Davis v. 40 East, L.L.C.

2022 Ohio 4505

• Court: Ohio Court of Appeals
• Decided: December 15, 2022
• Docket: 111329
• Status: Published

Opinion

[Cite as Davis v. 40 East, L.L.C., 2022-Ohio-4505.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

SHAKORIE DAVIS, :

Plaintiff-Appellant, : No. 111329 v. :

40 EAST, L.L.C., ET AL, :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: December 15, 2022

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-20-942471

Appearances:

Jazmine Greer, for appellant.

Kenneth J. Fisher Co., L.P.A., Kenneth J. Fisher, and Dennis A. Nevar, for appellees.

ANITA LASTER MAYS, P.J.:

Plaintiff-appellant Shakorie Davis (“Davis”) appeals the trial court’s

decision denying his motion for leave and motion for relief from judgment. We

reverse the trial court’s decision and remand to the trial court to grant the appellant’s

motion for relief from judgment and for further proceedings. I. Facts and Procedural History

In 2018, Davis purchased a residential property located at 2768

Lander Road, Pepper Pike, Ohio from defendant-appellee, 40 East, L.L.C., the seller,

represented by its owner, Marc Glassman (“Glassman”). In the sale of the property,

Glassman included a residential property disclosure form that disclosed the flooding

issues, caused by an act of nature, occurring at the property. Davis initiated a home

inspection that noted outdoor and structural damage to the property as a result of

flooding. Davis claims that neither the residential property disclosure form nor the

inspection disclosed that the damage was caused by a defective storm drain system

rather than just an act of nature by flooding. After continuous flooding on the

property that occurred in the backyard and in the basement, Davis obtained another

inspection, where the inspector discovered that the flooding was the result of a

defect in the storm drain system. Davis contacted the city of Pepper Pike, and the

city informed Davis that Glassman had also experienced issues with the storm drain

system and had it inspected by the city.

On December 31, 2020, Davis filed a complaint against Glassman,

alleging fraud for active concealment and failure to disclose known latent defects.

After several pretrials, Glassman filed a motion for summary judgment on

December 15, 2021. Also, on that same day, Davis requested mediation and the trial

court referred the case to mediation. Davis’s counsel stated that she received the

email about mediation but did not notice that Glassman filed a motion for summary judgment, so she did not file an opposition motion. Instead, counsel stated that she

concentrated on preparing for the mediation. On January 24, 2022, appellee’s

counsel filed a motion to reschedule the mediation. As a result, Davis’s counsel did

not respond to the motion for summary judgment and the trial court granted

Glassman’s unopposed motion on January 31, 2022.

On February 3, 2022, Davis’s counsel filed a motion for leave, or in

the alternative, a motion for relief from judgment. On March 3, 2022, the trial court

denied the motion, and Davis filed this appeal assigning six errors for our review:

1. The trial court erred when it found that there was no basis under Civ.R. 60 to hold a hearing on Davis’s motion;

2. The trial court erred when it found that Davis has not raised operative facts under the rule that allows the trial court to grant him relief from judgment;

3. The trial court erred when it denied Davis’s motion for relief from judgment pursuant to Civ.R. 60(B);

4. The trial court erred when it denied Davis’s motion for leave pursuant to Civ.R. 6[0](B)(2);

5. The trial court erred when it failed to grant a hearing to take evidence and verify the facts before it ruled on the motion for relief; and

6. The trial court erred when it failed to apply the Pioneer Standard for determining what constitutes excusable neglect under Civ.R. 60(B). II. Motion for Relief from Judgment

A. Standard of Review

“‘This court reviews a trial court’s ruling on a Civ.R. 60(B) motion for

relief from judgment under an abuse of discretion standard.’” Miller v. Miller, 8th

Dist. Cuyahoga No. 110537, 2022-Ohio-1493, ¶ 7, quoting State v. Waver, 8th Dist.

Cuyahoga No. 107502, 2019-Ohio-1444, ¶ 27.

An abuse of discretion occurs when a court exercises its judgment in an unwarranted way regarding a matter over which it has discretionary authority. Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. Such an abuse ““‘implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’”” State v. Montgomery, Slip Opinion No. 2022-Ohio-2211, ¶ 135, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

State v. Acosta, 8th Dist. Cuyahoga No. 111110, 2022-Ohio-3327, ¶ 43.

B. Law and Analysis

In assignment of error Nos. 1, 2, 3, 5, and 6, Davis argues that the trial

court abused its discretion for denying his motion for relief from judgment and

motion for leave. Additionally, Davis argues that the trial court abused its discretion

by failing to grant a hearing on the motion and by failing to determine what

constitutes excusable neglect under Civ.R. 60(B). Because all assignments of error

except assignment of error No. 4 are nearly identical, we will address them together.

After the court granted Glassman’s unopposed motion for summary

judgment, Davis filed his motion for relief from judgment arguing that the trial court should consider granting the motion because Davis’s counsel’s failure to respond to

the appellee’s motion for summary judgment was a result of excusable neglect under

Civ.R. 60(B).

“In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the movant must demonstrate (1) a meritorious defense or claim to present if relief is granted; (2) entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the timeliness of the motion. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 150-151, 351 N.E.2d 113 (1976). If any of the three requirements are not met, the motion should be denied. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988); Svoboda v. Brunswick, 6 Ohio St.3d 348, 351, 6 Ohio B. 403, 453 N.E.2d 648 (1983).”

Miller at ¶ 7, quoting Waver at ¶ 26.

In Davis’s counsel’s motion to the court, she argued that her failure to

submit a response to the motion for summary judgment was a mistake. Counsel

claimed that because the court granted the mediation on the same day that

Glassman filed the summary judgment motion, she did not see the notice informing

her about the summary judgment filing. Counsel stated in her motion that her

attention was on the mediation order and she was unaware of the summary

judgment motion. Counsel argued that her mistake could be considered excusable

neglect.

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.

This court defined excusable neglect as the following:

“Excusable neglect has been defined in the negative. The inaction of a defendant is not excusable neglect if it can be labeled as a ‘complete disregard for the judicial system.’ Kay v. Marc Glassman, 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996). Cases finding excusable neglect typically involve special circumstances that justify the neglect. Dispatch Printing Co. v. Recovery Ltd. Partnership, 10th Dist. Franklin No. 14AP-640, 2015-Ohio-1368, 31 N.E.3d 190, ¶ 13. Neglectful conduct is not excusable if the party seeking relief could have prevented the circumstances from occurring. Stuller v. Price, 10th Dist. Franklin No. 02AP-29, 2003-Ohio-583, ¶ 52. While special or unusual circumstances can justify neglect, if a party ‘could have controlled or guarded against the happening of the special or unusual circumstance, the neglect is not excusable.’ Vanest v. Pillsbury Co., 124 Ohio App.3d 525, 706 N.E.2d 825 (4th Dist.1997).”

Twymon v. Eagle Auto Parts, Inc., 8th Dist. Cuyahoga No. 110993, 2022-Ohio-

2360, ¶ 51, quoting Delitoy v. I. Stylez Hair & Nails Design, Inc., 8th Dist.

Cuyahoga No. 108833, 2020-Ohio-3370, ¶ 18.

Davis relies on our decision in Mendes v. Lowe’s Home Ctrs., L.L.C.,

8th Dist. Cuyahoga No. 108605, 2020-Ohio-1283, where we affirmed the trial

court’s decision to grant the appellee’s motion for relief from judgment based on

Civ.R. 60. The facts in Mendes are analogous to the facts in this instant case. In Mendes, the appellant filed a motion for summary judgment. The appellee failed to

respond to the motion. After the trial court granted the unopposed motion, the

appellee filed a motion for relief from judgment, admitting “the inadvertent clerical

failure to calendar the response date and argued that the parties had been actively

engaged in ongoing discovery and the pursuit of resolution of the case including

preparation for the scheduled arbitration.” Id. at ¶ 3. In this instant case, the parties

were actively involved in the case, attending pretrial hearings and preparing for

mediation when the motion for summary judgment was filed and granted.

In Mendes, we stated that, “[t]he term ‘excusable neglect’ requires an

‘equitable’ review that takes into account “‘all relevant circumstances surrounding

the party’s omission.’”” Id. at ¶ 10, quoting Cleveland Mun. School Dist. v. Farson,

8th Dist. Cuyahoga No. 89525, 2008-Ohio-912, ¶ 12, quoting Pioneer Invest. Servs.

Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 123

L.Ed.2d 74 (1993). “In Farson, ‘we adopt[ed] the Pioneer standard for determining

what constitutes ‘excusable neglect’ under Civ.R. 60(B)(1).’” Mendes at ¶ 11, quoting

Farson at ¶ 13.

“Thus, we consider circumstances such as:

‘the danger of prejudice to the [movant], the length of the delay and its potential impact on judicial proceedings, the reasons for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.’ [Pioneer, 507 U.S. at 395, 113 S. Ct. 1489, 123 L.Ed.2d 74.] Pioneer has been acknowledged to set a more “forgiving” standard and should be given a broad reading. See Graphic Communications Internatl. Union, Local 12- N v. Quebecor Printing Providence, Inc., 270 F.3d 1, 5 (1st Cir.2001).” Mendes at ¶ 12, quoting Farson at ¶ 12.

As in Mendes, Davis contends, and the record supports, that the

failure to timely respond to the summary judgment motion constitutes excusable

neglect. Glassman filed for summary judgment on December 15, 2021. The trial

court granted the unopposed motion on January 31, 2022, and Davis moved for

relief from that judgment within three days after the trial court’s judgment. Counsel

for Davis admitted to the failure to calendar the response date because she did not

see the summary judgment filing and explained that the parties had been diligently

working toward a resolution since the inception of the case and continued to do so

in preparing for the mediation to be held on March 9, 2022. See id. at ¶ 14.

The facts in this instant case can be distinguished from the facts in a

prior Eighth District case. In Beswick Group N. Am., L.L.C. v. W. Res. Realty,

L.L.C., 8th Dist. Cuyahoga No. 104330, 2017-Ohio-2853, ¶ 8, the court held that the

appellant’s attorney’s failure to see the electronic notification of the appellees’

summary judgment filing is not considered excusable neglect. In Beswick, the

appellants entered into two contractual agreements with the appellee, Re/Max, for

the sale of property. After the property was sold, Beswick disputed it owed Re/Max

any commission because of the sale. Re/Max filed liens on the properties, and

Beswick filed a lawsuit. Re/Max filed an answer, a counterclaim, and a third-party

complaint. Discovery proceeded, but the appellants failed to respond to discovery

requests and requests for admissions. Id. ¶ 4. Subsequently, the appellees filed

their motion for summary judgment that was ultimately granted. In this instant case, Davis was actively involved having responded to

several requests, attending pretrial hearings, and responding to motions. At the

time the summary judgment motion was filed, upon motion of Davis, the matter

was referred to mediation by the trial court. Counsel concentrated her efforts on

mediation preparation. From these facts, it is clear the appellant was actively

engaged in the case.

The record does not support the conclusion that Davis “deliberately”

or “willfully” failed to answer the motion for summary judgment. Farson, 8th Dist.

Cuyahoga No. 89525, 2008-Ohio-912, at ¶ 15. The facts of this case demonstrate a

type of opportunism “that has been repeatedly disfavored by the courts.” Id. “It is

‘a basic tenet of Ohio jurisprudence that cases should be decided on their merits.’”

Id., quoting Perotti v. Ferguson, 7 Ohio St.3d 1, 3, 454 N.E.2d 951 (1983).

We also observe that the actions of Davis’s counsel were not in such

disregard of the court’s order that they exhibited “a disregard for the judicial system

and the rights of the plaintiff.” Griffey v. Rajan, 33 Ohio St.3d 75, 514 N.E.2d 1122,

syllabus (1987). “Total disregard for the judicial system connotes far worse

behavior, such as a litigant who obstinately refuses to attend a deposition or a lawyer

who repeatedly misses court dates.” State ex rel. Jackson v. Ohio Adult Parole

Auth., 140 Ohio St.3d 23, 2014-Ohio-2353, 14 N.E.3d 1003, ¶ 35.

Therefore, appellants assignment of error Nos. 1, 2, 3, 5, and 6 are

sustained and we reverse the trial court’s decision.

III. Motion for Leave In Davis’s fourth assignment of error, he argues that the trial court

erred when it denied his motion for leave pursuant to Civ.R. 6(B)(2). Due to the

analysis and conclusion above, per App.R. 12(A)(1)(c), the fourth assignment of

error is moot.

Judgment reversed and remanded.

It is ordered that appellant recover from appellees costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

__________________________________ ANITA LASTER MAYS, PRESIDING JUDGE

LISA B. FORBES, J., and MARY J. BOYLE, J., CONCUR