[Cite as Zanesville Bowling, L.L.C. v. Prindle,

.]

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,

.]

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judgment entry in which case it will not be published in any form.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.,

,

(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,

,

(1987); see, Sgro v.

McDonald's Restaurant,

,

(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 ,

,

(1985); State v. Maurer,

,

(1984); and Ojalvo v. Bd. of Trustees of Ohio State Univ.,

,

(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,

,

(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,

.]

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.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. JULIE A. EDWARDS