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Valpak of West Cleveland v. Tommy's Pizza & Chicken

Court of Appeals of Ohio, Eighth District

September 5, 2013

VALPAK OF WEST CLEVELAND, ETC. PLAINTIFF-APPELLEE
v.
TOMMY'S PIZZA & CHICKEN, ET AL. DEFENDANTS-APPELLANTS

Civil Appeal from the Euclid Municipal Court Case No. 11 CVI 03428

ATTORNEY FOR APPELLANTS Stanley E. Stein

ATTORNEY FOR APPELLEE Patrick J. Gallagher Allan & Gallagher, L.L.P.

BEFORE: Keough, P.J., Blackmon, J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

(¶1} Defendants-appellants, Bryan and Nicole Whittenberger, appeal on the accelerated docket from the judgment of the Euclid Municipal Court denying their Civ.R. 60(B) motion for relief from judgment.[1] For the reasons that follow, we reverse the judgment of the trial court and remand for further proceedings.

I. Background

(¶2} On December 2, 2011, plaintiff-appellee, Valpak of West Cleveland ("Valpak"), filed a complaint in the Euclid Municipal Court against Tommy's Pizza & Chicken-Seven Hills ("Tommy's Pizza") and the Whittenbergers for "non-payment of account and breach of contract" in the amount of $2, 921.42. Attached to Valpak's complaint was a statement from Valpak to Tommy's Pizza showing a balance due of $2, 921.42. Also attached to the complaint was a contract between Valpak and Tommy's Pizza dated September 14, 2009, wherein Valpak agreed to prepare and distribute advertising mailers regarding Tommy's Pizza to several neighborhoods. The contract was executed by Rick Tompot on behalf of Tommy's Pizza and provided that "[t]he person signing this agreement guaranties [sic] payment on behalf of the corporation and agrees he/she is signing in an individual capacity as well as on behalf of the corporation." Also attached to the complaint were email correspondence between Tompot and a Valpak representative regarding the content of the mailer and proofs of the advertising mailer.

(¶3} The Whittenbergers were served by certified mail on December 21, 2011, but did not appear for the evidentiary hearing before the magistrate on February 16, 2012. The magistrate subsequently issued a decision granting judgment for Valpak against Tommy's Pizza and the Whittenbergers, jointly and severally, in the amount of $2, 921.42, plus costs and interest. The magistrate based his finding of liability on the contract between Valpak and Tommy's Pizza: "[p]ursuant to a written contract dated September, 2009, between the parties, Plaintiff provided mailings and advertising services for Defendants. Defendants breached the contract and owe $2, 921.42 on account to the Plaintiff." On March 12, 2012, the trial court issued a judgment entry affirming the magistrate's decision.

(¶ 4} Eleven months later, on February 5, 2013, the Whittenbergers filed a Civ.R. 60(B) motion seeking to vacate the judgment against them because there was no evidence that they had signed the contract between Valpak and Tommy's Pizza or personally guaranteed the obligation of the corporation. The trial court subsequently denied the motion, stating:

The defendants Bryan and Nicole Whittenberger are requesting this Court to vacate the judgment based upon lack of documentation that Defendants personally guaranteed the obligation of a corporation. Plaintiff filed suit against the Whittenbergers individually, and did not allege that Defendants guaranteed an obligation of a corporation. Defendants should have raised any defense available to them at [the] time of the small claims hearing. A Rule 60(B) motion is not a substitute for an appeal. This Court finds that the Defendant [sic] has failed to meet the criteria set forth in GTE Automatic Elec, Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976). Based upon the foregoing, Defendant's [sic] Motion to Vacate Judgment is hereby denied.

(¶5} The Whittenbergers now appeal from the trial court's judgment denying their motion.

II. Analysis

(ΒΆ 6} Under Civ.R. 60(B), a trial court may relieve a party from a judgment or order of the court when ...


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