[Cite as Dudek v. Monro Muffler Brake, Inc., 2011-Ohio-6876.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


TODD DUDEK,                                          :          Case No. 2011-CA-00210
                                                     :
                                                     :          JUDGES
        Appellee,                                    :          Hon. W. Scott Gwin, P.J.
                                                     :          Hon. William B. Hoffman, J.
v.                                                   :          Hon. Sheila G. Farmer, J.
                                                     :
MONRO MUFFLER BRAKE, INC.,                           :
                                                     :
        Appellant.                                   :          OPINION



CHARACTER OF PROCEEDING:                             Civil appeal from the Canton Municipal
                                                     Court, Case No. 2010-CVF-3658


JUDGMENT:                                            Affirmed

DATE OF JUDGMENT ENTRY:                              December 30, 2011




APPEARANCES:

For Appellee:                                        For Appellant:

DANIEL J. FUNK                                       JAY E. KRASEVEC
BAKER, DUBLIKAR, BECK, WILEY & MATHEWS               SCHOTTENSTEIN, ZOX & DUNN
400 South Main Street                                Fifth Third Center, 10th Floor
North Canton, OH 44720                               600 Superior Avenue E.
                                                     Cleveland, OH 44114




Gwin, P.J.

        {¶ 1} Plaintiff-appellant, Monro Muffler Brake, Inc., appeals from the September

2, 2011, Judgment Entry of the Canton Municipal Court.
                            STATEMENT OF THE FACTS AND CASE

       {¶ 2} On June 1, 2010, appellee Todd Dudek filed a complaint against appellant

Monro Muffler Brake, Inc. in the Canton Municipal Court. In his complaint, he alleged

that he was employed by appellant during 2009, and that appellant breached its

agreement with him by failing to pay him a bonus. Appellant was served with a copy of

the summons and complaint by certified mail on June 4, 2010.

       {¶ 3} On July 15, 2010, appellee filed a Motion for Default Judgment against

appellant. As memorialized in a Judgment Entry filed on July 19, 2010, the trial court

granted such motion and scheduled a hearing on damages for August 10, 2010, at 8:45

a.m.

       {¶ 4} Thereafter, on August 5, 2010, appellant filed a Motion for Relief from

Judgment pursuant to Civ.R. 60(B). Attached to the motion was an affidavit from Robert

Mullen, appellant's Vice President of Human Resources. Mr. Mullen, in his affidavit,

stated, in relevant part, as follows:

       {¶ 5} “2. Monro Muffler's internal procedure is to forward all legal documents to

its legal department for review. In that regard, Todd Dudek's summons and Complaint

should have been forwarded to the legal department.

       {¶ 6} “3. However, on or about June 4, 2010, Donald Sisson, Human Resources

Generalist, received a summons and complaint in the above-captioned matter. Because

the Human Resources Department generally does not receive documents related to

formal legal proceedings, I was unaware that the documents were evidence that a

lawsuit was being initiated by Mr. Dudek against Monro Muffler.
      {¶ 7} “4. In order to comply with what appeared to be Mr. Dudek's and/or the

Court's request for information, I assisted Mr. Sisson in drafting a response to the

allegations contained within Mr. Dudek's Complaint. A true and accurate copy of that

Response is attached hereto as Exhibit A.

      {¶ 8} “5. The Response was sent to Mr. Dudek's attorney on or about July 2,

2010. I assisted Mr. Sisson in drafting this Response in good faith and was under the

belief that the reply fulfilled any requirements Monro Muffler had in responding to

Plaintiff's complaint. Therefore, I did not instruct Mr. Sisson to forward the Complaint to

Monro Muffler's legal department.

      {¶ 9} “6. On or about July 28, 2010, Monro Muffler received a copy of the

Judgment Entry against it issued by the Court in connection with Mr. Dudek's

Complaint. I forwarded this Judgment Entry to Monro Muffler's legal department for

review.

      {¶ 10} “7. Had I known that the summons and complaint that Mr. Sisson received

on or about June 4, 2010 required Monro Muffler to respond by way of filing a formal

Answer, I would have instructed Mr. Sisson to forward the same to our legal

department. At first glance, however, the summons and complaint appeared to be

general employee complaint in the investigatory process that we have addressed in the

past by way of informal correspondence, document production and negotiations.”

      {¶ 11} The “response” referred to in paragraph 4 (Exhibit A) was a letter dated

July 2, 2010, from Donald Sisson, appellant's Human Resource Specialist, to appellee's

counsel.
       {¶ 12} Pursuant to a Judgment Entry filed on August 6, 2010, the trial court

scheduled a hearing on appellant's Motion for Relief from Judgment for August 10, 2010

at 8:45 a.m.

       {¶ 13} A hearing before a Magistrate was held on August 10, 2010. Pursuant to a

Magistrate's Report filed on August 11, 2010, the Magistrate recommended that

judgment be rendered in favor of appellee and against appellant in the amount of

$14,250.00 plus interest and that appellant's Motion for Relief from Judgment be

denied. The Magistrate, in his report, noted that appellant had presented no witnesses

or evidence on behalf of appellant at the hearing.

       {¶ 14} Appellant, on August 25, 2010, filed objections to the Magistrate's Report.

Appellant, in its objections, argued that the Magistrate erred in hearing evidence and/or

addressing damages because the August 6, 2010 Judgment Entry stated that only

appellant's Motion for Relief from Judgment was set for hearing on August 10, 2010.

Appellant also argued that the Magistrate erred in finding that appellant did not

demonstrate that its failure to file an answer was the result of mistake, inadvertence or

excusable neglect.

       {¶ 15} A hearing on the objections to the Magistrate's Report was held on

September 22, 2010. Pursuant to a Judgment Entry filed on September 24, 2010, the

trial court denied the objections to the Magistrate's Report.

       {¶ 16} Appellant timely appealed and this Court denied the appeal for lack of a

final appealable order finding “[t]he trial court failed to recite that it was approving and

adopting the Magistrate's Decision.” See, Monro Muffler Brake, Inc. v. Dudek, 5th Dist.

No. 2010CA00300, 2011-Ohio-3210, 2011 WL 2565585, ¶26.
        {¶ 17} On September 2, 2011, the trial court entered a Judgment Entry to correct

the omission.

        {¶ 18} Appellant timely appeals raising the following assignments of error on

appeal:

        {¶ 19} “I. THE TRIAL COURT ERRED IN HEARING EVIDENCE AND/OR

ADDRESSING DAMAGES AT THE AUGUST 10, 2010 HEARING, AS THE COURT'S

SUBSEQUENT JUDGMENT ENTRY STATES THAT ONLY MONRO MUFFLER'S

MOTION FOR RELIEF FROM JUDGMENT WAS SET FOR HEARING ON THAT

DATE.

        {¶ 20} “II. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN

FINDING MONRO MUFFLER DID NOT DEMONSTRATE THAT ITS FAILURE TO FILE

A FORMAL ANSWER WAS THE RESULT OF MISTAKE, INADVERTENCE OR

EXCUSABLE NEGLECT.”

                                                      I

        {¶ 21} Civ. R. 55 states in pertinent part:

        {¶ 22} “CIV R 55 DEFAULT

        {¶ 23} “(A) Entry of judgment

        {¶ 24} “When a party against whom a judgment for affirmative relief is sought has

failed to plead or otherwise defend as provided by these rules, the party entitled to a

judgment by default shall apply in writing or orally to the court therefore; but no

judgment by default shall be entered against a minor or an incompetent person unless

represented in the action by a guardian or other such representative who has appeared

therein. If the party against whom judgment by default is sought has appeared in the
action, he (or, if appearing by representative, his representative) shall be served with

written notice of the application for judgment at least seven days prior to the hearing on

such application. If, in order to enable the court to enter judgment or to carry it into

effect, it is necessary to take an account or to determine the amount of damages or to

establish the truth of any averment by evidence or to make an investigation of any other

matter, the court may conduct such hearings or order such references as it deems

necessary and proper and shall when applicable accord a right of trial by jury to the

parties.”

       {¶ 25} In the case at bar, by Judgment Entry filed July 19, 2010, the trial court

granted appellee’s motion for default judgment and set the case for an evidentiary

hearing on the amount of damages for August 10, 2010 at 8:45 a.m. Pursuant to a

Judgment Entry filed on August 6, 2010, the trial court scheduled a hearing on

appellant's Motion for Relief from Judgment for August 10, 2010 at 8:45 a.m.

       {¶ 26} At the hearing on appellant’s Objections to the magistrate decision held

September 22, 2010, the trial court stated:

       {¶ 27} “THE COURT: No, no, no. There’s no confusion. I’m looking at two

separate orders. What confusion could there be? August 10-, - It clearly says that the

damage hearing will be held on August 10th at 8:45. That’s also the time set for the

motion for relief from judgment. I don’t see anything that says that wasn’t going to take

place. Show me. Do you have something...?

       {¶ 28} “MR. KRASOVEC: I do not have anything…I do not have anything else

from the court.”
        {¶ 29} (T. Sept. 22, 2010 at 7-8). ). Counsel for appellant acknowledged that

appellant was aware of the damages hearing and further that the damages hearing was

scheduled prior to the filing of the Motion for Relief from Judgment. The record does not

contain any Judgment Entry that indicates that the damages hearing was rescheduled

or cancelled by the trial court. In addition, no evidentiary materials were provided that

indicate only appellant’s Motion for Relief from Judgment would be heard on August 10,

2010.1 Appellant’s counsel was aware well in advance that the damage hearing would

take place on August 10, 2010. (T. August 10, 2010 at 4; T. Sept. 22, 2010 at 4).

        {¶ 30} A reviewing court analyzes a denial of a continuance in terms of whether

the court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841,

11 L.Ed.2d 921(1964).

        {¶ 31} After careful examination of the record, we find that the trial court did not

abuse its discretion in holding the damage hearing on August 10, 2010 and denying

appellant’s request to hold that matter in abeyance or continue it to another date. The

record clearly shows that appellant's counsel was not deprived of an opportunity to

prepare for the hearing. As such, we find that the trial court did not abuse its discretion

when it denied the motion to continue the damage hearing.

        {¶ 32} Based on the foregoing, we find Appellant's First Assignment of Error not

well taken and hereby overrule it.

                                                       II




        1
          Although counsel for appellant argued that he telephoned the trial court and was informed after
inquiring that the damage hearing would not go forward on August 6, 2010, no affidavit or other
evidentiary material was submitted to substantiate that claim. (T. Sept. 22, 2010 at 4-5; 7-8).
       {¶ 33} Appellant claims the trial court erred in overruling its motion for relief from

judgment pursuant to Civ. R. 60( B)( 1) as appellant's failure to answer the complaint

constituted excusable neglect. We disagree.

       {¶ 34} A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's

sound discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 514 N.E.2d 1122. In order

to find an abuse of that discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. Appellee based its

Civ.R. 60( B) motion on “mistake, inadvertence, surprise or excusable neglect.” Civ.R.

60( B)( 1). In GTE Automatic Electric Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d

146, 351 N.E.2d 113, paragraph two of the syllabus, the Supreme Court of Ohio held

the following:

       {¶ 35} “To prevail on a motion brought under Civ.R. 60(B), the movant must

demonstrate that: (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.”

       {¶ 36} We note there is no bright-line test for excusable neglect. Such a decision

must be made from the facts and circumstances of each case. Excusable neglect does

not cover “a complete disregard for the judicial system” and the rights of the other party.

GTE Automatic, supra at 153.
       {¶ 37} In the case at bar, the affidavit from Robert Mullen, Vice President of

Human Resources established that appellant’s internal procedure is to forward all legal

documents to its legal department for review. Mr. Mullen’s further averred, “Had I known

that the summons and complaint that [appellant] received on or about June 4, 2010

required [appellant] to respond by way of filing a formal Answer, I would have instructed

Mr. Sisson forward the same to our legal department. At first glance, however, the

summons and complaint appeared to be a general employee complaint in the

investigatory process that we have addresses in the past by way of informal

correspondence, document production and negotiations.” (Motion of Defendant Monroe

Muffler Brake, Inc. for Relief from Judgment, Affidavit of Robert Mullen, Vice President

of Human Resources, filed August 5, 2010, ¶7).

       {¶ 38} In finding that appellant failed to establish excusable neglect, the

Magistrate, made the following observation,

       {¶ 39} “The [court] finds that the Defendants completely disregarded the judicial

system and instead attempted to circumvent the system by directly contacting

[plaintiff’s] counsel. Clearly, the paperwork that was sent to [Defendants] states, ‘You

have been named defendant(s) in a complaint filed in the Canton Municipal Court…You

are hereby summoned and required to serve…an answer…Your answer must be filed

with the Court within three days after the service of a copy of the answer on the Plaintiff

or Plaintiffs attorney. If you fail to appear and defend, judgment by default will be

rendered against you for the relief demanded in the Complaint.” Again, [Defendants

completely disregarded the above language and there [sic.] own policies…. (Report of

the Magistrate Addendum, filed August 11, 2010 at 2).
      {¶ 40} A party's failure to submit a summons or any legal process to the

responsible person is not automatically excusable neglect. Under a less restrictive test,

corporations could readily vacate default judgments.

      {¶ 41} In Perry v. General Motors Corp. (1996), 113 Ohio App.3d 318, 680

N.E.2d 1069, cited by appellant, the court found the concern resolved by the use of

affidavits containing operative facts tending to show excusable neglect. Id. at 324, 680

N.E.2d 1069. In the case at bar, we agree with the trial court that the documents served

upon appellant clearly indicated that a lawsuit had been commenced. According to

appellant’s own admission, the documents should have been forwarded to the legal

department. To allow a corporation to set aside a default judgment because the

appropriate individuals claim they did not forward the complaint in accordance with

approved corporate procedure under a mistaken belief that it was an informal matter,

even though the evidence demonstrates clearly the language of the documents

received indicate a formal legal proceeding had been commenced in a court of law

would be to render every corporate mistake excusable and Civ.R. 60(B) meaningless.

Therefore, we find that the trial court did not abuse its discretion in finding that

appellant’s failed in their burden to demonstrate excusable neglect justifying relief from

judgment.

      {¶ 42} Appellant’s Second Assignment of Error is overruled.

      {¶ 43} The judgment of the Canton Municipal Court, Stark County, Ohio is hereby

affirmed.


                                                                      Judgment affirmed.

Hoffman, and Farmer, JJ., concur.
              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                            FIFTH APPELLATE DISTRICT


TODD DUDEK,                                :       Case No. 2011-CA-00210
                                           :
                                           :       JUDGES
        Appellee,                          :       Hon. W. Scott Gwin, P.J.
                                           :       Hon. William B. Hoffman, J.
v.                                         :       Hon. Sheila G. Farmer, J.
                                           :
MONRO MUFFLER BRAKE, INC.,                 :
                                           :
        Appellant.                         :


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

the Canton Municipal Court, Stark County, Ohio is hereby affirmed. Costs to appellant.




                                               _________________________________
                                               HON. W. SCOTT GWIN

                                               _________________________________
                                               HON. WILLIAM B. HOFFMAN

                                               _________________________________
                                               HON. SHEILA G. FARMER
