COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70747 THE ROBERT H. NEWTON COMPANY : ACCELERATED CASE : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CANADIAN STEEL FOUNDRIES, : ETC., ET AL. : PER CURIAM : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 31, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-298178 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JEFFREY P. POSNER (#0022075) ZELLMER & GRUBER 1400 Leader Building Cleveland, Ohio 44114 For Defendants-Appellees: WILLIAM F. SNYDER (#0022133) LAURENCE R. SNYDER (#0037290) SNYDER ASSOCIATES One Erieview Plaza, Suite 450 Cleveland, Ohio 44114 - 2 - PER CURIAM: Plaintiff-appellant The Robert H. Newton Company ("appellant") appeals the judgment of the trial court granting defendants- appellees Canadian Steel Foundries, Etc. et al. ("appellees") motion for relief from default judgment. Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED IN GRANTING RELIEF FROM JUDGMENT WITH REGARD TO CANADIAN STEEL FOUNDRIES; II. THE TRIAL COURT ERRED IN GRANTING RELIEF FROM JUDGMENT WITH REGARD TO HAWKER SIDDELEY CANADA, INC. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On March 15, 1990, appellant entered into a Representative Agreement with appellees for the promotion and sale of steel and stainless steel cast products manufactured by appellee Canadian Steel Foundries, a division of appellee Hawker Siddeley Canada, Inc. Appellant's Representative Agreement with appellees stated that said agreement shall be in effect for an initial period of one year and shall continue to remain in effect until terminated by either party. Where, however, either party becomes involved in bankruptcy, insolvency, assignment for creditors, receivership or similar proceedings or situations such as a change of ownership, the agreement was to terminate immediately and automatically. (See Representative Agreement). - 3 - On January 23, 1995, appellant was notified by appellee Canadian Steel Foundries that, on November 30, 1994, it had been sold to Canadian Steel Foundries, Ltd., a wholly owned subsidiary of Atchison Casting Corporation. Thus, the agreement between appellant and appellees was terminated. On November 13, 1995, appellant filed a complaint against appellees alleging that it was owed commissions for sales made by appellant for appellees, but which appellees have refused to account for and pay. (See Complaint, November 13, 1995). In particular, appellant contends that appellees owe it $5,432.50 for commissions on sales made by appellant to Tippins, Inc., as well as commission on other sales made by appellant. In satisfaction of appellant's claim, appellee Canadian Steel Foundries subsequently sent appellant a check for $5,432.50. On February 2, 1996, appellant filed a motion for default judgment with the trial court. And, on March 12, 1996, the trial court granted appellant's motion for default judgment and awarded appellant $76,179.35 plus 10% interest per annum in commissions due appellant. Subsequently, on April 15, appellees filed a motion for relief from default judgment and, on May 3, 1996, appellant filed its preliminary brief in opposition to appellees' motion for relief from judgment. On May 6, 1996, the trial court granted the motion for relief from default judgment as to both appellees and ordered appellees to answer, move or otherwise reply by May 31, 1996. (Journal Entry, May 6, 1996). - 4 - II. In its first assignment of error, appellant contends that the trial court erred in granting appellee Canadian Steel Foundries' motion for relief from judgment. In particular, appellant contends that appellee Canadian Steel Foundries' motion lacked sufficient grounds for relief, in that appellee Canadian Steel Foundries did not have a meritorious defense, nor did appellee Canadian Steel Foundries present sufficient evidence to support its claim of excusable neglect or inadvertence. The primary question presented by this appeal is whether the trial court erred in granting appellees' Civ.R. 60(B) motion for relief from default judgment. Civ.R. 60(B) provides that: On motion and upon such terms as are just, the court may relieve a party or his legal repre- sentative 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 motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than a 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. - 5 - To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate: (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, not more than one year after the judgment, order or proceeding was entered or taken. GTE Automatic Elec. v. ARC Industries (1976), 47 Ohio St.2d 146; see also Ohio Savings Bank v. Jeffers, et al. (June 4, 1992), Cuyahoga App. No. 60754, unreported. Furthermore, the three prongs of the GTE test must each be met independently of the others. GTE, supra at 151. An appellate court will not disturb an order denying relief from judgment unless the trial court has abused its discretion by that ruling. Jeffers, supra, citing Associated Estates v. Fellows (1983), 11 Ohio App.3d 112; Huntington Nat'l Bank v. Investment Group (1983), 12 Ohio App.3d 113. An abuse of discretion implies an arbitrary, unreasonable, or unconscionable attitude by the trial court. MacKenzie v. MacKenzie (June 9, 1994), Cuyahoga App. No. 64823, unreported, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Initially, we will address whether appellee Canadian Steel Foundries has set forth a meritorious claim or defense upon which relief may be granted. Under Civ.R. 60(B), a movant's burden is only to allege a meritorious claim, not to prevail on the merits of - 6 - the claims. Moore v. Emmanuel Family Training Center, Inc. (1985), 18 Ohio St.3d 64, 67. In the case sub judice, appellee Canadian Steel Foundries claims that upon receipt of appellant's complaint and after full review of its files, it sent appellant a check for $5,432.50. Appellee Canadian Steel Foundries believed that, in paying the foregoing sum, the matter had been settled, particularly in light of the fact that $5,432.50 was the only amount specified in the complaint. (See Complaint, Count I). Furthermore, appellee Canadian Steel Foundries was unaware of the specific amount of commissions demanded and set forth by appellant at the default judgment hearing. Accordingly, the trial court appropriately found that appellee Canadian Steel Foundries had alleged a meritorious defense which could be raised if relief were granted. Thus, the first requirement of GTE is met. The third element of GTE is that the motion be made within a reasonable time. We agree with the trial court's findings that appellees' motion was timely filed. The second element of GTE provides that the moving party must demonstrate it is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5). At issue in the case before us is whether appellee Canadian Steel Foundries demonstrated it was entitled to relief for the reasons of mistake, inadvertence or excusable neglect. For the following reasons, we hold that the - 7 - trial court did not abuse its discretion and properly granted Canadian Steel Foundries' motion for relief from judgment. In the present case, appellee Canadian Steel Foundries, on November 27, 1995 received notice that appellant had filed a complaint against them. Appellee Canadian Steel Foundries subsequently reviewed the complaint and sent appellant a check for $5,432.50, what it believed to be complete and full satisfaction of the complaint. On February 2, 1996, appellant filed a motion for default judgment, and on March 12, 1996, the trial court, after appellee Canadian Steel Foundries had already issued appellant what it deemed to be payment in full, granted appellant's motion for default judgment in the amount of $76,179.35 plus 10% interest per annum in commissions. The Ohio Supreme Court has stated that "it is court policy, when deciding Civ.R. 60(B) motions to encourage the resolution of cases on their merits." Moore, supra at 68. Thus, "'* * * the concept of "excusable neglect" must be construed, which bearing in mind that Civ.R. 60(B) constitutes an attempt to "strike a proper balance between the conflicting principles that litigation must be brought to an end and justice should be done." 11 Wright & Miller, Federal Practice & Procedure 140, Section 2851, quoted in Doddridge v. Fitzpatrick (1978), 53 Ohio St.2d 9, 12.'" Moore, supra at 68, citing Svoboda v. Brunswick, (1983), 6 Ohio St.3d 348,349. We note that although Canadian Steel Foundries did not timely file an answer to appellant's complaint, it did, in fact, issue appellant a - 8 - check for $5,432.50, the amount specified in the complaint. Canadian Steel Foundries believed this payment fully satisfied appellant's demand. The trial court, however, failed to acknowledge such payment and granted appellant's motion for default judgment. Thus, in light of Canadian Steel Foundries action in paying appellant the sum of $5,432.50, the inaction of Canadian Steel Foundries in not responding to appellant's complaint had not ripened to the point where it could be labeled as a 'complete disregard for the judicial system' as condemned in GTE Automatic Electric, supra at 153. See, Griffey v. Rajan (1987), 33 Ohio St.3d 75; Colley v. Bazell (1980), 64 Ohio St.2d 243. Accordingly, appellant's first assignment of error is overruled. III. In its second assignment of error, appellant asserts that service upon appellee Hawker Siddeley Canada, Inc. was proper. Therefore appellee's portion of the motion for relief from default judgment should have been denied. The issue raised by appellee Hawker Siddeley Canada, Inc., and on appeal, is whether appellant obtained sufficient service of summons upon appellee Hawker Siddeley Canada, Inc., a nonresident of Ohio, to permit a default judgment being rendered against it for failure to answer. This court would initially note that a judgment rendered without personal jurisdiction over a defendant is void. Patton v. - 9 - Diemer (1988), 35 Ohio St.3d 68. Therefore, the authority to vacate a void judgment "is not derived from Civ.R. 60(B) but rather constitutes an inherent power possessed by Ohio Courts. Patton, supra, paragraph four of the syllabus. A party seeking to challenge such a void judgment must file a motion to vacate or set aside the judgment. CompuServe, Inc. v. Trionfo (1993), 91 Ohio App.3d 157, 161, citing In Re Miller (1986), 33 Ohio App.3d 224. It is not significant that the motion is styled as one made pursuant to Civ.R. 60(B). Trionfo, supra, citing U.S. Sprint Communications Co. v. Mr. K's Foods, Inc. (December 31, 1990), Franklin App. No. 90AP-629, unreported. A movant need not show the existence of a meritorious defense, nor that the motion was timely filed to be entitled to relief from a void judgment. Trionfo, supra. In the present case, appellant argues that there is no evidence in the record which reflects that appellee Hawker Siddeley Canada, Inc. did not receive summons of the complaint rendered against it. Appellee Hawker Siddeley Canada, Inc., however, contends that it never received summons of the complaint and that the trial court lacked personal jurisdiction to render judgment against it. Appellee Hawker Siddeley Canada, Inc. further asserts that service was delivered to, received by, and accepted by appellee Canadian Steel Foundries, Ltd. in error. (See Affidavit, Nathalie Gagnon, April 11, 1996). Moreover, appellee Canadian Steel Foundries, Ltd. failed to forward the service of process to - 10 - appellee Hawker Siddeley Canada, Inc. Thus, appellee Hawker Siddeley Canada, Inc. contends that the judgment of the trial court should be vacated. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Akron-Canton Regional Airport Authority v. Swinehart (1980), 62 Ohio St.2d 403, 406, citing In re Foreclosure of Liens (1980), 62 Ohio St.2d 333. So long as service is "reasonably calculated" to reach interested parties, then the service is constitutionally sound. Swinehart, supra. In the instant cause, service was not made in a manner "reasonably calculated" to reach appellee Hawker Siddeley Canada, Inc. Hawker Siddeley Canada, Inc. did not maintain an office on the premises of the business where it was attempted to be served. Its principal place of business was, in fact, in another city. Affidavit testimony was given by Nathalie Gagnon, the controller of Canadian Steel Foundries, which stated that the summons of complaint addressed to Hawker Siddeley Canada, Inc. was accepted by appellee Canadian Steel Foundries in error. Furthermore, on January 23, 1995, appellant was informed by appellee Canadian Steel Foundries that it had been sold to Canadian Steel Foundries Ltd., a wholly owned subsidiary of Atchison Casting Corporation and was no - 11 - longer a division of Hawker Siddeley Canada, Inc. Moreover, letterhead used by appellee Canadian Steel Foundries to inform appellant of its sale no longer contained the name or address of appellee Hawker Siddeley Canada, Inc. Accordingly, service at appellee Canadian Steel Foundries, Ltd. business address under these circumstances does not comport with due process. Appellant's second assignment of error is overruled. Judgment affirmed. - 12 - It is ordered that appellee recover of appellants 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. LEO M. SPELLACY, CHIEF JUSTICE SARA J. HARPER, JUDGE JOSEPH J. NAHRA, JUDGE N.B. This 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(B) 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 clerk per App.R. 22(B). See, also S.Ct.Prac.R. II, Section 2(A)(1). .