[Cite as Zanesville Bowling, L.L.C. v. Prindle, 2012-Ohio-3173.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: ZANESVILLE BOWLING, LLC : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. CT12-0010 JEFFREY B. PRINDLE, II, ET AL : : Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Muskingum Court of Common Pleas, Case No. CH2011-0569
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 12, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK W. STUBBINS HILLARD M. ABROMS Stubbins, Watson & Bryanm, Co., LLP 753 South Front Street 59 North Fourth St., Box 488 Columbus, OH 43206 Zanesville, OH 43702 [Cite as Zanesville Bowling, L.L.C. v. Prindle, 2012-Ohio-3173.]
Gwin, J.,
{¶1} Appellants Jeffrey B. Prindle, II, Kim C. Prindle and Sunrise Bowl, Inc.
[“Appellants”] appeal the December 14, 2011 and January 20, 2012 judgment entries
denying their extension of time to move or plead and granting appellee Zanesville
Bowling, LLC’s motion for default judgment in a declaratory judgment action.
STANDARD OF REVIEW
{¶2} This case comes to us on the accelerated calendar. App. R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal. The appeal will be determined
as provided by App. R. 11. 1. It shall be in sufficient compliance with App.
R. 12(A) for the statement of the reason for the court's decision as to each
error to be in brief and conclusionary form. The decision may be by
judgment entry in which case it will not be published in any form.
{¶3} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusionary decision more quickly than in a case
on the regular calendar where the briefs, facts and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655(10th
Dist. 1983). This appeal shall be considered in accordance with the aforementioned
rule.
FACTS AND PROCEDURAL HISTORY
{¶4} Appellee is the owner of certain real property. Appellants are the former
owners of the property who lost title because of a foreclosure action. However,
appellants were also the named lessees of a portion of the premises. Muskingum County, Case No. CT12-0010 3
{¶5} On or about July 15, 2011 appellee served appellants with a Notice to
Terminate Tenancy. Appellants have vacated the premises.
{¶6} On November 4, 2011, appellee filed a complaint for a declaratory
judgment declaring that the lease has been terminated and that appellants have no
further rights in the premises. A process server personally served appellants on
November 9, 2011. Notwithstanding appellee’s request for service by the process
server, the clerk of courts also sent service out by certified United States mail, which
was received by the appellants on November 14, 2011.
{¶7} Appellants hired counsel who requested an extension from the original
deadline of December 7, 2011. Appellee informed appellants’ counsel that it would
agree to an extension to December 12, 2011; however, appellee would not consent to
an extension beyond that date.
{¶8} On December 13, 2011, appellants filed a motion for an extension of time
to January 11, 2012 to file an answer. Appellants did not submit a proposed answer with
the motion. Also on December 13, 2011, appellee filed a Motion for Default Judgment
and Motion to Deny Request for Extension of Time.
{¶9} The trial Court denied appellants' request for an extension of time to file an
answer by judgment entry filed December 14, 2011. Also on that date, the trial court
granted appellee’s motion for default judgment.
{¶10} In granting judgment against appellants, the trial court noted that
appellants' "motion for an extension was filed after their answer deadline, but
[appellants] failed to demonstrate or allege excusable neglect as required." Muskingum County, Case No. CT12-0010 4
{¶11} On January 11, 2012, appellants filed a Motion for Leave to File Answer
Instanter, attaching a proposed answer, generally denying the allegations. The trial
court overruled appellants’ request by judgment entry filed January 20, 2012.
{¶12} Appellants filed a notice of appeal in this court on February 21, 2012
appealing the trial court’s entries of December 14, 2011 and January 20, 2012.
ASSIGNMENTS OF ERROR
{¶13} Appellants raise the following two assignments of error,
{¶14} “I. WHETHER THE TRIAL COURT’S DENIAL OF EXTENSION OF TIME
TO MOVE OR PLEAD WAS AN ABUSE OF DISCRETION.
{¶15} “II. WHETHER COUNTY CLERK’S FAILURE TO TIMELY SERVE TRIAL
COURT’S JOURNAL ENTRY GRANTING SUMMARY JUDGMENT [SIC.] WAS
DENIAL OF DUE PROCESS TO DEFENDANTS.”
I.
{¶16} Appellants claim the trial court abused its discretion in denying their
motion for an extension of time to file their answer. We disagree.
{¶17} Civ. R. 6 governs extensions of time and provides, in pertinent part:
(B) Time: extension
When by these rules or by a notice given thereunder or by order of
court an act is required or allowed to be done at or within a specified time,
the court for cause shown may at any time in its discretion (1) with or
without motion or notice order the period enlarged if request therefore is
made before the expiration of the period originally prescribed or as
extended by a previous order, or (2) upon motion made after the Muskingum County, Case No. CT12-0010 5
expiration of the specified period permit the act to be done where the
failure to act was the result of excusable neglect; but it may not extend the
time for taking any action under Rule 50(B), Rule 59(B), Rule 59(D), and
Rule 60(B), except to the extent and under the conditions stated in them.
{¶18} Civ.R. 12(A)(1) expressly provides that “(t)he defendant shall serve his
answer within twenty-eight days after service of the summons and complaint upon him.”
Hence, appellants in this case were required to file an answer or to request an
extension on or before December 7, 2011.
{¶19} The granting or denial of a motion for extension of time is within the
discretion of the trial court and the trial court's decision will not be disturbed on appeal
unless the court abused its discretion. An abuse of discretion implies an unreasonable,
arbitrary or unconscionable attitude of the trial court. Ruwe v. Board of Springfield
Township Trustees, 29 Ohio St.3d 59, 61, 505 N.E.2d 957(1987); see, Sgro v.
McDonald's Restaurant, 21 Ohio App.3d 41, 42, 486 N.E.2d 157(1984).
{¶20} The standard for “abuse of discretion” is defined as more than error of law
or judgment, but implies an attitude on the part of the trial court that is unreasonable,
arbitrary or unconscionable. State, ex rel. Cook, v. Zimpher , 17 Ohio St.3d 236, 240,
479 N.E.2d 263, 266(1985); State v.
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[Cite as Zanesville Bowling, L.L.C. v. Prindle, 2012-Ohio-3173.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: ZANESVILLE BOWLING, LLC : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. CT12-0010 JEFFREY B. PRINDLE, II, ET AL : : Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Muskingum Court of Common Pleas, Case No. CH2011-0569
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 12, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK W. STUBBINS HILLARD M. ABROMS Stubbins, Watson & Bryanm, Co., LLP 753 South Front Street 59 North Fourth St., Box 488 Columbus, OH 43206 Zanesville, OH 43702 [Cite as Zanesville Bowling, L.L.C. v. Prindle, 2012-Ohio-3173.]
Gwin, J.,
{¶1} Appellants Jeffrey B. Prindle, II, Kim C. Prindle and Sunrise Bowl, Inc.
[“Appellants”] appeal the December 14, 2011 and January 20, 2012 judgment entries
denying their extension of time to move or plead and granting appellee Zanesville
Bowling, LLC’s motion for default judgment in a declaratory judgment action.
STANDARD OF REVIEW
{¶2} This case comes to us on the accelerated calendar. App. R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal. The appeal will be determined
as provided by App. R. 11. 1. It shall be in sufficient compliance with App.
R. 12(A) for the statement of the reason for the court's decision as to each
error to be in brief and conclusionary form. The decision may be by
judgment entry in which case it will not be published in any form.
{¶3} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusionary decision more quickly than in a case
on the regular calendar where the briefs, facts and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655(10th
Dist. 1983). This appeal shall be considered in accordance with the aforementioned
rule.
FACTS AND PROCEDURAL HISTORY
{¶4} Appellee is the owner of certain real property. Appellants are the former
owners of the property who lost title because of a foreclosure action. However,
appellants were also the named lessees of a portion of the premises. Muskingum County, Case No. CT12-0010 3
{¶5} On or about July 15, 2011 appellee served appellants with a Notice to
Terminate Tenancy. Appellants have vacated the premises.
{¶6} On November 4, 2011, appellee filed a complaint for a declaratory
judgment declaring that the lease has been terminated and that appellants have no
further rights in the premises. A process server personally served appellants on
November 9, 2011. Notwithstanding appellee’s request for service by the process
server, the clerk of courts also sent service out by certified United States mail, which
was received by the appellants on November 14, 2011.
{¶7} Appellants hired counsel who requested an extension from the original
deadline of December 7, 2011. Appellee informed appellants’ counsel that it would
agree to an extension to December 12, 2011; however, appellee would not consent to
an extension beyond that date.
{¶8} On December 13, 2011, appellants filed a motion for an extension of time
to January 11, 2012 to file an answer. Appellants did not submit a proposed answer with
the motion. Also on December 13, 2011, appellee filed a Motion for Default Judgment
and Motion to Deny Request for Extension of Time.
{¶9} The trial Court denied appellants' request for an extension of time to file an
answer by judgment entry filed December 14, 2011. Also on that date, the trial court
granted appellee’s motion for default judgment.
{¶10} In granting judgment against appellants, the trial court noted that
appellants' "motion for an extension was filed after their answer deadline, but
[appellants] failed to demonstrate or allege excusable neglect as required." Muskingum County, Case No. CT12-0010 4
{¶11} On January 11, 2012, appellants filed a Motion for Leave to File Answer
Instanter, attaching a proposed answer, generally denying the allegations. The trial
court overruled appellants’ request by judgment entry filed January 20, 2012.
{¶12} Appellants filed a notice of appeal in this court on February 21, 2012
appealing the trial court’s entries of December 14, 2011 and January 20, 2012.
ASSIGNMENTS OF ERROR
{¶13} Appellants raise the following two assignments of error,
{¶14} “I. WHETHER THE TRIAL COURT’S DENIAL OF EXTENSION OF TIME
TO MOVE OR PLEAD WAS AN ABUSE OF DISCRETION.
{¶15} “II. WHETHER COUNTY CLERK’S FAILURE TO TIMELY SERVE TRIAL
COURT’S JOURNAL ENTRY GRANTING SUMMARY JUDGMENT [SIC.] WAS
DENIAL OF DUE PROCESS TO DEFENDANTS.”
I.
{¶16} Appellants claim the trial court abused its discretion in denying their
motion for an extension of time to file their answer. We disagree.
{¶17} Civ. R. 6 governs extensions of time and provides, in pertinent part:
(B) Time: extension
When by these rules or by a notice given thereunder or by order of
court an act is required or allowed to be done at or within a specified time,
the court for cause shown may at any time in its discretion (1) with or
without motion or notice order the period enlarged if request therefore is
made before the expiration of the period originally prescribed or as
extended by a previous order, or (2) upon motion made after the Muskingum County, Case No. CT12-0010 5
expiration of the specified period permit the act to be done where the
failure to act was the result of excusable neglect; but it may not extend the
time for taking any action under Rule 50(B), Rule 59(B), Rule 59(D), and
Rule 60(B), except to the extent and under the conditions stated in them.
{¶18} Civ.R. 12(A)(1) expressly provides that “(t)he defendant shall serve his
answer within twenty-eight days after service of the summons and complaint upon him.”
Hence, appellants in this case were required to file an answer or to request an
extension on or before December 7, 2011.
{¶19} The granting or denial of a motion for extension of time is within the
discretion of the trial court and the trial court's decision will not be disturbed on appeal
unless the court abused its discretion. An abuse of discretion implies an unreasonable,
arbitrary or unconscionable attitude of the trial court. Ruwe v. Board of Springfield
Township Trustees, 29 Ohio St.3d 59, 61, 505 N.E.2d 957(1987); see, Sgro v.
McDonald's Restaurant, 21 Ohio App.3d 41, 42, 486 N.E.2d 157(1984).
{¶20} The standard for “abuse of discretion” is defined as more than error of law
or judgment, but implies an attitude on the part of the trial court that is unreasonable,
arbitrary or unconscionable. State, ex rel. Cook, v. Zimpher , 17 Ohio St.3d 236, 240,
479 N.E.2d 263, 266(1985); State v. Maurer, 15 Ohio St.3d 239, 250, 473 N.E.2d 768,
780(1984); and Ojalvo v. Bd. of Trustees of Ohio State Univ., 12 Ohio St.3d 230, 232,
466 N.E.2d 875, 877(1984).
{¶21} In the case at bar, the trial court noted that the answer date for appellants
was December 7, 2011. Although appellee may have agreed to appellants filing a “late”
answer on December 12, 2011, appellant did not. Rather, appellant filed a request to Muskingum County, Case No. CT12-0010 6
extend the answer deadline another 30 days. The trial court therefore considered the
appellant’s request under Civ.R. 6(B)(2) which provides that such a late filing can only
be accomplished “upon motion” and “where the failure to act was the result of excusable
neglect.”
{¶22} Nowhere by motion, memorandum or argument does appellant advance a
reason for failing to file an answer that would constitute “excusable neglect.”
“Furthermore, the failure of the defendant to comply, even substantially, with the
procedures outlined in the Civil Rules subjected [them] to the motion for a default
judgment, and the plaintiffs, having complied with the Civil Rules, had a right to have
their motion heard and decided before the cause proceeded to trial on its merits.” Miller
v. Lint, 62 Ohio St.2d 209, 214, 404 N.E.2d 752(1980).
{¶23} Clearly, the request for leave was untimely. Pursuant to the civil rules
and Miller, we find the trial court did not abuse its discretion in denying appellant's
motion for a thirty-day extension to file an answer.
{¶24} Appellants’ first assignment of error is overruled.
II.
{¶25} On March 1, 2012, appellee filed a motion to dismiss this appeal for lack
of jurisdiction contending that the time to appeal the trial court’s December 14, 2011
judgment entry had expired. Appellants filed a response. By judgment, entry filed March
16, 2012, this court found that it would address the issue of service of the trial court’s
December 14, 2011 judgment entry on the merit review and invited the parties to
address the issue in their respective briefs. Muskingum County, Case No. CT12-0010 7
{¶26} In response to appellee’s motion, appellants’ counsel “swears and affirms
that he never received a timely copy of the December 14, 2011 Default Judgment Entry
until January 25, 2012.”
{¶27} Accordingly, we find under the facts of this case that appellants’ appeal
was timely filed.
{¶28} Appellee’s motion to dismiss is therefore overruled.
{¶29} For the forgoing reasons, the judgment of the Muskingum County Court of
Common Pleas is affirmed.
By Gwin, J.,
Delaney, P.J., and
Edwards, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. PATRICIA A. DELANEY
_________________________________ HON. JULIE A. EDWARDS
WSG:clw 0620 [Cite as Zanesville Bowling, L.L.C. v. Prindle, 2012-Ohio-3173.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ZANESVILLE BOWLING, LLC : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JEFFREY B. PRINDLE, II, ET AL : : : Defendants-Appellants : CASE NO. CT12-0010
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Muskingum County Court of Common Pleas is affirmed. Costs to appellant.