from the Franklin Count Court of Common Pleas, C.P.C. No.
Law Office, and Michael T. Cox, for appellee.
Kohrman Jackson & Krantz LLP, Samir B. Dahman and Alexis
V. Preskas, for appellant.
1} Defendant-appellant, Anthony L. Borruso, appeals
from the April 21, 2017 decision of the Franklin County Court
of Common Pleas denying his motion for relief from judgment.
Because the trial court did not abuse its discretion in
finding that appellant failed to establish excusable neglect,
2} On April 11, 2016, plaintiff-appellee, Ron
Christopher Co., Inc. ("Christopher"), filed a
complaint attempting to collect fees from Borruso for breach
of contract and other related claims. A return of service was
filed on April 29, 2016. When Borruso failed to answer the
complaint within 28 days, Christopher filed a motion for
default judgment. The trial court denied the motion as moot
after it accepted an untimely filed answer from Borruso.
3} Christopher served Borruso with requests for
admissions, interrogatories, and request for production of
documents. Borruso failed to respond to these requests. On
January 17, 2017, Christopher filed a motion for summary
judgment, based in part on default admissions under Civ.R.
36. No memorandum in opposition was submitted by Borruso. On
February 23, 2017, the trial court granted the motion for
summary judgment and awarded Christopher $66, 400 plus
4} On March 10, 2017, Borruso filed a motion for
relief from judgment. He argued that he made a mistake in
calendaring the proper response time to file his opposition
to the motion for summary judgment and that this mistake
constituted excusable neglect. He further alleged that he
prepared responses to Christopher's request for
admissions and instructed an associate to serve them on
appellee but that the associate failed to do so. Borruso also
claimed to have a meritorious defense under Florida law which
rendered the contract invalid.
5} The trial court denied the motion for relief from
judgment. It found that Borruso's failure to respond to
Christopher's motion for summary judgment was not the
result of excusable neglect and, therefore, Borruso failed to
meet the requirements of Civ.R. 60(B).
6} Borruso appealed that judgment, asserting the
following assignment of error:
The trial court abused its discretion when it denied
Appellant's Rule 60(B) motion for relief as its decision
that Appellant's failure to timely answer requests for
admissions or respond to Appellee's motion for summary
judgment did not constitute excusable neglect was
7} Borruso argues that the trial court erred when it
denied his motion for relief from judgment filed pursuant to
Civ.R. 60(B)(1). Civ.R. 60(B) provides:
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