of the territory was substantially less than alleged in the complaint and as a consequence, the value of the claim was far less than alleged. - 4 - Mr. Cullen requested than the request for a 30-day extension of time be put in writing, a request to which Mr. Sherman complied. Mr. Sherman affirmed that the original summons and complaint was not included in the information supplied to him by his client. A copy of the letter faxed to Mr. Cullen is authenticated in Mr. Sherman's affidavit and was attached thereto. In the letter, Mr. Sherman stated "...and your client's Complaint with Jury Demand has been forwarded to my attention along with your letters." Mr. Sherman requested an immediate reply so that he could locate and retain local counsel to appear at the default if the appellee was unwilling to agree to an extension of time. Arthur Blumenthal affirmed that he met with Keith Schwartz, the principle of Closeout Connection, Inc. and discussed the possibility of Schwartz representing Kittrich in the Ohio area. Gross sales in the Ohio territory have not generally exceeded $150,000. The discussions were preliminary, and Mr. Blumenthal indicated that matters would be finalized at a trade show in Chicago on January 15, 1995. At the trade show, Mr. Blumenthal advised Mr. Schwartz that Kittrich had decided to continue to utilize their existing representative. Attached to the brief in opposition to the motion for relief from judgment was the affidavit of James Cullen, the appellee's attorney. Also attached were telephone messages from Ms. Scott. These records were authenticated by the affidavit of Lucian Rego, president and custodian of records of Cullen's law firm. The - 5 - appellee attached a facsimile transmission cover sheet indicating that a fax was sent from Mr. Cullen to Ms. Scott on June 28, 1995, at 5:00 p.m., est.; a negotiation letter from Mr. Cullen to Ms. Scott dated July 14, 1995; and the letter from Mr. Sherman to Mr. Cullen. Mr. Cullen affirmed that he represents Closeout Connections; that prior to the filing of the complaint a demand letter was sent to Kittrich who responded with a threat of a countersuit; that on June 28, 1995, he was contacted by Ms. Scott and that she indicated she had received a copy of the complaint filed in this case; during this telephone conversation the substance of the complaint was discussed; that the previously referenced fax and letter were sent to Kittrich; that the letter itself references documents which were requested in the request for production of documents filed with the complaint; and that a letter was sent to Mr. Sherman denying the request for an extension of time. The appellant asserts the following two assignments of error: I THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO RULE 60(B). II THE TRIAL COURT ERRED BY REFUSING TO CONDUCT AN EVIDENTIARY HEARING ON APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO RULE 60(B). The appellant argues that failure to answer a complaint as the result of failure of service of the summons and complaint - 6 - constitute grounds for relief from judgment under Civ.R. 60(B)(1) and (5). The appellant asserts that service was not received, that a meritorious defense was presented, and that the motion was timely filed. C.R. 60(B) provides in part that, upon such terms as are just, the court may relieve a party from a final judgment. The first section of the rule provides for relief from mistake, inadvertence surprise or excusable neglect, and the fifth section provides for relief for any other reason justifying relief from judgment. In Strack v. Pelton (1994), 70 Ohio St.3d 172, the Supreme Court reiterated its holding in GTE Automatic Elec. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146. The court held that in order for a party to prevail on a motion for relief from judgment, the movant must demonstrate: 1) the party has a meritorious defense 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), (2), or (3), not more than one year after the judgment was taken. These requirements are independent and in the conjunctive; thus the test is not fulfilled if any one of the requirements is not met. Id. at 174. The standard of review is one of abuse of discretion. Strack, supra. A movant is merely required to allege a meritorious defense, not prevail with respect to the truth of the defense. Moore v. - 7 - Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64; Colley v. Bazell (1980), 64 Ohio St.2d 243. Most recently, the Supreme Court held that a trial court abuses its discretion in denying a hearing where grounds for relief from judgment are sufficiently alleged and supported with evidence which would warrant relief. Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18. The Court cited to Colley, supra, and stated that Civ.R. 60(B) is a remedial rule to be liberally construed so that the ends of justice may be served. The law does not favor default judgments. Hopkins v. Quality Chevrolet, Inc. (1992), 79 Ohio App.3d 578. It is a basic tenant of Ohio jurisprudence that cases should be decided whenever possible on their merits after giving all parties their day in court. Rafalski v. Oates (1984), 17 Ohio App.3d 65; Brodart Co. v. Boyd's Roofing & Contracting, Inc. (April 29, 1993), Cuyahoga App. Nos. 62376, 62933, 63225, unreported citing to Hopkins, supra. Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits. Brodart, supra, citing to Antonopoulos v. Eisner (1972), 30 Ohio App.2d 187. This court must also note that effective service of process may not be achieved by sending a courtesy copy of the complaint to the defendant. King v. Hazra (1993), 91 Ohio App.3d 534. Absent a waiver of service, a party must be served with the summons and - 8 - complaint pursuant to the methods outlined in the Civil Rules. Id. In the case sub judice, it is not contested that the appellant has presented a meritorious defense to the complaint. Although the appellee disagrees, this court finds that the motion for relief, filed five months after judgment, was timely given the surrounding circumstances. The main issue, then, is whether or not the appellant has presented evidence that it is entitled to relief under Civ.R. 60(B). The appellant presented uncontroverted evidence from Ms. Scott and Ms. Sanchez that the service of summons was not completed. Although Mr. Sherman affirmed that he advised Mr. Cullen that he was in receipt of the complaint, he also affirmed that his clients never sent him the original summons and complaint. The appellee argues that this testimony is conflicting, and therefore not credible. The appellant explains the discrepancy by stating that a courtesy copy of an unfiled complaint was forwarded by counsel for appellee to Kittrich. The appellee argues that the appellant was in actual receipt of the complaint, but does not confirm or deny sending a courtesy copy of the complaint. Given this question of fact, the trial court abused its discretion in without first holding an evidentiary hearing on the appellant's motion for relief from judgment. The appellant's first and second assignments of error are well taken. Judgment reversed and remanded for hearing. - 9 - This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is ordered that appellant recover of appellee its costs herein taxed. It is ordered that a special mandate issue out of this Court directing said 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. JAMES D. SWEENEY, P.J. SARA J. HARPER, J. TIMOTHY E. McMONAGLE, J. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .