[Cite as Dlugolinski v. Frances, 2017-Ohio-5746.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 104995




                                JOANN N. DLUGOLINSKI, ET AL.

                                                          PLAINTIFFS-APPELLANTS

                                                    vs.

                                  JOSELYN L. FRANCES, ET AL.

                                                          DEFENDANTS-APPELLEES




                                              JUDGMENT:
                                               AFFIRMED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-16-858219

        BEFORE: Stewart, J., Keough, A.J., and McCormack, J.

        RELEASED AND JOURNALIZED: July 6, 2017
ATTORNEYS FOR APPELLANTS

Dan A. Morell
Dustin S. Lewis
Dan Morell & Associates Co.
200 Spectrum Office Building
6060 Rockside Woods Boulevard, North
Independence, OH 44131

Stacie Hackel Snow
Keith D. Weiner & Associates Co., L.P.A.
75 Public Square, 4th Floor
Cleveland, OH 44113


ATTORNEY FOR APPELLEES

Beverly A. Adams
Collins, Roche, Utley & Garner, L.L.C.
800 Westpoint Parkway, Suite 1100
Cleveland, OH 44145
MELODY J. STEWART, J.:

       {¶1} Plaintiffs-appellants Joann and Stanley Dlugolinski appeal the trial court’s denial of

their motion for relief from judgment in a lawsuit following an automobile collision. In their

single assignment of error, the Dlugolinskis argue that the trial court abused its discretion by

denying their motion, and by doing so without conducting an evidentiary hearing or allowing

them to file a reply brief. For the reasons that follow, we affirm.

       {¶2} Following a car accident, the Dlugolinskis brought suit against defendants-appellees

Joselyn and Hector Frances.      The Franceses timely answered the complaint and asserted a

counterclaim. The Dlugolinskis did not answer or otherwise respond to the counterclaim, and

they did not appear for the case management conference. The Franceses moved for default

judgment on their counterclaim. That day, counsel for both parties corresponded about the

counterclaim and motion for default judgment via email. The Dlugolinskis did not respond to

the motion for default, and they did not appear for the hearing on that motion. The court granted

default judgment on the counterclaim.

       {¶3} The Dlugolinskis filed a motion for relief from judgment pursuant to Civ.R. 60(B)

and voluntarily dismissed their complaint without prejudice. The trial court denied their motion

for relief without a hearing. This appeal followed.

       {¶4} In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the moving

party must demonstrate: (1) a meritorious defense or claim to present if the court grants relief; (2)

entitlement to relief based on one of the stated grounds in Civ.R. 60(B)(1) through (5); and (3)

that the motion is timely. Deutsche Bank Natl. Trust Co. v. Forgues, 8th Dist. Cuyahoga No.

103613, 2016-Ohio-4702, ¶ 7, citing GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio

St.2d 146, 150-151, 351 N.E.2d 113 (1976). These three elements are “independent and in the
conjunctive.” Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994). Relief from

judgment is thus foreclosed if the moving party fails to establish any one of these elements.

State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151, 666 N.E.2d 1134 (1996).

       {¶5} The decision of whether to grant a Civ.R. 60(B) motion is one made within the trial

court’s discretion.   We will not disturb the trial court’s decision absent an abuse of that

discretion. Crown Auto Sales, Inc. v. Copart of Connecticut, Inc., 8th Dist. Cuyahoga No.

104366, 2016-Ohio-7896, ¶ 9. An abuse of discretion suggests that the court’s attitude when

ruling was unreasonable, arbitrary, or unconscionable.         (Citations omitted.)     Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “‘[T]he result must be so palpably

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

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

instead passion or bias.’”        Vaught v. Cleveland Clinic Found., 98 Ohio St.3d 485,

2003-Ohio-2181, 787 N.E.2d 631, ¶ 13, quoting Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d

254, 662 N.E.2d 1 (1996). In reviewing for an abuse of discretion, we do not substitute our

judgment for that of the trial court. Rawlin Gravens Co., L.P.A. v. Jatsek Constr. Co., 8th Dist.

Cuyahoga No. 100587, 2014-Ohio-1952, ¶ 11.

       {¶6} The Franceses do not dispute the timeliness of the Dlugolinskis’ motion, because it

was filed eight days after the court granted default judgment. The Dlugolinskis contend that the

Franceses were at fault for the collision: arguably a meritorious defense.                Finally, the

Dlugolinskis argue that they are entitled to relief from judgment under Civ.R. 60(B)(1) based on

excusable neglect.
       {¶7} In support of their claim for excusable neglect, counsel for the Dlugolinskis stated to

the trial court that his law firm was in the process of restructuring at the time the Franceses filed

their answer and counterclaim. He argued this was the reason for failing to answer. Counsel

stated that such turnover caused an “administrative mishap,” resulting not only in the failure to

appear at the case management conference, but also in the failure to answer the counterclaim.

Counsel alleged that he never received notice of the default hearing from the Franceses. He also

alleged that he “has no record” of receiving notice from the court about the hearing, and that if he

did receive notice, it was lost because of the employee turnover.

       {¶8} The trial court denied the Dlugolinskis’ motion, finding the neglect not excusable.

The court based its findings on the pattern of neglect even after the breakdown in procedures at

their counsel’s office was discovered. Counsel for the Dlugolinskis admitted that his office

received the counterclaim and failed to respond to it. The Dlugolinskis, via counsel, were

notified about the motion for default judgment and failed to respond to it, and the court’s docket

indicates that they were notified about the hearing on the motion for default judgment, yet failed

to appear.

       {¶9} The Dlugolinskis have been represented by the same law firm with the same lead

counsel at all stages of this litigation. Their counsel does not dispute that the trial court had his

correct email address listed for contact. The trial court’s docket reflects that counsel was

personally sent notice that the case management conference was scheduled. It also reflects that

he was personally sent notice of his failure to appear at it. Despite this, counsel maintains that

he first learned of the counterclaim on the day that the Franceses filed their motion for default

judgment.
       {¶10} In the email exchange between counsel for both parties the day the Franceses

moved for default judgment, counsel for the Dlugolinskis stated that he knew the counterclaim

was filed. In that exchange, counsel for the Franceses advised him that she filed the motion for

default judgment. He asked her for consent to file a motion for leave to plead, and counsel for

the Franceses told him that she could not consent or withdraw the motion for default without

consulting her clients. After this exchange, there was no further communication between the

parties and no further action was taken to remedy the failure to answer the counterclaim or

respond to the motion for default judgment.

       {¶11} The Dlugolinskis argue that their case is similar to Kay v. Marc Glassman, Inc., 76

Ohio St.3d 18, 665 N.E.2d 1102 (1996). In that case, the Supreme Court found that a litigant’s

failure to file an answer was excusable neglect where the answer to the complaint was initially

prepared but, due to staff and management changes, was inadvertently returned to the case folder

rather than filed with the court. In Kay, immediately upon discovery, the attorney acted to

correct the error: he moved for relief from judgment, he attached multiple affidavits detailing the

facts that lead to the neglect, and attached the answer to the motion. In light of this response, the

court found the neglect excusable.

       {¶12} Similar to Kay, this case involves staffing changes at a law firm and neglect in

failing to respond to a pleading. However in Kay, the attorney took remedial steps to correct the

error immediately upon discovery; whereas here, counsel responded by taking no actions upon

discovery of the errors. Where a party could have prevented the occurrence of the event he later

seeks to excuse, the neglect is not excusable. Russo v. Fonseca, 8th Dist. Cuyahoga No. 98527,

2012-Ohio-5714, ¶ 18, citing Natl. City Bank v. Kessler, 10th Dist. Franklin No. 03AP-312,
2003-Ohio-6938, ¶ 14. Upon review, we cannot say that the court abused its discretion in

finding that this neglect was not excusable.

       {¶13} As additional support for the argument that the neglect was excusable, counsel for

the Dlugolinskis averred in his affidavit that he did not receive notice from the Franceses of the

default hearing. Counsel did not, however, state in his affidavit that he received no notice from

the court. Even assuming that counsel never received the Franceses’ letter or notice of the

hearing from the court, counsel had a fundamental duty to keep abreast of the docket and status

of the case.      See Culler v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 101386,

2014-Ohio-5434, ¶ 17 (“[Counsel] has a general duty to check the docket and keep himself

current regarding the status of the case.”).

       {¶14} The Dlugolinskis now argue that because they did not receive the Franceses’ letter,

they therefore did not have notice of the default hearing as required by Civ.R. 55 and a court

order. This argument is not persuasive, and it does not change our conclusion that the trial court

did not abuse its discretion. In relevant part, Civ.R. 55 provides that a party “shall be served

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

application.” This court has interpreted “the spirit and the letter” of the rule to require that the

party against whom default judgment is sought be given notice of the hearing either directly from

the court or constructively by the setting of a hearing date on the docket. Suki v. Blume, 9 Ohio

App.3d 289, 291, 459 N.E.2d 1311 (8th Dist.1983).

       {¶15} The record indicates that counsel for the Franceses sent notice of the default

hearing via regular mail to the Dlugolinskis’ counsel at his office. However, the envelope was

addressed to the wrong suite number: 250, as opposed to counsel’s suite, 200. Counsel for the

Franceses states that although the notice listed the wrong suite number, it was not returned as
undelivered. More significantly, the docket reflects that the court sent counsel notice of the

hearing nearly a month in advance of it, and nowhere does counsel directly dispute this. As

such, the Dlugolinskis’ argument that they did not have notice pursuant to Civ.R. 55 is not

well-taken.

       {¶16} Moreover, the trial court did not abuse its discretion in not granting the

Dlugolinskis a hearing on their motion. The moving party bears the burden of demonstrating

entitlement to a hearing. Settonni v. Settonni, 8th Dist. Cuyahoga No. 97784, 2012-Ohio-3084,

¶ 39. To show entitlement to a hearing, the moving party must allege operative facts that

warrant relief under the rule. (Citation omitted.) Id. Because the court, in its discretion,

determined that the Dlugolinskis failed to allege a sufficient basis for relief in their motion, they

were not entitled to a hearing on it. See id.

       {¶17} Finally, the Dlugolinskis were not entitled to file a reply brief in support of their

Civ.R. 60(B) motion. Loc.R. 11(D) of the Court of Common Pleas of Cuyahoga County,

General Division, provides that “[r]eply or additional briefs upon motions and submissions may

be filed with leave of the Court only upon a showing of good cause.” Here, the record reflects

that the Dlugolinskis filed a motion for leave to file a reply brief nearly a month after the court

denied their Civ.R. 60(B) motion and had entered final judgment. Their purpose in doing so

was apparently to highlight the fact that the Franceses’ letter regarding the default hearing was

sent to the wrong suite number. Before the court ruled on the motion though, they then filed

their notice of appeal with this court.         The trial court then denied the motion as moot.

Regardless of the information contained in the reply brief, we still cannot find, based on the

totality of the circumstances involved in this case, that the court abused its discretion in denying

the motion for relief from judgment.
       {¶18} Judgment affirmed.

       It is ordered that appellees recover of appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

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.



______________________________________________
MELODY J. STEWART, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
TIM McCORMACK, J., CONCUR
