[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
                                      2


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.
                                     3

      {¶ 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.
                                      9

      {¶ 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
                                      10

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
