COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72158 ACCELERATED DOCKET LOLA TIRABASSI : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION NORMANDY TOWERS APARTMENTS : : PER CURIAM Defendant-Appellant : : DATE OF ANNOUNCEMENT SEPTEMBER 11, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Euclid Municipal Court Case No. 96-CVE-2011 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: PAUL H. HENTEMANN, ESQ. TIMOTHY T. REID, ESQ. Northmark Office Buildling Reid, Berry & Stanard 35000 Kaiser Court, #305 1300 Illuminating Building Willoughby, Ohio 44094 55 Public Square Cleveland, Ohio 44113 PER CURIAM: This appeal was filed and briefed as an accelerated appeal -2- pursuant to Local R. 25 of this court. Normandy Towers Apartments, defendant-appellant, appeals a decision from the trial court denying its Civil Rule 60(B) motion to vacate a default judgment rendered in favor of Lola Tirabassi, plaintiff-appellee, in her negligence action. Normandy Towers assigns the following two errors for our review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN GRANTING A DEFAULT JUDGMENT IN FAVOR OF PLAINTIFF-APPELLEE WHERE PLAINTIFF HAD GRANTED AN EXTENSION TO ANSWER TO DEFENDANT-APPELLANT AND NO NOTICE OF DEFAULT WAS SERVED ON DEFENDANT. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN FAILING TO GRANT RELIEF FROM DEFAULT JUDGMENT UNDER CIVIL RULE 60(B). In compliance with App.R. 11.1, we conclude that the trial court properly denied the motion. For the reasons set forth below, we affirm the decision of the trial court. The apposite facts follow. Lola Tirabassi was injured on August 12, 1995, while riding in an elevator when an overhead plastic light cover fell and hit her on the head. On November 14, 1996, Tirabassi filed a negligence action against Normandy Towers alleging they negligently failed to properly maintain the elevator. On December 27, 1996, the trial court issued the following journal entry: Case called: Defendant not appearing, Court finds defendant in default of answer and this cause is set for trial on the active list for evidence. -3- On December 30, 1996, the case was called to trial. Normandy Towers did not appear. Tirabassi filed copies of her hospital records and a copy of a letter from Coti Voegtler of Travelers Indemnity Company (Normandy Towers' insurance carrier), to Tirabassi's trial counsel, Paul Hentemann. In the letter, Voegtler wrote This will acknowledge receipt of your voice mail message of November 22, 1996, in which you granted an extension of time to answer the suit filed by your client. In a journal entry dated December 30, 1996, the trial court issued the following order: Case called; plaintiff in court; defendant not, trial had. Judgment for plaintiff against defendant for $7500.00 and costs. On January 24, 1997, Normandy Towers filed a Civ.R. 60(B) motion to vacate the default judgment arguing the trial court erred in issuing the default judgment in light of the extension agreed to by Tirabassi. Normandy Towers also argued it had no notice of the default. In Tirabassi's Brief in Opposition to Defendant's Motion to Vacate, Hentemann, Tirabassi's trial counsel, admitted he agreed to extending time for Normandy Towers to file its answer. However, Hentemann also stated that the last settlement offer by Normandy Towers' insurance carrier was rejected. On February 3, 1997, the Court denied the Motion to Vacate. This appeal followed. The central issue of both assignments of error concerns Civil -4- Rule 60(B) of the Ohio Rules of Civil Procedure, therefore both assignments will be discussed concurrently. Pursuant to Civ. R. 60(B), Normandy Towers sought relief from the trial court's default judgment in favor of Tirabassi based on Normandy Towers' failure to answer. Normandy Towers argues that, because it was granted an extension to answer, which was verified in writing, it was not in default. The standard of review of a Civ. R. 60(B) motion is abuse of discretion. See GTE Automatic Electric , Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146. To prevail on [said] motion, the movant must demonstrate that: (1) [it] has a meritorious defense or claim to present if relief is granted; (2) [it] is entitled to relief under one of the grounds stated in Civ. R. 60(B) (1) through (5); (3) the motion is made within a reasonable time. *** Id.(paragraph 2 of the syllabus) Normandy Towers meets the third requirement as it filed its motion on January 24, 1997, a few weeks after the trial court made its final ruling. The question, now, is whether the trial court abused its discretion regarding the other two requirements. Normandy Towers did not specify the section of Civ.R. 60(B) under which it sought relief. In its motion to vacate the default judgment, Normandy Towers stated it did not file an answer to the complaint because it agreed to an extension to file its answer with Tirabassi's counsel. We interpret its argument as a claim of excusable neglect under Civ.R. 60(B)(1). However, a review of the record indicates no valid extension was obtained. -5- Local Rule 8(C) of the Court of Common Pleas of Cuyahoga County General Division states as follows: [P]arties may obtain an extension of time, not to exceed thirty (30) days in which to answer, *** by filing with the clerk a written stipulation ***. The stipulation shall affirmatively state that no prior extension has been granted. 1 A valid stipulated extension of time exists when three things occur: 1) a written agreement between the parties must be filed with the clerk; 2) the agreement must state the length of the extension; and 3) the agreement must state that no prior extension has been granted. Acc ording to this rule, the extension upon which Normandy wers relied was invalid. Although the agreement was in writing, was not filed with the clerk until December 30, 1996, three days ter the trial court declared a default judgment. Also, the letter d not state the length of the agreed extension, which could not ceed thirty days. Furthermore, the letter did not state that no ior extension had been granted, as required. Because the tension was invalid, we cannot conclude Normandy Towers' neglect timely file its answer was excusable. Furt hermore, under GTE, an essential requirement for 60(B) l ief from judgment is the existence of a meritorious defense. r mandy Towers did not raise any defense to Tirabassi's claim. rmandy Towers only argued it believed it had valid defenses to the mplaint , that it relied on an agreed extension, that it never 1Under R.C. 1901.21, unless otherwise specified, the rules of civil procedure in municipal courts shall be the same as in courts of common pleas. -6- ceived notice that the extension was withdrawn or waived, and that d it known the extension ended, it would have appeared in court d asserted all defenses available. Although Normandy Towers said believed it had valid defenses, Normandy Towers never said what ose defenses were. Normandy Towers in no way stated a meritorious fense in its motion. Since the existence of a meritorious defense an essential requirement for 60(B) relief, the trial court operly denied Normandy Towers' Motion to Vacate. Judgment affirmed. It is ordered that Appellee recover of Appelant her costs rein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court recting the Euclid Municipal Court to carry this judgment into ecution. A certified copy of this entry shall constitute the mandate rsuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA ANN BLACKMON, PRESIDING J. DAVID T. MATIA, JUDGE TERRENCE O'DONNELL, JUDGE N.B. This entry is an announcement of the court's decision. e App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision ll be jounalized and will become the judgment and order of the urt pursuant to App.R. 22(E) unless a motion for reconsideration t h supporting brief, per App.R. 26(A), is filed within ten 0)da ys of the announcement of the court's decision. The time r iod for review by the Supreme Court of Ohio shall begin to run on the journalization of this court's announcement of decision by .