[Cite as Volo Ents., L.L.C. v. Fiore, 2012-Ohio-4570.]
                             STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT

VOLO ENTERPRISES, LLC,                              )
                                                    )    CASE NO. 11 MA 190
        PLAINTIFF-APPELLANT,                        )
                                                    )
        - VS -                                      )          OPINION
                                                    )
DANIEL R. FIORE, et al.,                            )
                                                    )
        DEFENDANTS-APPELLEES.                       )

CHARACTER OF PROCEEDINGS:                                Civil Appeal from County Court No. 5,
                                                         Case No. 08CVG283CNF.

JUDGMENT:                                                Affirmed.

APPEARANCES:
For Plaintiff-Appellant:                                 Attorney Anthony Gemma
                                                         Attorney Joshua Hiznay
                                                         Gemma & Gemma
                                                         1040 South Commons Place
                                                         Suite 202
                                                         Youngstown, OH 44514

For Defendants-Appellees:                                Attorney Stuart Strasfeld
                                                         Attorney Joseph Bishara
                                                         Roth, Blair, Roberts, Strasfeld
                                                         & Lodge
                                                         100 Federal Plaza East, Suite 600
                                                         Youngstown, OH 44503



JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich


                                                         Dated: September 24, 2012
[Cite as Volo Ents., L.L.C. v. Fiore, 2012-Ohio-4570.]
DeGenaro, J.

        {¶1}     Plaintiff-Appellant, Volo Enterprises, LLC, appeals the decision of the
Mahoning County Court No. 5, granting the motion to vacate pursuant to Civ.R. 60(B)
filed by Defendants-Appellees, Kimberly Fiore and Spring Fresh Professional Cleaning
Services, Inc.       On appeal, Volo Enterprises argues that the trial court abused its
discretion in granting the motion to vacate because Appellees did not establish a
meritorious defense or that they were entitled to relief due to excusable neglect.
        {¶2}     Upon review, Volo Enterprises' argument is meritless. The trial court held a
hearing on Appellees' motion to vacate judgment, but Volo Enterprises has failed to file a
transcript of that hearing or a reasonable alternative. Without a transcript of the hearing,
this court must presume the validity of the trial court's proceedings in granting the motion
to vacate. Accordingly, the judgment of the trial court is affirmed.
                                   Facts and Procedural History
        {¶3}     On June 13, 2008, Volo Enterprises filed a complaint for forcible entry and
detainer against Daniel Fiore, Kimberly Fiore, Spring Fresh Professional Cleaning, and
AMCON. Volo Enterprises alleged that the Defendants entered into possession of 11443
South Avenue, North Lima, Ohio as tenants under a month to month tenancy. On April
25, 2008, Volo Enterprises served a three day written notice to the Defendants to vacate
the premises due to nonpayment of rent. On June 1, 2008, the Defendants owed Volo
Enterprises $3,000 in past due rent for the months of April, May, and June at the rate of
$900 per month plus a late fee of $100 per month. Volo Enterprises alleged that the
Defendants were now unlawfully detaining possession of the premises.
        {¶4}     In its first cause of action, Volo Enterprises demanded restitution of the
premises. In its second cause of action, Volo Enterprises demanded judgment in the
amount of $3,000 for unpaid rent, late fees, and unpaid utility bills. Volo Enterprises also
alleged that the Defendants would owe further rent commencing on July 1, 2008 until the
premises are restored to Volo Enterprises, together with other damages not yet
determined.
        {¶5}     After the Defendants failed to appear in court on the first cause of action,
the trial court ordered a writ of restitution to issue on July 11, 2008. The court continued
                                                                                     -2-


the second cause of action.
       {¶6}   On November 3, 2008, Volo Enterprises filed an amended complaint,
amending its second cause of action to allege that the Defendants owe $4,000 for unpaid
rent and late fees for the months of April through July 2008. Volo Enterprises also
claimed that the Defendants caused further damage to the premises in the amount of
$10,000. Thus, Volo Enterprises demanded judgment in the amount of $14,000.
       {¶7}   On January 27, 2009, the Defendants, with leave of court, filed an answer
and counterclaim. They admitted that they entered into a month to month tenancy of the
premises and that Volo Enterprises served them with a written notice to vacate the
premises. They denied that they owed $4,000 in rent and late fees and that they caused
further damages to the premises in the amount of $10,000. Thus, the Defendants prayed
that the claims against them be dismissed with prejudice. In their counterclaim, the
Defendants alleged that in February 2008, the parties entered into a verbal month to
month tenancy for the Defendants to occupy the premises, as well as a verbal agreement
for repairs and improvements to the premises. The Defendants alleged that Volo
Enterprises had breached this agreement for repairs and improvements. They also
claimed that certain repairs and improvements were made to the premises, adding value
in the amount of $15,000 and that Volo Enterprises had been unjustly enriched. Thus,
the Defendants demanded judgment against Volo Enterprises in the amount of $15,000.
       {¶8}   On March 30, 2009, Volo Enterprises filed a reply to the Defendants'
counterclaim. It admitted that the parties entered into a verbal month to month tenancy in
February 2008 and a verbal agreement for repairs and improvements but denied the rest
of the allegations in the counterclaim.
       {¶9}   On December 15, 2010, the matter came for a status hearing before the
magistrate where all parties and counsel appeared, but the parties were unable to reach a
settlement. The magistrate issued a decision following the hearing, stating that the case
would be set for trial in 30 days. The trial court adopted the magistrate's decision, and
notice of the trial date was sent to both parties' counsel on December 30, 2010.
       {¶10} On February 25, 2011, the matter came for trial before the court on Volo
                                                                                      -3-


Enterprise's second cause of action for damages. Volo Enterprises' owner and counsel
were present in court; the Defendants failed to appear, although their counsel, Attorney
Sinclair, appeared on their behalf. Following the trial, the court issued a judgment entry
denying the Defendants' motion for continuance and granting Volo Enterprises' motion to
amend the amended complaint to request $15,000 in damages. The court granted
judgment in favor of Volo Enterprises and against Daniel and Kimberly in the amount of
$15,000. Following a motion to clarify this judgment entry because it only granted
judgment against Daniel and Kimberly, the trial court issued an amended judgment entry
granting judgment against the Defendants, jointly and severally, on March 4, 2011.
       {¶11} On March 9, 2011, Volo Enterprises filed a motion for a debtor's
examination of the Defendants. The trial court set the matter for a debtor's examination
on May 5, 2011. Notice was sent via certified mail to Daniel and Kimberly on March 11,
2011 to 10580 W. Pine Lake Road, but the service was unclaimed and returned to
sender. The summons for the debtor's examination was then served to Daniel and
Kimberly via residence service on April 26, 2011 at the W. Pine Lake address.
       {¶12} The Defendants failed to appear for the debtor's examination and the court
continued the case for 30 days for Volo Enterprises to file a motion to show cause. On
May 16, 2011, Volo Enterprises filed the motion to show cause for Daniel and Kimberly.
The court granted this motion on May 18, 2011 and set a show cause hearing. The
summons for the show cause hearing was then personally served on Kimberly on July 13,
2011. On August 4, 2011, Kimberly and Daniel failed to appear for the show cause
hearing, and the court continued the case for 30 days for Volo Enterprises to file a motion
and order for contempt and for issuance of a capias.
       {¶13} On August 8, 2011, Volo Enterprises filed a motion, requesting that the
court find Kimberly in contempt and issue a capias for her arrest. Volo Enterprises
alleged that personal service for the show cause hearing was obtained on Kimberly on
July 13, 2011 (service was not obtained on Daniel), but she failed to appear at the August
4, 2011 hearing. The trial court granted this motion on August 10, 2011, and an arrest
warrant was issued on August 11, 2011.
                                                                                      -4-


       {¶14} On August 17, 2011, Kimberly and Spring Fresh filed a motion to vacate,
pursuant to Civ.R. 60(B): the February 25, 2011 judgment entry, the March 4, 2011
amended judgment entry, and the August 11, 2011 arrest warrant, so that the case could
be decided on the merits. Kimberly, the owner of Spring Fresh, alleged that she was
unaware of the February 25, 2011 trial and the May 5, 2011 debtor's examination, and
her failure to attend the show cause hearing was due to mistake or inadvertence. She
claimed that she was entitled to relief from judgment due to mistake, inadvertence, and
excusable neglect. She also argued that she had a meritorious defense because there
was no evidence that established that she or Spring Fresh ever had a business
relationship with Volo Enterprises.
       {¶15} Kimberly attached her own affidavit in support of her motion to vacate
judgment. In her affidavit, she claimed that in February 2008, her husband, Daniel,
entered into an oral agreement with Volo Enterprises to rent the premises because he
needed warehouse space for his business, AMCON. Kimberly alleged that she was not a
party to the oral agreement, but she planned to use the front office of the premises for
Spring Fresh. However, neither she nor Spring Fresh occupied the premises in any way,
nor were any renovations made on their behalf.
       {¶16} Kimberly further claimed that she did not receive notice of the February 25,
2011 trial because when the notice was sent, she was not living at the W. Pine Lake
address. She had moved in with her niece due to marital troubles. She claimed that her
former attorney, Attorney Sinclair, did not notify her of this trial date. Furthermore, she
did not receive the summons for the debtor's exam sent via certified mail on March 11,
2011 or the residence service on April 26, 2011 because she was no longer living at the
W. Pine Lake address. She alleged that she moved to a new residence on March 14,
2011 and she attached a receipt for the first month's rent. Until July 13, 2011, when she
received notice of the judgment against her, she believed that the dispute had been
resolved following the December 15, 2010 status hearing. Once she received notice, she
contacted her current attorney.
       {¶17} On August 19, 2011, Kimberly and her counsel appeared in court, and the
                                                                                       -5-


trial court issued a journal entry stating that the bench warrant shall not issue.
       {¶18} On August 31, 2011, Volo Enterprises filed a memorandum in opposition to
Kimberly and Spring Fresh's motion to vacate judgment.
       {¶19} Following a hearing, the trial court issued a judgment entry on September
30, 2011, granting "Defendant's" motion to vacate judgment. Following Volo Enterprises'
motion to clarify, on October 26, 2011, the trial court amended this judgment entry to
grant Kimberly and Spring Fresh's motion to vacate judgment.
                      Motion to Vacate Judgment – Civ.R. 60(B)
       {¶20} In its sole assignment of error, Volo Enterprises argues:
       {¶21} "The trial court abused its discretion in granting Appellees Kimberly Fiore &
Spring Fresh Professional Cleaning Services, Inc.'s motion to vacate judgment."
       {¶22} Civ.R. 60(B) provides in relevant part:

       On motion and upon such terms as are just, the court may relieve a party or
       his legal representative 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 one year
       after the judgment, order or proceeding was entered or taken.

       {¶23} "In order to prevail on a motion for relief from judgment pursuant to Civ.R.
60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement
to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) timeliness
                                                                                        -6-


of the motion." Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564
(1988), citing GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351
N.E.2d 113 (1976), at paragraph two of the syllabus. See also Strack v. Pelton, 70 Ohio
St.3d 172, 174, 637 N.E.2d 914 (1994). "These requirements are independent and in the
conjunctive; thus the test is not fulfilled if any one of the requirements is not met." Id.
       {¶24} When reviewing a trial court's decision regarding a Civ.R. 60(B) motion, an
appellate court will not reverse that decision unless the trial court abuses its discretion.
State ex rel. Russo v. Deters, 80 Ohio St.3d 152, 153, 684 N.E.2d 1237 (1997). An
abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or
unconscionably. Id.
       {¶25} Volo Enterprises does not contest that Kimberly and Spring Fresh timely
filed their motion to vacate judgment. Volo Enterprises does assert that Appellees did not
demonstrate a meritorious defense because Appellees' argument that they did not have a
business relationship with Volo Enterprises is directly contrary to the pleadings.
Furthermore, Volo Enterprises contends that while Appellees argue that this matter
should be decided on the merits, the trial court did decide this matter on the merits
following a bench trial where testimony and exhibits were offered.
       {¶26} "A meritorious defense exists when the movant specifically alleges operative
facts that support a defense to the judgment." Kadish, Hinkel & Weibel Co., L.P.A. v.
Rendina, 128 Ohio App.3d 349, 352, 714 N.E.2d 984 (8th Dist.1998). The movant bears
the burden of demonstrating a meritorious defense. Rose Chevrolet, Inc. at 20. In order
to satisfy that burden, the movant must merely allege operative facts which would support
a meritorious defense, not prove that he or she will prevail on that defense. Id.
       {¶27} While Appellees allege that they never had a business relationship with Volo
Enterprises, Defendants' answer contradicts this claim. In paragraph one of the amended
complaint, Volo Enterprises alleged that "Defendants [Daniel], [Kimberly], [Spring Fresh],
and Amcon, entered into possession of [the premises] as tenants under a month-to-
month tenancy." In the Defendants' answer, they stated: "Now come the Defendants
[Daniel], [Kimberly], [Spring Fresh], and Amcom and hereby answer Plaintiff's claim as
                                                                                       -7-


follows: 1. Defendants admit the allegations in paragraph 1 * * * of the amended
complaint." Furthermore, although Appellees claimed that no renovations to the premises
were made on their behalf, in the counterclaim, the Defendants alleged that the parties
entered into a verbal agreement for repairs and improvements to the premises.
Appellees' motion to vacate does not explain why their alleged meritorious defense is
contradictory to their answer and counterclaim.
       {¶28} The trial court did not abuse its discretion in finding that Appellees
established a meritorious defense to Volo Enterprise's complaint. The trial court held a
hearing on Appellees' motion to vacate before ruling on that motion. The September 30,
2011 judgment entry reveals that both parties' attorneys were present for this hearing, but
it does not specify if any evidence or testimony was introduced. Volo Enterprises has not
filed a transcript of this hearing nor has it provided an App.R. 9(C) or (D) statement.
       {¶29} "Upon appeal of an adverse judgment, it is the duty of the appellant to
ensure that the record, or whatever portions thereof are necessary for the determination
of the appeal, are filed with the court in which he seeks review." Rose Chevrolet, Inc. at
19. "When portions of the transcript necessary for resolution of assigned errors are
omitted from the record, the reviewing court has nothing to pass upon and thus, as to
those assigned errors, the court has no choice but to presume the validity of the lower
court's proceedings, and affirm." Knapp v. Edwards Laboratories, 61 Ohio St.2d 197,
199, 400 N.E.2d 384 (1980).
       {¶30} Accordingly, because Volo Enterprises has failed to file a transcript of the
hearing or an appropriate alternative, this court must presume that evidence presented at
the hearing supported the trial court's judgment that Appellees demonstrated a
meritorious defense.
       {¶31} Volo Enterprises next argues that Appellees did not establish that they were
entitled to relief based on excusable neglect. This court has previously explained the
definition of excusable neglect:

       As the Supreme Court has stated, the concept of excusable neglect is an
       elusive one that is difficult to apply and define. Kay v. Marc Glassman, Inc.
                                                                                           -8-


       (1996), 76 Ohio St.3d 18, 20, 665 N.E.2d 1102. Thus, the Court vaguely
       defines it in the negative by saying that neglect is not excusable if it
       represents complete disregard for the judicial system. Id. The reviewing
       court must take into consideration all surrounding facts and circumstances
       in determining whether an instance of neglect is excusable. Fifth Third
       Bank v. Perry, 7th Dist. No. 03 MA 100, 2004-Ohio-1543, ¶ 15.

       {¶32} The record shows that notice of the February 25, 2011 trial was sent to
Attorney Sinclair, not to Appellees. None of the Defendants attended the trial, but
Attorney Sinclair made a motion for continuance, which was denied. The record shows
that the summons for the debtor's examination was served to Kimberly via residence
service, although she claims that she did not receive this summons because she was no
longer living at that residence. Kimberly did receive personal service of the show cause
hearing on July 13, 2011, although she still failed to attend the August 4, 2011 hearing.
       {¶33} Additionally, although Appellees alleged in their motion to vacate that they
were entitled to relief based upon mistake, inadvertence or excusable neglect, the trial
court's September 30, 2011 judgment entry does not specify what ground for relief upon
which it granted Appellees' motion to vacate. Appellees argue in their brief that even if
they cannot demonstrate excusable neglect, they are entitled to relief under Civ.R.
60(B)(5), any other grounds for relief. While they did not argue this in their motion to
vacate, it is unclear whether this ground for relief was raised during the hearing.
       {¶34} Again, based on Volo Enterprises' failure to file a transcript of the hearing,
this court presumes the regularity of the trial court's proceedings in finding a ground for
relief from judgment. Knapp at 199. Therefore, in light of Volo Enterprises' failure to file a
transcript of the hearing on the motion to vacate, this court finds that the trial court did not
abuse its discretion in granting Appellees' motion to vacate judgment.
                                         Conclusion
       {¶35} In sum, Volo Enterprises' argument is meritless. The trial court held a
hearing on Appellees' motion to vacate judgment, but Volo Enterprises has failed to file a
transcript of that hearing or a reasonable alternative. Without a transcript of the hearing,
                                                                                       -9-


this court must presume the validity of the trial court's proceedings in granting the motion
to vacate. Accordingly, Volo Enterprises' assignment of error is meritless and the
judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.
