Lengacher Holdings, L.L.C. v. Witmer , 2022 Ohio 4147 ( 2022 )

[Cite as Lengacher Holdings, L.L.C. v. Witmer, 2022-Ohio-4147.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
LENGACHER HOLDINGS, LLC,
PLAINTIFF-APPELLEE,
CASE NO. 11-22-03
v.
DAVID WITMER,
DEFENDANT-APPELLANT,
-and- OPINION
MARLENE WITMER, ET AL.,
DEFENDANTS-APPELLEES.
Appeal from Paulding County Common Pleas Court
Trial Court No. CI 21 148
Judgment Affirmed
Date of Decision: November 21, 2022
APPEARANCES:
Ian A. Weber for Appellant
John P. Maxwell for Appellee, Lengacher Holdings, LLC
Case No. 11-22-03
MILLER, J.
{¶1} Defendant-appellant, David Witmer, appeals the March 8, 2022
judgment of the Paulding County Court of Common Pleas denying his motion for
leave to file an answer out of time. For the reasons that follow, we affirm.
I. Facts & Procedural History
{¶2} In November 2019, Marlene Witmer and Susann Witmer sold a parcel
of land in Paulding County to plaintiff-appellee, Lengacher Holdings, LLC.
Marlene is David’s wife. Marlene and Susann agreed to convey the property to
Lengacher free and clear of all liens and other encumbrances. However, the
property was conveyed to Lengacher without a release of David’s dower interest.
{¶3} On October 29, 2021, Lengacher filed a complaint against David,
Marlene, and Susann seeking to quiet title in the property. The summonses and
complaints were sent via certified mail to David and Marlene at their home address
in Grabill, Indiana. On November 3, 2021, Sarah Witmer—David’s adult daughter
and a resident of David and Marlene’s home—took receipt of the summonses and
complaints and signed both for David and for Marlene. Susann was personally
served with the summons and complaint on November 3, 2021.
{¶4} Thereafter, neither David, Marlene, nor Susann filed an answer within
28 days as required by Civ.R. 12(A)(1). On the afternoon of December 3, 2021,
Lengacher filed a motion for default judgment. Approximately two and a half hours
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later, David filed a motion asking the trial court grant him 60 days to “retain counsel
to defend [his] rights and the malicious and fraudulent claims in this complaint.”
(Doc. No. 10). On December 9, 2021, the trial court granted David’s motion and
gave him until February 3, 2022, to file an answer to Lengacher’s complaint. The
trial court directed David to “include with his answer a showing of excusable neglect
for his failure to file a timely answer.” (Doc. No. 11). The trial court also indicated
that Lengacher’s motion for default judgment would remain pending and a hearing
would be set for Lengacher’s motion after the court received David’s answer.
{¶5} David subsequently retained counsel, and on January 27, 2022, David
filed through counsel a “Motion for Leave to File Answer to Plaintiff’s Complaint
Instanter.” The motion stated, in relevant part:
The Defendant, David Witmer, never signed for service of the
certified mail. It was signed by Sarah Witmer on or about November
3, 2021, * * * therefore service was not proper on David on November
3, 2021, and he did not receive or review the Complaint until
December 1, 2021.
***
Defendant’s failure to file an answer to Plaintiff’s complaint was the
result of “excusable neglect,” as set forth in Civil Rule 6(B)(2).
(Doc. No. 13).
{¶6} A “Zoom Conference” was subsequently set for the afternoon of
February 24, 2022. The assignment notice, dated February 7, 2022, stated, “ZOOM
CONFERENCE TO BE HELD ON PLAINTIFF’S MOTION FOR DEFAULT
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JUDGMENT QUIETING TITLE TO REAL PROPERTY.” (Capitalization and
boldface sic.) (Doc. No. 14). The notice indicated that a copy of the notice had been
sent to David. On February 9, 2022, a revised assignment notice was issued, moving
the “Zoom Conference” up to the afternoon of February 23, 2022. The revised
notice indicated that a copy of the notice had been sent to David’s counsel and that
David’s counsel would be appearing in person for the conference, although
Lengacher’s counsel would be appearing remotely.
{¶7} As expected, David’s counsel physically attended the February 23,
2022 conference. However, David was not present at the conference either in person
or remotely. At the conference, David’s counsel represented that David’s “wife did
not give him a copy of the summons until the first part of December – December
1st, and then he had contacted the court and wrote a letter asking for an extension
of time to retain counsel.” (Feb. 23, 2022 Tr. at 7). David’s counsel also stated that
David “claims [Sarah] signed for it, he never saw it, was never handed the envelope
or the service on that. He claims that he got it December 1st * * *. He claims this
was the first time that he was aware of the lawsuit or anything regarding this
transaction.” (Feb. 23, 2022 Tr. at 9).
{¶8} On March 8, 2022, the trial court denied David’s request to file an
answer out of time. In its judgment entry, the trial court suggested service was
properly effected on David when Sarah signed for his summons and complaint on
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November 3, 2021. With respect to the issue of excusable neglect, the trial court
stated:
The Court expected [David] to tell why there was a flaw in the service
and the reason for his failure to file a timely answer. While Defendant
David Witmer did offer a reason for his failure, i.e., he did not sign
for the certified mail and his family did not give it to him, the Court
assessed the credibility of the argument and evidence of non-service
and does not find it to be credible.
(Doc. No. 16). Having denied David’s request, the trial court granted Lengacher’s
motion for default judgment by separate entry.
II. Assignments of Error
{¶9} On April 5, 2022, David timely filed a notice of appeal. He raises the
following two assignments of error for our review:
1. The trial court abused its discretion when it denied
appellant’s motion for leave to file an answer to plaintiff’s
complaint instanter after the appellant was granted leave on
December 9, 2021, to answer plaintiff’s complaint until February
3, 2022, by showing excusable neglect for his failure to file a timely
answer.
2. Whether the trial court not setting the matter for a hearing
was an abuse of discretion.
Because the issues in David’s two assignments of error overlap, we consider them
together.
III. Discussion
{¶10} In his assignments of error, David argues that the trial court erred by
denying his motion without holding a hearing. He claims he ought to have been
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granted leave to file an answer out of time, and that his failure to timely file his
answer was excusable, because he “did not receive the Complaint from his daughter
who signed for it on November 3, 2021, until December 1, 2021.” David further
maintains the trial court erred because it set the matter for a “Zoom Conference * *
*, not a hearing [with] an[] indication that evidence would need to be presented,”
and that “[i]f the matter was set for a hearing[,] [he] would have been present and
he could have testified as to the exact facts of not receiving the complaint until
December 1.”
{¶11} Under Civ.R. 6(B)(2), when “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 * * * upon motion made after the expiration of the specified period permit
the act to be done where the failure to act was the result of excusable neglect[.]” “A
trial court’s Civ.R. 6(B)(2) determination is addressed to the sound discretion of the
trial court and will not be disturbed on appeal absent a showing of an abuse of
discretion.” State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio
St.3d 464, 465 (1995). An abuse of discretion implies the trial court’s decision was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
{¶12} “In determining whether neglect is excusable or inexcusable, this
Court must take into consideration all the surrounding facts and circumstances, and
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must be mindful of the admonition that cases should be decided on their merits,
where possible, rather than procedural grounds.” Univ. of Akron v. Mangan, 9th
Dist. Summit No. 24167, 2008-Ohio-4844, ¶ 10. “When considering these
circumstances and the preference for settling cases on their merits, we are also
mindful that ‘the test for excusable neglect under Civ.R. 6(B)(2) is less stringent
than that applied under Civ.R. 60(B).’” Lester v. Chivington, 3d Dist. Marion No.
9-15-21, 2015-Ohio-5446, ¶ 18, quoting State ex rel. Lindenschmidt at 466.
{¶13} “Excusable neglect has been defined in the negative.” Delitoy v. I.
Stylez Hair & Nails Design, Inc., 8th Dist. Cuyahoga No. 108833, 2020-Ohio-3370,
¶ 18. Courts have found inexcusable neglect “‘when a party’s inaction can be
classified as a “complete disregard for the judicial system.”’” Lester at ¶ 20, quoting
Reimund v. Reimund, 3d Dist. Hancock No. 5-04-52, 2005-Ohio-2775, ¶ 16, quoting
GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 153 (1976).
Neglect has also been found to be inexcusable where it involves “conduct falling
‘substantially below what is reasonable under the circumstances.’” Id., quoting
GTE at 152. “Further, if the party could have prevented the circumstances from
occurring, neglect will not be considered excusable.” Id.{¶14} In contrast, a court might properly find excusable neglect where
“counsel of record suffers from personal or family illness” or where “counsel of
record fails to appear for trial because he has not received notice of a rescheduled
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trial date.” Id. at ¶ 19. “A majority of the cases finding excusable neglect also have
found unusual or special circumstances that justified the neglect of the party or
attorney.” Id.
{¶15} Additionally, as relevant here, excusable neglect may exist when “the
party had neither knowledge nor notice of the pending legal action[.]” Lester, 2015-
Ohio-5446, at ¶ 19. “Courts have also found excusable neglect where a failure to
answer was due to a failure to forward, or other mishandling of, a complaint.”
Twymon v. Eagle Auto Parts, Inc., 8th Dist. Cuyahoga No. 110993, 2022-Ohio-
2360, ¶ 52. However, failure to forward a complaint to the proper party does not
“automatically constitute excusable neglect.” Treasurer of Lucas Cty. v. Mt. Airy
Invests. Ltd., 6th Dist. Lucas No. L-18-1254, 2019-Ohio-3932, ¶ 27. “Where a
failure to answer a complaint is the result of a party’s ‘[i]nsufficient or negligent
internal procedures’ or the party could have otherwise ‘controlled or guarded
against’ the circumstances that led to a party’s failure to answer, courts have often
declined to find excusable neglect.” Twymon at ¶ 53, quoting Middleton v. Luna’s
Restaurant & Deli, LLC, 5th Dist. Stark No. 2011 CA 00004, 2011-Ohio-4388, ¶
31. “Likewise, a party’s failure to answer a complaint is not excusable neglect
‘when it is a result of the party’s own “carelessness, inattention, or willful disregard
of the process of the court.”’” Id. at ¶ 54, quoting Russell v. McDonalds Inc. #3737,
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8th Dist. Cuyahoga No. 109112, 2020-Ohio-4300, ¶ 22, quoting Emery v. Smith, 5th
Dist. Stark Nos. 2005CA00051 and 2005CA00098, 2005-Ohio-5526, ¶ 16.
{¶16} Here, David’s request to file an answer out of time was based on his
assertion that he did not receive or have knowledge of Lengacher’s complaint until
December 1, 2021. It appears the trial court simply did not believe David’s claim,
finding that the “evidence of non-service” was not credible. But in reality, there
was no evidence for the trial court to review. To begin, David’s Civ.R. 6(B)(2)
motion was not supported by affidavit. Strictly speaking, such an affidavit might
not have been necessary for the trial court to grant David’s motion. See Evans v.
Chapman, 28 Ohio St.3d 132, 135 (1986) (observing that it would have been
“preferable” for the movant’s Civ.R. 6(B) motion to be supported by affidavit, but
concluding that the trial court did not abuse its discretion by granting the motion
notwithstanding the lack of affidavit). In the absence of a supporting affidavit, the
trial court still has the discretion to determine whether the grounds stated in the
motion constitute excusable neglect, even when those grounds are less than clear.
See id. (“The trial court had discretion under Civ.R. 6 to find that ‘clerical errors’
constituted excusable neglect.”). However, as a practical matter, the lack of a
supporting affidavit will often result in the trial court properly exercising its
discretion to deny the Civ.R. 6(B)(2) motion as being unsupported by the evidence.
See T.S. Expediting Servs., Inc. v. Mexican Indus., Inc., 6th Dist. Wood No. WD-
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01-060, 2002-Ohio-2268, ¶ 17-22; Scarefactory, Inc. v. D & B Imports, Ltd., 10th
Dist. Franklin No. 01AP-607, 2002 WL 5529, *3-4 (Jan. 3, 2002).
{¶17} In addition, David did not present any testimony or other evidence at
the February 23, 2022 “Zoom Conference” to support his claim of excusable
neglect. David attributes this failure to the fact that he was unaware his Civ.R.
6(B)(2) motion would be addressed during the proceeding. Even if true, this does
not excuse David’s omission. When the “Zoom Conference” was first scheduled, it
was made explicit that the conference was intended to address Lengacher’s motion
for default judgment. Lengacher’s motion for default judgment and David’s Civ.R.
6(B)(2) motion were inextricably linked—when David was granted additional time
to hire an attorney and file a proposed answer, the trial court indicated that
Lengacher’s motion for default judgment would be held open and that a hearing
would be scheduled on the motion once David filed his answer, which was supposed
to include the grounds to support a finding of excusable neglect. Thus, the grant or
denial of Lengacher’s motion for default judgment clearly depended, at least in part,
on whether David established that his failure to timely file an answer was due to
excusable neglect. Given this link, it should have been obvious to David that his
Civ.R. 6(B)(2) motion would be addressed at the February 23, 2022 proceeding.
David does not maintain that he did not have notice of the proceeding, and the record
would belie such an assertion in any case. Nor does the record show that David
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requested or was denied an opportunity to present testimony at the proceeding.
Therefore, we do not find David was deprived of the opportunity to present evidence
to support his claims of excusable neglect. Nor was it error for the trial court to rule
on David’s motion without affording him the chance of a second proceeding at
which to introduce his (purported) evidence of excusable neglect.
{¶18} Because of David’s failure to support his Civ.R. 6(B)(2) motion with
testimony or any other evidentiary-quality materials, the trial court had only the
allegations contained in David’s written motion and his counsel’s oral
representations to rely on when deciding whether there was excusable neglect. As
indicated above, the trial court was evidently unconvinced that David had in fact
been unaware of Lengacher’s complaint until December 1, 2021. In the absence of
actual evidentiary support for David’s claims, the trial court’s decision was not
arbitrary or unreasonable.
{¶19} Yet, even if we were to conclude that the trial court should have taken
David at his word that he did not know about Lengacher’s complaint until December
1, 2021, David still failed to make his case for excusable neglect. Specifically, it
was incumbent on David to provide an explanation why he did not learn of Sarah’s
receipt of the complaint and summons until December 1, 2021, because the reason
for his lack of knowledge was crucial to determining whether his neglect was
excusable or inexcusable. However, there is simply no indication in the record as
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to what Sarah did with the mail after she signed for it. Nor does the record establish
when, or whether, Sarah told David that she had received his mail. The absence of
information pertaining to these matters frustrates the determination of whether
David’s neglect was excusable or not. Since it was David’s responsibility to make
a sufficient showing that the neglect was excusable and he failed to do so, the trial
court did not abuse its discretion by denying David’s Civ.R. 6(B)(2) motion.
{¶20} David’s first and second assignments of error are overruled.
IV. Conclusion
{¶21} For the foregoing reasons, David’s assignments of error are overruled.
Having found no error prejudicial to the appellant herein in the particulars assigned
and argued, we affirm the judgment of the Paulding County Court of Common
Pleas.
Judgment Affirmed
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
/jlr
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