[Cite as Resolution Oversight Corp. v. Annashae Corp., 2011-Ohio-4127.]


         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                Nos. 96542 and 96543




               RESOLUTION OVERSIGHT CORPORATION

                                                          PLAINTIFF-APPELLANT

                                                    vs.

                            ANNASHAE CORPORATION
                                                          DEFENDANT-APPELLEE




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                                Cuyahoga County Common Pleas Court
                                      Case No. CV-741156

        BEFORE: E. Gallagher, J., Blackmon, P.J., and Keough, J.
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      RELEASED AND JOURNALIZED:           August 18, 2011


ATTORNEYS FOR APPELLANT

Joseph D. Silvaggio
Timothy J. Chiappetta
Willman & Silvaggio, LLP
5500 Corporate Drive
Suite 150
Pittsburgh, PA 15237

ATTORNEY FOR APPELLEE

Mary Davis
Seeley, Savidge, Ebert & Gourash Co.
26600 Detroit Road, 3rd Floor
Cleveland, OH 44145




EILEEN A. GALLAGHER, J.:

      {¶ 1} This is an accelerated appeal authorized pursuant to App.R. 11.1

and Loc.R. 11.1.

      {¶ 2} Resolution Oversight Corporation, (hereinafter Resolution) as

Special Duty Receiver for Western Indemnity Company (hereinafter

Western), appeals from the decision of the trial court denying its motion for

relief from judgment. Finding merit to this appeal, we reverse the decision

of the trial court and remand.
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      {¶ 3} In 1998, Western issued a medical malpractice insurance policy

to Annashae Corporation (hereinafter Annashae) for the term of July 1, 1998

to June 30, 1999.    Following the end of the term, the parties disputed

Western’s demand for an additional premium payment. In 2003, Resolution

was appointed as the Special Deputy Receiver for Western.            In 2005,

Resolution filed its first claim against Annashae in Cuyahoga County for

breach of contract and seeking the additional premium it claimed in 1999.

See W. Indemn. Co. v. Annashae Corp., C.P. No. CV-05-577067. On July 31,

2006, Resolution voluntarily dismissed the case without prejudice.

      {¶ 4} On November 29, 2007, after determining that it could assert

subject matter jurisdiction over Annashae in Texas, Resolution re-filed its

case, alleging breach of contract and the return of the claimed additional

premium in the special receivership court in Travis County, Texas.        See

Texas v. W. Indemn. Ins. Co. (Annashae Corp.), Cuyahoga C.P. No.

GV3-02024.    Subsequently, the parties engaged in over three years of

litigation regarding collection of the alleged additional premium, including

the filing of cross-motions for summary judgment.              In particular,

Annashae’s motion for summary judgment alleged a statute of limitations of

defense, which if successful, would bar Resolution from collecting the claimed

premium.
                                    4

      {¶ 5} Prior to the Texas court ruling on Annashae’s motion, Resolution

filed a motion to sever and stay the case against Annashae so that

Resolution could file and pursue a case in Ohio. In particular, Resolution

wanted to avail itself of Ohio’s 15-year statute of limitations for breach of

contract claims. The Texas court granted the motion and on November 12,

2010, Resolution filed the present case against Annashae in the common

pleas court. Notably, Resolution is once again alleging breach of contract

and seeking the claimed additional premium, claims that have previously

been filed and dismissed in Cuyahoga County, Ohio, and that are currently

stayed in Travis County, Texas.

      {¶ 6} On January 26, 2011, Annashae filed a motion to dismiss

pursuant to forum non conveniens, improper forum shopping, and Civ.R.

12(B)(1).   The trial court granted Annahsae’s unopposed motion on

February 14, 2011. Resolution filed a motion for relief from judgment on

February 24, 2011, which the trial court denied on March 8, 2011.

Resolution appeals, raising the three assignments of error contained in the

appendix to this opinion.

      {¶ 7} In its second assignment of error, Resolution claims the trial

court abused its discretion when it overruled Resolution’s motion for relief

from judgment. We agree.
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      {¶ 8} To prevail on a motion under Civ.R. 60(B), the movant must

demonstrate that: (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 for relief are Civ.R. 60(B)(1), (2) or

(3), not more than one year after the judgment * * *.” GTE Automatic Elec.

v. ARC Indus. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph two of

the syllabus.

      {¶ 9} In the present case, Resolution has met all three prongs of the

GTE test. Primarily, although not addressing Annashae’s claims of forum

shopping, forum non conveniens, or its statute of limitations defense,

Resolution put forth documentation demonstrating a claim of breach of

contract in the underlying lawsuit to satisfy the first prong of the test.

Next, Resolution attached an affidavit from its counsel, stating that

Resolution failed to oppose Annashae’s motion because of counsel’s mistake,

inadvertence, and excusable neglect in miscalculating the response time on

Annashae’s motion to dismiss. See Civ.R. 60(B)(1). Lastly, Resolution filed

its motion for relief from judgment two days after receiving notice that the

court granted Annashae’s motion to dismiss.

      {¶ 10} We are not stating that Resolution has a valid breach of contract
                                             6

claim in the underlying case, nor are we addressing the merits of Annashae’s

defenses of forum shopping, forum non conveniens, and statute of

limitations.      We are merely requiring that Resolution be given the

opportunity to respond to Annashae’s motion to dismiss. Accordingly, we

find that the trial court abused its discretion in failing to grant Resolution’s

motion for relief from judgment.

       {¶ 11} Our analysis of Resolution’s second assignment of error renders

its first and third assignments of error moot.

       {¶ 12} This cause is reversed and remanded to the lower court for

further proceedings consistent with this opinion.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said lower court 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.




EILEEN A. GALLAGHER, JUDGE

PATRICIA A. BLACKMON, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
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                            Appendix A

Assignments of Error:

     “I. The trial court abused its discretion by failing to provide
     notice of its intent to dismiss the action as required by Civ.R.
     41(B)(1), prior to dismissing the action with prejudice.”

     “II.   The trial court abused its discretion by denying
     appellant’s motion for relief without holding a hearing or
     determining the basis for its ruling, and despite appellant
     satisfying the requirements for relief.”

     “III. The trial court abused its discretion by dismissing the
     case with prejudice and denying appellant’s motion for relief
     because it violated a basic tenet of Ohio jurisprudence that
     cases should be decided on their merits and not on
     technicalities.”
