[Cite as Total Quality Logistics, L.L.C. v. ATA Logistics, Inc., 2020-Ohio-1553.]



                                      IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                           CLERMONT COUNTY




 TOTAL QUALITY LOGISTICS, LLC,                            :

        Appellee,                                         :            CASE NO. CA2019-09-071

                                                          :                     OPINION
     - vs -                                                                      4/20/2020
                                                          :

 ATA LOGISTICS, INC.,                                     :

        Appellant.                                        :




        CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                           Case No. 2019 CVH 00244


The Law Offices of Brian T. Giles, LLC, Brian T. Giles, 1470 Apple Hill Road, Cincinnati,
Ohio 45230, for appellee

Durkee & Uhle, LLC, Richard B. Uhle, Jr., 284 North Street, Batavia, Ohio 45013, for
appellant



        RINGLAND, J.

        {¶ 1} Appellant, ATA Logistics Inc., appeals a decision of the Clermont County

Court of Common Pleas denying its Civ.R. 60(B) motion for relief from judgment.1

        {¶ 2} Total Quality Logistics ("TQL") entered into a contract with ATA to provide



1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar for the purposes
of issuing this opinion.
                                                                   Clermont CA2019-09-071

logistic services. ATA granted another company, Empire, permission to use its credit

contract with TQL. Empire used TQL's services several times under ATA's contract. TQL

sent invoices for its services to ATA. On February 19, 2019, after ATA had failed to pay a

number of invoices, TQL filed a complaint against ATA for the unpaid balance of $134,220

plus interest.

       {¶ 3} ATA was served with the complaint on February 22, 2019 but failed to answer

the complaint or respond in any way. On April 10, 2019, TQL moved for default judgment.

ATA did not respond to the motion, and on April 25, 2019, the trial court granted default

judgment to TQL. Garnishment proceedings were initiated and ATA first responded in the

case on June 14, 2019, by requesting a continuance of one of the garnishment hearings.

       {¶ 4} On July 1, 2019, ATA filed a Civ.R. 60(B) motion for relief from judgment. ATA

alleged that it had a credit agreement with Empire and that it had mistakenly believed that

Empire was handling the claims and making arrangements to pay TQL. Attached to the

motion was an affidavit from Brandon Han, ATA's authorized agent, which stated that ATA

did not realize the lawsuit was in Ohio or that it had to file an answer. Also attached was a

May 7, 2019 email to ATA from Jimmy Ball at Empire stating that "Empire will resolve the

situation with TQL." On July 10, 2019, ATA filed a second affidavit from authorized agent

Jay Lee, which stated that ATA extended use of the credit contract to Empire for one job

only and that TQL and Empire used the contract without ATA's knowledge or consent. ATA

subsequently filed a motion for leave to file a third-party complaint against Empire.

       {¶ 5} After a hearing on the merits of the motions, the trial court denied both the

request for relief from judgment and the motion for leave to file a third-party complaint. ATA

now appeals the decision of the trial court and raises two assignments of error for our

review:

       {¶ 6} I.   THE TRIAL COURT ERRED BY NOT GRANTING RELIEF FROM

                                            -2-
                                                                      Clermont CA2019-09-071

JUDGMENT WHERE APPELLANT SHOWED IT MET THE REQUIREMENTS OF THE

CIVIL RULE.

       {¶ 7} ATA first argues that the trial court erred in denying its motion for relief from

judgment. To prevail on a Civ.R. 60(B) motion, the moving party must demonstrate that (1)

he has a meritorious defense or claim to present if relief is granted, (2) he is entitled to relief

under one of the grounds stated in Civ.R. 60(B), and (3) the motion is made within a

reasonable time. GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146

(1976), paragraph two of the syllabus. Failure to meet any one of these three factors is

fatal, as all three must be satisfied in order to grant relief. Scrimizzi v. Scrimizzi, 12th Dist.

Warren No. CA2018-11-131, 2019-Ohio-2793, ¶ 51.

       {¶ 8} The decision to grant or deny a Civ.R. 60(B) motion lies within the trial court's

discretion, and the decision will be reversed only for an abuse of discretion. Reynolds v.

Turull, 12th Dist. Butler No. CA2018-10-197, 2019-Ohio-2863, ¶ 10. An abuse of discretion

connotes more than an error of law or judgment; it implies that the court's attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, (1983).

       {¶ 9} Civ.R. 60(B)(1) provides that the court may relieve a party from a final

judgment, order or proceeding for "mistake, inadvertence, surprise or excusable neglect."

In its motion, ATA claimed excusable neglect because it believed in good faith that

representatives of Empire had resolved the case and because ATA had received an email

from Ball, confirming that Empire would pay.

       {¶ 10} In denying the motion, the trial court determined that while the motion was

timely, and the issue of a meritorious defense was a "closer call," ATA had not established

excusable neglect. On appeal, ATA argues that excusable neglect exists because it relied

on Ball's email and that Ball died shortly after the email was sent. ATA argues the email

                                               -3-
                                                                 Clermont CA2019-09-071

"seemed to resolve the issue of Empire's indebtedness to TQL."

      {¶ 11} The determination of whether neglect was excusable must take into

consideration all the surrounding facts and circumstances. Middletown App., Ltd. v. Singer,

12th Dist. Butler Nos. CA2018-08-165 and CA2018-11-224, 2019-Ohio-2378, ¶ 20.

      {¶ 12} Neglect is not excusable if a party's conduct falls substantially below what is

reasonable under the circumstances, or if the inaction of a party can be regarded as a

"complete disregard for the judicial system." Kay v. Marc Glassman, Inc., 76 Ohio St.3d

18, 20, 1996-Ohio-430 (1996).

      {¶ 13} Courts have determined that failure to plead or respond after admittedly

receiving a copy of a complaint is not excusable neglect.       D.G.M., Inc. v. Cremeans

Concrete & Supply Co., 111 Ohio App.3d 134, 139 (4th Dist.1996). Likewise, courts have

generally held that conduct is not excusable neglect if a party or attorney could have

controlled or guarded against the circumstance. See Dispatch Printing Co. v. Recovery Ltd.

Partnership, 10th Dist. Franklin Nos. 14AP-640, 14AP-641, and 14AP-642, 2015-Ohio-

1368, ¶ 14.

      {¶ 14} In this case, ATA received the complaint, but claims that it thought Empire

would resolve the amounts due with TQL. ATA failed to timely protect its legal rights by

filing an answer and a third-party complaint against Empire. This inaction and disregard for

the judicial process does not amount to excusable neglect. ATA failed to preserve its rights

in the action and instead relied on its belief that Empire would pay TQL the amounts due.

Moreover, as the trial court noted, Ball's email was sent on May 7, 2019, months after the

complaint was filed and after ATA's answer was due and therefore cannot be used as a

reason for failure to answer the complaint or to respond to the motion for default judgment.

      {¶ 15} As mentioned above, a party filing a Civ.R. 60(B) motion must establish all

elements to be entitled to relief. Because ATA failed to establish excusable neglect, the

                                           -4-
                                                                  Clermont CA2019-09-071

motion for relief from judgment was properly denied. Accordingly, we find the trial court did

not abuse its discretion in denying ATA's motion for relief from judgment. ATA's first

assignment of error is overruled.

      {¶ 16} II. THE TRIAL COURT ERRED IN NOT GRANTING LEAVE TO FILE THE

THIRD PARTY COMPLAINT WHEN THERE WERE NO GROUNDS FOR A DENIAL.

      {¶ 17} As mentioned above, the trial court denied ATA's motion to file a third-party

complaint against Empire on the basis that, because the Civ.R. 60(B) motion had been

denied, there was a final judgment in the case. Because we find no error in the trial court's

decision to deny ATA's motion for relief from judgment, we also find no error in the trial

court's decision to deny the request to file a third-party complaint.        ATA's second

assignment of error is therefore overruled.

      {¶ 18} Judgment affirmed.


      HENDRICKSON, P.J., and M. POWELL, J., concur.




                                              -5-
