[Cite as Middleton v. Luna's Restaurant & Deli, L.L.C., 2011-Ohio-4388.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
DAVID B. MIDDLETON JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 2011 CA 00004 LUNA'S RESTAURANT & DELI, LLC
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2010 CV 03251
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 29, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID B. SPAULDING RANDALL M. TRAUB 158 Wilbur Drive, NE PELINI CAMPBELL WILLIAMS & TRAUB North Canton, Ohio 44720 8040 Cleveland Avenue NW, Suite 400 North Canton, Ohio 44720 Stark County, Case No. 2011 CA 00004 2
Wise, J.
{¶1} Appellant appeals the January 4, 2011, decision of the Stark County Court
of Common Pleas, denying his motion for relief from judgment.
STATEMENT OF THE FACTS AND CASE
{¶2} This matter arises out of an alleged slip and fall accident which occurred
on or about May 14, 2010. Specifically, Appellee David B. Middleton alleges that after
having lunch at Luna’s Restaurant & Deli, LLC, he entered the restroom and
encountered a wet greasy floor, causing him to slip and fall and injure his lower back.
He claims that there were no "wet floor" signs or warnings in place at the time of the
accident. He claims that he reported the incident to the manager on the date of his
injury.
{¶3} On July 14, 2010, counsel for Appellee sent correspondence to the owner
and/or manager of the restaurant requesting that Appellant report the claim to its liability
insurance company. Appellant failed to respond and a second letter was forwarded to
the restaurant's owner on July 30, 2010, again requesting that the claim be submitted to
Appellant's insurance carrier and further indicating that suit would be filed within 10 days
if Appellant failed to respond within ten days.
{¶4} On September 7, 2010, Appellee initiated a lawsuit by filing a Complaint in
the Stark County Court of Common Pleas.
{¶5} On September 10, 2010, Theresa Maley, an employee and waitress of
Appellant, signed for certified mail which contained the service and summons.
According to Ms. Maley's Affidavit, she placed the legal documents on the owner's desk
with the expectation that the owner would check his mail. Stark County, Case No. 2011 CA 00004 3
{¶6} Appellant failed to file an answer and on October 13, 2010, Appellee
moved for default judgment, which was granted by the trial court.
{¶7} On October 29, 2010, an evidentiary hearing on damages was held before
the Magistrate, at which time Appellee presented testimony and medical evidence
regarding his injuries and damages. Based on the evidence submitted, the Magistrate
awarded Appellee compensatory damages in the amount of $242,740.49.
{¶8} On October 29, 2010, the Magistrate's Decision was adopted and affirmed
by the trial court.
{¶9} Appellant filed an Objection to the Magistrate's award of damages, which
the trial court overruled, and re-affirmed the Decision of the Magistrate, on November
16, 2010.
{¶10} No appeal was taken of the trial court's award of damages.
{¶11} On December 1, 2010, Appellant filed a Rule 60(B) motion to vacate the
default judgment, requesting that Luna's Restaurant be allowed to file its answer
instanter and proceed with a determination of the merits of this case.
{¶12} On January 4, 2011, the trial court denied Luna's Restaurant's motion for
relief from judgment.
{¶13} It is this order from which Appellant now appeals, assigning the following
error for review:
ASSIGNMENT OF ERROR
{¶14} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DENYING APPELLANT’S RULE 60(B) MOTION TO VACATE DEFAULT JUDGMENT.” Stark County, Case No. 2011 CA 00004 4
I.
{¶15} In his sole assignment of error, Appellant claims that the trial court erred in
denying his 60(B) motion to vacate the default judgment. We disagree.
{¶16} A motion for relief from judgment under Civ.R. 60(B) lies within the trial
court's sound discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 514 N.E.2d 1122. In
order to find abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140
{¶17} Civ.R. 60 Relief from Judgment or Order, provides
{¶18} “ * * *
{¶19} “(B) Mistakes; inadvertence; excusable neglect; newly discovered
evidence; fraud; etc.
{¶20} “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 Stark County, Case No. 2011 CA 00004 5
taken. A motion under this subdivision (B) does not affect the finality of a judgment or
suspend its operation.
{¶21} “The procedure for obtaining any relief from a judgment shall be by motion
as prescribed in these rules.”
{¶22} To prevail on a motion to vacate a judgment pursuant to Civ. R. 60(B), the
movant must demonstrate that: (1) the party has a meritorious defense to present if
relief is granted; (2) the party is entitled to relief under one of the grounds stated in
Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and
where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after
the judgment. GTE Automatic Electric Company, Inc. v. ARC Industries, Inc. (1976), 47
Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus.
{¶23} Where timely relief is sought from a default judgment, and the movant has
a meritorious defense, doubt should be resolved in favor of the motion to set aside the
judgment so that cases may be decided on their merits. GTE Automatic, supra. at
paragraph three of the syllabus. The GTE Automatic factors are “independent and
conjunctive, not disjunctive.” Blaney v. Kerrigan (Aug. 4, 1986), Fairfield App.No. 12–
CA–86. “[F]ailing to meet one is fatal, for all three must be satisfied in order to gain
relief.” Id. at 5.
{¶24} Our standard of review of a court's decision as to whether to grant a
Civ.R. 60(B) motion is abuse of discretion.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Middleton v. Luna's Restaurant & Deli, L.L.C., 2011-Ohio-4388.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
DAVID B. MIDDLETON JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 2011 CA 00004 LUNA'S RESTAURANT & DELI, LLC
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2010 CV 03251
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 29, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID B. SPAULDING RANDALL M. TRAUB 158 Wilbur Drive, NE PELINI CAMPBELL WILLIAMS & TRAUB North Canton, Ohio 44720 8040 Cleveland Avenue NW, Suite 400 North Canton, Ohio 44720 Stark County, Case No. 2011 CA 00004 2
Wise, J.
{¶1} Appellant appeals the January 4, 2011, decision of the Stark County Court
of Common Pleas, denying his motion for relief from judgment.
STATEMENT OF THE FACTS AND CASE
{¶2} This matter arises out of an alleged slip and fall accident which occurred
on or about May 14, 2010. Specifically, Appellee David B. Middleton alleges that after
having lunch at Luna’s Restaurant & Deli, LLC, he entered the restroom and
encountered a wet greasy floor, causing him to slip and fall and injure his lower back.
He claims that there were no "wet floor" signs or warnings in place at the time of the
accident. He claims that he reported the incident to the manager on the date of his
injury.
{¶3} On July 14, 2010, counsel for Appellee sent correspondence to the owner
and/or manager of the restaurant requesting that Appellant report the claim to its liability
insurance company. Appellant failed to respond and a second letter was forwarded to
the restaurant's owner on July 30, 2010, again requesting that the claim be submitted to
Appellant's insurance carrier and further indicating that suit would be filed within 10 days
if Appellant failed to respond within ten days.
{¶4} On September 7, 2010, Appellee initiated a lawsuit by filing a Complaint in
the Stark County Court of Common Pleas.
{¶5} On September 10, 2010, Theresa Maley, an employee and waitress of
Appellant, signed for certified mail which contained the service and summons.
According to Ms. Maley's Affidavit, she placed the legal documents on the owner's desk
with the expectation that the owner would check his mail. Stark County, Case No. 2011 CA 00004 3
{¶6} Appellant failed to file an answer and on October 13, 2010, Appellee
moved for default judgment, which was granted by the trial court.
{¶7} On October 29, 2010, an evidentiary hearing on damages was held before
the Magistrate, at which time Appellee presented testimony and medical evidence
regarding his injuries and damages. Based on the evidence submitted, the Magistrate
awarded Appellee compensatory damages in the amount of $242,740.49.
{¶8} On October 29, 2010, the Magistrate's Decision was adopted and affirmed
by the trial court.
{¶9} Appellant filed an Objection to the Magistrate's award of damages, which
the trial court overruled, and re-affirmed the Decision of the Magistrate, on November
16, 2010.
{¶10} No appeal was taken of the trial court's award of damages.
{¶11} On December 1, 2010, Appellant filed a Rule 60(B) motion to vacate the
default judgment, requesting that Luna's Restaurant be allowed to file its answer
instanter and proceed with a determination of the merits of this case.
{¶12} On January 4, 2011, the trial court denied Luna's Restaurant's motion for
relief from judgment.
{¶13} It is this order from which Appellant now appeals, assigning the following
error for review:
ASSIGNMENT OF ERROR
{¶14} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DENYING APPELLANT’S RULE 60(B) MOTION TO VACATE DEFAULT JUDGMENT.” Stark County, Case No. 2011 CA 00004 4
I.
{¶15} In his sole assignment of error, Appellant claims that the trial court erred in
denying his 60(B) motion to vacate the default judgment. We disagree.
{¶16} A motion for relief from judgment under Civ.R. 60(B) lies within the trial
court's sound discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 514 N.E.2d 1122. In
order to find abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140
{¶17} Civ.R. 60 Relief from Judgment or Order, provides
{¶18} “ * * *
{¶19} “(B) Mistakes; inadvertence; excusable neglect; newly discovered
evidence; fraud; etc.
{¶20} “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 Stark County, Case No. 2011 CA 00004 5
taken. A motion under this subdivision (B) does not affect the finality of a judgment or
suspend its operation.
{¶21} “The procedure for obtaining any relief from a judgment shall be by motion
as prescribed in these rules.”
{¶22} To prevail on a motion to vacate a judgment pursuant to Civ. R. 60(B), the
movant must demonstrate that: (1) the party has a meritorious defense to present if
relief is granted; (2) the party is entitled to relief under one of the grounds stated in
Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and
where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after
the judgment. GTE Automatic Electric Company, Inc. v. ARC Industries, Inc. (1976), 47
Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus.
{¶23} Where timely relief is sought from a default judgment, and the movant has
a meritorious defense, doubt should be resolved in favor of the motion to set aside the
judgment so that cases may be decided on their merits. GTE Automatic, supra. at
paragraph three of the syllabus. The GTE Automatic factors are “independent and
conjunctive, not disjunctive.” Blaney v. Kerrigan (Aug. 4, 1986), Fairfield App.No. 12–
CA–86. “[F]ailing to meet one is fatal, for all three must be satisfied in order to gain
relief.” Id. at 5.
{¶24} Our standard of review of a court's decision as to whether to grant a
Civ.R. 60(B) motion is abuse of discretion. GTE at 148, 351 N.E.2d 113.
{¶25} Upon review of the entire record in this matter, we find the trial court did
not abuse its discretion in overruling Appellant's Civ.R. 60(B) Motion. Stark County, Case No. 2011 CA 00004 6
{¶26} Initially we note that Appellant filed his motion within the time limits set
forth in G.T.E., supra. We will therefore address the remaining two requirements.
{¶27} With regard to the second prong of the G.T.E. test, Appellant claims that
he is entitled to relief under Civ.R.60(1) and (5).
{¶28} Under Civ.R. 60(B)(1), Appellant herein claims excusable neglect, stating
that the restaurant was closed for approximately three weeks, during which time he
failed to pick up his mail.
{¶29} Upon review of the entire record in this matter, we find the trial court did
not abuse its discretion in overruling Appellant's Civ.R. 60(B) Motion. We concur with
the trial court that Appellant failed to show excusable neglect.
{¶30} The determination of whether excusable or inexcusable neglect occurred
“must of necessity take into consideration all the surrounding facts and circumstances.”
Colley v. Bazell (1980), 64 Ohio St.2d 243, 249, 416 N.E.2d 605, fn4. If it is evident from
all the facts and circumstances that the acts of the party seeking relief exhibited a
disregard for the judicial system and the rights of the other party, then the trial court
should find that the mistakes were inexcusable. D.M.G., Inc. v. Cremeans Concrete &
Supply Co. (1996), 111 Ohio App.3d 134, 138, 675 N.E.2d 1263; see, also, Colley at
248, 416 N.E.2d 605; GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47
Ohio St.2d 146 at 153, 351 N.E.2d 113. Generally, a failure to plead or respond after
admittedly receiving a copy of a complaint is not “excusable neglect.” Katko v. Modic
(1993), 85 Ohio App.3d 834, 838, 621 N.E.2d 809. Likewise, a person's failure to seek
legal assistance after being served with court documents is not excusable. Associated
Estates Corp. v. Fellows (1983), 11 Ohio App.3d 112, 116, 463 N.E.2d 417. Stark County, Case No. 2011 CA 00004 7
{¶31} Insufficient or negligent internal procedures in an organization may not
compromise excusable neglect and, therefore, they may not support the vacation of a
default judgment. Laking Trucking, Inc. v. Coastal Tank Lines, Inc. (Feb. 9, 1984), Allen
App. No. 1-83-3, unreported, 1984 WL 6241 (summons received in a corporate mail
room but lost before being brought to the attention of the proper office does not rise to
excusable neglect); Miller v. Sybert (July 25, 1985), Auglaize App. No. 2-84-13,
unreported, 1985 WL 7351 (ordinary mail delivered to defendant when mail is
accessible to other persons and where it was never picked up by defendant's friends
while he was out of state does not constitute excusable neglect).
{¶32} Even illness does not excuse a business owner who ignores legal
documents received in the mail and fails to designate a competent agent to handle
business matters in his absence. See Andrew Bihl Sons, Inc. v. Trembly (1990), 67
Ohio App.3d 664, 667, 588 N.E.2d 172.
{¶33} In Bihl, supra, the Fourth District Court of Appeals wrote:
{¶34} “Insufficient or negligent internal procedures in an organization may not
compromise excusable neglect and, therefore, they may not support the vacation of a
default judgment. Laking Trucking, Inc. v. Coastal Tank Lines, Inc. (Feb. 9, 1984), Allen
App. No. 1-83-3, (summons received in a corporate mail room but lost before being
brought to the attention of the proper office does not rise to excusable neglect); Miller v.
Sybert (July 25, 1985), Auglaize App. No. 2-84-13, (ordinary mail delivered to defendant
when mail is accessible to other persons and where it was never picked up by
defendant's friends while he was out of state does not constitute excusable neglect).” Stark County, Case No. 2011 CA 00004 8
{¶35} A review of the record in this case demonstrates neglect of Luna’s
business affairs but hardly excusable neglect. Even if the restaurant was closed for a
period of time after the summons and complaint were served, Appellant was still under
the obligation to properly attend to and administer his business affairs. Here, Appellant
disregarded his business during this time period, and such neglect we find is not
excusable.
{¶36} We further find that Appellant failed to provide sufficient evidence of a
meritorious defense. Appellant claims that his denial of liability is a meritorious defense
in this matter. We find that Appellant, through such generic conclusory assertion, has
not provided sufficient evidence of a meritorious defense as required by Rule 60(B).
{¶37} Appellant’s sole assignment of error is overruled.
{¶38} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Edwards, J., concur.
___________________________________
JUDGES JWW/d 0803 Stark County, Case No. 2011 CA 00004 9
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
DAVID B. MIDDLETON : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : LUNA'S RESTAURANT & DELI, LLC : : Defendant-Appellant : Case No. 2011 CA 00004
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to Appellant.
JUDGES