Court of Common Pleas

Transcription

1 Motion No NAILAH K. BYRD CUYAHOGA COUNTY CUERK OF COURTS 1200 Ontario Street Cleveland, Ohio Court of Common Pleas MOTION FOR UEAVE TO FIFE ANSWER INSTANTER March 30, :26 By: NICHOLAS E. PHILLIPS Confirmation Nbr NICK PAPADELIS, ET AL CV vs. GEORGE MASTROSAVAS, ET AL Judge: MICHAEL J. RUSSO Pages Filed: 16

2 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO Nick Papadelis, et al. Plaintiffs v. George Mastrosavas et al. Defendants Case No. CV Judge Michael J. Russo Magistrate Amy Jackson Motion of Defendants Nick Mastrosavas and Dimitrios Mastrosavas for Leave To File Answer Instanter. with Memorandum in Support Defendants Nick Mastrosavas and Dimitrios Mastrosavas hereby move the Court for leave to file instanter their Answer and Counterclaim, a copy of which is attached hereto. The grounds for this motion are that the movants brother, defendant George Mastrosavas, informed them that he was taking care of a response to the plaintiffs Complaint, that they were not aware that he was attempting to defend this case pro se, that they were not aware that he could not represent them or the defendant corporation, that they were not aware that a timely Answer had not been filed on their behalf, and that they only recently learned, after contacting the undersigned counsel, of the necessity of having a Answer filed on their behalf. Said defendants therefore request leave to file the attached Answer and Counterclaim instanter. 1

3 PHILLIPS & MILLE CO., L.P.A. /s/ Nicholas E. Phillips Nicholas E. Phillips ( ) Phillip J. Henry ( ) 7530 Lucerne Drive, Suite 200 Middleburg Heights, Ohio Tel. (440) ; Fax (440) com Attorneys for Defendants Nick Mastrosavas and Dimitrios Mastrosavas

4 Memorandum in Support Facts The plaintiffs Complaint was filed on December 7, The plaintiffs requested personal service on the defendants by the Cuyahoga County Sheriff. On December 16, 2016, a Sheriffs deputy appeared at the defendants place of business and left copies of the Summons and Complaint for all defendants with defendant Nick Mastrosavas, but did not perfect personal service on defendants Dimitrios Mastrosavas or George Mastrosavas. Defendant George Mastrosavas advised his brothers, defendants Nick Mastrosavas and Dimitrios Mastrosavas, that he was handling a response to the Complaint filed against them. He did not hire an attorney and did not initially cause an Answer to be filed on behalf of the defendants. On February 8,2017, the plaintiffs filed a motion for default judgment. A hearing on the default motion was set for February 22, At the February 22, 2017 default hearing, defendant George Mastrosavas appeared pro se on behalf of the defendants and was given until March 15, 2017 to file a response to plaintiffs Complaint. The court continued the default hearing to March 22, 2017 and scheduled a pretrial conference for that date. On March 8, 2017, defendant George Mastrosavas filed an Answer on behalf of all the defendants. On March 21, 2017, the plaintiffs filed a motion to strike the Answer filed by George Mastrosavas, on the ground that he is not a licensed attorney. As appears from the attached affidavits of defendants Nick Mastrosavas and Dimitrios Mastrosavas, they believed that their brother, George Mastrosavas, was causing the claims against them to be properly defended in this case. They did not understand that he could not represent them in this case. In light of the foregoing, they became concerned that their interests 3

5 'I! l were not being properly defended. As a result, on March 21, 2017 they retained the undersigned counsel to represent them in this case, and he obtained a continuance of the hearing scheduled for March 22, 2017 until April 4, Defendants Nick Mastrosavas and Dimitrios Mastrosavas now seek leave to file an Answer and Counterclaim in this case. Argument and Law This court has the discretion, under Civ. R. 6(B)(2), to grant an extension of time for filing an Answer if it was not timely filed as a result of excusable neglect. As noted by the Ohio Supreme Court in State ex rel. Lindenschmidt v. Board of Comm rs, 72 Ohio St. 3d 464, 466, 1995-Ohio-49, 650 N.E.2d 1343, The determination of whether neglect is excusable or inexcusable must take into consideration all of the surrounding facts and circumstances, and courts must be mindful of the admonition that cases should be decided on their merits, where possible, rather than procedural grounds. When, as in this case, a party has been advised by another party that the second party will defend the case on behalf of the first party, and the first party reasonably believed that such defense was being provided, the first party s failure to file a timely Answer constitutes excusable neglect, and it is reasonable for the trial court to grant leave to plead. Equip. Engine Fin. Servs. Co., LLCv. Mike s Serv. Ctr., 9thDist. Summit No. C.A , Ohio This is particularly true with respect to defendant Dimitrios Mastrosavas, because, as appears from the December 15, 2017 Return of Service attached to the court s docket, he was not personally served in this case. Rather, the Deputy Sheriff noted that he left the Summons and Complaint at the place of business of Dimitrios Mastrosavas c/o Nick. That did not constitute 4

6 ' I proper personal service, which requires that The person serving process shall locate the person to be served and shall tender a copy of the process and accompanying documents to the person to be served. Civ. R. 4.1(B)(2), Smith v. Reidy, 3rd Dist. Seneca No , 1978 Ohio App. LEXIS 9122, 1978 WL (Sept. 14, 1978). Because defendants Nick Mastrosavas and Dimitrios Mastrosavas reasonably believed that their brother, George Mastrosavas, had arranged for their defense in this case, their delay in seeking leave to file their Answer herein was excusable, and their motion to file their Answer and Counterclaim instanter should be granted. PHILLIPS & MILLE CO., L.P.A. /s/ Nicholas E. Phillips Nicholas E. Phillips ( ) Phillip J. Henry ( ) 7530 Lucerne Drive, Suite 200 Middleburg Heights, Ohio Tel. (440) ; Fax (440) nphillips@pmlawyers.com phenry@pmlawyers.com Attorneys for Defendants Nick Mastrosavas and Dimitrios Mastrosavas 5

7 CERTIFICATE OF SERVICE A copy of the foregoing Motion has been sent on the 30th day of March, 2017, by the Court s e-filing system to Joseph Bancsi, Esq., Attorney for the Plaintiffs, and by regular U.S. Mail to the following: George Mastrosavas 7523 Pearl Road Middleburg Hts., OH Defendant and Mastrosavas Properties, Inc. c/o George Mastrosavas, President 7523 Pearl Road Middleburg Hts., OH Defendant PHILLIPS & MILLE CO., L.P.A. /s/nicholas E. Phillips _ Nicholas E. Phillips ( ) Attorney for Defendants Nick Mastrosavas and Dimitrios Mastrosavas 6

8 [ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO Nick Papadelis, et al. Plaintiffs v. George Mastrosavas, et al. Defendants Case No. CV Judge Michael J. Russo Magistrate Amy Jackson Affidavit of Dimitrios Mastrosavas State of Ohio ) ) ss: County of Cuyahoga ) Dimitrios Mastrosavas, being duly sworn and upon personal knowledge, does hereby state as follows: 1. That he is one of the named defendants in the above-captioned case. 2. That his brother, defendant George Mastrosavas, informed him that he, George, would take care of a response to the plaintiffs Complaint in this case. 3. That he believed that his brother, George Mastrosavas, was causing the claims against them to be properly defended in this case. 4. That he was not aware that George Mastrosavas was attempting to defend this case pro se. 5. That he was not aware that George Mastrosavas could not represent him or the defendant corporation. 6. That he was not aware that a timely Answer had not been filed on his behalf in this case.

9 I 7. That he only recently learned, after contacting Nicholas E. Phillips, of the necessity of having a Answer filed on his behalf, for which purpose he retained Mr. Phillips as counsel. 8. That he was never personally served with the Summons and Complaint in tins case. Further Affiant Sayeth Naught. ibimitrios Mastrosavas 2

10 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO Nick Papadelis, et al. Plaintiffs v. George Mastrosavas, et al. Defendants Case No. CV Judge Michael J. Russo Magistrate Amy Jackson Affidavit of Nick Mastrosavas : State of Ohio ) ) ss: County of Cuyahoga ) 1 Nick Mastrosavas, being duly sworn and upon personal knowledge, does hereby state as follows: 1. That he is one of the defendants in the above-captioned case. 2. That his brother, defendant George Mastrosavas, informed him that he, George, would take care of a response to the plaintiffs Complaint in this case. 3. That he believed that his brother, George Mastrosavas, was causing the claims against them to be properly defended in this case. 4. That he was not aware that George Mastrosavas was attempting to defend this case pro se. 5. That he was not aware that George Mastrosavas could not represent him or the defendant corporation. 6. That he was not aware that a timely Answer had not been filed on his behalf in this case.

11 7. That he only recently learned, after contacting Nicholas E. Phillips, of the necessity of having a Answer filed on his behalf, for which purpose he retained Mr. Phillips as counsel. Further Affiant Sayeth Naught. Nick Mastrosavas Sworn to and subscribed before me on March 5U, C \U Notary Public Nicholas E. Phillips, Attorney Notary Public State of Ohio, urwjf.sp/o ^ My Commission has no expiration date ft. r i RC' 2

12 I IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO Nick Papadelis, et al. Plaintiffs v. George Mastrosavas, et al. Defendants Case No. CV Judge Michael J. Russo Answer and Counterclaim of Nick Mastrosavas and Dimitrios Mastrosavas ANSWER First Defense 1. Defendants Nick Mastrosavas and Dimitrios Mastrosavas are without knowledge or information sufficient to form a belief regarding the truth of the averments set forth in paragraph 1 of plaintiffs Complaint, 2. Said defendants admit the averments set forth in paragraph 2 of plaintiffs Complaint. 3. Said defendants admit that they and George Mastrosavas operate 3 Brothers Pizza, but deny each and every other averment set forth in paragraph 3 of plaintiffs Complaint. 4. Said defendants deny the averments set forth in paragraph 4 of plaintiffs Complaint. 5. Said defendants admit that Nick Mastrosavas and Nick Papadelis entered into the agreement attached to plaintiffs Complaint as Exhibit A, but deny each and every other averment set forth in paragraph 5 of plaintiffs Complaint. 6. Said defendants admit that plaintiff Nick Papadelis and defendant Nick Mastrosavas entered into the agreement attached as Exhibit A to plaintiffs Complaint, admit that plaintiff Nick Papadelis and defendant Mastrosavas Properties, Inc. entered into the agreement attached as Exhibit B to plaintiffs Complaint, and admit that they, George Mastrosavas, and Nick Papadelis 1

13 entered into agreements for the purchase, repair, renovation, rental, and management of properties located at Lanbury Avenue, Warrensville Heights, Ohio, 7409 Clement Avenue, Cleveland, Ohio, 3281 W. 97th Street, Cleveland, Ohio, and 3416 W. 59th Street, Cleveland, Ohio, but deny each and every other averment set forth in paragraph 6 of plaintiffs Complaint. 7. Said defendants deny each and every averment set forth in paragraph 7 of Plaintiff s Complaint. 8. Said defendants admit that they abided by their agreements with plaintiff Nick Papadelis, but deny each and every other averment set forth in paragraph 8 of plaintiffs Complaint. 9. Said defendants admit that Nick Mastrosavas and Nick Papadelis entered into the agreement attached to plaintiffs Complaint as Exhibit A and that said agreement was the earliest written agreement between any of the parties, but deny each and every other averment set forth in paragraph 9 of plaintiffs Complaint. 10. Said defendants admit that Mastrosavas Properties, Inc. and Nick Papadelis entered into the agreement attached to plaintiffs Complaint as Exhibit B and that said agreement was the second written agreement between any of the parties, but deny each and every other averment set forth in paragraph 10 of plaintiffs Complaint. 11. Said defendants admit that they, George Mastrosavas and Nick Papadelis, entered into agreements for the purchase, repair, renovation, rental, and management of properties located at Lanbury Avenue, Warrensville Heights, Ohio, 7409 Clement Avenue, 2

14 t Cleveland, Ohio, 3281 W. 97th Street, Cleveland, Ohio, and 3416 W. 59th Street, Cleveland, Ohio, but deny each and every other averment set forth in paragraph 11 of plaintiffs Complaint. Complaint. 12. Said defendants admit the averments set forth in paragraph 12 of plaintiffs 13. Said defendants deny the averments set forth in paragraph 13 of plaintiffs Complaint. 14. Said defendants admit that Exhibit D attached to plaintiffs Complaint is a copy of check containing the terms reflected in said check, but deny each and every other averment set forth in paragraph 14 of plaintiffs Complaint. 15. Said defendants admit that Exhibit F attached to plaintiffs Complaint contains a copy of a check containing the terms reflected in said check, but deny each and every other averment set forth in paragraph 15 of plaintiffs Complaint. 16. Said defendants deny the averments set forth in paragraphs 16 through 23 of plaintiffs Complaint. 17. In answer to paragraph 24 of plaintiffs Complaint, said defendants re-allege paragraphs 1 through 16 if this Answer as if fully rewritten herein. 18. Said defendants deny each and every averment set forth in paragraph 25 of plaintiffs Complaint. 19. In answer to paragraph 26 of plaintiffs Complaint, said defendants re-allege paragraphs 1 through 18 if this Answer as if fully rewritten herein. 20. Paragraph 27 of plaintiffs Complaint contains no averments of fact and therefore requires no response from said defendants. 3

15 21. In answer to paragraph 28 of plaintiffs Complaint, said defendants re-allege paragraphs 1 through 20 if this Answer as if fully rewritten herein. 22. Paragraph 29 of plaintiffs Complaint contains no averments of fact and therefore requires no response from said defendants. 23. In answer to paragraph 30 of plaintiffs Complaint, said defendants re-allege paragraphs 1 through 22 of this Answer as if fully rewritten herein. 24. Paragraph 31 of plaintiffs Complaint contains no averments of fact and therefore requires no response from said defendants. Second Defense 25. Plaintiffs Complaint fails to state a claim against defendants upon which relief can be granted. Third Defense 26. Plaintiffs Complaint is barred by the Statute of Frauds. Fourth Defense 27. Defendants have paid plaintiff Nick Papadelis all sums owed to him under all enforceable agreements between the parties. Fifth Defense 28. Plaintiffs alleged claims are barred by the applicable statutes of limitations. Sixth Defense 29. Said defendants have not been properly served with process in this action. COUNTERCLAIM 30. Said defendants re-aver paragraph 6 of their Answer as if fully rewritten herein. 4

16 31. Plaintiff Nick Papadelis breached his aforesaid agreements with said defendants by failing and refusing to pay his share of the costs and expenses of repairing and renovating the aforesaid properties and by failing and refusing to pay his share of the taxes, utility bills, and insurance premiums for said properties. 32. As a result of the aforesaid breaches by said plaintiff of his agreements with said defendants, they have been damaged in the approximate amount of $35,000.00, said amount representing said plaintiffs share of payments made by them for repair, renovation, taxes, utility bills, and insurance premiums for the aforesaid properties, and will incur further such damages during the pendency of this case. Wherefore, defendant Nick Mastrosavas and Dimitrios Mastrosavas demand judgment against plaintiff Nick Papadelis in the amount of $35,000.00, plus additional damages incurred during the pendency of this case, and Said defendants further demand judgment for their costs in this case and for interest on the amounts of all damages awarded to them in this case, and Said defendants further request that the court grant them such other and further relief for such other relief as the Court deems just and equitable. 5

17 PHILLIPS & MILLE CO., L.P.A. /s/ Nicholas E. Phillips Nicholas E. Phillips ( ) Phillip J. Henry ( ) 7530 Lucerne Drive, Suite 200 Middleburg Heights, Ohio Tel. (440) ; Fax (440) Attorneys for Defendants Nick Mastrosavas and Dimitrios Mastrosavas CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Answer and Counterclaim has been sent on the 30th day of March, 2017, by the Court s e-filing system to Joseph Bancsi, Esq., Attorney for the Plaintiffs, and by regular U.S. Mail to the following: George Mastrosavas 7523 Pearl Road Middleburg Hts., OH Defendant and Mastrosavas Properties, Inc. c/o George Mastrosavas, President 7523 Pearl Road Middleburg Hts., OH Defendant PHILLIPS & MILLE CO., L.P.A. /s/ Nicholas E. Phillips _ Nicholas E. Phillips ( ) Attorney for Defendants Nick Mastrosavas and Dimitrios Mastrosavas 6