Hillman v. EdwardsHillman v. Edwards
Rendered on July 29, 2010
Robert L. Hillman, pro se.
W. Joseph Edwards, for appellee.
APPEALS from the Franklin County Court of Common Pleas.
FRENCH, J.
{¶1} Plaintiff-appellant, Robert L. Hillman (“appellant“), appeals the judgment of the Franklin County Court of Common Pleas, which (1) allowed defendant-appellee, W. Joseph Edwards (“appellee“), to file an untimely answer in appellant‘s legal malpractice lawsuit and (2) granted summary judgment in favor of appellee. For the following reasons, we affirm.
{¶3} Although appellant attempted an interlocutory appeal from that decision, this court dismissed the appeal for lack of a final appealable order. (Aug. 8, 2008 Journal Entry of Dismissal in case No. 08AP-206.) On remand, the trial court consolidated the malpractice cases, and the parties filed cross-motions for summary judgment. The court granted summary judgment for appellee and denied appellant‘s motion, noting appellant‘s failure to present experts to support his motion and to rebut appеllee‘s.
{¶4} Appellant appealed in Hillman v. Edwards, 10th Dist. No. 08AP-1063, 2009-Ohio-5087 (”Hillman I“). In that appeal, this court found no error in the trial court‘s decision to grant appellee summary judgment. Id. at ¶34. This court concluded, however, that the trial court abused its disсretion by accepting appellee‘s untimely answer because there was neither a motion for leave to file it nor an attempt to show excusable neglect for his untimeliness. Id. at ¶16. Thus, the matter was remanded to the trial court so that it could “entertain a properly filed and supported
{¶5} On remand, appellee filed a motion for leave to file an answer, and he claimed the following in an affidavit to prove excusable neglect. The complaint was sent to his office via certified mail, and an attorney who rents office space from him accepted and signed for it on December 31, 2007. The complaint was “mistakenly” placed in appellant‘s file without appellee‘s knowledge that it arrived. He did not become aware of the complaint until he was reviewing appellant‘s file after the deadline to answer had passed. He filed the original answer within a week of discovering the complaint. He reiterated that “the аnswer in this case was not filed timely because of an office error in which the complaint was placed in the file before [he] realized it was served.” (Case No. 07CVH-12-17248, R. 69, Affidavit at 2.) In аddition, he said that, “[i]n my 25 years as a practicing attorney, I have never intentionally ignored a filing deadline imposed by a court, statute or rule.” (Id., Affidavit at 3.) Lastly, he explained in an аrgument in support of his motion that it was presumably his newly hired paralegal who placed appellant‘s complaint in the file without his knowledge of it arriving.
{¶7} Appellant appeals, raising two assignments of error:
ASSIGNMENT OF ERROR NUMBER ONE
THE APPELLANT CONTENDS THAT THE TRIAL COURT ABUSED [ITS] DISCRETION BY DELIBERATELY VIOLATING
CIVIL RULE 6(B) AND60(B)(1) (2) AND(3) BY [ACCEPTING] THE DEFENDANT‘S MOTION FILED AFTER THE ONE YEAR STATUTORY TIME LIMIT FOR FILING SUCH MOTION, AND THUS THE TRIAL COURT VIOLATED THE PLAINTIFF[]-APPELLANT‘S RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE [LAW] AND MEANINGFUL ACCESS TO THE COURT, ALSO SEE THE 1ST AND 5TH AMEND[MENTS] CONCERNING DISCRIMINATION.
ASSIGNMENT OF ERROR NUMBER TWO
APPELLANT CONTENDS THAT THE TRIAL COURT, AND APPELLATE COURT DENIED HIM DUE PROCESS AND EQUAL PROTECTION OF THE LAW UNDER THE 1ST AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION[ ] WHEN BOTH COURTS (1) GRANTED AND SUSTAINED DEFENDANT‘S SUMMARY JUDGMENT WHILE DEFENDANT WAS DECLARED IN DEFAULT[,] (2) FOR MISAPPLYING THE LAWS TO FACTS ALLEGED IN THE CASE[,] (3) FOR INCORRECTLY RULING UPON THE PLAINTIFF‘S CLAIMS, AS PLAINTIFF NEVER FILED HIS LAW SUIT BASED UPON DEFENDANT‘S FAILURE TO RAISE [ISSUES] PLAINTIFF DESIRED ON DIRECT APPEAL (BUT) ONLY FOR THE DEFENDANT‘S
MISREPRESENTATION OF THE MATERIAL FACTS THAT WERE RAISED IN THE PLAINTIFF‘S DIRECT APPEAL[,] AND (4) FOR GRANTING THE DEFENDANT SUMMARY JUDGMENT DESPITE DEFENDANT‘S FAILURE TO ANSWER INTERROGATORIES, OR PROVIDE DISCOVERY IN VIOLATION OF CIVIL RULES.
{¶8} In his first assignment of error, appellant argues that the trial court erred by granting appellee‘s motion for leave to file an untimely answer. We disagree.
{¶9} Appellant contends that
{¶10} Next, appellant challenges the trial court‘s decision that appellee demonstrated excusаble neglect for his untimely answer. A trial court‘s ruling on a
{¶11}
{¶12} We now turn to whether appellee demonstrated that his untimely answer was due to excusable neglect. Beck-Durell Creative Dept., Inc. v. Imaging Power, Inc., 10th Dist. No. 02AP-281, 2002-Ohio-5908, is an analogous case involving a business that missed a deadline to file an answer. Id. at ¶2. This court concluded that the business demonstrated excusable neglect under
{¶13} In addition, appellee has not shown disregard for the judicial system. See Accu-Check Instrument Serv., Inc. at ¶14. He noted that, in his 25 years of practice, he had never “intentionally ignored a filing deadline imposed by a court, statute or rule.” Moreover, when he discovered appellant‘s complaint, and that the deadline to answer had passed, he attempted, albeit unsuccessfully, to rectify the problеm by filing an answer in a week, and this occurred not too long after the answer was due.
{¶14} Therefore, we conclude that appellee demonstrated excusable neglеct for his untimely answer. Thus, the trial court did not abuse its discretion by granting him leave to file the untimely answer, and we overrule appellant‘s first assignment of error.
{¶15} In his second assignment of error, appellant challenges the trial court reinstating its previous decision to grant summary judgment in favor of appellee, as well as this court‘s review of that judgment in Hillman I. Appellant may not relitigate that
{¶16} Here, in Hillman I, this court affirmed the trial court‘s decision to grant summary judgment for appellee, and in Hillman II the Supreme Court of Ohio dismissed appellant‘s appeal of Hillman I. Given this procеdural history, summary judgment for appellee is a final decision, and res judicata bars appellant from challenging that decision again here. Therefore, we overrule his second assignment of error.
{¶17} In summary, we overrule appellant‘s two assignments of error. Accordingly, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRYANT and KLATT, JJ., concur.