Scheetz v. Jubilee Heating & Cooling

2020 Ohio 5555

• Court: Ohio Court of Appeals
• Decided: December 4, 2020
• Docket: E-20-007
• Status: Published

Opinion

[Cite as Scheetz v. Jubilee Heating & Cooling, 2020-Ohio-5555.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

David Scheetz, Precision Remodeling Court of Appeals No. E-20-007

Appellee Trial Court No. CVI 1900203

v.

Jubilee Heating & Cooling and John Kelley DECISION AND JUDGMENT

Appellant Decided: December 4, 2020

*****

Reese M. Wineman, for appellant.

PIETRYKOWSKI, J.

{¶ 1} Defendant-appellant, Jubilee Heating & Cooling and John Kelley, appeals

the March 2, 2020 judgment of the Huron Municipal Court which denied the Civ.R.

60(B) motion for relief from a judgment in favor of plaintiff-appellee, David Scheetz,

Precision Remodeling. Because we find that the court did not abuse its discretion, we

affirm. {¶ 2} This small claims contract action commenced on September 13, 2019, with

appellee asserting that he was owed $5,800 in damages for incomplete heating and

cooling work. Appellant filed an answer and counterclaim for $6,000 for work he

claimed was completed.

{¶ 3} A hearing on the matter was held on November 8, 2019; appellant did not

appear at the hearing and judgment was entered in appellee’s favor on November 15,

2019, and appellant’s counterclaim was dismissed. On December 19, 2019, appellant

filed a Civ.R. 60(B) motion for relief arguing excusable neglect. Specifically, appellant

claimed that he had not received notice of the hearing and that “he has had problems

receiving his mail in the past.” Appellant stated that he had a meritorious defense and a

counterclaim.

{¶ 4} Following a hearing on the motion, on March 2, 2020, the trial court denied

the motion finding that appellant failed to establish excusable neglect due to his prior

knowledge that he had problems receiving mail at the address and his failure to remedy

the issue combined with the fact that the information was available on the court’s

website. This appeal followed with appellant raising one assignment of error for our

review:

Assignment of Error - The trial court below abused its discretion and

improperly denied the defendant’s motion for relief pursuant to Civil Rule

60(B)(1), based upon excusable neglect.

2. {¶ 5} In appellant’s sole assignment of error he argues that the trial court should

have granted his Civ.R. 60(B) motion due to excusable neglect. In reviewing the denial

of a Civ.R. 60(B) motion, an appellate court applies an abuse of discretion standard.

Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). An abuse of discretion

means that the trial court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 6} In order to be entitled to relief from judgment under Civ.R. 60(B), appellant

must demonstrate that:

(1) the party has a meritorious defense or claim 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, order or proceeding was entered or

taken.

GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113

(1976), paragraph two of the syllabus. “If any of these three requirements is not met, the

motion should be overruled.” Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520

N.E.2d 564 (1988).

{¶ 7} In general, the determination of whether excusable neglect occurred “must

of necessity take into consideration all the surrounding facts and circumstances.” Colley

v. Bazell, 64 Ohio St.2d 243, 249, 416 N.E.2d 605 (1980). Excusable neglect has been

3. defined as some action “‘not in consequence of the party’s own carelessness, inattention,

or willful disregard of the process of the court, but in consequence of some unexpected or

unavoidable hindrance or accident.’” Maggiore v. Barensfeld, 5th Dist. Stark Nos.

2011CA00180, 2011CA00230, 2012-Ohio-2909, ¶ 28, quoting Emery v. Smith, 5th Dist.

Stark Nos. 2005CA00051, 2005CA00098, 2005-Ohio-5526, ¶ 16. “‘Excusable neglect is

not present if the party seeking relief could have prevented the circumstances from

occurring.’” Id., quoting Porter, Wright, Morris & Arthur, LLP v. Frutta Del Mondo,

Ltd., 10th Dist. Franklin No. 08AP-69, 2008-Ohio-3567, ¶ 22.

{¶ 8} Appellant supports his argument with several appellate court decisions

where relief was granted at either the trial or appellate court level. First, the Eleventh

Appellate District granted Civ.R. 60(B) relief in a divorce action where the defendant

was notified of the hearing at the county jail rather than the state prison where he was

located. Dottore v. Feathers, 11th Dist. Portage No. 2006-P-0031, 2007-Ohio-2435.

Next, appellant relies on cases involving corporate defendants and the failure of internal

procedures upon receipt of notice of a legal action. Chirico v. Home Depot, 10th Dist.

Franklin No. 05AP-217, 2006-Ohio-291; Garcia v. Denne Indust., 8th Dist. Cuyahoga

No. 86202, 2006-Ohio-107. These cases also demonstrated a compelling meritorious

defense.

{¶ 9} Appellant further cites a case from this court where we concluded that where

a showing is made that the defendant is not the proper party and that he, on multiple

occasions, attempted to notify the plaintiff of this fact, the trial court abused its discretion

4. in denying the motion for relief. Rocha v. Salsbury, 6th Dist. Fulton No. F-05-014, 2006-

Ohio-2615.

{¶ 10} Apparent from our review of the relevant case law and the record before us

is that appellant has failed to demonstrate how the fact that his failure to receive the

notice of the November 8, 2019 hearing, sent on October 3, 2019, and eventually found

lying on the ground on his property should be considered excusable neglect. Appellant

knew of the condition of his mailbox and knew that he was a defendant and

counterclaimant in an ongoing small claims action. He received the initial complaint at

that address so it stands to reason that additional court correspondence would have been

sent to the same address. Finally, and as noted by the trial court, appellant could have

called the court or accessed the online docket to learn of the hearing date (appellant

acknowledged in his brief that the court informed him that the initial October 11, 2019

hearing date would be changed to include a hearing on his counterclaim.) Accordingly,

we cannot say that the trial court abused its discretion when it denied appellant’s Civ.R.

60(B) motion for relief. Appellant’s assignment of error is not well-taken.

{¶ 11} On consideration whereof, we affirm the March 2, 2020 judgment of the

Huron Municipal Court. Pursuant to App.R. 24, appellant is ordered to pay the costs of

this appeal.

Judgment affirmed.

5. Scheetz v. Jubilee Heating & Cooling C.A. No. E-20-007

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Christine E. Mayle, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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