Opinion
No. 91-1703.
Decided June 9, 1993.
Connors Dzienny Co., L.P.A., and Mike Dzienny, for plaintiffs David Perez et al.
Adray Grna and James S. Adray; Lackey, Nusbaum, Harris, Reny Torzewski Co., L.P.A., and Daniel G. Camick, for defendants.
This personal injury action is before the court on the Civ.R. 60(B) motion of defendant Midport Electronics, Inc. ("Midport") for relief from the default judgment rendered against it on November 4, 1991. Upon review of the record, memoranda of counsel, and applicable law, the court denies Midport's motion.
Midport has also filed a motion to stay execution of the judgment entered against it. Because the court is denying Midport's motion for relief, the court will also deny Midport's motion to stay execution.
I
The plaintiffs in this action sustained injuries when a motor vehicle driven by defendant Larry R. Bush II collided with one in which they were driving. The plaintiffs assert that Bush was operating the motor vehicle at the time of the accident within the scope of his employment with defendant Midport. Plaintiffs filed this action on May 22, 1991.
On May 28, 1991, Jerry Howard, Jr., the president and apparent statutory agent of Midport, submitted a typed document (the "Howard Document") to the "Court of Common Pleas Lucas County, Ohio." Handwritten underneath the date of the Howard Document was the word "ANSWER."
At a pretrial on October 16, 1991, this court noted to the attorneys and Howard, who personally appeared, that the Howard Document was not an "answer" on behalf of Midport as such is contemplated by the Civil Rules, and that the document was inappropriately accepted by the clerk as an "answer." Howard was urged to retain an attorney. On October 24, 1991, asserting that Midport had failed to plead or otherwise defend, the plaintiffs filed a motion for default judgment against Midport. On that date, a copy of the motion was sent to "Jerry Howard, Jr., of Midport Electronics, Inc." This court granted plaintiffs' motion on November 4, 1991, after having received no response from Midport. Midport now seeks relief from the judgment under Civ.R. 60(B)(1), (3), (4) and (5).
II
Pursuant to Civ.R. 60(B), a court may grant a motion to vacate a default judgment when the motion:
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 which by due diligence could not have been discovered in time to move for a 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. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation."
1. raises a meritorious defense,
2. has been timely filed, and
3. demonstrates entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5). Colley v. Bazell (1980), 64 Ohio St.2d 243, 246, 18 O.O.3d 442, 444, 416 N.E.2d 605, 607, citing GTE Automatic Elec., Inc. v. ARC Indus., Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, paragraph two of the syllabus.
"Should any prong of [this] standard * * * be unsatisfied, relief shall be denied." Argo Plastic Products Co. v. Cleveland (1984), 15 Ohio St.3d 389, 391, 15 OBR 505, 507, 474 N.E.2d 328, 330, citing GTE, supra, 47 Ohio St.2d at 151, 1 O.O.3d at 89, 351 N.E.2d at 116.
III
Initially, the court notes that Midport has raised what appears to be a meritorious defense. On behalf of Midport, Jerry Howard testified that Bush was not employed by Midport nor was he driving a Midport vehicle at the time of the accident.
Civ.R. 60(B) also requires that a motion be filed within a "reasonable time," which is no more than one year for motions filed pursuant to subsections (1), (2) and (3). Civ.R. 60(B). The court entered default judgment against Midport on November 4, 1991. Midport filed its Civ.R. 60(B) motion, on March 25, 1993, more than sixteen months after judgment was entered. Insofar as Midport's motion is based on Civ.R. 60(B)(1) and (3), it is untimely on its face. Also, the court notes that Midport has failed to offer any explanation for the length of the delay. Given such a failure, the sixteen-month delay in seeking the relief requested here, and Midport's failure to oppose the original default motion, the court concludes that Midport's motion was not filed within a "reasonable time" from the entry of default judgment. See Mount Olive Baptist Church v. Pipkins Paints Home Improvement Ctr., Inc. (1979), 64 Ohio App.2d 285, 289, 18 O.O.3d 319, 321, 413 N.E.2d 850, 854 (a seven-month delay was found untimely when no explanation was offered).
Midport asserts that "on April 9, 1992 this Court granted plaintiffs' motion for default judgment"; however, on this date an amended judgment entry was granted. Actual default was granted on November 4, 1991 and a hearing was held on February 28, 1992 before which defendant was given notice but failed to attend.
Further, Midport has failed to demonstrate that it is entitled to relief from judgment under any one of the grounds stated in Civ.R. 60(B)(1) through (5).
Midport argues that the Howard Document, filed on May 28, 1991, constitutes an answer. Thus, Midport contends, it is entitled to relief from the default judgment as follows: (1) under Civ.R. 60(B)(1), because the court mistakenly determined that Midport had failed to appear, plead or otherwise defend; (2) under Civ.R. 60(B)(3), because the plaintiffs misrepresented to the court that Midport had failed to appear, plead or otherwise defend; and (3) under Civ.R. 60(B)(4) and (5), because to let stand a default judgment entered under such circumstances would be unjust.
A default judgment is proper when a defendant has not opposed the plaintiff's complaint by "pleading" or "otherwise defend[ing]." Civ.R. 55(A); Reese v. Proppe (1981), 3 Ohio App.3d 103, 105, 3 OBR 118, 120, 443 N.E.2d 992, 996.
Civ.R. 55(A) reads in pertinent part as follows:
"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply in writing or orally to the court therefor * * *. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application." (Emphasis added.)
Assuming that the Howard Document constitutes an "appearance" for purposes of Civ.R. 55(A), an "appearance" merely entitles a defendant to seven days' notice before a default judgment may be entered against it. Civ.R. 55(A); Gagliardi v. Flowers (1984), 13 Ohio App.3d 238, 13 OBR 290, 468 N.E.2d 933. Since plaintiffs served their motion for default judgment upon Jerry Howard on or about October 24, 1991, Midport received notice of the pending judgment more than seven days before the court granted it. Furthermore, Midport received notice of the assessment hearing scheduled for February 28, 1992 and chose not to attend. Thus, Midport was not deprived of any notice to which it may have been entitled under Civ.R. 55(A).
See Suki v. Blume (1983), 9 Ohio App.3d 289, 9 OBR 536, 459 N.E.2d 1311 (an untimely answer constitutes an "appearance"). But, see, Union Savings Assn. v. Home Owners Aid, Inc. (1970), 23 Ohio St.2d 60, 52 O.O.2d 329, 262 N.E.2d 558, syllabus (discussed infra).
Regarding Midport's claim that it filed an answer in this action, the court finds that the Howard Document was not an "answer" or "pleading" as contemplated by Civ.R. 7(A) and 55(A). It is well established that "[a] corporation cannot maintain litigation in propria persona, or appear in court through an officer of the corporation or an appointed agent not admitted to the practice of law." Union Savings, supra, at syllabus. See, also, Palmer v. Westmeyer (1988), 48 Ohio App.3d 296, 297, 549 N.E.2d 1202, 1204. A corollary to this rule is that any document filed by such an officer is a nullity. See Union Savings, supra, 23 Ohio St.2d at 60 and 64, 52 O.O.2d at 329 and 331, 262 N.E.2d at 559 and 561. Midport has not asserted that Howard is an attorney licensed to practice in Ohio and in the absence of independent evidence so indicating, the court concludes that Howard is not an attorney.
In its motion, Midport asserts that the court improperly struck the Howard Document as an answer without a journal entry or notice to Midport. For the reasons discussed above, at the pretrial held October 16, 1991, the court informed those present that the Howard Document was not an "answer" of Midport and thus would not be treated as such. In response to that determination, the plaintiffs filed their motion for default judgment. Plaintiffs' counsel certifies that a copy of the motion for default judgment was sent to Midport's statutory agent via ordinary mail ten days before the court granted it. Midport has not alleged that it failed to receive the motion for default. Midport did, however, fail to respond to the motion and failed to attend the assessment hearing. Now, more than sixteen months later, Midport seeks relief from that judgment.
Based on the foregoing, the court concludes that Midport did not file an answer or responsive pleading and that the plaintiffs did not misrepresent Midport's status regarding pleading or otherwise defending. The court also concludes that it would not be unjust to allow this judgment to remain. First, and most important, Midport delayed sixteen months before seeking relief and failed to oppose the motion for default judgment. Second, the Ohio Supreme Court has expressed grave concern over the unauthorized practice of law which occurs when an officer of corporation who is not licensed to practice law takes steps to defend an action against the employer. See Union Savings, supra, 23 Ohio St.2d at 64, 52 O.O.2d at 331, 262 N.E.2d at 561. Third, it is well established that inexperience in lawsuits fails to excuse neglect of legal matters. See Buckeye Supply Co. v. Northeast Drilling Co. (1985), 24 Ohio App.3d 134, 136-137, 24 OBR 206, 207-208, 493 N.E.2d 964, 965-966.
Accordingly, Midport's motion for relief from judgment is denied.
JUDGMENT ENTRY
It is ORDERED that the motion for stay is overruled.
It is ORDERED that the motion of defendant Midport Electronics, Inc. for relief from judgment is denied. The court finds that there is no just reason for delay.
Judgment accordingly.