[Cite as Darby Dental Supply, Inc. v. Fischer, 2013-Ohio-3714.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

DARBY DENTAL SUPPLY, INC.                                  JUDGES:
                                                           Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                                 Hon. Sheila G. Farmer, J.
                                                           Hon. Patricia A. Delaney, J.
-vs-
                                                           Case No. 2012CA00195
RICHARD B. FISCHER

        Defendant-Appellant                                OPINION




CHARACTER OF PROCEEDING:                               Appeal from the Massillon Municipal Court,
                                                       Case No. 2011CVF906


JUDGMENT:                                              Affirmed


DATE OF JUDGMENT ENTRY:                                August 26, 2013


APPEARANCES:


For Plaintiff-Appellee                                 For Defendant-Appellant


MARK SHERIFF                                           TYLER W. KAHLER
DALE D. COOK                                           Law Office of Joseph C. Lucas, LLC
MOLLY GWIN                                             P.O. Box 36736
Wiles, Boyle, Burkholder &                             Canton, Ohio 44735
Bringardner Co., LPA
300 Spruce Street, Floor One
Columbus, Ohio 43215-1173
Stark County, Case No. 2012CA00195                                                     2

Hoffman, P.J.


      {¶1}   Defendant-appellant     Richard   B.   Fischer   (“Fischer”)   appeals   the

September 13, 2012 Judgment Entry entered by the Massillon Municipal Court which

reinstated default judgment against him. Plaintiff-appellee is Darby Dental Supply, Inc.

(“Darby Dental”).

                                 STATEMENT OF THE CASE

      {¶2}   On March 28, 2011, Darby Dental filed a complaint against Fischer

seeking $6,158.79 on an account for dental equipment and supplies. The complaint

was returned “undeliverable as addressed.” Service was later obtained on Fischer at

7125 Reading Road, Cincinnati, Ohio, on October 11, 2011.

      {¶3}   On December 28, 2011, Darby Dental filed a Motion for Default Judgment,

which was granted by the trial court on February 8, 2012.

      {¶4}   On June 4, 2012, Fischer filed a Motion for Relief from Judgment, which

was granted by a magistrate following hearing. Darby Dental filed objections to the

magistrate’s report.   On September 13, 2012, trial court overruled the magistrate’s

decision and reinstated the default entry.

      {¶5}   It is from the September 13, 2012 Judgment Entry Fischer prosecutes this

appeal, assigning as error:

      {¶6}   “I. THE TRIAL COURT ABUSED ITS DISCRETION WHERE IT DENIED

THE MOTION MADE PURSUANT TO CIV.R. 60(B)(1), WHICH ASSERTED (1) THAT

DR. FISCHER’S NEGLECT WAS EXCUSABLE, (2) THAT DR. FISCHER HAD A

MERITORIOUS DEFENSE, PRIMARILY THAT A THIRD PARTY USED HIS IDENTITY
Stark County, Case No. 2012CA00195                                                         3


WITHOUT HIS KNOWLEDGE TO PLACE ORDERS WITH DARBY DENTAL, AND (3)

THAT THE MOTION WAS TIMELY FILED.

       {¶7}   “II. THE TRIAL COURT ABUSED ITS DISCRETION WHERE IT DENIED

THE MOTION MADE PURSUANT TO CIV.R. 60(B)(5) AND REQUIRED A SHOWING

OF EXCUSABLE NEGLECT IN ORDER TO BE ELIGIBLE FOR RELIEF PURSUANT

TO CIV.R. 60(B)(5), WHICH BY ITS OWN TERMS REQUIRES NO SUCH SHOWING.”

       {¶8}   As noted by Appellant in his brief to this Court, the standard of review of a

trial court’s denial of a Civ.R. 60(B) motion for relief from judgment is abuse of

discretion. To constitute an abuse of discretion, “…the result must be so palpably and

grossly violative of fact and logic that it evidences not the exercise of will but perversity

of will, not the exercise of judgment but defiance thereof, not the exercise of reason but

rather of passion or bias.” Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87.

       {¶9}   We begin by recognizing the law disfavors default judgments. Suki v.

Blume (1983), 9 Ohio App.3d 289. Cases should be decided on their merits rather than

on technical grounds. Amzee Corp. v. Comerica Bank-Midwest (10th Dist.), 2002 Ohio

3084, ¶20. At the same time, we recognize the need for adherence to proscribed rules

of procedure for the orderly disposition of cases.

                                                 I

       {¶10} Fischer maintains he established excusable neglect because his actions

did not indicate he completely disregarded the judicial system nor did he fall

substantially below what is reasonable; rather he simply responded improperly.

       {¶11} Fischer maintains orally informing the attorneys for Darby Dental they had

the wrong person was sufficient response to the lawsuit. In his affidavit in support of his
Stark County, Case No. 2012CA00195                                                        4


Civ.R. 60(B) motion, he avers he spoke to “someone representing the attorney who filed

the lawsuit for Plaintiff”, not the actual attorney as asserted in his brief. Fischer admits

the person he spoke to advised him he needed to retain an attorney. Despite said

advice, Fischer failed to heed the clear warning in the summons accompanying the

complaint of his need to file a timely answer.1

       {¶12} Darby Dental filed its motion for default judgment on December 28, 2011.

Fischer does not deny receiving the motion, rather he avers he did not recall receiving

it.

       {¶13} In response to a request from the magistrate, Darby Dental filed a

supplemental memorandum in support of venue on February 1, 2012. A copy was sent

to Fischer at the same address a copy of the previously filed motion for default

judgment was sent.

       {¶14} In response to Darby Dental’s memorandum concerning venue, Fischer

sent a letter dated February 7, 2012, to the magistrate denying he ordered or received

the supplies from Darby Dental and of a scam perpetrated by Dental Hygiene Onsite,

with who he admittedly had business dealings.2           Default judgment was entered

February 8, 2012. Fischer acknowledges his February 7, 2012 letter was returned to

him by the magistrate via correspondence dated February 14, 2012.              Therein the

magistrate advised Fischer he should seek legal advice.




1
  We find Fischer’s suggestion of identity theft and inappropriate service on a different
Dr. Fischer irrelevant in light of Fischer’s letter to the magistrate acknowledging his
business association with Dental Hygiene Onsite which ordered the supplies.
2
  Although the record contains the letter with the notation “FILE” thereon, the docket
does not reflect it was ever time stamped for filing by the clerk nor does it reflect the
date it was received by the magistrate.
Stark County, Case No. 2012CA00195                                                      5


      {¶15} We find it significant the motion for default judgment was pending forty-

three (43) days before it was granted, without direct response to it by Fischer. In all,

almost 4 months had passed since service of the complaint on Fischer. Though not

affirmatively demonstrated by the record, we believe it likely Fischer’s letter to the

magistrate was not received prior to entry of the default judgment. Even if arguably it

could be construed as an answer, it was received untimely.

      {¶16} Based upon the above, we do not find the trial court abused its discretion

in not finding excusable neglect.

      {¶17} Appellant’s first assignment of error is overruled.

                                               II

      {¶18} Herein Fischer asserts the trial court erred in not granting relief from

judgment under Civ.R. 60(B)(5).

      {¶19} Civ.R. 60(B)(5) is not a substitute for the more specific provisions of Civ.R.

60(B), and such relief is only granted if there are substantial grounds accompanied by

extraordinary and unusual circumstances. Mt. Olive Baptist Church v. Pickens Points

and Home Improvement Center (1979), 64 Ohio App.2d 285, Parkhurst v. Snively,

2001-Ohio-1418. We find this case does not present such extraordinary or unusual

circumstances.

      {¶20} Appellant’s second assignment of error is overruled.
Stark County, Case No. 2012CA00195                                          6


      {¶21} The judgment of the Massillon Municipal Court is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur
                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                          HON. SHEILA G. FARMER


                                          ___________________________________
                                          HON. PATRICIA A. DELANEY
Stark County, Case No. 2012CA00195                                               7


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


DARBY DENTAL SUPPLY, INC.                   :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
RICHARD B. FISCHER                          :
                                            :
       Defendant-Appellant                  :         Case No. 2012CA00195


       For the reasons stated in our accompanying Opinion, the judgment of the

Massillon Municipal Court is affirmed. Costs to Appellant.




                                            ___________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            ___________________________________
                                            HON. SHEILA G. FARMER


                                            ___________________________________
                                            HON. PATRICIA A. DELANEY
