[Cite as Maggiore v. Barensfeld, 2012-Ohio-2909.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


CHRISTOPHER MAGGIORE                                :     JUDGES:
                                                    :
                                                    :     Hon. Patricia A. Delaney, P.J.
       Plaintiff-Appellee                           :     Hon. John W. Wise, J.
                                                    :     Hon. Julie A. Edwards, J.
-vs-                                                :
                                                    :     Consolidated Case Nos. 2011CA00180
                                                          & 2011CA00230
GLEN BARENSFELD                                     :
                                                    :
                                                    :
       Defendant-Appellant                          :     OPINION


CHARACTER OF PROCEEDING:                                Appeal from the Stark County Court of
                                                        Common Pleas, Case No. 2010CV03792



JUDGMENT:                                               AFFIRMED



DATE OF JUDGMENT ENTRY:                                 June 22, 2012




APPEARANCES:

For Appellee:                                             For Appellant:

OWEN J. RARRIC                                            RANDOLPH L. SNOW
4775 Munson St. NW                                        JAMES M. WHERLEY, JR.
P.O. Box 36963                                            220 Market Ave. S., Suite 1000
Canton, OH 44735-6963                                     Canton, OH 44702

JEFFREY T. KNOLL
JOHN P. SUSANY
3475 Ridgewood Rd.
Akron, OH 44333
Delaney, P.J.

      {¶1} Defendant-Appellant Glen Barensfeld appeals the September 29, 2011

judgment entry of the Stark County Court of Common Pleas affirming and adopting the

July 19, 2011 Magistrate’s Decision to deny Barensfeld’s Motion for Relief from

Judgment.

                       FACTS AND PROCEDURAL HISTORY

      {¶2} On October 13, 2010, Plaintiff-Appellee Christopher Maggiore filed a

Complaint on a Note in the Stark County Court of Common Pleas. Maggiore alleged

on or about April 17, 2002, Barensfeld executed and delivered to Maggiore a cognovit

promissory note in the amount of $277,219.63 with interest at the rate of 8.5% per

annum. Maggiore alleged that as collateral for the Note, Barensfeld executed and

delivered a Mortgage Deed for real property located in Ohio and recorded in Medina

County. The principal and interest on the Note was payable in full five years from the

date of execution. Maggiore alleged more than five years had passed and Barensfeld

failed to make any payment despite demand.

      {¶3} Barensfeld is a California resident.     Barensfeld was served with the

summons and Complaint on October 18, 2010. Pursuant to Civ.R. 12, an answer was

due on November 15, 2010.

      {¶4} Barensfeld did not respond to the Complaint, or otherwise defend the

matter within the 28-day time period set by Civ.R. 12. On November 16, 2010, the

29th day from service of the Complaint, Maggiore moved for default judgment and

submitted a proposed judgment entry. The trial court granted the Motion for Default

Judgment on November 16, 2010 at 2:20 p.m.
         {¶5} On November 16, 2010 at 5:13 p.m., Barensfeld filed a Notice of

Removal with the United States District Court for the Northern District of Ohio, Eastern

Division (Maggiore v. Barensfeld, N.D.Ohio No. 5:10cv2622). Barensfeld removed the

case on the basis of diversity jurisdiction. 28 U.S.C. 1332. Barensfeld filed a notice

with the Stark County Court of Common Pleas on November 17, 2010 at 9:06 a.m.

indicating the case had been removed to federal court.

         {¶6} Barensfeld filed an Answer and Counterclaim in federal court. Maggiore

filed a Motion for Default Judgment and a Motion to Strike Barensfeld’s Answer and

Counterclaim. Barensfeld responded to the motion and filed a Motion for Relief from

Judgment, requesting the federal court to vacate the state court default judgment. On

May 12, 2011, the federal court issued its ruling granting Maggiore’s Motion to Strike

and denying Barensfeld’s Motion for Relief from Judgment.            The federal court

remanded the case to the Stark County Court of Common Pleas.

         {¶7} On June 10, 2011, Barensfeld filed a Motion for Relief from Judgment.

An oral hearing was held before the Magistrate on June 30, 2011. The Magistrate

issued a Decision denying the Motion for Relief from Judgment on July 19, 2011. The

Magistrate found Barensfeld’s failure to timely answer or otherwise defend was not the

result of “mistake” or “excusable neglect,” but rather a strategic decision by Barensfeld

not to respond to the state litigation but to focus on removing the matter to federal

court.

         {¶8} Barensfeld filed objections to the Magistrate’s Decision. On September

29, 2011, the trial court affirmed and adopted the Magistrate’s Decision.

         {¶9} It is from this judgment Barensfeld now appeals.
                               ASSIGNMENTS OF ERROR

       {¶10} Barensfeld raises one Assignment of Error:

       {¶11} “THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO

VACATE THE INSTANT DEFAULT JUDGMENT, WHICH WAS ENTERED ON THE

29TH DAY AFTER SERVICE OF THE COMPLAINT, EVEN THOUGH BARENSFELD

TIMELY REMOVED THE CASE TO FEDERAL COURT AND TIMELY ANSWERED

WITH THE FEDERAL COURT AFTER REMOVAL.”

                                        ANALYSIS

                                 STANDARD OF REVIEW

       {¶12} The decision whether to grant a motion for relief from judgment under

Civ.R. 60(B) lies within the trial court's sound discretion. Griffey v. Rajan, 33 Ohio St.3d

75, 514 N.E.2d 1122 (1987). In order to find abuse of discretion, we must determine the

trial court's decision was unreasonable, arbitrary, or unconscionable.         Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, (1983).

       {¶13} A party seeking relief from judgment pursuant to Civ.R. 60(B) must show:

“(1) a meritorious defense or claim to present if relief is granted; (2) entitlement to relief

under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must be

timely filed.” GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146,

351 N.E.2d 113 (1976), paragraph two of the syllabus. A failure to establish any one of

these three requirements will cause the motion to be overruled. Rose Chevrolet, Inc. v.

Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988); Argo Plastic Prod. Co. v.

Cleveland, 15 Ohio St.3d 389, 391, 474 N.E.2d 328 (1984).
       {¶14} Barensfeld brought his Motion for Relief from Judgment pursuant to

Civ.R. 60(B)(1), (3), and (5). Civ.R. 60(B)(1) states a party may be granted relief from

judgment if there was “mistake, inadvertence, surprise or excusable neglect.” Civ.R.

60(B)(3) provides there may be relief from a judgment if there is “a fraud (whether

heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct

of an adverse party.”      Finally, Civ.R. 60(B)(5) grants relief for any other reason

justifying relief from the judgment.

       {¶15} The trial court assumed, for purposes of the Magistrate’s Decision,

Barensfeld met the first element of the GTE test by having a meritorious defense to

Maggiore’s complaint. The trial court also determined that Barensfeld’s Motion for

Relief from Judgment was timely filed. Based on the analysis below, we find no abuse

of discretion as to the trial court’s determination on the first and third elements of the

GTE test. We then turn to the second element of the GTE test: whether Barensfeld is

entitled to relief under Civ.R. 60(B)(1), (3), or (5).

  “A PRICKLY LITTLE TECHNICAL PROBLEM”: CIV.R. 12, FED.R.CIV.P. 81, AND
                            28 U.S.C. 1446

       {¶16} The issue in this case is the interplay between the Ohio Civil Rules of

Procedure and the Federal Rules of Civil Procedure when a party removes a state

court case to federal court. The thrust of Barensfeld’s motion for relief from judgment

is that due to a mistake in law characterized as excusable neglect, Barensfeld

misinterpreted Civ.R. 12, Fed.R.Civ.P. 81 and 28 U.S.C. 1446 and failed to timely

answer the Complaint filed in the Stark County court case.

       {¶17} Barensfeld was served with the Complaint on October 18, 2010. Civ.R.

12 establishes the date by which a defendant shall serve his answer:
      (A) When answer presented

      (I) Generally. The defendant shall serve his answer within twenty-eight

      days after service of the summons and complaint upon him; if service of

      notice has been made by publication, he shall serve his answer within

      twenty-eight days after the completion of service by publication.

      {¶18} In order to determine when Barensfeld’s answer was due in the Stark

County case, we also look to Civ.R. 6. Civ.R. 6(A) provides:

             In computing any period of time prescribed or allowed by these

      rules, by the local rules of any court, by order of court, or by any

      applicable statute, the day of the act, event, or default from which the

      designated period of time begins to run shall not be included. The last

      day of the period so computed shall be included, unless it is a Saturday,

      a Sunday, or a legal holiday, in which event the period runs until the end

      of the next day which is not a Saturday, a Sunday, or a legal holiday.

      When the period of time prescribed or allowed is less than seven days,

      intermediate Saturdays, Sundays, and legal holidays shall be excluded in

      the computation. When a public office in which an act, required by law,

      rule, or order of court, is to be performed is closed to the public for the

      entire day which constitutes the last day for doing such an act, or before

      its usual closing time on such day, then such act may be performed on

      the next succeeding day which is not a Saturday, a Sunday, or a legal

      holiday.
       {¶19} Pursuant to Civ.R. 12 and Civ.R. 6, the 28-day period began on October

19, 2010 and ended on November 15, 2010, a Monday that was not a legal holiday.

Barensfeld’s answer in the Stark County action was due on November 15, 2010.

       {¶20} However, Barensfeld did not wish to defend his case in state court. On

November 16, 2010, based on diversity jurisdiction, Barensfeld removed the Stark

County action to federal court. Under the Ohio Rules of Civil Procedure, this was the

29th day. Under 28 U.S.C. 1446(b)(1), “[t]he notice of removal of a civil action or

proceeding shall be filed within 30 days after the receipt by the defendant, through

service or otherwise, of a copy of the initial pleading setting forth the claim for relief

upon which such action or proceeding is based, or within 30 days after the service of

summons upon the defendant if such initial pleading has then been filed in court and is

not required to be served on the defendant, whichever period is shorter.”

       {¶21} Fed.R.Civ.P. 81(c)(2) provides guidelines for a party to file an answer in

the federal court action after the case has been removed from state court:

      (c) Removed Actions.

      (1) Applicability. These rules apply to a civil action after it is removed

      from a state court.

      (2) Further Pleading. After removal, repleading is unnecessary unless

      the court orders it. A defendant who did not answer before removal must

      answer or present other defenses or objections under these rules within

      the longest of these periods:

             (A) 21 days after receiving -- through service or otherwise -- a

      copy of the initial pleading stating the claim for relief;
             (B) 21 days after being served with the summons for an initial

      pleading on file at the time of service; or

             (C) 7 days after the notice of removal is filed.

       {¶22} In the present case, Barensfeld filed his Answer in the federal court

action on November 22, 2010, six days after removal.

       {¶23} Upon Barensfeld’s Answer in federal court, Maggiore filed a Motion to

Strike the Answer based on the default judgment awarded on November 15, 2010 in

the Stark County action. Barensfeld opposed the motion, arguing the application of

Civ.R. 12, 28 U.S.C. 1446(b), and Fed.R.Civ.P. 81(c)(2)(C) created a “prickly little

technical problem” when a case was removed from state court to federal court. See

Burroughs v. Palumbo, 871 F.Supp. 870 (E.D. VA 1994). Barensfeld argued he could

either file an answer in state court within 28 days pursuant to Civ.R. 12 or if he

removed the action to federal court within 30 days of the filing of the action pursuant to

28 U.S.C. 1446(b), he was granted seven days from the date of removal in which to

file an answer in federal court under Fed.R.Civ.P 81(c)(2)(C).             (Maggiore v.

Barensfeld, N.D.Ohio No. 5:10cv2622, May 12, 2011 Memorandum Opinion and

Order.)

       {¶24} The federal court granted the motion to strike Barensfeld’s Answer. It

found that regardless of the application of the Rules of Civil Procedure, default

judgment was granted in the Stark County action before Barensfeld removed the case

to federal court. Because there was a default judgment granted in the state court

action prior to removal, the federal court “takes the case as it finds it on removal and
treats everything that occurred in the state court as if it had taken place in federal

court.” Butner v. Neustadter, 324 F.2d 783 (9th Cir. 1963).

       {¶25} The federal court next considered Barensfeld’s alternative motion for

relief from the default judgment and denied that motion as well.         The matter was

returned to the Stark County Court of Common Pleas.

       {¶26} In his motion for relief from judgment before the Stark County Court of

Common Pleas, Barensfeld argued his failure to respond to the complaint was the

result of “mistake, inadvertence, surprise, or excusable neglect.” Civ.R. 60(B)(1). To

determine whether neglect is “excusable” or “inexcusable” under Civ.R. 60(B)(1), a

court must consider all of the surrounding facts and circumstances. Rose Chevrolet,

Inc. v. Adams, 36 Ohio St.3d 17, 21, 520 N.E.2d 564 (1988). The Ohio Supreme

Court has defined “excusable neglect” in the negative by stating that, “ * * * the inaction

of a defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for

the judicial system.’“ Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d

1102 (1996), citing GTE, at 153.

       {¶27} Although excusable neglect is an “elusive concept,” “the failure to plead or

respond after admittedly receiving a copy of a complaint is generally not excusable

neglect.” Dutton v. Potroos, 5th Dist. No. 2010CA00318, 2011-Ohio-3646 citing LaSalle

Nat. Bank v. Mesas, 9th Dist. No. 02CA008028, 2002-Ohio-6117, at ¶ 13.

       {¶28} Excusable neglect has been further defined as some action “not in

consequence of the party's own carelessness, inattention, or willful disregard of the

process of the court, but in consequence of some unexpected or unavoidable

hindrance or accident.” Emery v. Smith, 5th Dist. Nos. 2005CA00051, 2005CA00098,
2005-Ohio-5526, ¶ 16 citing Vanest v. Pillsbury Co., 124 Ohio App.3d 525, 536 fn. 8,

706 N.E.2d 825 (4th Dist. 1997).       “Excusable neglect is not present if the party

seeking relief could have prevented the circumstances from occurring.”            Porter,

Wright, Morris & Arthur, LLP v. Frutta Del Mondo, Ltd., 10th Dist. No. 08AP-69, 2008-

Ohio-3567, ¶ 22 quoting Stuller v. Price, 10th Dist. No. 02AP-29, 2003-Ohio-583, at ¶

52.

       {¶29} The trial court determined Barensfeld failed to establish excusable

neglect or mistake in his failure to file an answer or otherwise defend his position in

the Stark County action. The court reviewed Barensfeld’s actions and found them to

be deliberate, concluding Barensfeld chose to remove the action to federal court for

strategic purposes, rather than make an appearance in the Stark County action until

after the removal was filed. (July 19, 2011 Magistrate’s Decision.)

       {¶30} Barensfeld argued he was entitled to relief because he made a mistake

in the law based on Civ.R. 12, Fed.R.Civ.P. 81, and 28 U.S.C. 1446, as he argued in

federal court. The argument was that he understood the law to be that he could either

file an answer in state court within 28 days of service of the complaint under Civ.R. 12

or, under Fed.R.Civ.P. 81 and 28 U.S.C. 1446, he could remove the action to federal

court within 30 days of receipt of service of the complaint and file his answer in federal

court within seven days of removal. While that statement of law is correct, there are

intervening procedural circumstances in this case to make it inapplicable to

Barensfeld. Barensfeld did not remove the case to federal court until the 29th day.

Maggiore filed his motion for default judgment on the 29th day and it was granted

before Barensfeld removed the case to federal court.
      {¶31} The trial court rejected Barensfeld’s argument based in part on the May

12, 2011 federal court memorandum opinion in Maggiore v. Barensfeld, N.D.Ohio No.

5:10cv2622. The trial court further held “mistakes of legal advice or mistakes of law

are not within the contemplation of Civ.R. 60(B)(1).” Cleveland Municipal School Dist.

v. Farson, 8th Dist. No. 89525, 2008-Ohio-912. Barensfeld argues this Court has

found numerous times that a mistake in the law demonstrated excusable neglect. See

Campbell v. Aepli, 5th Dist. Nos. CT06-0069, CT06-0063, 2007-Ohio-3688;

McFedericks, Inc. v. Strouse, 5th Dist. No. 09COA014, 2009-Ohio-6253. A review of

these cases show, based on the facts and circumstances presented, the parties

established excusable neglect. In this case, we cannot find the trial court abused its

discretion is reaching an opposite conclusion.

      {¶32} Barensfeld’s failure to file an answer or otherwise defend in the Stark

County action was not the consequence of some unexpected or unavoidable

hindrance or accident. Pursuant to the Ohio Rules of Civil Procedure, Barensfeld

could have prevented the default judgment from occurring in the Stark County action.

                                   CIV.R. 60(B)(3)

      {¶33} Barensfeld next argues he is entitled to relief based on Civ.R. 60(B)(3).

This provision establishes that relief from judgment may be granted if the judgment

was the result of fraud, misrepresentation, or other misconduct of the adverse party.

Barensfeld argues that by filing his motion for default judgment on November 16,

2011, Maggiore engaged in fraud, misrepresentation, or misconduct.

      {¶34} As stated above, pursuant to the Ohio Rules of Civil Procedure,

Barensfeld’s answer or otherwise was due in the Stark County action on November
15, 2010. Maggiore filed his motion for default judgment on November 16, 2010 under

Civ.R. 55. We can find no fraud or misrepresentation with Maggiore’s compliance with

the civil rules.

                                    CIV.R. 60(B)(5)

       {¶35} Civ.R. 60(B)(5) operates as a catch-all provision and “reflects ‘the

inherent power of a court to relieve a person from the unjust operation of a judgment.’“

Dutton v. Potroos, 5th Dist. No. 2010CA00318, 2011–Ohio–3646, at ¶ 49 citing Chuck

Oeder Inc. v. Bower, 9th Dist. No. 23785, 2007–Ohio–7032, at ¶ 10. It is reserved for

“extraordinary and unusual case[s],” Myers v. Myers, 9th Dist. No. 22393, 2005–Ohio–

3800, at ¶ 14, and “is not a substitute for the enumerated grounds for relief from

judgment[.]” Id.

       {¶36} We do not find the facts and circumstances of this case present this

Court with an extraordinary and unusual situation to warrant the application of Civ.R.

60(B)(5).

       {¶37} Accordingly, Barensfeld’s sole Assignment of Error is overruled.
                                   CONCLUSION

       {¶38} Based on the foregoing, we overrule Barensfeld’s sole Assignment of

Error. The trial court did not abuse its discretion in denying Barensfeld’s Motion for

Relief from Judgment.

       {¶39} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, P.J.

Wise, J. and

Edwards, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. JOHN W. WISE



                                       HON. JULIE A. EDWARDS


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


                                       :
CHRISTOPHER MAGGIORE                   :
                                       :
   Plaintiff - Appellee                : JUDGMENT ENTRY
                                       :
                                       :
-vs-                                   :
                                       : Consolidated Case Nos.
GLEN BARENSFELD                        : 2011CA00180 & 2011CA00230
                                       :
   Defendant - Appellant               :
                                     :




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

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                     HON. PATRICIA A. DELANEY



                                     HON. JOHN W. WISE



                                     HON. JULIE A. EDWARDS
