[Cite as John W. Judge Co. v. USA Freight, L.L.C., 2018-Ohio-2658.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 JOHN W. JUDGE COMPANY                                :
                                                      :
         Plaintiff-Appellant                          :    Appellate Case No. 27708
                                                      :
 v.                                                   :    Trial Court Case No. 2016-CVF-1286
                                                      :
 USA FREIGHT, LLC                                     :    (Civil Appeal from Municipal Court)
                                                      :
         Defendant-Appellee                           :
                                                      :

                                              ...........

                                             OPINION

                              Rendered on the 6th day of July, 2018.

                                              ...........

RICHARD A. BOUCHER, Atty. Reg. No. 0033614 and JULIA C. KOLBER, Atty. Reg. No.
0078855, 12 West Monument Avenue, Suite 200, Dayton, Ohio 45402
     Attorneys for Plaintiff-Appellant

NATHAN J. STUCKEY, Atty. Reg. No. 0086789, 735 North Limestone Street, Springfield,
Ohio 45503
      Attorney for Defendant-Appellee

                                            .............



WELBAUM, P.J.
                                                                                          -2-




       {¶ 1} Plaintiff-appellant, John W. Judge Company (“Judge”), appeals from the

judgment of the Dayton Municipal Court granting defendant-appellee USA Freight, LLC’s

Civ.R. 60(B) motion to vacate a default judgment. In support of its appeal, Judge claims

that the trial erred in granting the motion to vacate because USA Freight failed to establish

that it was entitled to relief under Civ.R. 60(B)(1) on grounds of excusable neglect. For

the reasons outlined below, the judgment of the trial court will be reversed.



                           Facts and Course of Proceedings

       {¶ 2} On March 21, 2016, Judge filed a complaint against USA Freight, LLC (“USA

Freight”) for money damages arising from alleged unpaid engineering services in the

amount of $4,405.05. Judge requested the complaint and summons be served to USA

Freight via certified mail at the address of USA Freight’s registered statutory agent,

Mukhabbat Vasfieva. On March 30, 2016, the trial court received the certified mail

receipt, showing that the complaint and summons had been delivered and signed for by

“Mukhabbat Koch” on March 24, 2016.

       {¶ 3} USA Freight failed to file a response to Judge’s complaint within 28 days as

required by Civ.R. 12. Accordingly, on June 22, 2016, Judge moved the trial court to

enter a default judgment in its favor pursuant to Civ.R. 55. On June 29, 2016, the trial

court granted Judge’s motion and entered a default judgment against USA Freight for the

amount requested plus interest and costs. After obtaining a certificate of judgment, on

January 18, 2017, Judge obtained a writ of execution ordering the court bailiff to levy on

the goods and chattels owned by USA Freight.
                                                                                       -3-


      {¶ 4} Three weeks after the writ of execution was filed, USA Freight filed a Civ.R.

60(B) motion to vacate the default judgment on grounds that it never received the

complaint and summons and was otherwise unaware of who signed for the certified mail

service. USA Freight attached a supporting affidavit from Baris Koch, who averred that

he was the General Manager of USA Freight and that his father was the owner. Koch

also averred that he did not receive notice of Judge’s complaint until the court’s bailiff

contacted him regarding the writ of execution. Koch further averred that he spoke with

the members and employees of USA Freight to ascertain if anyone affiliated with the

company had signed for service of the complaint and that he was unware of anyone who

had. Lastly, Koch averred that USA Freight had meritorious defenses to Judge’s lawsuit,

which included a claim that USA Freight had paid Judge in full for its services and that

any unpaid amounts were owed by Garrett Day, LLC and/or Mike Heitz.

      {¶ 5} In addition to the affidavit, USA Freight attached several invoices from Judge

and copies of checks that USA Freight made payable to Judge.           USA Freight also

attached a written description and map of the property on which Judge provided its

engineering services, indicating that Garrett Day, LLC owned part of the property on

which Judge’s services were rendered.

      {¶ 6} Judge filed a response opposing the motion to vacate on grounds that USA

Freight failed to establish the necessary elements for such relief under Civ.R. 60(B). The

trial court then held an evidentiary hearing on the motion to vacate. At the hearing, the

parties submitted no additional evidence, but simply gave oral arguments. During that

time, USA Freight explained that the certified mail receipt was signed by the mother of

USA Freight’s owner. USA Freight explained that the owner’s mother is not part of the
                                                                                         -4-


company or involved in its day-to-day operations, but that she happened to be present

when the complaint was served and did not provide it to any of the members of the family

who are involved in the business. USA Freight further explained that the owner’s mother

understands and speaks very little English and has very little knowledge of the legal

system. USA Freight therefore claimed it was entitled to relief under Civ.R. 60(B)(1) for

excusable neglect.1

      {¶ 7} At the close of the hearing, the trial court invited the parties to submit post-

hearing memoranda in support of their positions.              After receiving the parties’

memoranda, on June 14, 2017, the trial court issued a decision and entry granting USA

Freight’s motion to vacate.    In granting the motion, the trial court found excusable

neglect, noting that USA Freight’s conduct was not willful and that it did not exhibit a

disregard for the judicial system. The trial court further found that USA Freight had

demonstrated that it had a meritorious defense to Judge’s claim for money damages.

      {¶ 8} Judge now appeals from the trial court’s decision granting USA Freight’s

motion to vacate, raising a single assignment of error for review.



                                  Assignment of Error

      {¶ 9} Judge’s sole assignment of error is as follows:

      THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE’S

      CIV.R. 60(B) MOTION TO VACATE JUDGMENT.

      {¶ 10} Under its sole assignment of error, Judge contends that the trial court erred


1 USA Freight also alleged that it was entitled to relief under Civ.R. 60(B)(3) for
misrepresentation, but thereafter withdrew that argument and proceeded solely on the
theory of excusable neglect.
                                                                                         -5-


in granting USA Freight’s motion to vacate the default judgment at issue because USA

Freight failed to establish that it was entitled to relief under Civ.R. 60(B). Specifically,

Judge claims that USA Freight failed to establish that it did not respond to Judge’s

complaint due to excusable neglect.



                                   Standard of Review

       {¶ 11} “A motion for relief from judgment under Civ.R. 60(B) is addressed to the

sound discretion of the trial court, and that court’s ruling will not be disturbed on appeal

absent a showing of abuse of discretion.” Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514

N.E.2d 1122 (1987). “ ‘Abuse of discretion’ has been defined as an attitude that is

unreasonable, arbitrary or unconscionable.”      AAAA Enterprises, Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990), citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248

(1985). “It is to be expected that most instances of abuse of discretion will result in

decisions that are simply unreasonable, rather than decisions that are unconscionable or

arbitrary.” Id. “A decision is unreasonable if there is no sound reasoning process that

would support that decision.” Id. “It is not enough that the reviewing court, were it

deciding the issue de novo, would not have found that reasoning process to be

persuasive, perhaps in view of countervailing reasoning processes that would support a

contrary result.” Id.



                                       Civ.R. 60(B)

       {¶ 12} In order to obtain relief from a final judgment under Civ.R. 60(B), the movant
                                                                                              -6-


must satisfy a three-prong test. The movant must demonstrate: (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. GTE Automatic Elec. v. ARC Industries, Inc., 47 Ohio St.2d

146, 150, 351 N.E.2d 113 (1976). “All of these requirements must be satisfied, and the

motion should be denied if any one of the requirements is not met.” GMAC Mtge., L.L.C.

v. Herring, 189 Ohio App.3d 200, 2010-Ohio-3650, 937 N.E.2d 1077, ¶ 30 (2d Dist.), citing

Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994).                (Other citation

omitted.)

       {¶ 13} If a motion to vacate “ ‘contains allegations of operative facts which would

warrant relief under [Civ.R. 60(B)], the trial court should grant a hearing to take evidence

and verify these facts before it rules on the motion.’ ” Coulson v. Coulson, 5 Ohio St.3d

12, 16, 448 N.E.2d 809 (1983), quoting Adomeit v. Baltimore, 39 Ohio App.2d 97, 105,

316 N.E.2d 469 (8th Dist.1974). “Although a movant is not required to support its motion

with evidentiary materials, the movant must do more than make bare allegations that he

or she is entitled to relief.” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d

1102 (1996), citing Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564

(1988). “Thus, in order to convince the court that it is in the best interests of justice to

set aside the judgment or to grant a hearing, the movant may decide to submit evidentiary

materials in support of its motion.” Id. “ ‘[G]ood legal practice dictates that the movant

must do all that he can to present allegations of operative facts to demonstrate that he is

filing his motion within a reasonable period of time; that he is entitled to relief for one of

the grounds specified in Civil Rule 60(B)(1) through (5); and that he has a valid defense.’ ”
                                                                                          -7-

Liberty Nursing Ctr. of Englewood, Inc. v. Valentine, 2d Dist. Montgomery No. 24685,

2012-Ohio-1096, ¶ 65, quoting Adomeit at 103.

       {¶ 14} “Civ.R. 60(B) is a ‘remedial rule to be liberally construed so that the ends of

justice may be served.’ ” Wilson v. Lee, 172 Ohio App.3d 791, 2007-Ohio-4542, 876

N.E.2d 1312, ¶ 15 (2d Dist.), quoting Kay at 20. Therefore, “[w]here timely relief is

sought from a default judgment and the movant has a meritorious defense, doubt, if any,

should be in favor of the motion so that cases may be decided on their merits.” GTE

Automatic at paragraph three of the syllabus. “Indeed, the law does not favor judgments

by default, and it is ‘a general tenet of Ohio jurisprudence * * * that cases should be

decided on their merits whenever possible.’ ” Wilson at ¶ 15, quoting Hopkins v. Quality

Chevrolet, Inc., 79 Ohio App.3d 578, 583, 607 N.E.2d 914 (4th Dist.1992).



                           Excusable Neglect – Civ.R. 60(B)(1)

       {¶ 15} Because Judge does not dispute the existence of a meritorious defense or

that USA Freight filed its motion to vacate within a reasonable time, the only issue before

this court is whether it was an abuse of discretion for the trial court to conclude that USA

Freight was entitled to relief under Civ.R. 60(B)(1) on grounds of “excusable neglect.”

       {¶ 16} In considering whether neglect is excusable under Civ.R. 60(B)(1), a court

must consider “all the surrounding facts and circumstances.”             UBS Real Estate

Securities, Inc. v. Teague, 191 Ohio App.3d 189, 2010-Ohio-5634, 945 N.E.2d 573, ¶ 28

(2d Dist.), citing Griffey, 33 Ohio St.3d at 79, 514 N.E.2d 1122. “The phrase ‘excusable

neglect’ in Civ.R. 60(B)(1) ‘is an elusive concept which has been difficult to define and to

apply.’ ” Id., quoting Kay, 76 Ohio St.3d at 20, 665 N.E.2d 1102. The Supreme Court
                                                                                          -8-


of Ohio has determined that neglect is inexcusable when the movant’s inaction “reveals

a complete disregard for the judicial system and the rights of the appellee.”           GTE

Automatic, 47 Ohio St.2d at 153, 351 N.E.2d 113. Accord Kay at 20.

       {¶ 17} This court has held that “ ‘[e]xcusable neglect’ in the context of a Civ.R.

60(B)(1) motion generally means the failure to take the proper steps at the proper time,

not in consequence of the party’s own carelessness, inattention, or willful disregard of the

processes of the court, but in consequence of some unavoidable or unexpected

hindrance or accident, or reliance on the care and vigilance of his counsel or on promises

made by the adverse party.” Federal Nat. Mtge. Assn. v. Banks, 2d Dist. Montgomery

No. 12692, 1991 WL 254652, *2 (Dec. 6, 1991). Accord Griffin v. Dream House Mtge.

Corp., 2d Dist. Greene No. 08-CA-45, 2009-Ohio-2178, ¶ 29.             Therefore “ ‘[c]ourts

generally find excusable neglect in those instances where there are “unusual or special

circumstances” that justify the neglect of a party or [the party’s] attorney.’ ” Griffin at ¶

30, quoting Hai v. Flower Hosp., 6th Dist. Lucas No. L-07-1423, 2008-Ohio-5295, ¶ 21,

quoting Vanest v. Pillsbury Co., 124 Ohio App.3d 525, 536, 706 N.E.2d 825 (4th

Dist.1997).

       {¶ 18} That said, “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.’ ” Colley v. Bazell, 64 Ohio St.2d 243, 248, 416 N.E.2d 605 (1980),

quoting Doddridge v. Fitzpatrick, 53 Ohio St.2d 9, 12, 371 N.E.2d 214 (1978).

       {¶ 19} In this case, the supporting affidavit signed by USA Freight’s General
                                                                                            -9-


Manager, Baris Koch, averred that he first learned of Judge’s lawsuit against USA Freight

when the trial court’s bailiff notified him that a writ of execution had been filed against the

company. The record indicates that the bailiff was ordered to levy execution against

USA Freight on January 18, 2017, and that USA Freight filed its motion to vacate

approximately three weeks later.       Koch further averred in his affidavit that he was

unaware of any member or employee of USA Freight who had signed for or received

service of the complaint. As of the date he signed the affidavit, Koch claimed he did not

know who signed for the complaint.

       {¶ 20} It was not until the hearing on the motion to vacate that USA Freight

explained, through counsel, that service of the complaint and summons was signed for

by the mother of the owner of USA Freight. USA Freight explained that the owner’s

mother has no role within the company and that she happened to be present when the

complaint was delivered by certified mail. USA Freight further explained that the owner’s

mother understands and speaks very little English and that she did not provide the

complaint to any of the family members who are involved in USA Freight’s business

operations. Although no testimony or affidavits were submitted to verify this information,

the trial court found USA Freight’s explanation credible and that it constituted excusable

neglect under Civ.R. 60(B)(1).

       {¶ 21} Judge argues that the trial court’s decision was an abuse of discretion

because USA Freight failed to provide any evidence establishing that the person who

received and signed for the complaint was the non-English speaking mother of USA

Freight’s owner. The owner’s mother did not appear at the hearing and her name was

never disclosed on the record. USA Freight also never disclosed what the owner’s
                                                                                        -10-


mother did with the complaint after she received it. In an effort to establish that the

person who signed for the complaint was not the owner’s mother, Judge provided the trial

court with two prior certified mail receipts with signatures that matched the signature on

the receipt at issue. Judge pointed out that one of the prior receipts indicated that the

signatory was an “Agent” of USA Freight.

      {¶ 22} Judge further argues that it was USA Freight’s responsibility to maintain a

valid statutory agent who is designated to receive service of process at the agent’s listed

address. Judge claims that it was indeed neglectful for USA Freight to use an address

where certified mail could be received and mishandled by a non-English-speaking

individual who is not affiliated with USA Freight’s business; however, Judge contends that

such conduct does not constitute excusable neglect. In support of this claim, Judge cites

various cases providing that “[i]nsufficient or negligent internal procedures in an

organization may not compromise excusable neglect and, therefore, they may not support

the vacation of a default judgment.” See, e.g., Middleton v. Luna’s Restaurant & Deli,

L.L.C., 5th Dist. Stark No. 2011 CA 00004, 2011-Ohio-4388, ¶ 31, citing LaKing Trucking,

Inc. v. Coastal Tank Lines, Inc., 3d Dist. Allen No. 1-83-3, 1984 WL 6241 (Feb. 9, 1984)

(summons received in a corporate mail room but lost before being brought to the attention

of the proper office does not rise to excusable neglect) and Miller v. Sybert, 3d Dist.

Auglaize No. 2-84-13, 1985 WL 7351 (July 25, 1985) (ordinary mail delivered to defendant

when mail is accessible to other persons and where it was never picked up by defendant’s

friends while he was out of state does not constitute excusable neglect). Accord Andrew

Bihl Sons, Inc. v. Trembly, 67 Ohio App.3d 664, 667, 588 N.E.2d 172 (4th Dist.1990)

(ignoring mail for more than three months due to illness and failing to delegate a
                                                                                         -11-

competent agent to handle business affairs does not constitute excusable neglect); Meyer

v. GMAC Mtge., 10th Dist. Franklin No. 06AP-877, 2007-Ohio-5009 (employee’s failure

to forward the complaint to the appropriate corporate department does not constitute

excusable neglect).

       {¶ 23} Judge further argues that the mother’s ignorance of the legal process does

not amount to excusable neglect. Boling v. DiMeche & Vlado, Inc., 10th Dist. Franklin

No. 07AP-146, 2007-Ohio-5795, ¶ 15, quoting United Bank & Trust v. Kaufman, 6th Dist.

Wood No. WD-05-074, 2006-Ohio-2346, ¶ 12, citing Buckeye Supply Co. v. Northeast

Drilling Co., 24 Ohio App.3d 134, 137, 493 N.E.2d 964 (9th Dist.1985) (“ ‘ignorance of

legal requirements or inexperience with legal matters does not constitute excusable

neglect’ ”).

       {¶ 24} Having reviewed the record, we find that Judge has presented strong

arguments in support of its position that the trial court abused its discretion in finding

excusable neglect, especially in regards to USA Freight’s responsibility to maintain a valid

statutory agent. “Each limited liability company [such as USA Freight] shall maintain

continuously in this state an agent for service of process on the company.”            R.C.

1705.06(A). A limited liability company is required to provide the Ohio Secretary of State

with a written appointment of its statutory agent that sets forth the name of the agent and

the agent’s address in this state. R.C. 1705.06(B)(1)(a) and (C). The Secretary of State

then keeps a record of the statutory agent’s name and address. R.C. 1705.06(C).

       {¶ 25} Civ.R. 4.2(G) provides that, to serve a limited liability company, a plaintiff

may direct service of process to “the agent authorized by appointment or by law to receive

service of process[.]”   “Certified mail service upon such an agent is effective upon
                                                                                           -12-

delivery, if evidenced by a signed return receipt.” Adams, Babner & Gitlitz, L.L.C. v.

Tartan Dev. Co. (West), L.L.C., 10th Dist. Franklin No. 12AP-729, 2013-Ohio-1573, ¶ 9,

citing Stonehenge Condominium Assn. v. Davis, 10th Dist. Franklin No. 04AP-1103,

2005-Ohio-4637, ¶ 14, citing Mitchell v. Mitchell, 64 Ohio St.2d 49, 51, 413 N.E.2d 1182

(1980). “Service is valid if ‘any person’ at the address signs for the certified mail, whether

or not the recipient is the defendant’s agent.” Id., quoting Civ.R. 4.1(A)(1)(a); TCC Mgt.,

Inc. v. Clapp, 10th Dist. Franklin No. 05AP-42, 2005-Ohio-4357, ¶ 11.

       {¶ 26} Here, Judge served its complaint on USA Freight’s statutory agent via

certified mail at the address on record with the Ohio Secretary of State. The certified

mail was received at the address of USA Freight’s statutory agent and signed for by the

mother of the owner of USA Freight.           Under these circumstances, service of the

complaint was valid. However, USA Freight did not receive notice of the complaint

because the mother of USA Freight’s owner mishandled the complaint. This type of

scenario has not been found to constitute excusable neglect.             See, e.g., Chicago

Sweeteners, Inc. v. Kantner Group, Inc., N.D.Ohio No. 3:08 CV 1928, 2009 WL 1707927

(June 17, 2009) (finding no excusable neglect where a defendant company was properly

served with a complaint via certified mail to its statutory agent’s address, the certified mail

was received and signed for by an administrative assistant of the defendant company,

who was also the mother of the defendant company’s president, and the mother thereafter

mishandled the complaint so that the defendant company never received notice of it).

       {¶ 27} We agree that “[i]nsufficient or negligent internal procedures in an

organization may not compromise excusable neglect and, therefore, they may not support

the vacation of a default judgment.” Middleton, 5th Dist. No. 2011 CA 00004, 2011-Ohio-
                                                                                         -13-

4388 at ¶ 31. Accord Denittis v. Aaron Constr., Inc., 11th Dist. Geauga No. 2011-G-

3031, 2012-Ohio-6213, ¶ 35. In so agreeing, we stress that USA Freight is, by law,

responsible for maintaining a valid statutory agent that is calculated to receive service of

process at the agent’s listed address.      Here, USA Freight chose a statutory agent

address where it was possible for a non-English-speaking person who was unaffiliated

with the company to receive important documentation that was served at the address.

Due to USA Freight’s negligence in choosing its statutory agent and/or failure to

implement internal procedures to ensure that documentation served at the statutory

agent’s address was directed to the appropriate person, the complaint at issue was

mishandled by the owner’s mother.

       {¶ 28} As previously noted, excusable neglect does not result from the party’s own

carelessness, inattention, or willful disregard of the processes of the court, but in

consequence of some unavoidable or unexpected hindrance or accident. Federal Nat.

Mtge. Assn., 2d Dist. Montgomery No. 12692, 1991 WL 254652 at *2. Had USA Freight

chosen a better statutory agent, or had better procedures been in place for receiving

service of process at the statutory agent’s address, the mishandling of the complaint

would likely have been avoided. Accordingly, the circumstances here do not constitute

an unavoidable or unexpected hindrance or accident.

       {¶ 29} While abuse of discretion is an extremely high standard of review that

requires us to find the trial court’s excusable neglect decision unreasonable, we

nevertheless reach that conclusion here. The trial court’s decision was unreasonable

because the mishandling of the complaint was the result of USA Freight’s own

negligence. When a company, such as USA Freight, designates a statutory agent to
                                                                                        -14-


receive service of process, the company should be adequately prepared to receive

service of process at the statutory agent’s address. Although we recognize that Civ.R.

60(B) motions are to be liberally construed in favor of the movant, we nevertheless find

that USA Freight’s negligence in choosing its statutory agent and its procedures for

receiving service of process was in willful disregard of the processes of the court.

Therefore, we narrowly hold that when a company is required by law to maintain a

statutory agent to receive service of process, and when there is successful service of

process via certified mail at the statutory agent’s address that is on record with the Ohio

Secretary of State, the subsequent mishandling of served documents by the person who

signed for and received the documents at the statutory agent’s listed address does not

amount to excusable neglect.

       {¶ 30} Judge’s sole assignment of error is sustained.



                                       Conclusion

       {¶ 31} Having sustained Judge’s sole assignment of error, the judgment of the trial

court is reversed.

                                     .............

HALL, J. and TUCKER, J., concur.




Copies mailed to:

Richard A. Boucher
Julia C. Kolber
Nathan J. Stuckey
Hon. Mia Wortham Spells
