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Emery v. Smith10/17/2005
JUDGMENT: Reversed
{ } On April 18, 2003, appellants, Lori and Donald Emery, were injured in an automobile accident when their vehicle was struck from behind by a vehicle being operated by appellee, Karl Smith. At the time of the accident, appellee was insured with Allstate Insurance Company.
{ } On July 20, 2004, appellants filed a complaint against appellee for damages as a result of the accident. The summons and complaint were sent to appellee via certified mail. Same were returned as "unclaimed" on August 12, 2004. Thereafter, appellants requested ordinary mail service. A certificate of mailing was filed on August 16, 2004.
{ } On September 21, 2004, appellants filed a motion for default judgment based upon appellee's failure to plead or otherwise respond to the complaint. By order filed September 27, 2004, the trial court granted the motion. A hearing on damages was held on October 15, 2004. By magistrate's decision filed October 18, 2004, the trial court awarded appellants a total of $50,000.
{ } On December 9, 2004, appellee filed a motion to vacate default judgment pursuant to Civ.R. 60(B). A hearing was held on January 20, 2005. By magistrate's decision filed same date, the trial court granted the motion. Findings of Fact and Conclusions of Law were filed on March 28, 2005. Appellants filed objections on April 8, 2005. By judgment entry filed April 12, 2005, the trial court overruled the objections.
{ } Appellants filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I.
{ } "THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING APPELLEE'S MOTION TO VACATE DEFAULT JUDGMENT WHERE APPELLEE FAILED TO DEMONSTRATE EXCUSABLE NEGLECT.
II.
{ } "THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT APPELLEE HAD SET FORTH MERITORIOUS DEFENSES."
{ } Appellants' two assignments of error challenge the trial court decision to grant appellee's motion for relief from judgment pursuant to Civ.R. 60(B). A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's sound discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75. In order to find an abuse of that discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Appellants based their Civ.R. 60(B) motion on "mistake, inadvertence, surprise or excusable neglect." Civ.R. 60(B) (1). In GTE Automatic Electric Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, paragraph two of the syllabus, the Supreme Court of Ohio held the following:
{ } "To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate that: (1) the party has 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 of relief are Civ.R. 60(B) (1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken."
{ } It is under this standard that we shall review the assignments of error.
I.
{ } Appellants claim the trial court erred in finding excusable neglect necessary for relief under a Civ.R. 60(B) (1) motion. We agree.
{ } Appellants argue it is undisputed that appellee received the service of summons and understood it, but intentionally disregarded it. T. at 11.
{ } Appellee stated he did not notify his insurance carrier because he assum
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