[Cite as Replex Mirror Co. v. Solar Tracking Skylights, Inc., 2011-Ohio-2650.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



REPLEX MIRROR COMPANY dba                                   JUDGES:
REPLEX PLASTICS                                             Hon. John W. Wise, P. J.
                                                            Hon. Julie A. Edwards, J.
        Plaintiff-Appellee                                  Hon. Patricia A. Delaney, J.

-vs-                                                        Case No. 10 CA 23

SOLAR TRACKING SKYLIGHTS, INC.

        Defendant-Appellant                                 OPINION




CHARACTER OF PROCEEDING:                                Civil Appeal from the Court of Common
                                                        Pleas, Case No. 09 BR 12-0729


JUDGMENT:                                               Affirmed



DATE OF JUDGMENT ENTRY:                                 May 27, 2011



APPEARANCES:

For Plaintiff-Appellee                                  For Defendant-Appellant

KIM M. ROSE                                             CAROLYN KAYE RANKE
ADAM B. LANDON                                          323 West Lakeside Avenue
CRITCHFIELD, CRITCHFIELD                                Lakeside Place
& JOHNSTON, LTD                                         Suite 420
10 South Gay Street, P. O. Box 469                      Cleveland, Ohio 44113
Mount Vernon, Ohio 43050
Knox County, Case No. 10 CA 23                                                         2

Wise, P. J.

      {¶1}     Defendant-Appellant Solar Tracking Skylights, Inc. appeals the decision of

the Court of Common Pleas, Knox County, which denied its motion to vacate a default

judgment previously granted in favor of Plaintiff-Appellee Replex Mirror Company, dba

Replex Plastics. The relevant facts leading to this appeal are as follows.

      {¶2}     Appellant STS (buyer in this instance) manufactures solar lighting and

tracking systems. It is headquartered in Chicago, Illinois and has a worldwide customer

base. Appellee Replex (seller in this instance) supplies some of the parts used in

appellant’s manufactured products. A dispute arose between the parties regarding

purported non-conforming parts sold by appellee, leading to appellant’s decision to

withhold certain payments to appellee.

      {¶3}     On December 4, 2009, appellee filed a civil complaint against appellant in

the Knox County Court of Common Pleas, seeking monetary damages. It is undisputed

that appellee’s complaint was duly served by certified mail on appellant’s Chicago-

based statutory agent, Timothy Lavender, on or about December 15, 2009.

      {¶4}     On January 19, 2010, appellee filed a motion for default judgment against

appellant. The trial court granted same in the amount of $57,183.99, plus interest, on

February 2, 2010.

      {¶5}     In July 2010, appellee obtained a transfer of the Knox County default

judgment to Cook County, Illinois for the purpose of garnishment and collection

proceedings.

      {¶6}     On September 2, 2010, appellant filed a motion for relief from judgment

under Civ.R. 60(B), with a request for hearing, claiming it lacked actual knowledge of
Knox County, Case No. 10 CA 23                                                           3


the December 4, 2009 action filed by appellee. Appellee filed a brief in opposition on

September 10, 2010, to which appellant replied on September 15, 2010.

      {¶7}   On November 3, 2010, the trial court denied appellant’s motion for relief

from judgment and request for hearing thereon.

      {¶8}   On December 6, 2010, appellant filed a notice of appeal.1 It herein raises

the following two Assignments of Error:

      {¶9}   “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

BY DENYING THE MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO RULE

60(B) OF THE OHIO RULES OF CIVIL PROCEDURE.

      {¶10} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

BY   DENYING      THE    MOTION      FOR     RELIEF    FROM     JUDGMENT        WITHOUT

AFFORDING APPELLANT WITH AN ORAL HEARING.”

                                           I., II.

      {¶11} In its First and Second Assignments of Error, appellant contends the trial

court erred in denying its motion for relief from judgment and doing so without

conducting a hearing. We disagree.

      {¶12} Civ.R. 60(B) states in pertinent part as follows:

      {¶13} “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

1
   The trial court docket in this case is unclear as to service of the final judgment entry
under appeal. See In re Mills, Richland App.No. 01 CA 96, 2002-Ohio-2503. However,
pursuant to an interim order by this Court, appellant satisfactorily demonstrated that
appellate jurisdiction had been properly invoked under App.R. 4(A).
Knox County, Case No. 10 CA 23                                                         4


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. ***.”

      {¶14} Civ.R. 60(B) represents 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 (1980), 64 Ohio St.2d 243, 248, 416 N.E.2d 605 (citation

omitted). A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound

discretion of the trial court and a ruling will not be disturbed absent an abuse of

discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122.

Furthermore, ‘[i]t is an abuse of discretion for a trial court to overrule a Civ.R. 60(B)

motion for relief from judgment without first holding an evidentiary hearing only if the

motion or supportive affidavits contain allegations of operative facts which would

warrant relief under Civ.R. 60(B).” In re Estate of Kirkland, Clark App.No. 2008-CA-57,

2009-Ohio-3765, ¶ 17, quoting Boster v. C & M Serv., Inc. (1994), 93 Ohio App.3d 523,

526, 639 N.E.2d 136 (emphasis in original).

      {¶15} The case of Boyd v. Ace Doran Hauling and Rigging (Sept. 4, 1986),

Marion App.No. 9-84-45, 1986 WL 9665, is instructive in the present appeal. In that

case, a corporate defendant had conceded that the plaintiffs’ civil complaint was served
Knox County, Case No. 10 CA 23                                                           5


on its statutory agent, but the defendant asserted that its claims department had been

under reorganization and notice of the filing had never been given to defendant's

counsel. In holding that the trial court had not abused its discretion in denying the

defendant’s motion for relief from judgment, the Third District Court in part relied on

Security Ins. Co. v. Regional Transit Auth. (1982), 4 Ohio App.3d 24, paragraph three of

the syllabus, which states: “Where a corporation is served with process at its principal

office, and thereafter suffers a default judgment when it fails to answer the complaint or

otherwise defend, judgment will not be vacated pursuant to Civ.R. 60(B)(5) merely

because the corporation's counsel was not notified of the suit, absent proof that the

corporation's failure to respond was caused by some extraordinary circumstance not the

fault of the corporation.”

      {¶16} In MCF Machine Co., Inc. v. Weststar Industries, Inc. (Aug. 2, 1993), Stark

App.No. CA-9196, 1993 WL 308452, this Court recognized: “It is the general principle

that relief from default judgment may be granted on excusable neglect when service is

properly made on a corporation, but a corporate employee fails to forward the summons

and complaint to the appropriate person.” Id., citing Sycamore Messenger, Inc. v.

Barons, Inc. (1986), 31 Ohio App.3d 196. However, we also noted: “The affidavit to

support such relief and in proof of excusable neglect is sufficient when it establishes the

following: (1) that there is a set procedure to be followed in the corporate hierarchy for

dealing with legal process, and (2) that such procedure was, inadvertently, not followed

until such time as a default judgment had already been entered against the corporate

defendant.” Id., citing Hopkins v. Quality Chevrolet, Inc. (1992), 79 Ohio App.3d 578.

We further held: “It is incumbent upon the moving party *** to establish the general
Knox County, Case No. 10 CA 23                                                           6


overall process or the usual procedure steps in order to satisfy the court that the failure

to respond was not in ‘ * * * consequence of the parties' own carelessness, inattention,

or willful disregard of the process of the court * * *.’ ” Id., citing Federal National

Mortgage Assn. v. Banks (Dec. 6, 1991), Montgomery App.No. 12692, 1991 WL

254652.

      {¶17} The record in the case sub judice includes the affidavit of appellant’s

principal, George Kramerich, who averred in pertinent part as follows:

      {¶18} “8. I was unaware of the lawsuit pending in Knox County, Ohio filed by

Replex until after the transfer of the judgment to Cook County, Illinois. I do not dispute

that the statutory agent was served. However, due to my travel schedule, I was clearly

unaware of its filing and the necessity to defend the lawsuit.

      {¶19} “ *** ”

      {¶20} Although appellant's motion herein recites 60(B)(1), (3), and (5), we find it

essentially goes to the issue of “excusable neglect.” Our reading of Kramerich’s affidavit

in toto does not reveal further details regarding the time and geographical facets of his

travels, nor does it set forth what steps the company had taken to delegate

responsibilities in his absence, particularly as to responding to legal process. Moreover,

documentation of Kramerich’s correspondence with appellee’s president Mark Schuetz,

appears to contradict Kramerich’s assertion of lack of knowledge of the complaint, or at

least indicates he was at least aware that a lawsuit was forthcoming. In a December

2009 e-mail, Kramerich wrote Schuetz: “Got your voice message and the legal notice

from [Law Firm] Critchfield.” Kramerich added that his company was “not contesting the

payment obligation.” Schuetz responded, via e-mail: “We only reverted to the legal
Knox County, Case No. 10 CA 23                                                          7


approach when all voice mails and emails were being ignored and zero payment was

being received.” See Replex’s Memorandum Contra the Motion to Vacate.

      {¶21} Accordingly, pursuant to the guidance set forth in MCF Machine and Boyd,

supra, we are unable to conclude the trial court abused its discretion in refusing to find

‘excusable neglect’ pursuant to Civ.R. 60(B)(1) so as to warrant relief from the default

judgment, and we likewise find no abuse of discretion in the court’s decision to decide

the issue without conducting a hearing.

      {¶22} Accordingly, appellant's First and Second Assignments of Error are

overruled.

      {¶23} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Knox County, Ohio, is affirmed.


By: Wise, P. J.

Edwards, J., and

Delaney, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                JUDGES
JWW/d 0505
Knox County, Case No. 10 CA 23                                              8


              IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




REPLEX MIRROR COMPANY                     :
dba REPLEX PLASTICS                       :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
SOLAR TRACKING SKYLIGHTS, INC.            :
                                          :
       Defendant-Appellant                :         Case No. 10 CA 23




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Knox County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
