[Cite as Darby Dental Supply, Inc. v. Fischer, 2013-Ohio-3714.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DARBY DENTAL SUPPLY, INC. 

 Plaintiff-Appellee 

-vsRICHARD B. FISCHER 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. Patricia A. Delaney, J. 

Case No. 2012CA00195 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Massillon Municipal Court, 

Case No. 2011CVF906 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: August 26, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

MARK SHERIFF TYLER W. KAHLER 

DALE D. COOK Law Office of Joseph C. Lucas, LLC 

MOLLY GWIN P.O. Box 36736 

Wiles, Boyle, Burkholder & Canton, Ohio 44735 

Bringardner Co., LPA 

300 Spruce Street, Floor One 

Columbus, Ohio 43215-1173 
Stark County, Case No. 2012CA00195 2

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 
Stark County, Case No. 2012CA00195 3

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 reason but 

rather of passion or bias.” Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87. 

{¶9} We begin by recognizing the law disfavors default judgments. Suki v. 

Blume (1983), 9 Ohio App.3d 289. Cases should be decided on their merits rather than 

on technical grounds. Amzee Corp. v. Comerica Bank-Midwest (10th Dist.), 2002 Ohio 

3084, ¶20. At the same time, we recognize the need for adherence to proscribed rules 

of procedure for the orderly disposition of cases. 

I 

{¶10} Fischer maintains he established excusable neglect because his actions 

did not indicate he completely disregarded the judicial system nor did he fall 

substantially below what is reasonable; rather he simply responded improperly. 

{¶11} Fischer maintains orally informing the attorneys for Darby Dental they had 

the wrong person was sufficient response to the lawsuit. In his affidavit in support of his 
Stark County, Case No. 2012CA00195 4

Civ.R. 60(B) motion, he avers he spoke to “someone representing the attorney who filed 

the lawsuit for Plaintiff”, not the actual attorney as asserted in his brief. Fischer admits 

the person he spoke to advised him he needed to retain an attorney. Despite said 

advice, Fischer failed to heed the clear warning in the summons accompanying the 

complaint of his need to file a timely answer.1 

{¶12} Darby Dental filed its motion for default judgment on December 28, 2011. 

Fischer does not deny receiving the motion, rather he avers he did not recall receiving 

it. 

{¶13} In response to a request from the magistrate, Darby Dental filed a 

supplemental memorandum in support of venue on February 1, 2012. A copy was sent 

to Fischer at the same address a copy of the previously filed motion for default 

judgment was sent. 

{¶14} In response to Darby Dental’s memorandum concerning venue, Fischer 

sent a letter dated February 7, 2012, to the magistrate denying he ordered or received 

the supplies from Darby Dental and of a scam perpetrated by Dental Hygiene Onsite, 

with who he admittedly had business dealings.2

 Default judgment was entered 

February 8, 2012. Fischer acknowledges his February 7, 2012 letter was returned to 

him by the magistrate via correspondence dated February 14, 2012. Therein the 

magistrate advised Fischer he should seek legal advice. 

 

1

 We find Fischer’s suggestion of identity theft and inappropriate service on a different 

Dr. Fischer irrelevant in light of Fischer’s letter to the magistrate acknowledging his 

business association with Dental Hygiene Onsite which ordered the supplies. 

2

 Although the record contains the letter with the notation “FILE” thereon, the docket 

does not reflect it was ever time stamped for filing by the clerk nor does it reflect the 

date it was received by the magistrate. 
Stark County, Case No. 2012CA00195 5

{¶15} We find it significant the motion for default judgment was pending fortythree (43) days before it was granted, without direct response to it by Fischer. In all, 

almost 4 months had passed since service of the complaint on Fischer. Though not 

affirmatively demonstrated by the record, we believe it likely Fischer’s letter to the 

magistrate was not received prior to entry of the default judgment. Even if arguably it 

could be construed as an answer, it was received untimely. 

{¶16} Based upon the above, we do not find the trial court abused its discretion 

in not finding excusable neglect. 

{¶17} Appellant’s first assignment of error is overruled. 

II 

{¶18} Herein Fischer asserts the trial court erred in not granting relief from 

judgment under Civ.R. 60(B)(5). 

{¶19} Civ.R. 60(B)(5) is not a substitute for the more specific provisions of Civ.R. 

60(B), and such relief is only granted if there are substantial grounds accompanied by 

extraordinary and unusual circumstances. Mt. Olive Baptist Church v. Pickens Points 

and Home Improvement Center (1979), 64 Ohio App.2d 285, Parkhurst v. Snively, 

2001-Ohio-1418. We find this case does not present such extraordinary or unusual 

circumstances. 

{¶20} Appellant’s second assignment of error is overruled. 
Stark County, Case No. 2012CA00195 6

{¶21} The judgment of the Massillon Municipal Court is affirmed. 

By: Hoffman, P.J. 

Farmer, J. and 

Delaney, J. concur 

 ___________________________________ 

 HON. WILLIAM B. HOFFMAN 

 ___________________________________ 

 HON. SHEILA G. FARMER 

 ___________________________________ 

 HON. PATRICIA A. DELANEY 
Stark County, Case No. 2012CA00195 7

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DARBY DENTAL SUPPLY, INC. : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

RICHARD B. FISCHER : 

 : 

 Defendant-Appellant : Case No. 2012CA00195 

 For the reasons stated in our accompanying Opinion, the judgment of the 

Massillon Municipal Court is affirmed. Costs to Appellant. 

 ___________________________________ 

 HON. WILLIAM B. HOFFMAN 

 ___________________________________ 

 HON. SHEILA G. FARMER 

 ___________________________________ 

 HON. PATRICIA A. DELANEY