[Cite as Wer Doin It Builders, Inc. v. Hammon, Inc., 2015-Ohio-4223.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
WER DOIN IT BUILDERS, INC. C.A. No. 15CA0023-M
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE HAMMON, INC. COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellee CASE No. 13CIV0674
and
BURNSTEIN & BURNSTEIN, INC., et al.
Appellants
DECISION AND JOURNAL ENTRY
Dated: October 13, 2015
SCHAFER, Judge.
{¶1} Defendants-Appellants, Sid Burnstein and Burnstein & Burnstein, Inc.
(collectively, “Appellants”), appeal the judgment of the Medina County Court of Common Pleas
denying their motion for leave to plead and granting default judgment against them in favor of
Plaintiff-Appellee, Wer Doing It Builders, Inc. (“WDI Builders”). For the reasons that follow,
we affirm the trial court’s judgment.
I.
{¶2} This matter commenced when WDI Builders filed a complaint against Hammon,
Inc. and Mike Hammon (collectively, the “Hammon defendants”) asserting a claim for breach of
contract. According to the complaint, WDI Builders sold a crane to the Hammon defendants 2
pursuant to a sales agreement that required them to pay a total of $160,000, broken down into an
initial payment of $10,000 followed by monthly payments of $2,000. The Hammon defendants
failed to comply with these terms and WDI Builders alleged that at the time of the complaint’s
filing, approximately $120,000 remained outstanding.
{¶3} Approximately 13 months after the initial complaint’s filing, WDI Builders filed a
motion for leave to file an amended complaint, which the trial court granted. The amended
complaint reasserted WDI Builders’ breach of contract claim against the Hammon defendants. It
also included additional claims for negligence, breach of fiduciary duty, and breach of contract
against Appellants. These claims arose from WDI Builders retaining Appellants to collect the
outstanding debt owed by the Hammon defendants. The central allegations of WDI Builders’
claims against Appellants are that they exceeded the scope of their authority in their offers of
debt compromises to the Hammon defendants, misrepresented the amount of collections received
and the terms of compromise agreements accepted by the Hammon defendants, and failed to turn
over sums collected from the Hammon defendants. The amended complaint was served on
Appellants by certified mail delivered on July 21, 2014. The summons stated that Appellants
had to file an answer within 28 days of the amended complaint’s service.
{¶4} The trial court scheduled a jury trial for October 14, 2014, but it never went
forward since on that date, WDI Builders filed a notice of dismissal dismissing its claims against
the Hammon defendants with prejudice as a result of a settlement. Subsequently, WDI Builders
filed a motion for default judgment against Appellants that included the affidavit of Dorothy
Darling, the company’s managing member, who averred that Appellants’ breaches caused
approximately $48,000 in damages. 3
{¶5} On January 16, 2015, Appellants filed a brief in opposition to the motion for
default judgment and a motion for leave to file an answer. Appellants asserted that their failure
to timely plead resulted from excusable neglect. The trial court, however, denied Appellants’
motion and granted WDI Builders’ motion for default judgment. As to Appellants’ motion for
leave to plead, the trial court stated as follows in its judgment entry:
[Appellants] claim that their failure to timely plead resulted from excusable neglect in that [WDI Builders] entered into a settlement with [the Hammon defendants] and [Appellants] mistakenly believed that the entire action had been dismissed and all of [WDI Builders’] claims were resolved. However the dismissal of the [Hammon defendants] was not filed by [WDI Builders] until October 14, 2014, almost two months after the time to answer expired. Further the notice of dismissal filed by [WDI Builders] was captioned “Notice of Dismissal of Defendants Hammon Incorporated and Mike Hammon.” Also the notice of dismissal states as follows: “Now comes Plaintiff, by and through counsel, and hereby gives notice of its dismissal with prejudice of all claims against Defendants Hammon Incorporated and Mike Hammon only as this matter has been settled between them[.]” (emphasis in the original filed document) The Notice of Dismissal is thus clear in stating that it only pertains to the Hammon defendants. Furthermore, [Appellants] did not submit an affidavit or any other evidence with their motion in support of their claim of excusable neglect. Considering all of these facts and circumstances [Appellants] did not establish excusable neglect for their failure to answer.
{¶6} Appellants filed this timely appeal, presenting one assignment of error for our
review.
Assignment of Error
The trial court erred in denying the Burnsteins’ motion for leave to leave [sic] to plead instanter and, correspondingly, in entering default judgment against the Burnsteins.
{¶7} In their assignment of error, Appellants argue that the trial court erred in denying
their motion for leave to plead. Specifically, they assert that the trial court incorrectly found that
they failed to establish excusable neglect. We disagree. 4
{¶8} Civ.R. 12(A)(1) requires that the defendant serve his answer to a complaint within
28 days of service of the summons and complaint. Nevertheless, Civ.R. 6(B)(2) allows a court
“in its discretion” to extend this period to file an answer where the defendant files a motion
outside of the 28-day period and demonstrates that the failure to timely plead “was the result of
excusable neglect[.]” “A trial court’s Civ.R. 6(B)(2) determination is addressed to the sound
discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of
discretion.” State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464, 465
(1995), citing Miller v. Lint, 62 Ohio St.2d 209, 213-214 (1980). An abuse of discretion implies
the court’s decision is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983). When applying this standard, a reviewing court is precluded from
simply substituting its own judgment for that of the trial court. Pons v. Ohio St. Med. Bd., 66
Ohio St.3d 619, 624 (1993).
{¶9} Appellants’ argument challenges the trial court’s finding that they did not
establish excusable neglect. “In determining whether neglect is excusable or inexcusable, this
Court must take into consideration the surrounding facts and circumstances, and must be mindful
of the admonition that cases should be decided on their merits, where possible, rather than
procedural grounds.” Univ. of Akron v. Mangan, 9th Dist. Summit No. 24167, 2008-Ohio-4844,
¶ 10, citing Marion Prod. Credit Assn. v. Cochran, 40 Ohio St.3d 265, 271 (1988). When
considering these circumstances and the preference for settling cases on their merits, we are also
mindful that “the test for excusable neglect under Civ.R. 6(B)(2) is less stringent than that
applied under Civ.R. 60(B).” Lindenschmidt at 466.
{¶10} After reviewing the record, we cannot conclude that the trial court abused its
discretion in finding that Appellants failed to establish excusable neglect for their failure to 5
timely plead. Appellants had to file their answer in late August 2014. They claim that they
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[Cite as Wer Doin It Builders, Inc. v. Hammon, Inc., 2015-Ohio-4223.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
WER DOIN IT BUILDERS, INC. C.A. No. 15CA0023-M
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE HAMMON, INC. COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellee CASE No. 13CIV0674
and
BURNSTEIN & BURNSTEIN, INC., et al.
Appellants
DECISION AND JOURNAL ENTRY
Dated: October 13, 2015
SCHAFER, Judge.
{¶1} Defendants-Appellants, Sid Burnstein and Burnstein & Burnstein, Inc.
(collectively, “Appellants”), appeal the judgment of the Medina County Court of Common Pleas
denying their motion for leave to plead and granting default judgment against them in favor of
Plaintiff-Appellee, Wer Doing It Builders, Inc. (“WDI Builders”). For the reasons that follow,
we affirm the trial court’s judgment.
I.
{¶2} This matter commenced when WDI Builders filed a complaint against Hammon,
Inc. and Mike Hammon (collectively, the “Hammon defendants”) asserting a claim for breach of
contract. According to the complaint, WDI Builders sold a crane to the Hammon defendants 2
pursuant to a sales agreement that required them to pay a total of $160,000, broken down into an
initial payment of $10,000 followed by monthly payments of $2,000. The Hammon defendants
failed to comply with these terms and WDI Builders alleged that at the time of the complaint’s
filing, approximately $120,000 remained outstanding.
{¶3} Approximately 13 months after the initial complaint’s filing, WDI Builders filed a
motion for leave to file an amended complaint, which the trial court granted. The amended
complaint reasserted WDI Builders’ breach of contract claim against the Hammon defendants. It
also included additional claims for negligence, breach of fiduciary duty, and breach of contract
against Appellants. These claims arose from WDI Builders retaining Appellants to collect the
outstanding debt owed by the Hammon defendants. The central allegations of WDI Builders’
claims against Appellants are that they exceeded the scope of their authority in their offers of
debt compromises to the Hammon defendants, misrepresented the amount of collections received
and the terms of compromise agreements accepted by the Hammon defendants, and failed to turn
over sums collected from the Hammon defendants. The amended complaint was served on
Appellants by certified mail delivered on July 21, 2014. The summons stated that Appellants
had to file an answer within 28 days of the amended complaint’s service.
{¶4} The trial court scheduled a jury trial for October 14, 2014, but it never went
forward since on that date, WDI Builders filed a notice of dismissal dismissing its claims against
the Hammon defendants with prejudice as a result of a settlement. Subsequently, WDI Builders
filed a motion for default judgment against Appellants that included the affidavit of Dorothy
Darling, the company’s managing member, who averred that Appellants’ breaches caused
approximately $48,000 in damages. 3
{¶5} On January 16, 2015, Appellants filed a brief in opposition to the motion for
default judgment and a motion for leave to file an answer. Appellants asserted that their failure
to timely plead resulted from excusable neglect. The trial court, however, denied Appellants’
motion and granted WDI Builders’ motion for default judgment. As to Appellants’ motion for
leave to plead, the trial court stated as follows in its judgment entry:
[Appellants] claim that their failure to timely plead resulted from excusable neglect in that [WDI Builders] entered into a settlement with [the Hammon defendants] and [Appellants] mistakenly believed that the entire action had been dismissed and all of [WDI Builders’] claims were resolved. However the dismissal of the [Hammon defendants] was not filed by [WDI Builders] until October 14, 2014, almost two months after the time to answer expired. Further the notice of dismissal filed by [WDI Builders] was captioned “Notice of Dismissal of Defendants Hammon Incorporated and Mike Hammon.” Also the notice of dismissal states as follows: “Now comes Plaintiff, by and through counsel, and hereby gives notice of its dismissal with prejudice of all claims against Defendants Hammon Incorporated and Mike Hammon only as this matter has been settled between them[.]” (emphasis in the original filed document) The Notice of Dismissal is thus clear in stating that it only pertains to the Hammon defendants. Furthermore, [Appellants] did not submit an affidavit or any other evidence with their motion in support of their claim of excusable neglect. Considering all of these facts and circumstances [Appellants] did not establish excusable neglect for their failure to answer.
{¶6} Appellants filed this timely appeal, presenting one assignment of error for our
review.
Assignment of Error
The trial court erred in denying the Burnsteins’ motion for leave to leave [sic] to plead instanter and, correspondingly, in entering default judgment against the Burnsteins.
{¶7} In their assignment of error, Appellants argue that the trial court erred in denying
their motion for leave to plead. Specifically, they assert that the trial court incorrectly found that
they failed to establish excusable neglect. We disagree. 4
{¶8} Civ.R. 12(A)(1) requires that the defendant serve his answer to a complaint within
28 days of service of the summons and complaint. Nevertheless, Civ.R. 6(B)(2) allows a court
“in its discretion” to extend this period to file an answer where the defendant files a motion
outside of the 28-day period and demonstrates that the failure to timely plead “was the result of
excusable neglect[.]” “A trial court’s Civ.R. 6(B)(2) determination is addressed to the sound
discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of
discretion.” State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464, 465
(1995), citing Miller v. Lint, 62 Ohio St.2d 209, 213-214 (1980). An abuse of discretion implies
the court’s decision is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983). When applying this standard, a reviewing court is precluded from
simply substituting its own judgment for that of the trial court. Pons v. Ohio St. Med. Bd., 66
Ohio St.3d 619, 624 (1993).
{¶9} Appellants’ argument challenges the trial court’s finding that they did not
establish excusable neglect. “In determining whether neglect is excusable or inexcusable, this
Court must take into consideration the surrounding facts and circumstances, and must be mindful
of the admonition that cases should be decided on their merits, where possible, rather than
procedural grounds.” Univ. of Akron v. Mangan, 9th Dist. Summit No. 24167, 2008-Ohio-4844,
¶ 10, citing Marion Prod. Credit Assn. v. Cochran, 40 Ohio St.3d 265, 271 (1988). When
considering these circumstances and the preference for settling cases on their merits, we are also
mindful that “the test for excusable neglect under Civ.R. 6(B)(2) is less stringent than that
applied under Civ.R. 60(B).” Lindenschmidt at 466.
{¶10} After reviewing the record, we cannot conclude that the trial court abused its
discretion in finding that Appellants failed to establish excusable neglect for their failure to 5
timely plead. Appellants had to file their answer in late August 2014. They claim that they
failed to comply with this time limitation because of WDI Builders’ notice of dismissal that was
filed on October 14, 2014, which they said led them to believe that the case was entirely
resolved. But, Appellants fail to explain how their conduct in July and August 2014 could be
excused by the later events of October 2014. Additionally, the notice of dismissal was
unambiguous – it only dismissed the claims against the Hammon defendants and did not address
WDI Builders’ claims against Appellants. From this, we cannot conclude that the trial court
erred in rejecting Appellants’ contention that the notice of dismissal excused their neglect in not
filing a timely answer. Moreover, the fact that Appellants lacked counsel at the time of the
amended complaint’s service is immaterial to our analysis here. See Univ. of Akron at ¶ 12
(rejecting excusable neglect argument that the defendants were laypersons who “‘did not
contemplate that an Answer was still required to be filed’” since the Court “‘will not waive the
requirements imposed by the Civil Rules simply because one of the litigants is proceeding pro
se’”), quoting Martin v. Wayne Cty. Nat. Bank Trust, 9th Dist. Wayne No. 03CA0079, 2004-
Ohio-4194, ¶ 16. Since the record supports the trial court’s finding that Appellants failed to
establish excusable neglect, it did not abuse its discretion in denying their motion for leave to
plead.
{¶11} Accordingly, we overrule Appellants’ assignment of error.
III.
{¶12} Having overruled Appellants’ sole assignment of error, we affirm the judgment of
the Medina County Court of Common Pleas.
Judgment affirmed. 6
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER FOR THE COURT
WHITMORE, P. J. MOORE, J. CONCUR.
APPEARANCES:
RODD A. SANDERS, Attorney at Law, for Appellants.
STEVEN C. BAILEY, Attorney at Law, for Appellee.