STACY L. SOKOL, Plaintiff-Appellee,
HMDG, LLC, et al., Defendant-Appellant.
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 09M000191.
Mitchell L Alperin, (For Plaintiff-Appellee).
Carolyn J. Paschke, Law Office of Carolyn J. Paschke Co., L.P.A., (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
(¶1} Appellant, HMDG, LLC, appeals the judgment of the Geauga County Court of Common Pleas denying a Civ.R. 60(B) motion for relief from a default judgment ordering appellant to pay $52, 704.39 to appellee, Stacy Sokol, Esq. The trial court found that appellant's motion for relief from judgment, filed 16 months after the entering of default judgment, was untimely. This court must determine whether the trial court abused its discretion. For the reasons that follow, we affirm.
(¶2} Appellee, an attorney licensed to practice law in the state of California, filed a complaint in 2009 against appellants for attorney fees relating to representation of various entities in California and outside of California. Represented by counsel, appellants filed an answer. Appellant's attorney subsequently filed a motion to withdraw as counsel because, after repeated attempts, he was unable to contact or communicate with appellant's representative, Mr. Farzad Khalili, now the only member of HMDG, LLC. Appellant's attorney was granted leave to withdraw.
(¶3}When appellant's failed to attend a trial management conference, appellee filed a motion for default judgment, which was granted on August 16, 2010. Over 15 months later, on December 30, 2011, appellant filed a motion to set aside the judgment and dismiss the case based on accord and satisfaction. Appellant argued, as a result of appellee's acceptance of a check he previously tendered in February of 2010, the parties had effectively settled any dispute vis-à-vis the alleged debt.
(¶4} In a letter to Mr. Khalili and HMDG, LLC, dated February 9, 2010, appellee offered to settle the claim and dismiss the instant action in return for a payment of $22, 000 no later than February 15, 2010. On February 22, 2010, Mr. Khalili tendered a check to appellee in the amount of $15, 000. Mr. Khalili, on the face of the February 9, 2010 letter, wrote: "Please accept this check for the amount of $15, 000 to close this case. Thank you. Please send or fax me a copy of the accepted agreement." In the memo of the check, Mr. Khalili wrote the case number of the instant action and "final payment." The altered letter was sent to appellee with a check from the account of Delbars Group LLC, a California limited liability company, Farzad Khalili, and Farhad Khalili, the brother of Farzad Khalili.
(¶5} Upon receipt of the check, appellee interlined the words final payment and cashed the check. According to appellee's affidavit, attached to his motion in opposition to appellants' motion to set aside default judgment and dismiss the case based on accord and satisfaction, he had also obtained a judgment in the state of Michigan against the Khalilis and Delbars Group, LLC for $73, 514.21, plus costs. By interlining the words "final payment, " appellee was following California law and was protesting against acceptance of the tender from Delbars and the Khalilis as full payment for any of the judgments and he accepted the check as partial payment owing by the Delbars and the Khalilis on the entire amount owned. Additionally, appellee never signed his altered February 9, 2010 letter.
(¶6} The trial court held a hearing on the motion in which Mr. Khalili testified. In addition to testifying to the above facts concerning the settlement negotiations, Mr. Khalili stated that he was aware of the default judgment "in the middle of 2010." Mr. Khalili testified that, after receiving notice of the judgment, he was "shocked." He attempted to contact appellee numerous times to no avail. Although Mr. Khalili then filed a complaint with the bar association in California, he took no action in Ohio to set aside the default judgment. Sixteen months later, Mr. Khalili retained an attorney to file a motion to set aside the default judgment.
(¶7} After an evidentiary hearing, the trial court overruled appellant's motion finding that it was not brought within a reasonable time period. Appellant appeals and asserts the following assigned error:
(¶8} "The trial court abused its discretion and committed reversible error in denying appellant's motion for relief from judgment pursuant to Civ.R. 55(B) and Civ.R. 60(B)."
(¶9} In appellant's sole assignment of error, it argues the trial court abused its discretion by denying the motion for relief from judgment ...