Chirico v. Home DepotChirico v. Home Depot
{¶ 2} On February 2, 2004, plaintiff filed a complaint against Home Depot, alleging negligence. More specifically, plaintiff alleged that on or about August 31, 2002, he was injured, as a result of defendant's negligence,1 while shopping at the Home Depot located at 2480 Brice Road, Reynoldsburg, Ohio.
{¶ 3} On February 13, 2004, defendant received a certified copy of the complaint at its Brice Road store. The signed certified mail receipt was filed in the trial court on February 17, 2004. On March 23, 2004, plaintiff filed a motion for default judgment against defendant for failure to move or otherwise plead in the action. On May 19, 2004, the trial court granted the motion for default judgment and referred the matter to a magistrate for a damages hearing. Plaintiff appeared and presented evidence at the hearing before the magistrate. The magistrate issued a decision and recommendation on August 2, 2004, recommending judgment for plaintiff in the amount of $60,000 plus interest and costs. On August 13, 2004, defendant filed a motion to vacate the default judgment pursuant to
{¶ 4} On September 17, 2004, defendant appealed to this court from the August 20, 2004 judgment entry, and the matter was assigned case No. 04AP-947. On October 25, 2004, this court remanded the matter to the trial court for the limited purpose of permitting the trial court to determine the pending
{¶ 5} Upon remand, the trial court issued a decision and entry granting defendant's motion to vacate the judgment entry dated August 20, 2004, and denied plaintiff's motion for leave to conduct discovery. Plaintiff appeals and has asserted the following two assignments of error:
[1.] THE LOWER COURT ERRED TO THE PREJUDICE OF APPELLANT IN THAT GRANTING APPELLEE'S MOTION FOR RELIEF FROM JUDGMENT WAS AN ABUSE OF DISCRETION.
[2.] THE LOWER COURT ERRED TO THE PREJUDICE OF APPELLANT IN DENYING APPELLANT THE RIGHT OF DISCOVERY AND THEN A HEARING ON THE ISSUES RAISED IN APPELLEE'S MOTION FOR RELIEF FROM JUDGMENT.
{¶ 6} Under his first assignment of error, plaintiff argues that the trial court abused its discretion in granting defendant's
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 from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.
{¶ 7} In order to prevail on a
{¶ 8} "The decision to grant or deny a
{¶ 9} Plaintiff concedes that defendant's
{¶ 10} As provided under the first prong of the GTE test, to prevail on a motion for relief from judgment, the moving party must establish that it has a meritorious defense or claim to present if relief is granted. "The movant's burden is to allege a meritorious defense, not to prevail with respect to the truth of the meritorious defense." Colley v. Bazell (1980),
{¶ 11} In this case, plaintiff's claim against defendant was based on a theory of negligence. "[I]n order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom." Strother v. Hutchinson (1981),
{¶ 12} An affidavit submitted with defendant's
{¶ 13} Considering the foregoing, we conclude that the trial court did not abuse its discretion in finding that defendant has a meritorious defense to present if relief is granted.
{¶ 14} Regarding the second prong of the GTE test, the trial court determined that defendant had established excusable neglect under
* * * The term "excusable neglect" is an elusive concept which has been difficult to define and to apply. Nevertheless, we have previously defined "excusable neglect" in the negative and have stated that the inaction of a defendant is not "excusable neglect" if it can be labeled as a "complete disregard for the judicial system." * * *
(Citations omitted.) Kay v. Marc Glassman, Inc. (1996),
{¶ 15} In order to demonstrate excusable neglect, it is sufficient to show: (1) that there is a set procedure to be followed in the corporate hierarchy for dealing with legal process; and (2) that such procedure was inadvertently not followed until such time as a default judgment had already been entered against the corporate defendant. Beck Durell CreativeDept., Inc. v. Imaging Power, Inc., Franklin App. No. 02AP-281,
{¶ 16} Citing an affidavit of defendant's corporate counsel, Edwin L. Hamilton, which was submitted in support of defendant's
{¶ 17} Mr. Hamilton's affidavit states, in pertinent part, as follows:
5. It is the policy of Home Depot, U.S.A., Inc. that if an employee of any Home Depot store is served with a summons and/or lawsuit naming "Home Depot" as a party, that such documents shall be forwarded to the corporate law department in Atlanta, Georgia.
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9. On February 17, 2004, the record revealed that service by certified mail was made at the address located at 2480 Brice Rd., Reynoldsburg, Ohio 43068.
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11. The corporate law department in Atlanta, Georgia has no knowledge or record of ever receiving the summons and complaint that was filed by Plaintiff on February 2, 2004 and served at the 2480 Brice Road, Reynoldsburg, Ohio address on February 17, 2004.
{¶ 18} Mr. Hamilton's affidavit indicates that defendant's established policy is to forward any summons and/or lawsuit naming "Home Depot" as a party to the corporate law department in Atlanta, Georgia. However, the affidavit also indicates that the corporate law department never received the complaint that was served at the Brice Road Home Depot in February 2004. Therefore, even though service was completed by certified mail at the Home Depot store, and despite the existence of defendant's established policy regarding the forwarding of a complaint to the corporate law department, the complaint was not received by that department. Regarding plaintiff's specific argument that defendant did not demonstrate exactly why the procedure failed, we conclude that, considering the absence of any evidence of bad faith, it would be reasonable to infer that defendant's established procedure was inadvertently not followed in this case. See Buck Durell Creative Dept. (finding excusable neglect, despite lack of direct evidence explaining why the copy of the complaint did not reach the appropriate party in the corporate hierarchy). Therefore, in view of the facts of this case, we conclude that the trial court did not abuse its discretion in finding defendant entitled to relief pursuant to
{¶ 19} Accordingly, we overrule plaintiff's first assignment of error.
{¶ 20} By his second assignment of error, plaintiff argues that the trial court should have permitted discovery and held a hearing on defendant's
{¶ 21} Considering the foregoing, we find that it was not error for the trial court to deny plaintiff's motion for leave to conduct discovery and to not hold an evidentiary hearing on defendant's
{¶ 22} Having overruled plaintiff's two assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
French and Travis, JJ., concur.