Maggiore v. Barensfeld , 2012 Ohio 2909 ( 2012 )

[Cite as Maggiore v. Barensfeld, 2012-Ohio-2909.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHRISTOPHER MAGGIORE : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Julie A. Edwards, J.
-vs- :
: Consolidated Case Nos. 2011CA00180
& 2011CA00230
GLEN BARENSFELD :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2010CV03792
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 22, 2012
APPEARANCES:
For Appellee: For Appellant:
OWEN J. RARRIC RANDOLPH L. SNOW
4775 Munson St. NW JAMES M. WHERLEY, JR.
P.O. Box 36963 220 Market Ave. S., Suite 1000
Canton, OH 44735-6963 Canton, OH 44702
JEFFREY T. KNOLL
JOHN P. SUSANY
3475 Ridgewood Rd.
Akron, OH 44333
Delaney, P.J.
{¶1} Defendant-Appellant Glen Barensfeld appeals the September 29, 2011
judgment entry of the Stark County Court of Common Pleas affirming and adopting the
July 19, 2011 Magistrate’s Decision to deny Barensfeld’s Motion for Relief from
Judgment.
FACTS AND PROCEDURAL HISTORY
{¶2} On October 13, 2010, Plaintiff-Appellee Christopher Maggiore filed a
Complaint on a Note in the Stark County Court of Common Pleas. Maggiore alleged
on or about April 17, 2002, Barensfeld executed and delivered to Maggiore a cognovit
promissory note in the amount of $277,219.63 with interest at the rate of 8.5% per
annum. Maggiore alleged that as collateral for the Note, Barensfeld executed and
delivered a Mortgage Deed for real property located in Ohio and recorded in Medina
County. The principal and interest on the Note was payable in full five years from the
date of execution. Maggiore alleged more than five years had passed and Barensfeld
failed to make any payment despite demand.
{¶3} Barensfeld is a California resident. Barensfeld was served with the
summons and Complaint on October 18, 2010. Pursuant to Civ.R. 12, an answer was
due on November 15, 2010.
{¶4} Barensfeld did not respond to the Complaint, or otherwise defend the
matter within the 28-day time period set by Civ.R. 12. On November 16, 2010, the
29th day from service of the Complaint, Maggiore moved for default judgment and
submitted a proposed judgment entry. The trial court granted the Motion for Default
Judgment on November 16, 2010 at 2:20 p.m.
{¶5} On November 16, 2010 at 5:13 p.m., Barensfeld filed a Notice of
Removal with the United States District Court for the Northern District of Ohio, Eastern
Division (Maggiore v. Barensfeld, N.D.Ohio No. 5:10cv2622). Barensfeld removed the
case on the basis of diversity jurisdiction. 28 U.S.C. 1332. Barensfeld filed a notice
with the Stark County Court of Common Pleas on November 17, 2010 at 9:06 a.m.
indicating the case had been removed to federal court.
{¶6} Barensfeld filed an Answer and Counterclaim in federal court. Maggiore
filed a Motion for Default Judgment and a Motion to Strike Barensfeld’s Answer and
Counterclaim. Barensfeld responded to the motion and filed a Motion for Relief from
Judgment, requesting the federal court to vacate the state court default judgment. On
May 12, 2011, the federal court issued its ruling granting Maggiore’s Motion to Strike
and denying Barensfeld’s Motion for Relief from Judgment. The federal court
remanded the case to the Stark County Court of Common Pleas.
{¶7} On June 10, 2011, Barensfeld filed a Motion for Relief from Judgment.
An oral hearing was held before the Magistrate on June 30, 2011. The Magistrate
issued a Decision denying the Motion for Relief from Judgment on July 19, 2011. The
Magistrate found Barensfeld’s failure to timely answer or otherwise defend was not the
result of “mistake” or “excusable neglect,” but rather a strategic decision by Barensfeld
not to respond to the state litigation but to focus on removing the matter to federal
court.
{¶8} Barensfeld filed objections to the Magistrate’s Decision. On September
29, 2011, the trial court affirmed and adopted the Magistrate’s Decision.
{¶9} It is from this judgment Barensfeld now appeals.
ASSIGNMENTS OF ERROR
{¶10} Barensfeld raises one Assignment of Error:
{¶11} “THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO
VACATE THE INSTANT DEFAULT JUDGMENT, WHICH WAS ENTERED ON THE
29TH DAY AFTER SERVICE OF THE COMPLAINT, EVEN THOUGH BARENSFELD
TIMELY REMOVED THE CASE TO FEDERAL COURT AND TIMELY ANSWERED
WITH THE FEDERAL COURT AFTER REMOVAL.”
ANALYSIS
STANDARD OF REVIEW
{¶12} The decision whether to grant a motion for relief from judgment under
Civ.R. 60(B) lies within the trial court's sound discretion. Griffey v. Rajan, 33 Ohio St.3d
75, 514 N.E.2d 1122 (1987). In order to find abuse of discretion, we must determine the
trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, (1983).
{¶13} A party seeking relief from judgment pursuant to Civ.R. 60(B) must show:
“(1) a meritorious defense or claim to present if relief is granted; (2) entitlement to relief
under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must be
timely filed.” GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146,
351 N.E.2d 113 (1976), paragraph two of the syllabus. A failure to establish any one of
these three requirements will cause the motion to be overruled. Rose Chevrolet, Inc. v.
Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988); Argo Plastic Prod. Co. v.
Cleveland, 15 Ohio St.3d 389, 391, 474 N.E.2d 328 (1984).
{¶14} Barensfeld brought his Motion for Relief from Judgment pursuant to
Civ.R. 60(B)(1), (3), and (5). Civ.R. 60(B)(1) states a party may be granted relief from
judgment if there was “mistake, inadvertence, surprise or excusable neglect.” Civ.R.
60(B)(3) provides there may be relief from a judgment if there is “a fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct
of an adverse party.” Finally, Civ.R. 60(B)(5) grants relief for any other reason
justifying relief from the judgment.
{¶15} The trial court assumed, for purposes of the Magistrate’s Decision,
Barensfeld met the first element of the GTE test by having a meritorious defense to
Maggiore’s complaint. The trial court also determined that Barensfeld’s Motion for
Relief from Judgment was timely filed. Based on the analysis below, we find no abuse
of discretion as to the trial court’s determination on the first and third elements of the
GTE test. We then turn to the second element of the GTE test: whether Barensfeld is
entitled to relief under Civ.R. 60(B)(1), (3), or (5).
“A PRICKLY LITTLE TECHNICAL PROBLEM”: CIV.R. 12, FED.R.CIV.P. 81, AND
28 U.S.C. 1446
{¶16} The issue in this case is the interplay between the Ohio Civil Rules of
Procedure and the Federal Rules of Civil Procedure when a party removes a state
court case to federal court. The thrust of Barensfeld’s motion for relief from judgment
is that due to a mistake in law characterized as excusable neglect, Barensfeld
misinterpreted Civ.R. 12, Fed.R.Civ.P. 81 and 28 U.S.C. 1446 and failed to timely
answer the Complaint filed in the Stark County court case.
{¶17} Barensfeld was served with the Complaint on October 18, 2010. Civ.R.
12 establishes the date by which a defendant shall serve his answer:
(A) When answer presented
(I) Generally. The defendant shall serve his answer within twenty-eight
days after service of the summons and complaint upon him; if service of
notice has been made by publication, he shall serve his answer within
twenty-eight days after the completion of service by publication.
{¶18} In order to determine when Barensfeld’s answer was due in the Stark
County case, we also look to Civ.R. 6. Civ.R. 6(A) provides:
In computing any period of time prescribed or allowed by these
rules, by the local rules of any court, by order of court, or by any
applicable statute, the day of the act, event, or default from which the
designated period of time begins to run shall not be included. The last
day of the period so computed shall be included, unless it is a Saturday,
a Sunday, or a legal holiday, in which event the period runs until the end
of the next day which is not a Saturday, a Sunday, or a legal holiday.
When the period of time prescribed or allowed is less than seven days,
intermediate Saturdays, Sundays, and legal holidays shall be excluded in
the computation. When a public office in which an act, required by law,
rule, or order of court, is to be performed is closed to the public for the
entire day which constitutes the last day for doing such an act, or before
its usual closing time on such day, then such act may be performed on
the next succeeding day which is not a Saturday, a Sunday, or a legal
holiday.
{¶19} Pursuant to Civ.R. 12 and Civ.R. 6, the 28-day period began on October
19, 2010 and ended on November 15, 2010, a Monday that was not a legal holiday.
Barensfeld’s answer in the Stark County action was due on November 15, 2010.
{¶20} However, Barensfeld did not wish to defend his case in state court. On
November 16, 2010, based on diversity jurisdiction, Barensfeld removed the Stark
County action to federal court. Under the Ohio Rules of Civil Procedure, this was the
29th day. Under 28 U.S.C. 1446(b)(1), “[t]he notice of removal of a civil action or
proceeding shall be filed within 30 days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading setting forth the claim for relief
upon which such action or proceeding is based, or within 30 days after the service of
summons upon the defendant if such initial pleading has then been filed in court and is
not required to be served on the defendant, whichever period is shorter.”
{¶21} Fed.R.Civ.P. 81(c)(2) provides guidelines for a party to file an answer in
the federal court action after the case has been removed from state court:
(c) Removed Actions.
(1) Applicability. These rules apply to a civil action after it is removed
from a state court.
(2) Further Pleading. After removal, repleading is unnecessary unless
the court orders it. A defendant who did not answer before removal must
answer or present other defenses or objections under these rules within
the longest of these periods:
(A) 21 days after receiving -- through service or otherwise -- a
copy of the initial pleading stating the claim for relief;
(B) 21 days after being served with the summons for an initial
pleading on file at the time of service; or
(C) 7 days after the notice of removal is filed.
{¶22} In the present case, Barensfeld filed his Answer in the federal court
action on November 22, 2010, six days after removal.
{¶23} Upon Barensfeld’s Answer in federal court, Maggiore filed a Motion to
Strike the Answer based on the default judgment awarded on November 15, 2010 in
the Stark County action. Barensfeld opposed the motion, arguing the application of
Civ.R. 12, 28 U.S.C. 1446(b), and Fed.R.Civ.P. 81(c)(2)(C) created a “prickly little
technical problem” when a case was removed from state court to federal court. See
Burroughs v. Palumbo, 871 F.Supp. 870 (E.D. VA 1994). Barensfeld argued he could
either file an answer in state court within 28 days pursuant to Civ.R. 12 or if he
removed the action to federal court within 30 days of the filing of the action pursuant to
28 U.S.C. 1446(b), he was granted seven days from the date of removal in which to
file an answer in federal court under Fed.R.Civ.P 81(c)(2)(C). (Maggiore v.
Barensfeld, N.D.Ohio No. 5:10cv2622, May 12, 2011 Memorandum Opinion and
Order.)
{¶24} The federal court granted the motion to strike Barensfeld’s Answer. It
found that regardless of the application of the Rules of Civil Procedure, default
judgment was granted in the Stark County action before Barensfeld removed the case
to federal court. Because there was a default judgment granted in the state court
action prior to removal, the federal court “takes the case as it finds it on removal and
treats everything that occurred in the state court as if it had taken place in federal
court.” Butner v. Neustadter, 324 F.2d 783 (9th Cir. 1963).
{¶25} The federal court next considered Barensfeld’s alternative motion for
relief from the default judgment and denied that motion as well. The matter was
returned to the Stark County Court of Common Pleas.
{¶26} In his motion for relief from judgment before the Stark County Court of
Common Pleas, Barensfeld argued his failure to respond to the complaint was the
result of “mistake, inadvertence, surprise, or excusable neglect.” Civ.R. 60(B)(1). To
determine whether neglect is “excusable” or “inexcusable” under Civ.R. 60(B)(1), a
court must consider all of the surrounding facts and circumstances. Rose Chevrolet,
Inc. v. Adams, 36 Ohio St.3d 17, 21, 520 N.E.2d 564 (1988). The Ohio Supreme
Court has defined “excusable neglect” in the negative by stating that, “ * * * the inaction
of a defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for
the judicial system.’“ Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d
1102 (1996), citing GTE, at 153.
{¶27} Although excusable neglect is an “elusive concept,” “the failure to plead or
respond after admittedly receiving a copy of a complaint is generally not excusable
neglect.” Dutton v. Potroos, 5th Dist. No. 2010CA00318, 2011-Ohio-3646 citing LaSalle
Nat. Bank v. Mesas, 9th Dist. No. 02CA008028, 2002-Ohio-6117, at ¶ 13.
{¶28} Excusable neglect has been further defined as some action “not in
consequence of the party's own carelessness, inattention, or willful disregard of the
process of the court, but in consequence of some unexpected or unavoidable
hindrance or accident.” Emery v. Smith, 5th Dist. Nos. 2005CA00051, 2005CA00098,
2005-Ohio-5526, ¶ 16 citing Vanest v. Pillsbury Co., 124 Ohio App.3d 525, 536 fn. 8,
706 N.E.2d 825 (4th Dist. 1997). “Excusable neglect is not present if the party
seeking relief could have prevented the circumstances from occurring.” Porter,
Wright, Morris & Arthur, LLP v. Frutta Del Mondo, Ltd., 10th Dist. No. 08AP-69, 2008-
Ohio-3567, ¶ 22 quoting Stuller v. Price, 10th Dist. No. 02AP-29, 2003-Ohio-583, at ¶
52.
{¶29} The trial court determined Barensfeld failed to establish excusable
neglect or mistake in his failure to file an answer or otherwise defend his position in
the Stark County action. The court reviewed Barensfeld’s actions and found them to
be deliberate, concluding Barensfeld chose to remove the action to federal court for
strategic purposes, rather than make an appearance in the Stark County action until
after the removal was filed. (July 19, 2011 Magistrate’s Decision.)
{¶30} Barensfeld argued he was entitled to relief because he made a mistake
in the law based on Civ.R. 12, Fed.R.Civ.P. 81, and 28 U.S.C. 1446, as he argued in
federal court. The argument was that he understood the law to be that he could either
file an answer in state court within 28 days of service of the complaint under Civ.R. 12
or, under Fed.R.Civ.P. 81 and 28 U.S.C. 1446, he could remove the action to federal
court within 30 days of receipt of service of the complaint and file his answer in federal
court within seven days of removal. While that statement of law is correct, there are
intervening procedural circumstances in this case to make it inapplicable to
Barensfeld. Barensfeld did not remove the case to federal court until the 29th day.
Maggiore filed his motion for default judgment on the 29th day and it was granted
before Barensfeld removed the case to federal court.
{¶31} The trial court rejected Barensfeld’s argument based in part on the May
12, 2011 federal court memorandum opinion in Maggiore v. Barensfeld, N.D.Ohio No.
5:10cv2622. The trial court further held “mistakes of legal advice or mistakes of law
are not within the contemplation of Civ.R. 60(B)(1).” Cleveland Municipal School Dist.
v. Farson, 8th Dist. No. 89525, 2008-Ohio-912. Barensfeld argues this Court has
found numerous times that a mistake in the law demonstrated excusable neglect. See
Campbell v. Aepli, 5th Dist. Nos. CT06-0069, CT06-0063, 2007-Ohio-3688;
McFedericks, Inc. v. Strouse, 5th Dist. No. 09COA014, 2009-Ohio-6253. A review of
these cases show, based on the facts and circumstances presented, the parties
established excusable neglect. In this case, we cannot find the trial court abused its
discretion is reaching an opposite conclusion.
{¶32} Barensfeld’s failure to file an answer or otherwise defend in the Stark
County action was not the consequence of some unexpected or unavoidable
hindrance or accident. Pursuant to the Ohio Rules of Civil Procedure, Barensfeld
could have prevented the default judgment from occurring in the Stark County action.
CIV.R. 60(B)(3)
{¶33} Barensfeld next argues he is entitled to relief based on Civ.R. 60(B)(3).
This provision establishes that relief from judgment may be granted if the judgment
was the result of fraud, misrepresentation, or other misconduct of the adverse party.
Barensfeld argues that by filing his motion for default judgment on November 16,
2011, Maggiore engaged in fraud, misrepresentation, or misconduct.
{¶34} As stated above, pursuant to the Ohio Rules of Civil Procedure,
Barensfeld’s answer or otherwise was due in the Stark County action on November
15, 2010. Maggiore filed his motion for default judgment on November 16, 2010 under
Civ.R. 55. We can find no fraud or misrepresentation with Maggiore’s compliance with
the civil rules.
CIV.R. 60(B)(5)
{¶35} Civ.R. 60(B)(5) operates as a catch-all provision and “reflects ‘the
inherent power of a court to relieve a person from the unjust operation of a judgment.’“
Dutton v. Potroos, 5th Dist. No. 2010CA00318, 2011–Ohio–3646, at ¶ 49 citing Chuck
Oeder Inc. v. Bower, 9th Dist. No. 23785, 2007–Ohio–7032, at ¶ 10. It is reserved for
“extraordinary and unusual case[s],” Myers v. Myers, 9th Dist. No. 22393, 2005–Ohio–
3800, at ¶ 14, and “is not a substitute for the enumerated grounds for relief from
judgment[.]” Id.{¶36} We do not find the facts and circumstances of this case present this
Court with an extraordinary and unusual situation to warrant the application of Civ.R.
60(B)(5).
{¶37} Accordingly, Barensfeld’s sole Assignment of Error is overruled.
CONCLUSION
{¶38} Based on the foregoing, we overrule Barensfeld’s sole Assignment of
Error. The trial court did not abuse its discretion in denying Barensfeld’s Motion for
Relief from Judgment.
{¶39} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, P.J.
Wise, J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. JULIE A. EDWARDS
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
CHRISTOPHER MAGGIORE :
:
Plaintiff - Appellee : JUDGMENT ENTRY
:
:
-vs- :
: Consolidated Case Nos.
GLEN BARENSFELD : 2011CA00180 & 2011CA00230
:
Defendant - Appellant :
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. JULIE A. EDWARDS