Wheeler v. v. Denny's, Inc

In Wheeler v. v. Denny's, Inc. (March 11, 1993), Montgomery App. No. 13517, 1993 Ohio App, a trial court found excusable neglect where a part-time waitress signed a return card for certified mail service, but failed to notify her employers. In discussing whether the trial court had abused its discretion by finding excusable neglect, we considered cases where trial courts had either found or failed to find excusable neglect. The Court concluded that the facts in Wheeler resided in the middle, between two situations. The first situation was that the complaint and summons had simply disappeared and the defendant failed to explain by affidavit what had happened, which was not excusable neglect. The second situation occurred where affidavits in the record traced the complaint "from its arrival at the corporate offices until it had reached the proper party sometime after default judgment had been entered." In this latter instance, the neglect was found to be excusable. The Court ultimately concluded that, due to the principles underlying Civ. R. 60(B), the Court could not say that the trial court had abused its discretion in Wheeler, when it found excusable neglect. However, the Court stressed that: "On the other hand, we wish to make it clear that this court is not rendering an opinion that the failure of a party's agent to transmit summons or any legal process to the agent's principal is automatically excusable neglect. We simply rule that the facts in each case are within the sound discretion of the trial court, unless and until a pattern of neglect emerges which will call for the enunciation of a bright line in the law in regard to this issue."