[Cite as Dick Lavy Trucking, Inc. v. ScriptSourcing, L.L.C., 2026-Ohio-3139.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
DICK LAVY TRUCKING, INC. :
: C.A. No. 2025-CA-24
Appellee :
: Trial Court Case No. 25CV00204
v. :
: (Civil Appeal from Common Pleas
SCRIPTSOURCING, LLC : Court)
:
Appellant : FINAL JUDGMENT ENTRY &
: OPINION
Pursuant to the opinion of this court rendered on August 14, 2026, the judgment of
the trial court is affirmed.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
send a copy of the court’s ruling to each party and note that action on the docket.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
CHRISTOPHER B. EPLEY, JUDGE
TUCKER, J., and HANSEMAN, J., concur.
OPINION
DARKE C.A. No. 2025-CA-24
KEVIN A. BOWMAN, Attorney for Appellant
MARK R. CHILSON, Attorney for Appellee
EPLEY, J.
{¶ 1} ScriptSourcing, LLC, appeals from the Darke County Common Pleas Court’s
judgment denying ScriptSourcing’s motion for relief from default judgment. ScriptSourcing
asserts that the trial court abused its discretion by denying relief due to mistake,
inadvertence, and/or excusable neglect. For the following reasons, the judgment of the trial
court is affirmed.
I. Facts and Procedural History
{¶ 2} ScriptSourcing is a company that assists businesses that use self-funded
insurance plans with lowering their costs. Its fees are based on a portion of the total amount
saved by a company using ScriptSourcing’s services. In January 2019 and November 2023,
ScriptSourcing entered into agreements with Dick Lavy Trucking, Inc. (“DLT”), to provide
these services.
{¶ 3} In March 2025, a dispute arose between the parties regarding fees DLT
allegedly owed to ScriptSourcing. On March 31, 2025, DLT’s attorney sent a demand letter
to ScriptSourcing, and ScriptSourcing retained counsel to respond to the letter from DLT’s
counsel and to attempt to resolve the dispute. However, on June 2, 2025, DLT filed a
complaint for declaratory judgment. The complaint was successfully served via certified mail
on Gary Becker, the registered agent and CEO of ScriptSourcing, at his home in Lutherville,
Maryland, on June 9, 2025. Copies of the summons and complaint were also served on
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ScriptSourcing’s corporate office on June 10, 2025. Accordingly, an answer or other
responsive pleading was due on or before July 7, 2025. Civ.R. 12(A)(1).
{¶ 4} Although ScriptSourcing acknowledged receiving the summons and complaint,
no one at ScriptSourcing, including Becker, forwarded the documents to ScriptSourcing’s
attorney, nor did ScriptSourcing take any other action to respond to DLT’s complaint.
Additionally, on July 23, 2025, the trial court sent a notice of a telephone scheduling
conference to the parties via regular mail, notifying them that a conference was set for
September 19, 2025. Again, although ScriptSourcing acknowledged that Becker had
received the notice at his home and ScriptSourcing’s corporate office had also been served,
the notice was never forwarded to ScriptSourcing’s counsel, and no other action was taken
to respond.
{¶ 5} On July 25, 2025, after ScriptSourcing failed to answer or otherwise respond to
DLT’s complaint, DLT filed a motion for default judgment. The trial court granted the motion
on August 1, 2025.
{¶ 6} On September 16, 2025, ScriptSourcing filed a motion for relief from judgment
pursuant to Civ.R. 60(B) and motion for leave to file answer and counterclaim instanter.
ScriptSourcing asserted that its failure to respond to the complaint was due to excusable
neglect because “[i]t was not unreasonable for ScriptSourcing to believe that it had
adequately protected its interests by retaining counsel and that counsel would advise the
company what to do. ScriptSourcing could not know, however, that its counsel had never
been notified that litigation had been filed or that [DLT] was seeking a default judgment.”
See Motion for Relief from Judgment, p. 10. Additionally, ScriptSourcing argued that the
court should not have granted default judgment without first holding a hearing.
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{¶ 7} On November 18, 2025, the trial court issued an order denying ScriptSourcing’s
motion for relief from judgment. The trial court first found that ScriptSourcing had failed to
establish that its neglect in failing to answer or otherwise respond to DLT’s complaint was
excusable. The court noted that although ScriptSourcing blamed DLT’s counsel for filing the
complaint “secretly,” there was nothing secret about the filing. In fact, ScriptSourcing
acknowledged receiving notice of the lawsuit at its corporate office, as well as through
service of its CEO and statutory agent. The trial court further noted that ScriptSourcing
acknowledged receiving notice of the scheduling conference set by the trial court but still
failed to respond to DLT’s complaint.
{¶ 8} The trial court addressed the test for excusable neglect set forth in Hopkins v.
Quality Chevrolet, Inc., 79 Ohio App.3d 578 (4th Dist. 1992), which both parties cited. In that
case, the Fourth District held that a party can establish excusable neglect by demonstrating
“(1) that there is a set procedure to be followed in the corporate hierarchy for dealing with
legal process, and (2) that such procedure was, inadvertently, not followed until such time
as a default judgment had already been entered against the corporate defendant.” Id.at 583.
In the present case, the trial court found that there was no evidence that ScriptSourcing had
a corporate procedure in place to handle the receipt of legal process, nor did ScriptSourcing
demonstrate that any such procedure was inadvertently disregarded. Further, the trial court
determined that it was not required to hold a hearing before granting DLT’s motion for default
judgment. The court concluded that the participation of ScriptSourcing’s counsel in
settlement discussions prior to the filing of the underlying lawsuit did not constitute an
“appearance” in this matter under Ohio law. Therefore, the trial court overruled
ScriptSourcing’s motion for relief from judgment.
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{¶ 9} ScriptSourcing now appeals the trial court’s judgment. It raises two assignments
of error.
II. Appellate Review
{¶ 10} In its first assignment of error, ScriptSourcing asserts that the trial court abused
its discretion when it denied ScriptSourcing’s motion for relief from judgment due to mistake,
inadvertence, and/or excusable neglect. ScriptSourcing appears to contend that because it
hired an attorney to participate in settlement discussions with DLT, it reasonably assumed
that its attorney would be notified of the pending lawsuit. In its second assignment of error,
ScriptSourcing asserts that the trial court erred in denying its motion for relief from judgment
because its attorney did not receive notice and the motion was granted without a hearing.
Because these assignments of error are interrelated, we address them together.
{¶ 11} Civ.R. 60(B) provides, in relevant part, that a trial court may relieve a party
from a final judgment, order, or proceeding due to mistake, inadvertence, surprise, or
excusable neglect or any other reason justifying relief from judgment. Civ.R. 60(B)(1) and
(5). The decision to grant or deny a Civ.R. 60(B) motion is left to the sound discretion of the
trial court and will not be reversed absent an abuse of discretion. In re Adoption of A.J.W.,
2023-Ohio-2609, ¶ 15 (2d Dist.).
{¶ 12} The term “abuse of discretion” implies that the court’s attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “It is
to be expected, however, that most instances of abuse of discretion will result in decisions
that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary.” State v. Malloy, 2012-Ohio-2664, ¶ 24 (2d Dist.).
{¶ 13} With respect to whether ScriptSourcing’s failure to respond to DLT’s complaint
was due to excusable neglect, the record demonstrates that copies of the summons and
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complaint were successfully served on ScriptSourcing’s CEO and registered agent, Becker,
as well as at its corporate office, where a ScriptSourcing employee signed for them. Notably,
Becker admitted in his affidavit in support of ScriptSourcing’s motion for relief from judgment
that “ScriptSourcing received a copy of the complaint and summons in this case.”
{¶ 14} Additionally, contrary to ScriptSourcing’s reliance on the test set forth in
Hopkins to establish excusable neglect, there is nothing in the record demonstrating that
ScriptSourcing had a corporate policy in place for handling legal process or that any such
policy was inadvertently disregarded. Rather, Becker states in his affidavit that “the matter
was not flagged as requiring action due to laypeople’s misunderstanding regarding the
importance of the documents.” Accordingly, the trial court did not abuse its discretion when
it determined that ScriptSourcing failed to establish excusable neglect.
{¶ 15} Further, we disagree with ScriptSourcing’s assertion that the trial court erred
by granting default judgment in favor of DLT without holding a hearing and without its
attorney receiving notice. Specifically, Civ.R. 55(A) states that “[i]f the party against whom
judgment by default is sought has appeared in the action, he (or, if appearing by
representative, his representative) shall be served with written notice of the application for
judgment at least seven days prior to the hearing on such application. (Emphasis added.)
{¶ 16} ScriptSourcing’s counsel never entered an appearance in this matter, and
although ScriptSourcing had retained counsel to participate in settlement discussions with
DLT, there is nothing in the record establishing that the same attorney intended to represent
ScriptSourcing in the litigation of this matter when DLT filed its complaint. Because counsel
for ScriptSourcing never entered an appearance and ScriptSourcing failed to otherwise
respond, no hearing was required and service was properly made on ScriptSourcing’s
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registered agent and at its corporate headquarters. Therefore, the trial court did not err by
granting DLT’s motion for default judgment against ScriptSourcing without holding a hearing.
{¶ 17} Both of ScriptSourcing’s assignments of error are overruled.
III. Conclusion
{¶ 18} The judgment of the trial court is affirmed.
HANSEMAN, J., concurs.
TUCKER, J., concurs:
{¶ 19} I concur with the majority opinion’s conclusion that the trial court did not abuse
its discretion in denying ScriptSourcing’s Civ.R. 60(B)(1) motion for relief from the default
judgment. I also concur with the majority opinion’s conclusion that, under the facts of this
case, ScriptSourcing did not make an appearance entitling it, under Civ.R. 55(A), to written
notice of the default judgment application seven days before the hearing on the motion.
I write separately to discuss the case law outlining when, in the absence of a filing with the
court, an appearance triggering the Civ.R. 55(A) notice requirement occurs.
{¶ 20} We have concluded that after a defendant is served with a complaint,
defendant’s contact with the plaintiff indicating an unambiguous “intention and purpose to
defend the suit” constitutes an appearance invoking the Civ.R. 55(A) mandate that the
defendant be notified of a default judgment hearing seven days before the hearing. Allstate
Inc. Co. v. Hunt, 2006-Ohio-238, ¶ 13, (2d Dist.), quoting Miamisburg Motel v. Huntington
Natl. Bank, 88 Ohio App.3d 117, 126 (2d Dist. 1993). Since, in such a circumstance, the
court is unaware of the defendant’s appearance, the plaintiff has an obligation to notify the
court of the defendant’s appearance so that the Civ.R. 55(A) notification can occur. Id. at
¶ 13, quoting Miamisburg Motel at 127.
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{¶ 21} Other districts have reached the same, or at least similar, conclusion regarding
when post-suit communication between the parties can constitute an appearance. Baines v.
Harwood, 87 Ohio App.3d 345, 347 (12th Dist. 1993); Mateyko v. Crain, 2012-Ohio-1133,
¶ 16 (11th Dist.); Johnson v. Romeo, 2006-Ohio-7073, ¶ 22 (7th Dist.); Kebler v. Prudential
Prop. & Cas. Ins. Co., 2003-Ohio-2145, ¶ 36 (5th Dist.).
{¶ 22} But, based on my research, neither we nor any other district has concluded
that any type of pre-suit communication can constitute an appearance under Civ.R. 55(A).
The rationale for this distinction is that “[a]lthough a formal filing with the court is not
[necessarily] required, the plain language of [Civ.R. 55(A)] speaks of an appearance ‘in the
action[,]’” and there simply is not an action before a lawsuit is filed. Bd. of Trustees of Salem
Twp. v. Fazekas, 2023-Ohio-2984, ¶ 61 (7th Dist.). See also Hyway Logistics Servs., Inc. v.
Ashcraft, 2000 WL 123794, *3 (3d Dist. Feb. 2, 2000) (“[O]ur reading of the relevant case
law reveals that those communications [that may] satisfy the appearance requirement occur
after the commencement of the suit.”) I agree that pre-suit communication—irrespective of
the intensity of the putative defendant’s expressed intent to defend a cause of action—
cannot be considered a Civ.R. 55(A) appearance.
{¶ 23} Since the communication between DLT and ScriptSourcing occurred before
DLT filed the declaratory judgment complaint, ScriptSourcing did not make an appearance
in the action. For this reason, I concur in the majority opinion’s resolution of this issue.
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