[Cite as Middleton v. Luna's Restaurant & Deli, L.L.C.,

.]

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),

,

. In

order to find abuse of discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983),

,

{¶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),

,

, 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

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,

.

{¶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),

,

. 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),

,

; see, also,

; GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976),

,

. Generally, a failure to plead or respond after

admittedly receiving a copy of a complaint is not “excusable neglect.” Katko v. Modic

(1993),

,

. Likewise, a person's failure to seek

legal assistance after being served with court documents is not excusable. Associated

Estates Corp. v. Fellows (1983),

,

. 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,

(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,

(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),

,

.

{¶33} In

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.

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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.

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JUDGES