COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68880 SUBURBAN BUILDERS SUPPLY CO. : : ACCELERATED DOCKET Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CHRISTOPHER LACHMAN, ET AL. : : PER CURIAM Defendants-Appellants : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 4, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-280246 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: AARON H. BULLOFF (#0006106) KADISH & BENDER 2112 East Ohio Building 1717 East Ninth Street Cleveland, Ohio 44114 For Defendant-Appellant: MARY ANN RABIN (#0000009) RABIN & RABIN CO., L.P.A. 2000 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1905 - 2 - 2 PER CURIAM: Defendant-appellant Christopher Lachman ("appellant") appeals the denial of his motion to file answer instanter. A default judgment was entered in favor of plaintiff-appellee Suburban Builders Supply Company ("Suburban"). Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED AND IT WAS AN ABUSE OF DISCRETION TO DENY LACHMAN'S MOTION TO FILE AN ANSWER INSTANTER WHEN LACHMAN HAS DEMONSTRATED THAT EXCUSABLE NEGLECT EXISTED BECAUSE SUBURBAN PLACED A MISLEADING CAPTION ON ITS COMPLAINT. II. LACHMAN HAS A MERITORIOUS DEFENSE IF RELIEF IS GRANTED SINCE SUBURBAN DEALT WITH LACHMAN'S CORPORATION, CHRIS & SEAN INC., AS A DE FACTO CORPORATION AND IS ESTOPPED FROM DENYING THE CORPORATE EXISTENCE. III. THE STATUTORY AGENT, CHARLES T. BROWN, WAS NEGLIGENT FOR FAILING TO GIVE LACHMAN NOTICE OF THE STATE OF OHIO ACTION IN CANCELING THE CORPORATE CHARTER FOR NONPAYMENT OF FRANCHISE TAXES AND PLACING THE CHARTER IN THE "DEAD" FILE. Finding none of the assignments of error to have merit, the judgment of the trial court is affirmed. I. On November 14, 1994, Suburban filed a complaint for money damages against appellant. The complaint was captioned Christopher Lachman d.b.a., Chris & Sean, Inc. and d.b.a. Lachman Enterprises, Inc. Suburban sought a money judgment for $35,308.47 plus interest for goods sold to appellant for which appellant still owed a sum. On January 6, 1995, Suburban filed a motion for a default judgment as appellant had failed to answer or defend against - 3 - 3 Suburban's complaint. Appellant's answer date for the complaint was December 28, 1994. The trial court set a hearing on Suburban's motion for March 22, 1995. On March 2, 1995, appellant filed a motion for leave to file answer instanter along with his proposed answer. In his motion for leave, appellant claims he did not realize the complaint named him personally but named his corporation, Chris & Sean, Inc., d.b.a. Lachman Enterprises. Because the corporation was in the process of filing a Chapter 7 bankruptcy, appellant did not believe he had to defend against the complaint. Appellant provided his attorney with a copy of the complaint the week before the motion for leave was filed. His attorney then informed appellant that he personally was a defendant. On March 22, 1995, the trial court denied appellant's motion for leave to file answer instanter as appellant failed to demonstrate excusable neglect. Suburban's motion for default judgment was granted. Judgment was entered in Suburban's favor for $35,308.47 plus interest. II. In his first assignment of error, appellant contends the trial court abused its discretion by denying his motion to file answer instanter. Appellant argues he demonstrated excusable neglect due to what he terms was a misleading caption on Suburban's complaint. Appellant argues that the caption of the complaint was styled in such a way as to lead him to 2believe that the corporation, and not - 4 - 4 appellant, was being sued. Because of this confusion, appellant did not answer the complaint. Appellant then argues that relief from judgment under Civ.R. 60(B)(1) is a remedial rule to be liberally construed such that a judgment should be set aside for a showing of excusable neglect. This court agrees with appellant's understanding with regard to the law pursuant to Civ.R. 60(B)(1) motions for relief from judgment. However, appellant never filed a Civ.R. 60(B)(1) motion. Rather, the correct analysis of the law governing the instant case is found under Civ.R. 6(B)(2). Pursuant to Civ.R. 6(B)(2), a court may, at its discretion, upon motion made after the expiration of a specified period, permit an act to be done where the failure to act was the result of excusable neglect. A Civ.R. 6(B)(2) ruling is addressed to the sound discretion of the trial court. That determination will not be disturbed on appeal absent an abuse of that discretion. State ex rel. Linden- schmidt v. Butler Cty. Bd. of Commrs. (1995), 75 Ohio St.3d 464. An abuse of discretion connotes more than an error of law or judg- ment, it implies that the court's attitude is unreasonable, arbi- trary or unconscionable. Rock v. Cabral (1993), 67 Ohio St.3d 108, 112. All the surrounding facts and circumstances are considered when determining whether neglect is excusable or not. Courts must be mindful of the admonition that cases should be decided on their merits, where possible, rather than on procedural grounds. Al- - 5 - 5 though excusable neglect cannot be defined in the abstract, the test for excusable neglect under Civ.R. 6(B)(2) is less stringent than that applied under Civ.R. 60(B). Lindenschmidt, supra, at 466. In Miller v. Lint (1980), 62 Ohio St.2d 209, a defendant filed her answer out of rule after the plaintiff filed a motion for default judgment. The defendant did not file a motion for leave to file answer instanter or show any excusable neglect. The court held that some showing of excusable neglect was a necessary prelude to filing an answer beyond the answer date. The court stated: Furthermore, the failure of the defendant to comply, even substantially, with the proce- dures outlined in the Civil Rules subjected her to the motion for a default judgment, and the plaintiffs, having complied with the Civil Rules, had a right to have their motion heard and decided before the cause proceeded to trial on its merits. However hurried a court may be in its efforts to reach the merits of a controversy, the integrity of procedural rules is dependent upon consistent enforcement because the only fair and reasonable alternative thereto is complete abandonment. Id., at 214-215. In Lindenschmidt, supra, the court held that the trial court did not abuse its discretion by finding excusable neglect when an attorney experienced a longer period of recovery than anticipated following surgery. In Shoreway Circle, Inc. v. Gerald Skoch, L.P.A. (1994), 92 Ohio App.3d 823, this court held the trial court did not abuse its - 6 - 6 discretion by permitting the defendant to file their answer past the rule date as there was confusion over which amended complaint required response. The defendants had not failed to substantially comply with the Civil Rules, but complied once the confusion regarding the amended complaints was resolved. Similarly, in Mendise v. Plain Dealer Publishing Co. (1990), 69 Ohio App.3d 721, excusable neglect was found when the defendants were unaware of the trial court's overruling of their motion to dismiss and had not received notice from the court. In Evans v. Chapman (1986), 28 Ohio St.3d 132, the court held it was not an abuse of discretion for the trial court to find clerical errors constituted excusable neglect especially in light of the fact that no default motion was pending at the time the motion to file instanter was made. In McDonald v. Berry (1992), 84 Ohio App.3d 6, this court held the trial court abused its discretion in allowing the appellant leave to file an answer to a counterclaim seventeen months late due to "mere oversight". There was no showing of excusable neglect or substantial compliance with the Civil Rules. This court noted that the failure to answer was a failure to meet the requirement of the Civil Rules that a defendant plead or otherwise defend. In State ex rel. Weiss v. Indus. Comm. (1992), 65 Ohio St.3d 470, the court found no excusable neglect when an answer was filed late because new assistant attorneys general were being assigned to replace the former counsel of record and they failed to check on developments in the case. The court noted that, unlike Evans, - 7 - 7 supra, a motion for default was filed before the motion for leave to file instanter. In the instant case, appellant did not attempt to respond to Suburban's complaint until a motion for default was entered. There was nothing procedurally confusing as in Shoreway Circle or Mendise which would cause appellant to be unsure when his answer was due. The thrust of appellant's argument is that he did not believe he was a defendant personally due to the caption of the complaint. Based on his ignorance, he failed to answer the com- plaint. A person's ignorance or lack of understanding regarding the law is not an excuse to disregard the service of a lawsuit. See Buckeye Supply Co. v. Northeast Drilling Co. (1985), 24 Ohio App.3d 134. Appellant was represented by counsel at the time of service as he was involved in bankruptcy proceedings yet he did not show his attorney a copy of the lawsuit until after the motion for default was filed. As in Miller, appellant failed to even substantially comply with the Civil Rules. The trial court did not abuse its discretion by determining appellant failed to demonstrate excusable neglect. Appellant's first assignment of error is overruled. III. Appellant's second and third assignments of error will be considered together. In his second assignment of error, appellant argues he has a meritorious defense if relief is granted as a de facto corporation existed. In his third assignment of error, - 8 - 8 appellant argues his statutory agent was negligent by not notifying him that his corporate charter was cancelled due to lack of payment of franchise taxes. Although appellant's argument regarding a meritorious defense would be applicable if this were a Civ.R. 60(B) motion under review, a meritorious defense is not a requirement for a Civ.R. 6(B)(2) motion. A review of the record reflects that appellant did not raise either argument made in his second or third assignments of error below. A reviewing court ordinarily will not consider a claim of error which was not raised in the court below and was not considered or decided by that court. State v. Williams (1977), 51 Ohio St.2d 112, paragraph two of the syllabus. Appellant's second and third assignments of error are overruled. Judgment affirmed. - 9 - 9 This cause is affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, PRESIDING JUDGE JAMES D. SWEENEY, JUDGE SARA J. HARPER, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the Court and time period for review will begin to run. .