[Cite as Russo v. Fonseca, 2012-Ohio-5714.]




         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                                    No. 98527




                                CHRISTINE RUSSO
                                              PLAINTIFF-APPELLANT

                                               vs.

                                CALIXTO FONSECA
                                              DEFENDANT-APPELLEE




                                         JUDGMENT:
                                          AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CV-760328
         BEFORE:      Blackmon, A.J., Jones, J., and S. Gallagher, J.

         RELEASED AND JOURNALIZED: December 6, 2012

ATTORNEY FOR APPELLANT

Ronald A. Annotico
O’Shea & Associates Co., LPA
Beachcliff Market Square
19300 Detroit Road, Suite 202
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Jessica Handlos
Seeley, Savidge, Ebert & Gourash Co.
26600 Detroit Road, 3rd Floor
Cleveland, Ohio 44145

Andrew S. Pollis
Milton A. Kramer Law Clinic Center
Case Western Reserve University
School of Law
11075 East Boulevard
Cleveland, Ohio 44106
PATRICIA ANN BLACKMON, A.J.:

      {¶1} Appellant Christine Russo appeals the trial court’s decision

granting Calixto Fonseca’s motion to vacate a default judgment and assigns

the following error for our review:

      I. The trial court erred in finding that defendant
      demonstrated excusable neglect for the purposes of
      Defendant’s Civ.R. 60(B) motion, and thus erred in
      vacating Plaintiff’s default judgment.

      {¶2} Having reviewed the record and pertinent law, we affirm the trial

court’s decision. The apposite facts follow.

      {¶3} On July 25, 2011, Russo filed a complaint against Fonseca

alleging negligence and battery.      On August 2, 2011, Fonseca received the

summons and complaint. On September 6, 2011, after Fonseca had failed to

file an answer, Russo filed a motion for default judgment, and the trial court

scheduled a hearing. On September 29, 2011, the trial court conducted a

hearing on the motion for default judgment and on damages. Fonseca failed

to appear at the hearing and the trial court granted judgment in Russo’s favor

in the amount of $96,633.35.

      {¶4} On November 7, 2011, Russo filed a creditor’s bill suit against

Fonseca and his two employers in the Medina Municipal Court.         Fonseca

failed to file an answer and Russo filed a motion for default judgment. On

April 17, 2012, a hearing on the motion for default judgment was conducted,
but Fonseca failed to appear, the trial court granted Russo’s motion for

default judgment, and ordered Fonseca’s two employers to turn over all

income due Fonseca to Russo.

      {¶5} On May 7, 2012, Fonseca filed a motion to vacate the default

judgment on the grounds of excusable neglect.         Fonseca attached an

affidavit to the motion detailing the events that led to the instant action.

Fonseca averred that on the evening of August 14, 2010, he attended a social

gathering on a party bus that was hosted by a mutual acquaintance of his and

Russo.    Fonseca stated that the bus stopped at several bars around

Cleveland, that he observed Russo drinking heavily throughout the evening

and that, at one point, Russo and her friends were asked to leave a bar for

instigating a fight.

      {¶6} Fonseca stated that in the early morning of August 15, 2010, as

the guests of the party bus were boarding the bus to leave downtown

Cleveland, he went to get pizza for the other guests.        When Fonseca

returned, he observed Russo and another guest standing outside the bus

engaged in a heated exchange with a man that was not a guest on the bus.

Fonseca stated that when the man threatened Russo and the other guest, he

came to their defense.
      {¶7} Fonseca stated that a scuffle ensued when the man threatened

him and attempted to hit him in the face. Fonseca jumped off the ground

and was about to kick the man in self-defense. Russo pushed him from the

side, causing him to lose his balance. Fonseca stated that he, as well as

Russo, fell to the ground, and that his feet must have struck Russo in the face

as they were falling. Fonseca averred that he did not knowingly kick Russo

and did not know she had been injured.

      {¶8} Fonseca was arrested, subsequently charged with felonious

assault, but was acquitted following a jury trial in which both he and Russo,

as well as several other guests on the party bus testified.   Fonseca received

the civil complaint and the motion for default judgment, but because he was

acquitted in the criminal case, he did not understand that he was supposed to

respond.

      {¶9} Fonseca further stated that he received notice that Russo had

filed a motion to continue the hearing on the motion for default judgment, but

mistakenly believed he would receive notice of a new court date. Finally,

Fonseca averred that he received notice of the judgment, but did not

understand its significance until his insurance commissions were withheld.

      {¶10}    Thereafter, Fonseca, who could not afford an attorney,

contacted the Legal Aid Society of Cleveland.    Legal Aid referred Fonseca to
the Milton A. Kramer Law Clinic Center for the Case Western Reserve

University School of Law, who filed the subject motion to vacate the default

judgment.

     {¶11} On May 23, 2012, the trial court granted Fonseca’s motion to

vacate the default judgment.




                               Motion to Vacate

     {¶12}    In the sole assigned error, Russo argues the trial court erred

when it granted Fonseca’s motion for relief from the default judgment

pursuant to Civ.R. 60(B).

     {¶13}     Civ.R. 55(B) states that if a trial court enters a default

judgment, the court may set it aside in accordance with Civ.R. 60(B). MCS

Acquisition Corp. v. Gilpin, 11th Dist. No. 2011-G-3037, 2012-Ohio-3018.

     {¶14}    A motion for relief from judgment under Civ.R. 60(B) is

addressed to the sound discretion of the trial court, and that court’s ruling

will not be disturbed on appeal absent a showing of abuse of discretion. TPI

Asset Mgt., LLC v. Benjamin, 10th Dist. No. 11AP-334, 2011-Ohio-6389, citing

Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987).    The term
“abuse of discretion” connotes more than an error of law or judgment; it

implies that the court’s attitude is unreasonable, arbitrary or unconscionable.

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

State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980). When applying an

abuse-of-discretion standard, an appellate court may not substitute its

judgment for that of the trial court. Deutsche Bank Natl. Trust Co. v. Oyortey,

10th Dist. No. 11AP-878, 2012-Ohio- 1616, citing Berk v. Matthews, 53 Ohio

St.3d 161, 559 N.E.2d 1301 (1990).

      {¶15} Civ.R. 60(B) states in pertinent part, as follows:

      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;
      (2) newly discovered evidence which by due diligence
      could not have been discovered in time to move for a new
      trial under Rule 59(B); (3) fraud (whether heretofore
      denominated intrinsic or extrinsic), misrepresentation or
      other misconduct of an adverse party; (4) the judgment
      has been satisfied, released or discharged, or a prior
      judgment upon which it is based has been reversed or
      otherwise vacated, or it is no longer equitable that the
      judgment should have prospective application; or (5) any
      other reason justifying relief from the judgment.

      {¶16}    To prevail on a Civ.R. 60(B) motion to vacate judgment, the

moving party must demonstrate the following:

      (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.        BAC Home Loans
      Servicing L.P. v. Komorowski, 8th Dist. No. 96631,
      2012-Ohio-1341, citing GTE Automatic Elec., Inc. v. ARC
      Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),
      paragraph two of the syllabus.

      {¶17} Our analysis will focus on the second prong of the GTE test, i.e.,

entitlement to relief under Civ.R. 60(B)(1) through (5). Fonseca sought relief

under the “excusable neglect” provision in Civ.R. 60(B)(1).

      {¶18}   The term “excusable neglect” is an elusive concept that has

been difficult to define and to apply. Kay v. Marc Glassman, Inc., 76 Ohio

St.3d 18, 20, 1996-Ohio-430, 665 N.E.2d 1102. Unusual or special

circumstances can justify neglect, but if the party could have controlled or

guarded against the happening or event he later seeks to excuse, the neglect

is not excusable. Natl. City Bank v. Kessler, 10th Dist. No. 03AP-312,

2003-Ohio-6938, ¶ 14.

      {¶19} “[A] determination of excusable neglect will turn on the facts

and circumstances presented in each case.” Hopkins v. Quality Chevrolet, Inc.,

79 Ohio App.3d 578, 582, 607 N.E.2d 914 (4th Dist.1992), quoting Colley v.

Bazell, 64 Ohio St.2d 243, 248, 416 N.E.2d 605 (1980) and Doddridge v.

Fitzpatrick, 53 Ohio St.2d 9, 12, 371 N.E.2d 214 (1978). The concept of

excusable neglect must be construed in keeping with the notion that Civ.R.
60(B)(1) is a remedial rule to be construed liberally. Perry v. Gen. Motors

Corp., 113 Ohio App.3d 318, 321, 680 N.E.2d 1069 (10th Dist.1996), citing

Colley at 248.

      {¶20}      In the instant case, Fonseca admitted that he received the

complaint and subsequent court documents. Generally, a party’s failure to

plead or respond after admittedly receiving a copy of a court document is not

“excusable neglect.” PHH Mtg. Corp. v. Northrup, 4th Dist. No. 11CA6,

2011-Ohio-6814, ¶ 16.       After receiving the summons and a copy of the

complaint, a party has an affirmative duty to respond to the complaint in a

timely manner. Kessler, supra at ¶ 16.

      {¶21} However, when interpreting the phrase “excusable neglect,” the

United States Supreme Court stated that the standard for reviewing a

rejection of excusable neglect is “an equitable one, taking account of all

relevant circumstances surrounding the party’s omission.”      See Cleveland

Mun. School Dist. v. Farson, 8th Dist. No. 89525, 2008-Ohio-912, quoting

Pioneer Invest. Servs. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380,

395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).

      {¶22}      The supreme court went on to say that these circumstances

include “the danger of prejudice to the [movant], the length of the delay and

its potential impact on judicial proceedings, the reasons for the delay,
including whether it was within the reasonable control of the movant, and

whether the movant acted in good faith.” Id. Pioneer has been acknowledged

to set a more “forgiving” standard and should be given a broad reading. Id.,

citing Graphics Comm. Internatl. Union, Local 12 v. Quebecor Printing

Providence, Inc. (1st Cir. R.I. 2001), 270 F.3d 1, 5.

      {¶23} Nonetheless, in support of her argument that Fonseca had not

demonstrated excusable neglect, Russo cites John Soliday Fin. Group, LLC v.

Moncreace, 7th Dist. No. 09 JE 11, 2011-Ohio-1471, where the court held that

a pro se defendant’s failure to answer a complaint was not excusable neglect.

Specifically, the court stated: “[a] party who is informed of court action

against him and fails to seek legal assistance does so at his risk and such

conduct cannot be said to constitute ‘excusable neglect’ under Civ.R. 60(B)(1)

or (5) unless a compelling reason is presented, like a serious illness.” Id.,

quoting Yuhanick v. Cooper, 7th Dist. No. 96-CO-45,1998 Ohio App. LEXIS

5527(7th Dist.).

      {¶24} At first glance, the instant case, also involving a pro se litigant,

appears identical to Soliday. We acknowledge that Fonseca, like the

defendant in Soliday, failed to file an answer, but we are also mindful that

excusable neglect is an elusive concept that has been difficult to define and

to apply. Kay, supra.
      {¶25} In the instant case, although Fonseca did not file an answer,

the record indicates that Fonseca averred that he had planned to attend the

default hearing.   Fonseca further averred that after receiving notice that

Russo had sought to continue the default hearing, he mistakenly believed

that the court would issue notice of a new date as the court in the criminal

matter had done when a continuance had been requested. Viewed in isolation,

this claim might not be sufficient to constitute excusable neglect.

      {¶26} However, we must also consider Fonseca’s patent unfamiliarity

with civil litigation,   coupled with the fact that he was acquitted of the

criminal charges, that led him to conclude, in part because of limited financial

resources, that he could represent himself in the civil matter. The totality of

these circumstances arguably weighs in favor of finding excusable neglect and

vacating the default judgment.

      {¶27}   Significantly, Fonseca’s acquittal in the criminal matter is a

clear signal that he would have a meritorious defense to present if the relief

sought were to be granted. Said acquittal leads us to consider the impact of

Civ.R. 60(B)(5), the catch-all provision, that reflects the inherent power of a

court to relieve a person from the unjust operation of a judgment. Sell v.

Brockway, 7th Dist. No. 11 CO 30, 2012-Ohio-4552, citing         Caruso-Ciresi,

Inc. v. Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983).
      {¶28} Our consideration is guided by the fact that it is well recognized

that the law generally does not favor default judgments and that cases should

be decided on their merits whenever possible. Wilson v. Lee, 172 Ohio App.3d

791, 2007-Ohio-4542, 876 N.E.2d 1312, ¶ 15 (2d Dist.). Thus, “[w]here timely

relief is sought from a default judgment and the movant has a meritorious

defense, doubt, if any, should be resolved in favor of the motion to set aside

the judgment so that cases may be decided on their merits.” GTE Automatic

Elec. Inc., at paragraph three of the syllabus.

      {¶29} We also share the preference, particularly where large sums of

money are at issue, for deciding cases upon their merits instead of by default.

 Young v. Walker, 8th Dist. No. 49972, 1986 Ohio App. LEXIS 5282 (8th

Dist.); Colley, supra. Here, Russo obtained a default judgment in the amount

of $96,633.35, against a defendant who had been acquitted following a jury

trial of the underlying basis of the instant civil action.        Under these

circumstances, we find no abuse of discretion in the trial court’s decision to

vacate the default judgment and decide the case on the merits. Accordingly,

we overrule the sole assigned error.

      {¶30}    Judgment affirmed.

      It is ordered that appellee recover from appellant 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.




PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., and
SEAN C. GALLAGHER, J., CONCUR
