Opinion
No. 108605
04-02-2020
JEFFREY MENDES, Plaintiff-Appellee, v. LOWE'S HOME CENTERS, L.L.C., ET AL., Defendants-Appellants.
Appearances: Goodman Law Firm, and Grant A. Goodman, for appellee. Roetzel & Andress, L.P.A., Bradley A. Wright, Nicholas P. Resetar, and Jessica L. Sloan, for appellants.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-900391 Appearances: Goodman Law Firm, and Grant A. Goodman, for appellee. Roetzel & Andress, L.P.A., Bradley A. Wright, Nicholas P. Resetar, and Jessica L. Sloan, for appellants. ANITA LASTER MAYS, J.:
{¶ 1} Defendant-appellant Lowe's Home Centers, L.L.C. ("Lowe's") appeals the trial court's granting of plaintiff-appellee Jeffrey Mendes's ("Mendes") motion for relief from judgment. We affirm.
I. Background and Facts
{¶ 2} On July 5, 2018, Mendes filed a personal injury action against Lowe's. Mendes alleges that on July 11, 2016, he walked under an overhead display of heavy flowerpots that were hanging over a customer walkway at a Lowe's location. One of the pots fell, Mendes sustained brain injuries that required medical treatment and caused pain and suffering. Lowe's responded on August 6, 2018. The parties agreed to mediation and arbitration. Extensive discovery ensued. Mendes asserts that video and photographic evidence demonstrates the display did not comply with Lowe's procedures for such displays.
{¶ 3} On March 4, 2019, the trial court observed that the case was not resolved by mediation and directed that arbitration occur by May 3, 2019. On March 8, 2019, Lowe's filed several deposition transcripts and moved for summary judgment. On April 15, 2019, seven days after the 30-day deadline for Mendes to respond, the trial court granted the motion as unopposed. On April 22, 2019, Mendes moved for reconsideration and relief from judgment under Civ.R. 60(B)(1) for excusable neglect. Counsel for Mendes admitted the inadvertent clerical failure to calendar the response date and argued that the parties had been actively engaged in ongoing discovery and the pursuit of resolution of the case including preparation for the scheduled arbitration.
{¶ 4} On May 7, 2019, the trial court granted Mendes's motion for relief from judgment. Mendes responded to the summary judgment motion under seal, accompanied by transcripts and exhibits. On May 23, 2019, Lowe's appealed the trial court's granting of relief from judgment.
{¶ 5} After a review of the record, we affirm the trial court's judgment.
II. Assignment of Error
{¶ 6} Lowe's argues that the trial court abused its discretion by granting Mendes's motion for relief from judgment pursuant to Civ.R. 60(B). We disagree.
III. Standard of Review
{¶ 7} We review a court's decision to approve or deny a motion for relief from judgment under Civ.R. 60(B) for an abuse of discretion. Cleveland Mun. School Dist. v. Farson, 8th Dist. Cuyahoga No. 89525, 2008-Ohio-912, ¶ 8, citing Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994); Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988). "An 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, 219, 450 N.E.2d 1140 (1983). When applying the abuse of discretion standard, a reviewing court may not substitute its judgment for that of the trial judge. Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).
IV. Discussion
{¶ 8} To succeed under Civ.R. 60(B), a successful movant must establish 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."Farson at ¶ 7, quoting GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.
{¶ 9} Lowe's does not challenge the timeliness of the filing of the motion nor whether the party has a meritorious defense or claim. Lowe's argues that Mendes's actions were mere neglect and Mendes failed to demonstrate excusable neglect under Civ.R. 60(B)(1), which states:
(B) Mistakes; Inadvertence; Excusable neglect; Newly discovered evidence; Fraud; etc.Id.
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.
{¶ 10} The term "excusable neglect" requires an "equitable" review that takes into account '"all relevant circumstances surrounding the party's omission.'" Farson, 8th Dist. Cuyahoga No. 89525, 2008-Ohio-912, ¶ 12, 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).
{¶ 11} In Farson, "we adopt[ed] the Pioneer standard for determining what constitutes 'excusable neglect' under Civ.R. 60(B)(1)." Id. at ¶ 13. However, we emphasized that:
the use of this standard does not absolve parties or counsel from employing all necessary diligence as a predicate for seeking relief from judgment under Civ.R. 60(B). Mere negligence will not suffice as a
ground for relief under the rule — the negligence must be excusable or it will not form the basis for relief. We continue to adhere to the proposition that deliberate or willful conduct cannot constitute excusable neglect, 12 Moore's Federal Practice (3 Ed. 1998), Section 60.41 [1][c][ii], at 60-88-60-89, nor does inadvertent conduct that does not demonstrate diligence, id. at § 60.41[1][c][ii], at 60-89. Mistakes of legal advice or mistakes of law are not within the contemplation of Civ.R. 60(B)(1). See Engleson v. Burlington Northern RR. Co., 972 F.2d 1038 (C.A. 9, 1992) (construing identical federal rule).Id. at ¶ 14.
{¶ 12} Thus, we consider circumstances such as:
"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." [Pioneer, 507 U.S. at 395, 113 S. Ct. 1489, 123 L.Ed.2d 74.] Pioneer has been acknowledged to set a more "forgiving" standard and should be given a broad reading. See Graphic Communications Internatl. Union, Local 12-N v. Quebecor Printing Providence, Inc., 270 F.3d 1, 5 (1st Cir.2001).Id. at ¶ 12. See also Tri-Corner Invests. LLC v. First Defense Internatl. Group, Inc., 361 Fed. Appx. 629, 631-632, 2010 U.S. App. LEXIS 714 (6th Cir.2010).
{¶ 13} Lowe's argues that Mendes's counsel was on notice of the deadline "but chose not to file any opposition to obtain a strategic advantage at arbitration that he was actively preparing for." Appellant's brief, p. 5. Lowe's cites counsel's failure to appear at a pretrial conference and knowledge of case management dates to support the argument that Mendes is not entitled to relief for excusable neglect. Yet Lowe's also acknowledges that Mendes's counsel has been actively involved in the case and with "attending mediation and preparing for arbitration."
{¶ 14} Mendes contends, and the record supports, that the failure to timely respond to the summary judgment motion constitutes excusable neglect. Lowe's filed for summary judgment on March 8, 2019. The trial court granted the unopposed motion seven days after the response deadline passed and Mendes moved for relief from that judgment within seven days after the trial court's judgment. Counsel for Mendes admitted to the failure to calendar the response date and explained that the parties had been diligently working toward a resolution since the inception of the case and continued to do so in preparing for the arbitration to be held by May 3, 2019.
{¶ 15} The record does not support the conclusion that Mendes "deliberately" or "willfully" failed to answer the motion for summary judgment. Farson, 8th Dist. Cuyahoga No. 89525, 2008-Ohio-912, ¶ 15. The facts of this case demonstrate a type of opportunism "that has been repeatedly disfavored by the courts." Id. "It is 'a basic tenet of Ohio jurisprudence that cases should be decided on their merits.'" Id., quoting Perotti v. Ferguson, 7 Ohio St.3d 1, 3, 454 N.E.2d 951 (1983).
Lowe's also relies on Loc.R. 29.0(I)(D) of the Court of Common Pleas of Cuyahoga County, General Division which mandates that all timely motions "must be ruled upon" prior to arbitration. This is not a case where counsel simply failed to familiarize himself with the local rules of practice that may not constitute excusable neglect. Cavalry Invests. v. Dzilinski, 8th Dist. Cuyahoga No. 88769, 2007-Ohio-3767, ¶ 12, citing Moon v. Northwest Airlines, Inc., 10th Dist. Franklin No. 99AP-1104, 2000 Ohio App. LEXIS 2503 (June 13, 2000). --------
{¶ 16} We also observe that the actions of Mendes's counsel were not in disregard of the court's order that could exhibit "a disregard for the judicial system and the rights of the plaintiff." Griffey v. Rajan, 33 Ohio St.3d 75, 75, 514 N.E.2d 1122 (1987), syllabus.
{¶ 17} We do not find that the trial court abused its discretion by granting relief from judgment.
{¶ 18} The appellant's sole assignment of error is overruled.
{¶ 19} The trial court's judgment is 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 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. /s/_________
ANITA LASTER MAYS, JUDGE EILEEN T. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR