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Ron Christopher Co., Inc. v. Borruso

Court of Appeals of Ohio, Tenth District

December 14, 2017

Ron Christopher Co., Inc., Plaintiff-Appellee,
v.
Anthony L. Borruso, Defendant-Appellant.

         APPEAL from the Franklin Count Court of Common Pleas, C.P.C. No. 16CV-3510

         On brief:

          Cox Law Office, and Michael T. Cox, for appellee.

          Kohrman Jackson & Krantz LLP, Samir B. Dahman and Alexis V. Preskas, for appellant.

          DECISION

          KLATT, J.

         {¶ 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, we affirm.

         {¶ 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 interest.

         {¶ 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 unreasonable.

         {¶ 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 relief ...

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