[Cite as Daimler Chrysler Fin. v. L.N.H., Inc., 2012-Ohio-2204.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97437




                    DAIMLER CHRYSLER FINANCIAL
                                                            PLAINTIFF-APPELLEE

                                                      vs.

                             LNH, INC., D.B.A.
                      ROSIE’S SUNOCO & MINI MART
                                                            DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                                      Case No. CV-731979

        BEFORE: S. Gallagher, J., Jones, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: May 17, 2012
ATTORNEY FOR APPELLANT

Tyrone E. Reed
11811 Shaker Blvd.
Suite 420
Cleveland, OH 44120


ATTORNEYS FOR APPELLEE

Robert B. Weltman
David S. Brown
Weltman, Weinberg & Reis Co.
323 West Lakeside Avenue
Suite 200
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

       {¶1} Defendant-appellant, LNH Inc., d.b.a. Rosie’s Sunoco & Mini Mart

(hereafter “LNH”), appeals the decision of the Cuyahoga County Court of Common Pleas

that denied his motion to vacate default judgment. For the reasons stated herein, we

reverse the decision of the trial court and remand the matter for further proceedings.

       {¶2} On July 19, 2010, plaintiff-appellee, Daimler Chrysler Financial (“the

plaintiff”) filed a complaint against LNH. The plaintiff claimed that it had obtained a

judgment against George Samara, who was an alleged employee of LNH, that the

judgment was transferred to Cleveland Municipal Court, that an order of garnishment of

Samara’s personal earnings was issued and served upon LNH, and that LNH had failed to

honor the garnishment. The plaintiff sought a judgment in the amount of $21,364.27

plus interest and costs.

       {¶3} After certified mail service was returned unclaimed, service of process was

made by ordinary mail service. On December 22, 2010, the plaintiff filed a motion for

default judgment. The trial court granted the motion on January 11, 2011.

       {¶4} On August 16, 2011, LNH filed a motion to vacate the default judgment on

the grounds of excusable neglect. LNH stated in its motion that it had sold its business

to Quasem, Inc., that Samara was an employee of Quasem, and that it was Quasem’s
employee who had defaulted on a loan for the purchase of a vehicle. LNH further

represented that plaintiff’s counsel was aware that LNH was not the real party in interest,

yet proceeded to obtain a default judgment against LNH. LNH also stated that after a

discussion with plaintiff’s counsel, it believed the case would be dismissed. Attached to

the motion were copies of unverified checks evincing the deposit and down payment for

Quasem’s purchase of the business in October 2008, as well as an unsigned copy of the

asset purchase agreement.

      {¶5} The docket reflects that a hearing was set for September 6, 2011. Although

it is not reflected in the record, the plaintiff represents that the hearing was set for

September 20, 2011, and that LNH failed to appear at the hearing. The plaintiff filed a

brief in opposition to LNH’s motion on September 9, 2011.

      {¶6} The trial court denied the motion to vacate without opinion on September 21,

2011, and this appeal followed. LNH raises two assignments of error for our review.

      {¶7} Initially, we note that a garnishee may contest its liability to a garnishment

order in a civil action brought under R.C. 2716.21(F). Januzzi v. Hickman, 61 Ohio

St.3d 40, 44, 572 N.E.2d 642 (1991).           R.C. Chapter 2716, which governs the

garnishment of personal earnings or property of a judgment debtor, treats the garnishee as

a nonparty for purposes of garnishment proceedings. Id. at 43. As such, an order to the

garnishee to pay into court is merely preparatory to further proceedings and does not

finally determine the garnishee’s liability. Id. at 43-44. When a garnishee fails to

answer or satisfactorily answer an order of garnishment as required under R.C. 2716.05 or
R.C. 2716.13, or fails to comply with an order to pay into court, the court may proceed

against the garnishee in contempt pursuant to R.C. 2716.21(E), or the judgment creditor

may initiate a separate civil action pursuant to R.C. 2716.21(F), whereupon the liability of

the garnishee may be finally determined. Id. at 44. Thus, despite the issuance of a

garnishment order by the municipal court, LNH’s liability remained to be finally

determined in this civil action.

       {¶8} LNH’s first assignment of error challenges the denial of the motion to vacate.

 Civ.R. 55(B) provides that “[i]f a judgment by default has been entered, the court may

set it aside in accordance with [Civ.R.] 60(B).” Civ.R. 60(B) provides in pertinent part

as follows:

              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 * * *; (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. * * *.

       {¶9} The Ohio Supreme Court has recognized that in order to prevail on a motion

for relief from judgment pursuant to Civ.R. 60(B), the movant must demonstrate (1) a

meritorious defense or claim to present if relief is granted; (2) entitlement to relief under

one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the timeliness of the

motion. GTE Automatic Elec., Inc. v. ARC Industries, 47 Ohio St.2d 146, 150-51, 351

N.E.2d 113 (1976). We review a trial court’s denial of a Civ.R. 60(B) motion for relief

from judgment under an abuse-of-discretion standard.         See Rose Chevrolet, Inc. v.

Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988). To constitute an abuse of

discretion, the trial court’s ruling must be “unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶10} It is well recognized that the law generally does not favor default judgments

and that cases should be decided on their merits whenever possible. Wilson v. Lee, 172

Ohio App.3d 791, 2007-Ohio-4542, 876 N.E.2d 1312, ¶ 15 (2d Dist.). Thus, “[w]here

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.” GTE Automatic Elec., Inc., at paragraph three of

the syllabus.

       {¶11} LNH asserts that it has a meritorious defense because it was not the proper

party to be garnished. LNH asserts that Quasem was the employer of Samara, who was
the subject of the judgment underlying the garnishment.      LNH submitted documents

demonstrating that the business had been sold to Quasem in October 2008, well before

the plaintiff sought to garnish Samara’s wages. As such, LNH claims no action for

garnishment was proper against it.

      {¶12} We recognize that the checks attached to the motion to vacate were not

verified and that the asset purchase agreement was unsigned. However, it has been

recognized that “[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).

Moreover, to demonstrate a meritorious defense, the movant must merely allege operative

facts that would support a meritorious defense, not prove that he or she will prevail on

that defense. Id., citing Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d

564 (1988).

      {¶13} Here, LNH alleged operative facts to show that Samara was not an

employee of LNH and that the garnishment of his personal earnings was made against

the wrong party. The filing of an action against a wrong party has been held to present a

meritorious defense. Rocha v. Salsbury, 6th Dist. No. F-05-014, 2006-Ohio-2615, ¶ 16;

Guardian Alarm Co. v. Mahmoud, 166 Ohio App.3d 51, 2006-Ohio-1227, 849 N.E.2d 58,

¶ 14 (6th Dist.). Similarly, we find that LNH presented a meritorious defense in that it

claims it was not the proper party from which to garnish Samara’s wages.
       {¶14} We also find LNH established excusable neglect.              LNH asserted that

plaintiff’s counsel was made aware that LNH was not the proper party and that plaintiff’s

counsel led LNH to believe that the case would be dismissed.              Additionally, LNH

asserted in its motion that after learning of the default judgment, it retained counsel who

filed the motion to vacate judgment after plaintiff’s counsel rejected a proposal to have

the default judgment vacated. The motion to vacate judgment was filed seven months

after the default judgment, which we find was timely under the circumstances herein.

       {¶15} Upon the record before us, we find the trial court abused its discretion in

denying LNH’s motion to vacate judgment and we sustain the first assignment of error.

Insofar as LNH also asserts fraud with regard to an agreed journal entry obtained in a

related action, this issue was not presented to the trial court and is not properly before us.

       {¶16} LNH’s second assignment of error challenges the trial court’s failure to hold

a hearing on the motion. When a Civ.R. 60(B) motion “contains allegations of operative

facts which would warrant relief from judgment, the trial court should grant a hearing to

take evidence to verify those facts before it rules on the motion.” State ex rel. Richard v.

Seidner, 76 Ohio St.3d 149, 151, 1996-Ohio-54, 666 N.E.2d 1134. Here, the docket

reflects that the trial court did schedule a hearing on the motion.           However, it is

represented that LNH did not appear. Accordingly, we overrule the second assignment

of error.

       {¶17} We are mindful of the admonition that cases should be decided on their

merits, where possible, rather than procedural grounds. When grounds for relief are
apparent from the face of the record, a trial court may grant a Civ.R. 60(B) motion

without a hearing.    UBS Real Estate Secs., Inc. v. Teague, 191 Ohio App.3d 189,

2010-Ohio-5634, 945 N.E.2d 573, ¶ 35 (2d Dist.). As we found above, a movant need

not prove he will succeed on his defense, and LNH alleged sufficient operative facts to

warrant relief under the provisions of Civ.R. 60(B). As such, we conclude the trial court

abused its discretion in denying LNH’s motion.

       {¶18} Judgment reversed, and case remanded for further proceedings on the merits

of the action.

       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 issue out of this court directing the common

pleas 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.




SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
KATHLEEN A. KEOUGH, J., CONCUR
