COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70472 MAZEPA, INC. : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION JULIE KRUEGER : : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 15, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 288040 JUDGMENT : Reversed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Joseph G. Stafford, Esq. Arthur P. Lambros, Esq. John J. Dyer, Esq. 5709 Smith Road 380 Lakeside Place Brook Park, Ohio 44142 323 Lakeside Avenue W. Cleveland, Ohio 44113 Julie Krueger, Pro Se 1392 Eriewood Dr. Rocky River, Ohio 44116 -2- ROCCO, J.: Appellant Mazepa, Inc. appeals from the trial court's order granting appellee Julie Krueger's Motion for Relief from Default Judgment. Although the trial court's decision on the motion for relief from judgment was supported by the record, the trial court erred by failing to allow appellant an opportunity to respond to appellee's motion. We therefore reverse. Appellant Mazepa, Inc. (hereinafter appellant) filed a complaint for monetary damages and for an injunction arising from a promissory note appellee had signed in connection with appellee's earlier purchase of a restaurant from appellant. A special process server was subsequently appointed to serve appellee with the complaint at her place of business. In June, 1995, the trial court referred the matter to the court's non- binding arbitration. On August 16, 1995, as no answer had yet been filed, the trial court vacated the referral to arbitration, and ordered appellant to file a motion for default judgment within thirty days. The court ordered appellant to serve appellee with notice of the date scheduled for hearing on the motion for default judgment. Appellee failed to answer or otherwise defend, and the court granted the motion for default in the amount of $32,022.95 on November 17, 1995. On March 7, 1996, appellee filed a Motion for Relief from Judgment pursuant to Civ.R. 60(B). Without allowing appellant an opportunity to respond, the trial court granted appellee's motion. Appellant timely appealed the trial court's order granting relief from judgment. -3- Appellant states, in his first assignment of error: I. THE TRIAL COURT ABUSED ITS DISCRETION BY VACATING THE NOVEMBER 17, 1995 JUDGMENT Appellant contends the trial court abused its discretion by granting appellee's motion for relief from default judgment. To be successful on a motion brought pursuant to Civ.R. 60(B), the movant must demonstrate: 1) the party has a meritorious claim or defense to present if relief is granted, 2) the party is entitled to relief under one of the grounds enumerated in Civ.R. 60(B)(1) through (5), and 3) the motion is made within a reasonable time, and where the grounds for relief are 60(B)(1), (2), or (3), not more than one years after the judgment, order or proceeding was entered. GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St.2d 146, 150; citing Universal Film Exchanges v. Lust (C.A. 4, 1973), 479 F.2d 573; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 316 N.E.2d 469; Brenner v. Shore (1973), 34 Ohio App.2d 209, 297 N.E.2d 550. The court further noted its agreement with Judge Sobeloff in Universal Film Exchanges v. Lust, finding that the requirements are independent and in the conjunctive, not the disjunctive. GTE Automatic Electric, Inc. v. ARC Industries, supra. The trial court has discretion in deciding whether to grant relief from judgment, and its determination will be reversed only upon a showing that it abused its discretion. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20-21. First, appellee must demonstrate that she has a meritorious defense. She alleges that a dispute remains regarding the amount -4- of money owed to appellant, as she is entitled to credits for monies she has expended. Appellee maintains she has made payments, incurred costs, and paid attorney fees that arose after she was brought into lawsuits related to debts left by appellant when he sold her the restaurant. Generally, an independent claim, even if it arises from the same transaction, will not warrant granting relief from judgment. Urbana College v. Conway (1985), 29 Ohio App.3d 13. However in the case sub judice, the counterclaim indicates that the proper amount owed to appellant is at issue. As appellee's claim directly affects the validity of the judgment entered, appellee has satisfied the first requirement of Civ.R. 60(B). Appellee's motion, although brought under Civ.R. 60(B)(1) and (5), essentially argues surprise and excusable neglect pursuant to Civ.R. 60(B)(1). Appellee contends she received notice of neither the default hearing nor the default judgment. The record reflects that appellant mailed a copy of the motion to 19700 Detroit Road in September 1995. However, a judgment entry in the file, dated May 15, 1995 and signed by appellant's attorney, refers to the sale of appellee's restaurant at 19700 Detroit Road, Rocky River, Ohio. Thus, appellant was aware, at the time he mailed the motion, that appellee no longer owned a business at that location. Furthermore, Civ.R. 5(B) requires that service made upon a party represented by an attorney of record be served upon the attorney. Swander Ditch Landowners' Assn. v. Joint Bd. of Huron & Seneca Cty. Commrs (1990), 51 Ohio St.3d 131. Admittedly, -5- appellee's attorney had not yet filed a notice of appearance; however, he was acting as appellee's attorney and was involved in negotiations with appellant and appellant's attorney on appellee's behalf. Furthermore, the judgment entry noted above is signed by appellee's attorney as "Attorney for Defendant." Therefore, the motion for default judgment should have been served upon appellee's attorney, rather than directly on appellee. Finally, the movant is required to demonstrate that the Civ.R. 60(B) motion was filed timely. Appellee's attorney learned about the judgment on March 4, 1996. Appellee filed her motion for relief from judgment just four months after the default judgment was entered, and just a few days after appellee's attorney learned of the judgment. Thus, the motion was timely filed. As demonstrated above, appellee has satisfied all of the requirements of Civ.R. 60(B). The trial court did not abuse its discretion by granting appellee's motion for relief from judgment. Appellant's first assignment of error is overruled. Appellant's second assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT AN OPPORTUNITY FOR A HEARING ON APPELLEE'S MOTION FOR RELIEF FROM JUDGMENT Appellant alleges he should have been granted an opportunity to be heard on the motion because appellee failed to submit operative facts to warrant relief pursuant to Civ.R. 60(B). In Doddridge v. Fitzpatrick (1978), 53 Ohio St.2d 9, the Court held that: -6- [w]here the record contains sufficient evidence of excusable neglect on which to base a decision to grant a Civ.R. 60(B)(1) motion to vacate a default judgment and the movant has made a timely motion and has a meritorious defense, a trial court does not abuse its discretion if it grants the Civ.R. 60(B)(1) motion to vacate a judgment without first holding an evidentiary hearing on the Civ.R. 60(B)(1) issue. Such are the facts in the within action. The record reveals appellee, in her motion, stated sufficient evidence of excusable neglect to permit the trial court to grant the motion for relief from judgment without holding an evidentiary hearing. Appellant's second assignment of error is overruled. Appellant's final assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING APPELLEE'S MOTION FOR RELIEF FROM JUDGMENT PRIOR TO RECEIVING APPELLANT'S REPLY Appellant's final assignment of error contends the trial court abused its discretion by not permitting appellant the opportunity to file an opposition to appellee's motion. Civ.R. 7(B)(2) provides: To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition. In addition, Loc.R. 11(C) provides seven days for a party opposing a motion to respond. It is apparent on the face of the motion for relief from judgment, that appellee fulfilled all that is required for a court to grant a Civ.R. 60(B) motion. The trial judge was apparently sensitive to the fact that appellant's attorney, knowing appellee had sold her interest in the restaurant, still "served" her with the motion for default by mailing it to the -7- restaurant. This fact alone can support the trial judge's decision. Further, it is important to note that where timely relief is sought from a default judgment and the movant has a meritorious defense, any doubt should be resolved in favor of the motion to set aside the judgment, to allow the case to be decided on the merits. GTE Automatic Electric v. ARC Industries, supra at 151. See, also, Rafalski v. Oates (1984), 17 Ohio App.3d 65, 67, citing Perotti v. Ferguson (1983), 7 Ohio St.3d 1. However, the adversarial process is the cornerstone of our judicial system. It is crucial that a party opposing a motion have an opportunity to respond to that motion. Although it appears that there were sufficient facts before the trial judge on which he could base his decision granting appellee's motion for relief from judgment, to allow the trial judge's order to stand sets a precedent this court cannot sanction. Appellant's third assignment of error is well taken. This matter is remanded to the trial court to allow appellant an opportunity to oppose appellee's motion for relief from judgment. -8- It is ordered that appellant recover of appellee 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 Cuyahoga County 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. DIANE KARPINSKI, P. J., AND *JOSEPH E. MAHONEY, J., CONCUR JUDGE KENNETH A. ROCCO (Sitting by assignment: *Judge Joseph E. Mahoney, retired from the 11th District). 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 .