[Cite as Total Quality Logistics, L.L. C. v. ATA Logistics, Inc. , 2020-Ohio-1553.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

TOTAL QUALITY LOGISTICS, LLC, Appellee,

- vs -

ATA LOGISTICS, INC., Appellant. :

:

:

:

:

: CASE NO. CA2019-09-071

O P I N I O N

4/20/2020

CIVIL APPEAL FROM CLERMONT C OUNTY COURT OF COMMON PLEAS Case No. 2019 CVH 00244

The Law Offices of Brian T. Giles, LLC, Brian T. Giles, 1470 Ap ple Hill Road, Cincinnati, Ohio 45230, for appellee Durkee & Uhle, LLC, Richard B. Uhle, Jr., 284 North Street, Bat avia, Ohio 45013, for appellant

RINGLAND, J. {¶ 1} Appellant, ATA Logistics Inc., appeals a decision of the Clermo nt County Court of Common Pleas denying its Civ.R. 60(B) motion for relie f from judgment. 1 {¶ 2} Total Quality Logistics ("TQL") entered into a contract with AT A to provide

1. Pursuant to Loc.R. 6(A), we sua sponte remove this case fro m the accelerated calendar for the purposes of issuing this opinion.Clermont CA2019-09-071

- 2 - logistic services. ATA granted another company, Empire, permis sion to use its credit contract with TQL. Empire used TQL's services several times un der ATA's contract. TQL sent invoices for its services to ATA. On February 19, 2019, a fter ATA had failed to pay a number of invoices, TQL filed a complaint against ATA for the u npaid balance of $134,220 plus interest. {¶ 3} ATA was served with the complaint on February 22, 2019 but fail ed to answer the complaint or respond in any way. On April 10, 2019, TQL mo ved for default judgment. ATA did not respond to the motion, and on April 25, 2019, the t rial court granted default judgment to TQL. Garnishment proceedings were initiated and AT A first responded in the case on June 14, 2019, by requesting a continuance of one of th e garnishment hearings. {¶ 4} On July 1, 2019, ATA filed a Civ.R. 60(B) motion for relief fro m judgment. ATA alleged that it had a credit agreement with Empire and that it had mistakenly believed that Empire was handling the claims and making arrangements to pay T QL. Attached to the motion was an affidavit from Brandon Han, ATA's authorized agen t, which stated that ATA

did not realize the lawsuit was in Ohio or that it had to file an answer. Also attached was a May 7, 2019 email to ATA from Jimmy Ball at Empire stating that "Empire will resolve the situation with TQL." On July 10, 2019, ATA filed a second affi davit from authorized agent Jay Lee, which stated that ATA extended use of the credit contr act to Empire for one job only and that TQL and Empire used the contract without ATA's kn owledge or consent. ATA subsequently filed a motion for leave to file a third-party com plaint against Empire. {¶ 5} After a hearing on the merits of the motions, the trial court d enied both the request for relief from judgment and the motion for leave to fi le a third-party complaint. ATA now appeals the decision of the trial court and raises two assi gnments of error for our

review: {¶ 6} I. THE TRIAL COURT ERRED BY NOT GRANTING RELIEF FROMClermont CA2019-09-071

- 3 - JUDGMENT WHERE APPELLANT SHOWED IT MET THE REQUIREMENTS OF THE

CIVIL RULE. {¶ 7} ATA first argues that the trial court erred in denying its moti on for relief from judgment. To prevail on a Civ.R. 60(B) motion, the moving part y must demonstrate that (1) he has a meritorious defense or claim to present if relief is g ranted, (2) he is entitled to relief under one of the grounds stated in Civ.R. 60(B), and (3) the mo tion is made within a

reasonable time. GTE Automatic Electric, Inc. v. ARC Industries, Inc ., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. Failure to meet any one of these three factors is fatal, as all three must be sati sfied in order to grant relief. Scrimizzi v. Scrimizzi , 12th Dist. Warren No. CA2018-11-131, 2019-Ohio-2793, ¶ 51. {¶ 8} The decision to grant or deny a Civ.R. 60(B) motion lies within the trial court's discretion, and the decision will be reversed only for an abuse of discretion. Reynolds v.

Turull , 12th Dist. Butler No. CA2018-10-197, 2019-Ohio-2863, ¶ 10. A n abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, (1983). {¶ 9} Civ.R. 60(B)(1) provides that the court may relieve a party fro m a final judgment, order or proceeding for "mistake, inadvertence, surpr ise or excusable neglect." In its motion, ATA claimed excusable neglect because it believe d in good faith that representatives of Empire had resolved the case and because ATA had received an email from Ball, confirming that Empire would pay. {¶ 10} In denying the motion, the trial court determined that while th e motion was timely, and the issue of a meritorious defense was a "closer ca ll," ATA had not established excusable neglect. On appeal, AT A argues that excusable neglec t exists because it relied on Ball's email and that Ball died shortly after the email was sent. ATA argues the emailClermont CA2019-09-071

- 4 - "seemed to resolve the issue of Empire's indebtedness to TQL." {¶ 11} The determination of whether neglect was excusable must take in to consideration all the surrounding facts and circumstances. Middletown App., Ltd. v. Singer , 12th Dist. Butler Nos. CA2018-08-165 and CA2018-11-224, 2019-Oh io-2378, ¶ 20. {¶ 12} Neglect is not excusable if a party's conduct falls substantial ly below what is reasonable under the circumstances, or if the inaction of a par ty can be regarded as a "complete disregard for the judicial system." Kay v. Marc Glassman, Inc ., 76 Ohio St.3d 18, 20, 1996-Ohio-430 (1996). {¶ 13} Courts have determined that failure to plead or respond after admittedly receiving a copy of a complaint is not excusable neglect. D.G.M., Inc. v. Cremeans Concrete & Supply Co. , 111 Ohio App.3d 134, 139 (4th Dist.1996). Likewise, courts h ave generally held that conduct is not excusable neglect if a party or attorney could have controlled or guarded against the circumstance. See Dispatch Printing Co. v. Recovery Ltd. Partnership , 10th Dist. Franklin Nos. 14AP-640, 14AP-641, and 14AP-642, 20 15-Ohio1368, ¶ 14. {¶ 14} In this case, ATA received the complaint, but claims that it th ought Empire would resolve the amounts due with TQL. ATA failed to timely p rotect its legal rights by filing an answer and a third-party c omplaint against Empire. T his inaction and disregard for the judicial process does not amount to excusable neglect. ATA failed to preserve its rights in the action and instead relied on its belief that Empire woul d pay TQL the amounts due. Moreover, as the trial court noted, Ball's email was sent on Ma y 7, 2019, months after the complaint was filed and after ATA's answer was due and therefor e cannot be used as a reason for failure to answer the complaint or to respond to the motion for default judgment. {¶ 15} As mentioned above, a party filing a Civ.R. 60(B) motion must e stablish all

elements to be entitled to relief. Because ATA failed to estab lish excusable neglect, theClermont CA2019-09-071

- 5 - motion for relief from judgment was properly denied. According ly, we find the trial court did not abuse its discretion in denying ATA's motion for relief fro m judgment. ATA's first assignment of error is overruled. {¶ 16} II. THE TRIAL COURT ERRED IN NOT GRANTING LEAVE TO FILE THE

THIRD PARTY COMPLAINT WHEN THERE WERE NO GROUNDS FOR A DENIAL. {¶ 17} As mentioned above, the trial court denied ATA's motion to file a third-party complaint against Empire on the basis that, because the Civ.R. 60(B) motion had been denied, there was a final judgment in the case. Because we fin d no error in the trial court's decision to deny ATA's motion for relief from judgment, we also find no error in the trial court's decision to deny the request to file a third-party comp laint. ATA's second assignment of error is therefore overruled. {¶ 18} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.