Russo v. Fonseca , 2012 Ohio 5714 ( 2012 )

[Cite as Russo v. Fonseca, 2012-Ohio-5714.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98527
CHRISTINE RUSSO
PLAINTIFF-APPELLANT
vs.
CALIXTO FONSECA
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-760328
BEFORE: Blackmon, A.J., Jones, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: December 6, 2012
ATTORNEY FOR APPELLANT
Ronald A. Annotico
O’Shea & Associates Co., LPA
Beachcliff Market Square
19300 Detroit Road, Suite 202
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Jessica Handlos
Seeley, Savidge, Ebert & Gourash Co.
26600 Detroit Road, 3rd Floor
Cleveland, Ohio 44145
Andrew S. Pollis
Milton A. Kramer Law Clinic Center
Case Western Reserve University
School of Law
11075 East Boulevard
Cleveland, Ohio 44106
PATRICIA ANN BLACKMON, A.J.:
{¶1} Appellant Christine Russo appeals the trial court’s decision
granting Calixto Fonseca’s motion to vacate a default judgment and assigns
the following error for our review:
I. The trial court erred in finding that defendant
demonstrated excusable neglect for the purposes of
Defendant’s Civ.R. 60(B) motion, and thus erred in
vacating Plaintiff’s default judgment.
{¶2} Having reviewed the record and pertinent law, we affirm the trial
court’s decision. The apposite facts follow.
{¶3} On July 25, 2011, Russo filed a complaint against Fonseca
alleging negligence and battery. On August 2, 2011, Fonseca received the
summons and complaint. On September 6, 2011, after Fonseca had failed to
file an answer, Russo filed a motion for default judgment, and the trial court
scheduled a hearing. On September 29, 2011, the trial court conducted a
hearing on the motion for default judgment and on damages. Fonseca failed
to appear at the hearing and the trial court granted judgment in Russo’s favor
in the amount of $96,633.35.
{¶4} On November 7, 2011, Russo filed a creditor’s bill suit against
Fonseca and his two employers in the Medina Municipal Court. Fonseca
failed to file an answer and Russo filed a motion for default judgment. On
April 17, 2012, a hearing on the motion for default judgment was conducted,
but Fonseca failed to appear, the trial court granted Russo’s motion for
default judgment, and ordered Fonseca’s two employers to turn over all
income due Fonseca to Russo.
{¶5} On May 7, 2012, Fonseca filed a motion to vacate the default
judgment on the grounds of excusable neglect. Fonseca attached an
affidavit to the motion detailing the events that led to the instant action.
Fonseca averred that on the evening of August 14, 2010, he attended a social
gathering on a party bus that was hosted by a mutual acquaintance of his and
Russo. Fonseca stated that the bus stopped at several bars around
Cleveland, that he observed Russo drinking heavily throughout the evening
and that, at one point, Russo and her friends were asked to leave a bar for
instigating a fight.
{¶6} Fonseca stated that in the early morning of August 15, 2010, as
the guests of the party bus were boarding the bus to leave downtown
Cleveland, he went to get pizza for the other guests. When Fonseca
returned, he observed Russo and another guest standing outside the bus
engaged in a heated exchange with a man that was not a guest on the bus.
Fonseca stated that when the man threatened Russo and the other guest, he
came to their defense.
{¶7} Fonseca stated that a scuffle ensued when the man threatened
him and attempted to hit him in the face. Fonseca jumped off the ground
and was about to kick the man in self-defense. Russo pushed him from the
side, causing him to lose his balance. Fonseca stated that he, as well as
Russo, fell to the ground, and that his feet must have struck Russo in the face
as they were falling. Fonseca averred that he did not knowingly kick Russo
and did not know she had been injured.
{¶8} Fonseca was arrested, subsequently charged with felonious
assault, but was acquitted following a jury trial in which both he and Russo,
as well as several other guests on the party bus testified. Fonseca received
the civil complaint and the motion for default judgment, but because he was
acquitted in the criminal case, he did not understand that he was supposed to
respond.
{¶9} Fonseca further stated that he received notice that Russo had
filed a motion to continue the hearing on the motion for default judgment, but
mistakenly believed he would receive notice of a new court date. Finally,
Fonseca averred that he received notice of the judgment, but did not
understand its significance until his insurance commissions were withheld.
{¶10} Thereafter, Fonseca, who could not afford an attorney,
contacted the Legal Aid Society of Cleveland. Legal Aid referred Fonseca to
the Milton A. Kramer Law Clinic Center for the Case Western Reserve
University School of Law, who filed the subject motion to vacate the default
judgment.
{¶11} On May 23, 2012, the trial court granted Fonseca’s motion to
vacate the default judgment.
Motion to Vacate
{¶12} In the sole assigned error, Russo argues the trial court erred
when it granted Fonseca’s motion for relief from the default judgment
pursuant to Civ.R. 60(B).
{¶13} Civ.R. 55(B) states that if a trial court enters a default
judgment, the court may set it aside in accordance with Civ.R. 60(B). MCS
Acquisition Corp. v. Gilpin, 11th Dist. No. 2011-G-3037, 2012-Ohio-3018.
{¶14} A motion for relief from judgment under Civ.R. 60(B) is
addressed to the sound discretion of the trial court, and that court’s ruling
will not be disturbed on appeal absent a showing of abuse of discretion. TPI
Asset Mgt., LLC v. Benjamin, 10th Dist. No. 11AP-334, 2011-Ohio-6389, citing
Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). The term
“abuse of discretion” connotes more than an error of law or judgment; it
implies that the court’s attitude is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983), citing
State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980). When applying an
abuse-of-discretion standard, an appellate court may not substitute its
judgment for that of the trial court. Deutsche Bank Natl. Trust Co. v. Oyortey,
10th Dist. No. 11AP-878, 2012-Ohio- 1616, citing Berk v. Matthews, 53 Ohio
St.3d 161, 559 N.E.2d 1301 (1990).
{¶15} Civ.R. 60(B) states in pertinent part, as follows:
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.
{¶16} To prevail on a Civ.R. 60(B) motion to vacate judgment, the
moving party must demonstrate the following:
(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. BAC Home Loans
Servicing L.P. v. Komorowski, 8th Dist. No. 96631,
2012-Ohio-1341, citing GTE Automatic Elec., Inc. v. ARC
Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),
paragraph two of the syllabus.
{¶17} Our analysis will focus on the second prong of the GTE test, i.e.,
entitlement to relief under Civ.R. 60(B)(1) through (5). Fonseca sought relief
under the “excusable neglect” provision in Civ.R. 60(B)(1).
{¶18} The term “excusable neglect” is an elusive concept that has
been difficult to define and to apply. Kay v. Marc Glassman, Inc., 76 Ohio
St.3d 18, 20, 1996-Ohio-430, 665 N.E.2d 1102. Unusual or special
circumstances can justify neglect, but if the party could have controlled or
guarded against the happening or event he later seeks to excuse, the neglect
is not excusable. Natl. City Bank v. Kessler, 10th Dist. No. 03AP-312,
2003-Ohio-6938, ¶ 14.
{¶19} “[A] determination of excusable neglect will turn on the facts
and circumstances presented in each case.” Hopkins v. Quality Chevrolet, Inc.,
79 Ohio App.3d 578, 582, 607 N.E.2d 914 (4th Dist.1992), quoting Colley v.
Bazell, 64 Ohio St.2d 243, 248, 416 N.E.2d 605 (1980) and Doddridge v.
Fitzpatrick, 53 Ohio St.2d 9, 12, 371 N.E.2d 214 (1978). The concept of
excusable neglect must be construed in keeping with the notion that Civ.R.
60(B)(1) is a remedial rule to be construed liberally. Perry v. Gen. Motors
Corp., 113 Ohio App.3d 318, 321, 680 N.E.2d 1069 (10th Dist.1996), citing
Colley at 248.
{¶20} In the instant case, Fonseca admitted that he received the
complaint and subsequent court documents. Generally, a party’s failure to
plead or respond after admittedly receiving a copy of a court document is not
“excusable neglect.” PHH Mtg. Corp. v. Northrup, 4th Dist. No. 11CA6,
2011-Ohio-6814, ¶ 16. After receiving the summons and a copy of the
complaint, a party has an affirmative duty to respond to the complaint in a
timely manner. Kessler, supra at ¶ 16.
{¶21} However, when interpreting the phrase “excusable neglect,” the
United States Supreme Court stated that the standard for reviewing a
rejection of excusable neglect is “an equitable one, taking account of all
relevant circumstances surrounding the party’s omission.” See Cleveland
Mun. School Dist. v. Farson, 8th Dist. No. 89525, 2008-Ohio-912, quoting
Pioneer Invest. Servs. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380,
395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).
{¶22} The supreme court went on to say that these circumstances
include “the danger of prejudice to the [movant], the length of the delay and
its potential impact on judicial proceedings, the reasons for the delay,
including whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.” Id. Pioneer has been acknowledged
to set a more “forgiving” standard and should be given a broad reading. Id.,citing Graphics Comm. Internatl. Union, Local 12 v. Quebecor Printing
Providence, Inc. (1st Cir. R.I. 2001), 270 F.3d 1, 5.
{¶23} Nonetheless, in support of her argument that Fonseca had not
demonstrated excusable neglect, Russo cites John Soliday Fin. Group, LLC v.
Moncreace, 7th Dist. No. 09 JE 11, 2011-Ohio-1471, where the court held that
a pro se defendant’s failure to answer a complaint was not excusable neglect.
Specifically, the court stated: “[a] party who is informed of court action
against him and fails to seek legal assistance does so at his risk and such
conduct cannot be said to constitute ‘excusable neglect’ under Civ.R. 60(B)(1)
or (5) unless a compelling reason is presented, like a serious illness.” Id.,quoting Yuhanick v. Cooper, 7th Dist. No. 96-CO-45,1998 Ohio App. LEXIS
5527(7th Dist.).
{¶24} At first glance, the instant case, also involving a pro se litigant,
appears identical to Soliday. We acknowledge that Fonseca, like the
defendant in Soliday, failed to file an answer, but we are also mindful that
excusable neglect is an elusive concept that has been difficult to define and
to apply. Kay, supra.
{¶25} In the instant case, although Fonseca did not file an answer,
the record indicates that Fonseca averred that he had planned to attend the
default hearing. Fonseca further averred that after receiving notice that
Russo had sought to continue the default hearing, he mistakenly believed
that the court would issue notice of a new date as the court in the criminal
matter had done when a continuance had been requested. Viewed in isolation,
this claim might not be sufficient to constitute excusable neglect.
{¶26} However, we must also consider Fonseca’s patent unfamiliarity
with civil litigation, coupled with the fact that he was acquitted of the
criminal charges, that led him to conclude, in part because of limited financial
resources, that he could represent himself in the civil matter. The totality of
these circumstances arguably weighs in favor of finding excusable neglect and
vacating the default judgment.
{¶27} Significantly, Fonseca’s acquittal in the criminal matter is a
clear signal that he would have a meritorious defense to present if the relief
sought were to be granted. Said acquittal leads us to consider the impact of
Civ.R. 60(B)(5), the catch-all provision, that reflects the inherent power of a
court to relieve a person from the unjust operation of a judgment. Sell v.
Brockway, 7th Dist. No. 11 CO 30, 2012-Ohio-4552, citing Caruso-Ciresi,
Inc. v. Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983).
{¶28} Our consideration is guided by the fact that it is well recognized
that the law generally does not favor default judgments and that cases should
be decided on their merits whenever possible. Wilson v. Lee, 172 Ohio App.3d
791, 2007-Ohio-4542, 876 N.E.2d 1312, ¶ 15 (2d Dist.). Thus, “[w]here timely
relief is sought from a default judgment and the movant has a meritorious
defense, doubt, if any, should be resolved in favor of the motion to set aside
the judgment so that cases may be decided on their merits.” GTE Automatic
Elec. Inc., at paragraph three of the syllabus.
{¶29} We also share the preference, particularly where large sums of
money are at issue, for deciding cases upon their merits instead of by default.
Young v. Walker, 8th Dist. No. 49972, 1986 Ohio App. LEXIS 5282 (8th
Dist.); Colley, supra. Here, Russo obtained a default judgment in the amount
of $96,633.35, against a defendant who had been acquitted following a jury
trial of the underlying basis of the instant civil action. Under these
circumstances, we find no abuse of discretion in the trial court’s decision to
vacate the default judgment and decide the case on the merits. Accordingly,
we overrule the sole assigned error.
{¶30} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
LARRY A. JONES, SR., J., and
SEAN C. GALLAGHER, J., CONCUR