Risner v. Cyclone Servs., Inc.Risner v. Cyclone Servs., Inc.
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Arthur C. Graves, for appellant.
James H. Ellis III, for appellee.
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MAYLE, P.J.
{¶ 1} In this accelerated appeal, appellant, Daniel Risner, appeals the trial court’s July 23, 2019 judgment entry granting appellee, Cyclone Services, Inc.’s,
{¶ 2} On June 22, 2017, appellant, Daniel Risner, suffered an injury in the course and scope of his employment with appellee, Cyclone Services, Inc. (“Cyclone”). Appellant filed a claim with the Ohio Bureau of Workers’ Compensation (“the Bureau”) alleging multiple conditions arising from the injury for which he sought compensation benefits. Ultimately, the Bureau issued an order that allowed some conditions but denied others.
{¶ 3} On May 29, 2018, Risner filed an administrative appeal with the Sandusky County Court of Common Pleas, case No. 18CV599, pursuant to
{¶ 4} Shortly after the filing of the administrative appeal, Cyclone received correspondence from the Bureau indicating that if it elected not to actively participate in the appeal, the Bureau would defend the administrative judgment on Cyclone’s behalf. In response, Cyclone’s president and secretary, Gerold Bowers, informed the Bureau’s counsel that the company would not participate in the administrative appeal. Thereafter, Cyclone did not respond to any filings in the administrative appeal or appear for any hearings.
{¶ 6} Risner’s complaint alleges that the altercation ensued because Bowers ordered him not to attend the hearing, and then fired him when he refused to comply with that order. Bowers, however, maintains that he merely asked Risner to provide a physician’s note that cleared him to drive Cyclone’s vehicles despite any ongoing medical conditions related to the workplace injury. Bowers claims that Risner got angry at this request, engaged in a verbal argument, and then quit. Bowers argues that he did not order Risner not to attend the hearing, or terminate his employment. Despite the differing version of events, it is undisputed that Risner did not return to work after that date.
{¶ 7} Cyclone was served with a summons and a copy of the complaint on July 30, 2018. It failed to file an answer or otherwise respond to the complaint within 28 days of service. On October 31, 2018, Risner filed a motion for default judgment. The trial court set a hearing on Risner’s motion for December 17, 2018. Cyclone was served with notice of the hearing but did not appear. On December 28, 2018, the trial court granted appellant’s motion and entered default judgment against Cyclone.
{¶ 9} On April 15, 2019, Risner filed a motion to vacate the order granting relief from judgment, arguing that he had not been served with a copy of Cyclone’s motion. Risner asked the trial court to vacate its previous order, and to permit him to conduct discovery related to the
{¶ 10} On July 23, 2019, the trial court entered a new order concluding that Cyclone’s failure to answer or otherwise respond to Risner’s complaint was the result of excusable neglect. The trial court’s order affirmed its February 12, 2019 order granting
The trial court erred in sustaining the Motion for Relief From Default Judgment filed on behalf of the Defendant.3
II. Law and Analysis
{¶ 11} Risner challenges the trial court’s granting of Cyclone’s motion for relief from default judgment arguing that Cyclone’s conduct in failing to respond to the properly served summons and complaint did not constitute excusable neglect. Under
(1) mistake, inadvertence, surprise or excusable neglect;
(20 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.
{¶ 12} To prevail on a motion for relief from judgment under
A. Cyclone has a meritorious defense or claim to present if relief is granted.
{¶ 13} Cyclone alleges that it has a meritorious defense to Risner’s wrongful termination claim. To show it has a meritorious defense and to succeed on its motion for relief, Cyclone “must provide operative facts which, if true, would constitute a meritorious defense; ultimate success on the merits need not be established.” Kerger & Hartman, LLC v. Ajami, 6th Dist. Lucas No. L-16-1135, 2017-Ohio-7352, ¶ 16, citing K. Ronald Bailey & Assocs. v. Martin, 6th Dist. Erie No. E-08-057, 2009-Ohio-2932, ¶ 15. Operative facts supporting a meritorious defense should be supported by evidence
{¶ 14} Risner alleges that Cyclone terminated his employment because he instituted a workers’ compensation proceeding, which violated Risner’s rights under Ohio law. That is,
{¶ 15} In support of its
{¶ 16} These operative facts, if true, demonstrate that Cyclone has a meritorious defense to Risner’s wrongful termination claim. Therefore, the trial court did not abuse its discretion in determining Cyclone satisfied the first element necessary for relief from a default judgment.
B. Cyclone is entitled to relief under one of the Civ.R. 60(B) grounds.
{¶ 17} Cyclone sought relief from default judgment under
{¶ 18} In its motion for relief, Cyclone identified Risner’s previously filed administrative appeal as a source of confusion in its duty to respond to the wrongful
{¶ 19} Risner, however, maintains that Cyclone’s neglect was inexcusable. He argues that Bowers’ failure to read the summons and complaint, failure to respond to the motion for default, and failure to appear for the hearing on the motion for default, demonstrates a complete disregard for the judicial system. He argues that this case is analogous to another decision from this court, Hai v. Flower Hospital, 6th Dist. Lucas No. L-07-1423, 2008-Ohio-5295.
{¶ 20} In Hai, the plaintiff refiled a previously dismissed wrongful termination claim. The plaintiff was represented by both local counsel and out-of-state counsel for purposes of the refiling. Once the action was refiled, the trial court granted local counsel’s motion to withdraw from its limited representation. The trial court then ordered plaintiff to obtain new local counsel in addition to her out-of-state counsel in accordance with Local Rules. Plaintiff failed to do so and her complaint was dismissed. Plaintiff’s out-of-state counsel later sought relief from judgment pursuant to
{¶ 21} We conclude that the present case is distinguishable from Hai. There, plaintiff’s attorney maintained that his failure to follow a properly-served court order was “excusable” for no reason other than “he never saw it.” Id. As we stated in that case, “attorney conduct falling ‘substantially below what is reasonable under the circumstances’ constitutes inexcusable neglect.” Id., quoting Vanest v. Pillsbury Co., 124 Ohio App.3d 525, fn. 8, 706 N.E.2d 825 (4th Dist.1997). In contrast, excusable neglect may exist where there are “unusual or special circumstances that justify the neglect of a party or her attorney.” Id. We find such “unusual or special circumstances” in this case—i.e., Cyclone’s mistaken belief that it did not need to respond to the complaint because the newly-filed action was part of the ongoing workers’ compensation proceeding that the Bureau was defending on its behalf.
{¶ 22} The trial court concluded that Cyclone’s confusion between the two pending cases was excusable neglect, and we cannot say that this conclusion was unreasonable, arbitrary, or unconscionable under the circumstances of this case—particularly considering that relief from judgment should be “liberally construed with a view toward effecting a just result.” Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21,
C. Cyclone’s Motion was made within a reasonable time.
{¶ 23} Default judgment in this matter was entered on December 28, 2018. Cyclone filed its motion for relief from judgment on January 24, 2019. Risner does not argue that the timing of Risner’s motion was unreasonable, and we find that Risner’s motion—filed within one month of the default judgment—was reasonable under the facts of this case. The trial court, therefore, did not abuse its discretion in finding the motion was filed within a reasonable time as required by
III. Conclusion
{¶ 24} Having determined the trial court did not abuse its discretion in finding Cyclone satisfied all elements entitling it to relief from the default judgment, we find Risner’s assignment of error not well-taken. We affirm the July 23, 2019 judgment of the Sandusky County Court of Common Pleas and remand this matter for further proceedings. Risner is ordered to pay the costs of this appeal under
Judgment affirmed and remanded.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J. _______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.