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Darby Dental Supply, Inc. v. Fischer

Court of Appeals of Ohio, Fifth District

August 26, 2013

DARBY DENTAL SUPPLY, INC. Plaintiff-Appellee
v.
RICHARD B. FISCHER Defendant-Appellant

Appeal from the Massillon Municipal Court, Case No. 2011CVF906

For Plaintiff-Appellee MARK SHERIFF DALE D. COOK MOLLY GWIN Wiles, Boyle, Burkholder & Bringardner Co., LPA

For Defendant-Appellant TYLER W. KAHLER Law Office of Joseph C. Lucas, LLC

Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.

OPINION

Hoffman, P.J.

(¶1} Defendant-appellant Richard B. Fischer ("Fischer") appeals the September 13, 2012 Judgment Entry entered by the Massillon Municipal Court which reinstated default judgment against him. Plaintiff-appellee is Darby Dental Supply, Inc. ("Darby Dental").

STATEMENT OF THE CASE

(¶2} On March 28, 2011, Darby Dental filed a complaint against Fischer seeking $6, 158.79 on an account for dental equipment and supplies. The complaint was returned "undeliverable as addressed." Service was later obtained on Fischer at 7125 Reading Road, Cincinnati, Ohio, on October 11, 2011.

(¶3} On December 28, 2011, Darby Dental filed a Motion for Default Judgment, which was granted by the trial court on February 8, 2012.

(¶4} On June 4, 2012, Fischer filed a Motion for Relief from Judgment, which was granted by a magistrate following hearing. Darby Dental filed objections to the magistrate's report. On September 13, 2012, trial court overruled the magistrate's decision and reinstated the default entry.

(¶5} It is from the September 13, 2012 Judgment Entry Fischer prosecutes this appeal, assigning as error:

(¶6} "I. THE TRIAL COURT ABUSED ITS DISCRETION WHERE IT DENIED THE MOTION MADE PURSUANT TO CIV.R. 60(B)(1), WHICH ASSERTED (1) THAT DR. FISCHER'S NEGLECT WAS EXCUSABLE, (2) THAT DR. FISCHER HAD A MERITORIOUS DEFENSE, PRIMARILY THAT A THIRD PARTY USED HIS IDENTITY WITHOUT HIS KNOWLEDGE TO PLACE ORDERS WITH DARBY DENTAL, AND (3) THAT THE MOTION WAS TIMELY FILED.

(¶7} "II. THE TRIAL COURT ABUSED ITS DISCRETION WHERE IT DENIED THE MOTION MADE PURSUANT TO CIV.R. 60(B)(5) AND REQUIRED A SHOWING OF EXCUSABLE NEGLECT IN ORDER TO BE ELIGIBLE FOR RELIEF PURSUANT TO CIV.R. 60(B)(5), WHICH BY ITS OWN TERMS REQUIRES NO SUCH SHOWING."

(¶8} As noted by Appellant in his brief to this Court, the standard of review of a trial court's denial of a Civ.R. 60(B) motion for relief from judgment is abuse of discretion. To constitute an abuse of discretion, "…the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of ...


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