Tarquinio v. Estate of Zadnik

[Cite as Tarquinio v. Estate of Zadnik, 2011-Ohio-3980.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 95767 and 96246
KEVIN TARQUINIO, ET AL.
PLAINTIFFS-APPELLANTS
vs.
ESTATE OF DONALD ZADNIK, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-716225
BEFORE: Rocco, J., Blackmon, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: August 11, 2011
ATTORNEY FOR APPELLANTS
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Joseph A. Pfundstein
29325 Chagrin Blvd., Suite 305
Pepper Pike, Ohio 44122
ATTORNEYS FOR APPELLEES
For Christie C. Adams
Kevin M. Spellacy
McGinty, Hilow & Spellacy Co., LPA
The Rockefeller Bldg., Suite 1300
614 West Superior Avenue
Cleveland, Ohio 44113
For Estate of Donald E. Zadnik
William L. Danko
McGinty, Hilow & Spellacy Co., LPA
The Rockefeller Bldg., Suite 1300
614 West Superior Avenue
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} In these appeals that have been consolidated for briefing,
hearing, and disposition, plaintiffs-appellants Kevin Tarquinio and K & A
Forest City Café, LLC appeal from two orders of the trial court. The first
dismissed appellants’ action against defendants-appellees the Estate of
Donald Zadnik, Zadnik’s Forest City Café, LLC, and Christie C. Adams. The
second denied appellants’ motion for relief from that dismissal.
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{¶ 2} Appellants present two assignments of error. They argue the
trial court abused its discretion in issuing both orders. Upon a review of the
record, this court disagrees. Consequently, the trial court’s orders are
affirmed.
{¶ 3} The record reflects this case had been previously dismissed and
appellants refiled it on January 22, 2010. By means of its electronic docket,
the trial court scheduled a case management conference for April 6, 2010.
See Loc.R. 19.1; State ex rel. Engelhart v. Russo, Cuyahoga App. No. 96387,
2011-Ohio-2410, ¶25-32. The trial court indicated the following matters
would be determined: the discovery schedule, the amount in controversy, the
exchange of expert reports, the date for the final pretrial conference, and any
“referrals.” The court further stated that a “binding case management order”
would be entered into at the conference.
{¶ 4} The conference proceeded as scheduled. On April 7, 2010, the
trial court issued a journal entry that stated that the “oral motion [made at
the conference] to include all discovery from [the] previously filed case [was]
granted.” The April 7, 2010 journal entry also provided that appellants had
fourteen days to file an amended complaint, and that the parties requested a
referral to “business mediation” pursuant to Loc.R. 21.2. Since the
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mediation would be held in June, the trial court scheduled a pretrial hearing
for July 22, 2010.
{¶ 5} Appellants timely filed their amended complaint. They alleged
six causes of action against appellees, including conversion, breach of
contract, fraud, and unjust enrichment with respect to appellants’ intent to
purchase a business concern from Donald Zadnik. On June 28, 2010, after
appellees had filed their separate answers to the amended complaint, the
trial court issued an electronic journal entry that cancelled the July 22, 2010
pretrial hearing.
{¶ 6} On July 7, 2010, the trial court issued another electronic journal
entry setting another case management conference for August 5, 2010. The
order indicates that “notice [was] sent” to counsel.
{¶ 7} The next entry on the trial court’s docket is a written journal
entry dated August 5, 2010 stating as follows:
{¶ 8} “Pre-trial held on August 5, 2010. [Appellants’] counsel did not
appear. [Appellees] have outstanding discovery that has not been responded
to by [appellants]. As a result, a scheduled mediation was not productive.
Additionally, a second mediation scheduled for 8/9/10 must now be continued.
Therefore, [appellants] ha[ve] until 8/20/10 to provide responses to all
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outstanding discovery and file notice of compliance with the court or this case
shall be dismissed with prejudice for failure to prosecute. * * * .”
{¶ 9} On August 26, 2010, the trial court issued a written journal entry
noting that appellants had failed to comply with the previous order. The
trial court dismissed appellants’ case with prejudice for failure to prosecute.
{¶ 10} On August 27, 2010, appellants’ counsel filed a notice of
compliance. Appellants’ counsel attached unverified copies of what
purported to be “completed interrogatory answers,” e-mail shipping
notifications, and notifications of delivery to appellees’ counsel.
{¶ 11} On September 7, 2010, appellants filed a Civ.R. 60(B) motion for
relief from judgment. Appellants averred in their brief in support of their
motion that their attorney inadvertently did not place the August 5, 2010
hearing date into his calendar.
{¶ 12} Appellants attached their attorney’s affidavit to their motion. A
review of the attorney’s affidavit, however, indicates he averred only that he
delivered the discovery to appellees’ counsel before August 20, 2010; counsel
acknowledged he “unintentionally for[got] to notify the court of his
compliance” with the August 5, 2010 order.
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{¶ 13} Appellants filed a notice of appeal from the dismissal of their
case, designated App. No. 95767. This court subsequently remanded the
case to the trial court for a decision on appellant’s Civ.R. 60(B) motion.
{¶ 14} On December 10, 2010, the trial court issued a journal entry that
denied appellant’s Civ.R. 60 (B) motion. The court stated that “counsel’s
reasons for failure to comply” with the trial court’s August 5, 2010 order did
not qualify as “excusable neglect,” because “the inaction of a defendant [sic] is
not excusable neglect if it can be labeled as ‘a complete disregard for the
judicial system.’ Kay v. Marc Glassman, Inc. (1996), 76 Ohio St. 3d 18, 20,
665 N.E.2d 1102 * * * .”
{¶ 15} Appellants also filed a notice of appeal from the foregoing order.
It has been designated App. No. 96246, and the two appeals have been
consolidated.
{¶ 16} Appellants present two assignments of error, as follows.
“I. The trial court abused its discretion in dismissing
Plaintiffs-Appellants [sic] complaint as Plaintiffs-Appellants
substantially complied with the order of the court and there
was no showing of willfulness or bad faith.
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“II. The trial court abused its discretion in denying
Plaintiffs-Appellants [sic] motion to vacate judgment as there
clearly was a showing of excusable neglect in the motion.”
{¶ 17} In their first assignment of error, appellants argue neither that
the trial court failed to give them notice of the hearing set for August 5, 2010,
nor that the trial court failed to provide notice of its intent to dismiss this
case if they did not comply with discovery by August 20, 2010. Rather, they
argue that dismissal of their amended complaint against appellees was an
excessive sanction for their failure to comply with “discovery requests” in a
timely manner. This court finds their argument misplaced.
{¶ 18} The trial court in this case gave notice to appellants that their
complaint was subject to potential dismissal for “failure to prosecute.” Civ.R.
41(B)(1) provides that when a “plaintiff fails to prosecute, or comply with
these rules or any court order, the court upon motion of a defendant or on its
own motion may, after notice to the plaintiff’s counsel, dismiss an action or
claim.” (Emphasis added.)
{¶ 19} According to the trial court’s August 5, 2010 order, to maintain
this refiled action, appellants were required to fulfill two duties prior to
August 20, 2010: 1) they had to provide responses to all of appellees’
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outstanding discovery requests; and, 2) they had to file a notice with the court
of their compliance. The record reflects they fulfilled neither.
{¶ 20} The decision to dismiss an action pursuant to Civ.R. 41(B)(1) lies
within the discretion of the trial court. Jones v. Hartranft, 78 Ohio St. 3d
368, 371, 1997-Ohio-203, 678 N.E.2d 530. Appellate review of a dismissal
under Civ.R. 41(B)(1) is limited, therefore, to determining whether the trial
court abused its discretion. Id. The term “abuse of discretion” implies that
the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore (1983), 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140.
{¶ 21} As of August 20, 2010, the trial court received no notice from
appellants of compliance with its order. The trial court nevertheless waited
six additional days before dismissing appellants’ case. Appellants notice of
compliance, even if it were compliance in full, which the record does not
establish, was filed only after the court had already dismissed their case.
Under these circumstances, this court cannot find the trial court’s dismissal
constituted an abuse of discretion. Alam v. Gallogly, Cuyahoga App. No.
93993, 2010-Ohio-5766; Papadelis v. Charter One Bank, Cuyahoga App. No.
84581, 2005-Ohio-288; Whitt v. Zugg, Highland App. No. 03CA8,
2004-Ohio-788, citing Jones; cf., Gunton Corp. v. Architectural Concepts,
Cuyahoga App. No. 89725, 2008-Ohio-693.
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{¶ 22} Consequently, appellants’ first assignment of error is overruled.
{¶ 23} Appellants argue in their second assignment of error that relief
from the dismissal of their case was warranted due to the circumstances
surrounding their failure to comply with the trial court’s order. Their
argument is incomplete and, thus, unpersuasive.
{¶ 24} Civ.R. 60(B) provides in relevant part:
{¶ 25} “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;
{¶ 26} * * * .”
{¶ 27} Similarly to the trial court’s decision made pursuant to Civ.R.
41(B)(1), this court reviews the denial of Civ.R. 60(B) motion for an abuse of
discretion. Associated Estates Corp. v. Fellows (1983), 11 Ohio App. 3d 112,
117, 463 N.E.2d 417; Doddridge v. Fitzpatrick (1978), 53 Ohio St. 2d 9, 12, 371
N.E.2d 214. To prevail on a motion brought under Civ.R. 60(B), the movant
must demonstrate the following:
{¶ 28} “(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
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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.” GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976),
47 Ohio St. 2d 146, 351 N.E.2d 113, paragraph two of the syllabus.
{¶ 29} If the movant fails to establish even one of the three elements
enumerated, the trial court must deny the motion. State ex rel. Richard v.
Seidner, 76 Ohio St. 3d 149, 1996-Ohio-54, 666 N.E.2d 1134.
{¶ 30} In this case, appellants failed to address the first element in their
motion, i.e., that appellants had a meritorious claim. Their motion, instead,
focused only on the second element. Under these circumstances, the trial
court was not required to proceed to the next step, and a denial of appellants’
motion was appropriate. Gen. Motors Acceptance Corp. v. Uhase (Oct. 21,
1993), Cuyahoga App. No. 65264.
{¶ 31} Moreover, the record does not demonstrate excusable neglect
warranting relief. The court in GTE defined “excusable neglect” in the
negative, stating that it is not excusable for an attorney to conduct himself in
a manner that demonstrates a complete disregard of the judicial system and
the rights of the opposing party. Id., at 152.
{¶ 32} In this case, appellants “voluntarily chose” their attorney, whom
the record reflects: 1) failed to fully comply with appellees’ requests for
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discovery in a timely manner even after refiling the case; 2) failed to attend
the August 5, 2010 hearing after having been notified of the consequences
should he fail to attend; and, 3) failed to comply with either portion of the
order that resulted from that hearing. “In other words, there is nothing
before us from which to conclude that [appellants’] inaction, in reliance upon
[their attorney], was excusable.” Gary R. Gorby & Assoc., LLC v. McCarty,
Clark App. No. 2010 CA 71, 2011-Ohio-1983, ¶47; GTE; cf., CB Group, Inc. v.
Starboard Hospitality, L.L.C., Cuyahoga App. No. 93387, 2009-Ohio-6652.
{¶ 33} Since nothing supports a conclusion that the trial court abused its
discretion in denying appellants’ Civ.R. 60(B) motion, appellants’ second
assignment of error also is overruled.
{¶ 34} The trial court’s orders are affirmed.
It is ordered that appellees recover from appellants 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.
__________________________________
KENNETH A. ROCCO, JUDGE
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PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR