COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73997 MARYANN ONDREJCAK : ACCELERATED DOCKET : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : JELLY ROLLS, INC., d.b.a. : OPINION THE BASEMENT, ET AL. : : Defendant-Appellee : PER CURIAM Date of Announcement of Decision: SEPTEMBER 3, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 315619 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellant: ALEC BEREZIN, ESQ. SHAWN W. MAESTLE, ESQ. Dworken & Bernstein Co., L.P.A. 153 E. Erie Street, #304 Painesville, Ohio 44077 For Defendant-Appellee: KENNETH J. FISHER, ESQ. Kenneth J. Fisher Co., L.P.A. 50 Public Square, Suite 1414 Cleveland, Ohio 44113 -2- PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Plaintiff-appellant Maryann Ondrejcak appeals from the order of the trial court pursuant to Civ.R. 60(B) granting defendant- appellee Jelly Rolls, Inc.'s relief from a default judgment in the sum of $150,000. Plaintiff claims the trial court abused its discretion in granting relief. We find no error and affirm. On September 22, 1994, plaintiff was a patron of defendant's night club known as The Basement at 1078 Old River Road, Cleveland, Ohio. While dancing on top of a three to four foot high speaker/dance floor, she allegedly was pushed and/or pulled by an unknown patron, fell and sustained a fracture of her right foot. Plaintiff retained counsel who submitted a personal injury claim to defendant. Defendant hired attorney James W. Slater as counsel to handle the claim and numerous calls and letters were exchanged between the attorneys prior to the lawsuit being filed. On September 23, 1996, plaintiff filed her personal injury complaint herein. Plaintiff's counsel did not send a courtesy copy of the complaint to defendant's lawyers nor orally inform them of the pendency of the action. Certified mail service was attempted upon defendant at its only place of business, 1078 Old River Road, Cleveland, Ohio. Certified mail service was returned as unclaimed. On October 29, 1996, plaintiff's counsel requested that service of summons and the complaint be made by regular mail at -3- defendant's same business address in accordance with Civ.R. 4.6. The Clerk's Certificate of Mailing indicates that the summons and complaint were sent to defendant by regular mail at 1078 Old River Road, Cleveland, Ohio on October 30, 1996 and that the answer date was November 27, 1996. This mail was not returned. However, no answer or appearance was filed. On February 6, 1997, plaintiff filed an application for default judgment and notice of default hearing scheduled for February 18, 1997. The certificate of service on both of said pleadings indicates that service was attempted by certified and ordinary mail upon the defendant at 1078 Old River Road, Cleveland, Ohio on February 5, 1997. Again, ordinary mail service was not returned, but defendant made no response to these papers and took no action in court. A default hearing was held on March 3, 1997 wherein plaintiff was granted a judgment against defendant for $150,000. The default judgment was filed with the Clerk's Office on March 4, 1997. On September 11, 1997, the Cuyahoga County Sheriff attempted to levy upon defendant's business premises to satisfy the default judgment. Subsequently, on September 18, 1997, the defendant filed its motion to vacate default judgment pursuant to Civ.R. 60(B)(1) and (5). The supporting affidavits of defendant's principal officer, Gary Bauer, and defendant's counsel, James W. Slater, indicated they had not received the complaint, summons or default papers and it was the Sheriff's levy that alerted them to the default. Plaintiff's opposition demonstrated by reference to two -4- other creditors' cases that defendant made a practice of not accepting certified mail. On February 2, 1998, the trial court granted the defendant's motion and vacated the default judgment leading to the instant appeal. We will address Assignments of Error I and II together as they both address the propriety of vacating the default judgment. I. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING APPELLEE'S MOTION TO VACATE DEFAULT JUDGMENT PURSUANT TO RULE 60(B) OF THE OHIO RULES OF CIVIL PROCEDURE, WHERE THE APPELLEE FAILED TO PRESENT SUFFICIENT EVIDENCE OF A MERITORIOUS DEFENSE. II. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING APPELLEE'S MOTION TO VACATE DEFAULT JUDGMENT WHERE THE APPELLEE EXHIBITED A DISREGARD OF THE JUDICIAL SYSTEM AND THE RIGHTS OF THE PLAINTIFF. The standards for relief from judgment were set forth in Strack v. Pelton (1994), 70 Ohio St.3d 172, 174: In order for a party to prevail on a motion for relief from judgment under Civ. 60(B), the movant must demonstrate the following: (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, 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 Elec. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, paragraph two of the syllabus. 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 151, 1 O.O.3d at 88, 351 N.E.2d at 116. The standard by which we -5- review a decision on a Civ.R. 60(B) motion is abuse of discretion. See Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 564, 566. Under Civ.R. 60(B), a movant's burden is only to allege a meritorious defense, not to prove that he will ultimately prevail on the merits. Colley v. Bazell (1980), 64 Ohio St.2d 243, 247. In the affidavit of attorney James W. Slater, attached to defendant's motion to vacate, the following defenses were alleged: 11. That the Defendant has meritorious defenses to the Complaint of the Plaintiff as follows: a. The Defendant was not negligent in any respects in its operation or maintenance of its business premises, nor was any alleged negligence the cause of Plaintiff's injuries. The injuries to the Plaintiff allegedly occurred when she was pushed and/or pulled from a speaker-dance floor by an unknown patron. The Defendant was not responsible for the negligent/intentional conduct of another patron over which it had no control; b. If the Plaintiff was in any respects negligent, the Plaintiff was comparatively negligent. The comparative negligence of the Plaintiff was admitted by her counsel in his attached letter of July 24, 1996. The Defendant believes that Plaintiff's negligence was more than 50% of the proximate cause of her fall and injuries and bars her recovery herein; c. After reviewing the Plaintiff's medical records and bills, the default judgment award of one hundred fifty thousand dollars ($150,000.00) is excessive and not supported by the evidence. The affidavit of Gary Bauer, an officer of defendant, specifically adopted and incorporated these defenses alleged in the aforesaid affidavit of Attorney Slater. -6- In addition, the affidavit of attorney Slater specifically incorporated the July 24, 1996 letter from plaintiff's counsel to defendant's insurance carrier. Plaintiff's counsel therein admitted issues of comparative negligence stating: Certainly, there would have to be an apportionment of negligence in this case, and I concede that the comparative negligence of my client would also have to be taken into consideration. As comparative negligence is an affirmative defense, the defendant sufficiently raised the same in its motion to vacate by the affidavit of attorney James W. Slater and by the attached correspondence of plaintiff's own counsel. Accordingly, we find that meritorious defenses were sufficiently set forth in support of defendant's motion to vacate. Furthermore, Civ.R. 60(B) is a remedial rule to be liberally construed to promote the ends of justice. 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. As stated by this Court in Brodart Co. v. Frontier Roofing & Supply Co., et al. (April 29, 1993), Cuyahoga App. No. 62376/62933/63225, unreported at 5-6: The law does not favor default judgments. It is a basic tenet of Ohio jurisprudence that cases should be decided whenever possible on their merits after giving all parties their day in court. Hopkins v. Quality Chevrolet, Inc. (1992), 79 Ohio App.3d 578, 583 citing Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 3, and Peterson v. Tedosio (1973), 34 Ohio St.2d 161, 175. This was recognized by this Court soon after the advent of the new Ohio Rules of -7- Civil Procedure in 1970 and consideration of Civ.R. 60(B), which was patterned after its federal counterpart. In Antonopoulos v. Eisner (1972), 30 Ohio app.2d 187, 199, Judge Silbert exhaustively analyzed the new Ohio rule and its federal and state antecedents, and concluded: 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. [Citations omitted.] * * * This is particularly so, as these cases serve to further illustrate, where (1) no substantial prejudice would result to the party in opposition, or (2) the amount of the judgment taken by default is substantial in comparison with any resulting prejudice which, moreover, may be largely minimized in particular cases through the exercise of the trial court's power to impose or condition relief upon just terms. Consequently, while the stability of judgments is adequately protected, the harsh and perhaps unjust burden of enforcing a default judgment may often and should be avoided -- this being the essential reasoning underlying the rule frequently stated by the federal courts that, where a substantial sum of money is involved, a default judgment should be set aside unless such a result is not reasonably avoidable. (Citations omitted.) Plaintiff has not asserted that defendant's motion to vacate was not timely. We perceive no prejudice to plaintiff from allowing the case to proceed on the merits especially since the -8- default judgment of $150,000 is very substantial and should not go unchallenged. The remaining issue for decision herein pertaining to defendant's argument is whether the trial court abused its discretion in determining that defendant was entitled to relief under one of the subparagraphs of Civ.R. 60(B). As stated by the Ohio Supreme Court in Colley, supra, at 248: In our view, the concept of excusable neglect must be construed in keeping with the proposition that Civ.R. 60(B)(1) is a remedial rule to be liberally construed, while 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. Wright & Miller, Federal Practice & Procedure 140, Section 2851, quoted in Doddridge v. Fitzpatrick (1978), 53 Ohio St.2d 9, 12. There is no bright line to determine whether a party's neglect was excusable or inexcusable. The determination of excusable neglect will turn on the facts and circumstances of each case. In this case, the defendant presented by affidavit uncontradicted facts which supported the conclusion that its failure to answer the complaint or respond to the default papers was unintentional and was caused by the fact that the corporate employees responsible for receiving and reviewing the mail and for defending litigation did not receive the pleadings or papers. Although defendant had specific policies and procedures in effect to help ensure that lawsuits received at the business premises were directed to the proper employees, there is no evidence that defendant ever received the relevant pleadings. Rather, the -9- affidavits established that the defendant's mail in the past had been mistakenly delivered to adjoining businesses. In Griffey v. Rajan (1987), 33 Ohio St.3d 75, syllabus, the Ohio Supreme Court stated that a trial court should deny a Civ.R. 60(B)(1) motion for relief from judgment based on the grounds of excusable neglect if it is evident from all of the facts and circumstances in the case that the conduct of the defendant, combined with the conduct of those persons whose conduct is imputable to the defendant, exhibited a disregard for the judicial system and the rights of the plaintiff. Recently, in Kay v. Glassman, Inc. (1996), 76 Ohio St.3d 18, 20, the Ohio Supreme Court further explained when excusable neglect does not exist for purposes of Civ. R. 60(B)(1) as *** inaction of a defendant is not `excusable neglect' if it can be labeled as a `complete disregard for the judicial system.' We do not find that the defendant exhibited the disregard for the judicial system and rights of the defendant as proscribed by the Ohio Supreme Court in Griffey, supra. Rather, the failure of defendant to respond to plaintiff's complaint was caused by its lack of knowledge of the same, not by an intent to harm the plaintiff or to show disrespect for the judicial system. We call attention to this Court's opinion in Rafalski v. Oates (1984), 17 Ohio App.3d 65, 66-67, where we stated: We agree with appellant that there is a presumption of proper service in cases where the Civil Rules on service are followed. However, this presumption is rebuttable by sufficient evidence. Grant v. Ivy (1980), 69 Ohio App.2d 40 [23 O.O.3d 34]. Where a party -10- seeking a motion to vacate makes an uncontradicted sworn statement that she never received service of a complaint, she is entitled to have the judgment against her vacated even if her opponent complied with Civ.R. 4.6 and had service made at an address where it could reasonably be anticipated that the defendant would receive it. Cox v. Franklin (Jan. 10, 1974), Cuyahoga App. No. 32982, unreported. Appellant has presented no evidence to show that appellee actually received service. It is reversible error for a trial court to disregard unchallenged testimony that a person did not receive service. In Hayes v. Kentucky Joint Stock Land Bank of Lexington (1932), 125 Ohio St. 359, at 365, the Ohio Supreme Court stated: *** The defendant, who challenged the jurisdiction over her person, testified in her own behalf. If another witness had given testimony which contradicted her upon essential points, or if she had contradicted herself, or had made admissions which tended to support the claim of residence in Canton, a wholly different situation would be presented. The trial court could not wholly disregard her uncontradicted testimony. Neither could it draw inferences directly contrary to her affirmative statements. The court therefore erred in finding that good and valid service was had upon her, and that the court had jurisdiction over her person. In deciding that the motion to vacate the default judgment was properly granted, we follow the basic position of Ohio law that whenever possible cases should be decided on their merits. Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 3. Similarly, in Rogers v. United Presidential Life Insurance Co. (1987), 36 Ohio App.3d 126, 129, the Franklin County Court of Appeals reached a similar conclusion stating: Other Ohio appeals courts have held that when a party makes a sworn statement that he did not receive service, there must be a further evidentiary showing that the party was served to rebut the party's statement. A court may -11- not draw inferences which are contradictory to a party's statement. Rafalski, supra; Grant, supra. This court has also held that a trial court abuses its discretion and it is reversible error for a court to overrule a party's motion to vacate a dismissal when the party has clearly demonstrated, through unchallenged testimony, that he had not received service. Lin v. Reid (1983), 11 Ohio App.3d 232, 11 OBR 356, 464 N.E.2d 189. This is true even if the other party has complied with the Civil Rules on service. Rafalski, supra. Thus, a party's sworn statement that he or she did not receive service places the burden on the serving party to make a further evidentiary showing that the [party being served] had received the entries. Id. In the instant case, there is no evidence to contradict defendant's affidavits that it did not receive notice of the suit or the default papers. Plaintiff failed to make any evidentiary showing that defendant actually received service. Under these circumstances, we find no abuse of discretion in the trial court's determination to vacate the substantial default judgment. Assignments of Error I and II are overruled. Judgment affirmed. -12- 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 Court of Common Pleas 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 M. PORTER, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE MICHAEL J. CORRIGAN, JUDGE 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 .