Nick v. Cooper

[Cite as Nick v. Cooper, 2016-Ohio-5678.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Philipp D. Nick et al., :
Plaintiffs-Appellees, :
No. 15AP-1109
v. : (C.P.C. No. 12CVH-10-12749)
Frederick A. Cooper et al., : (REGULAR CALENDAR)
Defendants-Appellants. :
D E C I S I O N
Rendered on September 6, 2016
On brief: Murray Murphy Moul + Basil LLP, Joseph F.
Murray, Brian K. Murphy, and Geoffrey J. Moul, for
appellees. Argued: Joseph F. Murray.
On brief: The Tyack Law Firm Co., LPA, James P. Tyack,
and Ryan L. Thomas, for appellants. Argued: Ryan L.
Thomas.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendants-appellants, Fredrick A. Cooper and Katherine Cooper, appeal
from a judgment of the Franklin County Court of Common Pleas in favor of plaintiffs-
appellees, Philipp D. Nick, Ellen H. Hardymon, Suzanne K. Nick irrevocable family trust
one, Suzanne K. Nick irrevocable family trust two, Thomas F. Havens irrevocable family
trust one, and Thomas F. Havens irrevocable family trust two. For the reasons that
follow, we affirm.
No. 15AP-1109 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On October 9, 2012, appellees filed a civil action against appellants alleging
breach of contract, breach of fiduciary duty, fraud, and civil conspiracy. Appellees
obtained service on appellants at appellants' address in Las Vegas, Nevada.
{¶ 3} On November 8, 2012, attorney Mathew J. Burkhart entered an appearance
on behalf of appellants and requested an extension of time to move or plead in response
to the complaint. On December 27, 2012, attorney Burkhart filed an answer on behalf of
appellants. Appellants submitted a notice of substitution of counsel on January 15, 2013,
informing the court that attorney Burkhart was withdrawing from the case and that
attorneys Quentin F. Lindsmith and James P. Schuck of the law firm Bricker & Eckler had
undertaken representation of appellants.
{¶ 4} On March 13, 2013, the trial court issued an order granting the parties' joint
motion to stay proceedings in the case "pending the full performance of the parties under
the Settlement Agreement." On August 7, 2013, appellees filed both a motion to lift the
stay and a motion for leave to file an amended complaint. The stated grounds for the
motion to lift the stay were that the parties' settlement agreement "terminated by its
terms * * * on or before July 31, 2013." (Mot. to Lift Stay at 1.) On the following day, the
trial court reinstated the case to the active docket. On September 25, 2013, appellees filed
an amended complaint. A copy of the amended complaint was served on appellants'
counsel. Appellants, by and through attorney Lindsmith, filed an answer to the amended
complaint on November 7, 2013.
{¶ 5} On June 23, 2014, attorneys Lindsmith, Schuck, and the law firm Bricker &
Eckler LLP moved the court to withdraw as counsel for appellants. The stated grounds for
the motion were as follows:
Quintin F. Lindsmith and the law firm of Bricker & Eckler
LLP ("Counsel") were retained to represent the [appellants] in
January 2013. When first retained, Counsel understood that
he would largely serve as local Counsel with the primary
representation being performed by the firm of Gordon Silver
located in Las Vegas, Nevada.
***
No. 15AP-1109 3
[Appellees] have recently indicated that they intend to
recommence the active prosecution of their claims in this
matter and have served correspondence requesting follow-up
information as to written discovery and requesting
depositions of the [appellants]. Such activity has been
followed by (1) being informed that the Gordon Silver firm
will not be taking the lead the [sic] role in the defense of this
matter as previously indicated, (2) observing that the terms of
Counsel's engagement by the Coopers is not being complied
with, and (3) experiencing a failure of communication
between the [appellants] and Counsel.
(Mot. to Withdraw at 2.)
{¶ 6} Attorney Lindsmith served a copy of the motion and memorandum in
support on appellants by first class mail at the Franklin, Tennessee address listed in
appellants' answer to the amended complaint. The trial court granted the motion to
withdraw on August 5, 2014.
{¶ 7} On December 15, 2014, appellees filed a motion for partial summary
judgment as to the fourth and fifth causes of action alleging fraud and breach of
guarantee. The certificate of service indicates service by regular mail on appellants on
December 15, 2014, at their Tennessee address. On January 12, 2015, appellees filed a
"Notice of Completion of Briefing on Plaintiffs' Motion for Partial Summary Judgment."
The certificate of service indicates service by regular mail on appellants on January 12,
2015, at their Tennessee address.
{¶ 8} Appellants did not respond to appellees' motion for partial summary
judgment. On January 21, 2015, the trial court granted appellees' motion. On January 27,
2015, the trial court scheduled a hearing on the issue of damages to be conducted by a
magistrate of the court on March 16, 2015. On February 3, 2015, Fredrick A. Cooper filed
a pro se motion for relief from the judgment "pursuant to Civil Rule 60(A)." The trial
court denied the motion for relief from judgment on March 9, 2015, concluding that
"[d]efendant * * * does not raise any issue of clerical error in his motion."
{¶ 9} The magistrate issued an order on March 15, 2015, continuing the damages
hearing because appellees' counsel had informed the court that appellant Fredrick A.
Cooper had filed a bankruptcy petition. Thereafter, on March 18, 2015, the trial court
stayed the proceedings due to the pending bankruptcy proceedings. On June 24, 2015,
No. 15AP-1109 4
appellees filed both a notice of voluntary dismissal of their first, second, third, and sixth
causes of action and a motion to lift the bankruptcy stay. The trial court granted both
motions and scheduled a damages hearing for July 23, 2015. Before the hearing could
take place, appellants filed a notice of appeal to this court from the trial court's decision
granting partial summary judgment. This court dismissed the appeal due to the lack of a
final order on July 16, 2015.
{¶ 10} On July 22, 2015, James P. Tyack of Tyack, Blackmore, Liston & Nigh Co.,
L.P.A., entered an appearance as counsel for appellants. On July 23, 2015, the trial court
conducted a hearing on the issue of damages. Appellants' newly retained counsel
represented appellants at the damages hearing. Following the hearing, appellants filed a
notice on July 29, 2015, informing the court that appellants did not intend to file
proposed findings of fact and conclusions of law.
{¶ 11} The trial court issued its findings of fact and conclusions of law on August 5,
2015. Therein, the trial court noted "[d]efendants were given the opportunity to cross
examine any witnesses of Plaintiffs, which they did participate in." (Nunc Pro Tunc Entry
at 1.) Appellants filed a notice of appeal to this court from the trial court's August 5, 2015
judgment, but they later dismissed the appeal by filing a notice of voluntary dismissal.
{¶ 12} On October 15, 2015, appellants filed a Civ.R. 60(B) motion for relief from
the trial court's August 5, 2015 judgment. The stated grounds for relief, supported by
appellants' affidavits, were that appellants' failure to respond to the motion for summary
judgment was the result of excusable neglect pursuant to Civ.R. 60(B)(1). On
November 13, 2015, the trial court denied appellants' motion for relief from judgment.
{¶ 13} Appellants timely appealed to this court from the judgment of the trial
court.
II. ASSIGNMENTS OF ERROR
{¶ 14} Appellants assign the following as trial court error:
I. IT WAS AN ABUSE OF DISCRETION BY THE TRIAL
COURT AND REVERSIBLE ERROR WHICH PREJUDICED
DEFENDANTS-APPELLANTS TO DENY THEIR MOTION
FOR RELIEF FROM JUDGMENT PURSUANT [TO] CIVIL
RULE 60(B) WHEN THE EVIDENCE SUPPORTED THE
CONCLUSION THAT APPELLANTS DEMONSTRATED
No. 15AP-1109 5
EXCUSABLE NEGLECT JUSTIFYING RELIEF FROM
JUDGMENT
II. THE TRIAL COURT ABUSED ITS DISCRETION BY
DISREGARDING THE SUPREME COURT OF OHIO'S
MANDATE IN COLLEY V. BAZELL REGARDING WHAT
FACTORS A TRIAL COURT MUST CONSIDER WHEN
DETERMINING WHETHER DEFENDANTS-APPELLANTS'
CONDUCT AMOUNTED TO EXCUSABLE NEGLECT
UNDER CIVIL RULE 60(B)(1).
III. THE TRIAL COURT ACTED CONTRARY TO LAW,
CONTRARY TO THE EVIDENCE, AND PREJUDICED
DEFENDANTS-APPELLANTS WHEN IT DENIED THEM
AN EVIDENTIARY HEARING UNDER CIVIL RULE 60(B)
AFTER DEFENDANTS-APPELLANTS DEMONSTRATED
GROUNDS FOR RELIEF FROM THE TRIAL COURT'S
ENTRY GRANTING PARTIAL SUMMARY JUDGMENT,
DATED JANUARY 21, 2015.
III. STANDARD OF REVIEW
{¶ 15} Civ.R. 60(B) provides that a trial court may relieve a party from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect;
(2) 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.
{¶ 16} The rule requires the motion to be made "within a reasonable time, and for
reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding
was entered or taken." "A motion for relief from judgment under Civ.R. 60(B) is
addressed to the sound discretion of the trial court, and that court's ruling will not be
disturbed on appeal absent a showing of abuse of discretion." Griffey v. Rajan, 33 Ohio
St.3d 75, 77 (1987). " 'The term "abuse of discretion" connotes more than an error of law
No. 15AP-1109 6
or judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable.' " Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983), quoting State
v. Adams, 62 Ohio St.2d 151, 157 (1980). When applying an abuse of discretion standard,
an appellate court may not substitute its judgment for that of the trial court. Kenison v.
Kenison, 10th Dist. No. 13AP-507, 2014-Ohio-315, ¶ 9, citing Berk v. Mathews, 53 Ohio
St.3d 161, 169 (1990).
{¶ 17} To prevail under Civ.R. 60(B), the movant must show that (1) the movant
has a meritorious defense or claim to present if relief is granted, (2) the movant is entitled
to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and (3) the
motion is made within a reasonable time. GTE Automatic Elec. v. ARC Industries, 47
Ohio St.2d 146 (1976), paragraph two of the syllabus. The movant must satisfy all three of
these requirements to obtain relief. State ex rel. Richard v. Seidner, 76 Ohio St.3d 149,
151 (1996); see also GTE Automatic Elec. at 151 (finding that the requirements under
Civ.R. 60(B) "are independent and in the conjunctive, not the disjunctive"). To warrant a
hearing on a motion for relief from judgment, " 'the movant must allege operative facts
that, if true, would be sufficient to establish each of the elements of the GTE test.' "
Kenison at ¶ 10, quoting Cunningham v. Ohio Dept. of Transp., 10th Dist. No. 08AP-330,
2008-Ohio-6911, ¶ 35.
IV. LEGAL ANALYSIS
A. First Assignment of Error
{¶ 18} In appellants' first assignment of error, appellants contend that the trial
court abused its discretion when it denied appellants' motion for relief from judgment.
We disagree.
{¶ 19} The dispositive issue with regard to appellants' motion for relief from
judgment in this case is whether appellants' neglect was excusable for purposes of Civ.R.
60(B)(1). In Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20 (1996), the Supreme Court
of Ohio stated that "[t]he term 'excusable neglect' is an elusive concept which has been
difficult to define and to apply." Id. In Kay, the Supreme Court further observed that "we
have previously defined 'excusable neglect' in the negative and have stated that the
inaction of a defendant is not 'excusable neglect' if it can be labeled as a 'complete
No. 15AP-1109 7
disregard for the judicial system.' " Id., citing GTE Automatic Elec. at 153; Rose
Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21 (1988), fn. 4.
{¶ 20} " '[T]he concept of "excusable neglect" must be construed in keeping with
the proposition that Civ.R. 60(B)(1) is a remedial rule to be liberally construed, while
bearing in mind that Civ.R. 60(B) constitutes an attempt to "strike a proper balance
between the conflicting principles that litigation must be brought to an end and justice
should be done." ' " Colley v. Bazell, 64 Ohio St.2d 243, 248 (1980), quoting Doddridge v.
Fitzpatrick, 53 Ohio St.2d 9, 12 (1978), quoting 11 Wright & Miller, Federal Practice &
Procedure 140, Section 2851. "The determination of whether excusable neglect occurred,
must of necessity, take into consideration all the surrounding facts and circumstances."
Newman v. Farmacy Natural & Specialty Foods, 168 Ohio App.3d 630, 2006-Ohio-
4633, ¶ 23 (4th Dist.).
{¶ 21} Cases finding excusable neglect typically involve special circumstances that
justify the neglect. Dispatch Printing Co. v. Recovery Ltd. Partnership, 10th Dist. No.
14AP-640, 2015-Ohio-1368, ¶ 13. "Excusable neglect is not present if the party seeking
relief could have prevented the circumstances from occurring." Stuller v. Price, 10th Dist.
No. 02AP-29, 2003-Ohio-583, ¶ 52. " 'A trial court does not abuse its discretion in
overruling a Civ.R. 60(B)(1) motion for relief from * * * judgment on the grounds of
excusable neglect, if it is evident from all the facts and circumstances in the case that the
conduct of the defendant, combined with the conduct of those persons whose conduct is
imputed to the defendant, exhibited a disregard for the judicial system and the rights of
the plaintiff.' " Boling v. Dimeche & Vlado, Inc., 10th Dist. No. 07AP-146, 2007-Ohio-
5795, ¶ 11, quoting Griffey at syllabus.
{¶ 22} In her affidavit in support of the motion for relief from judgment, appellant
Katherine Cooper set forth the facts and circumstances surrounding appellants' failure to
respond to the motion for summary judgment:
106. When Plaintiffs commenced this lawsuit in 2012, we
immediately contacted Eric Hone of Gordon Silver located in
Las Vegas, to assist us with submitting the necessary
paperwork to Crum & Forster, the policyholder of our
Director and Officer insurance policy, for coverage as we had
done before.
No. 15AP-1109 8
***
108. In mid January 2013, Fred and I agreed to have Mr.
Hone represent us for the limited and specific purpose to
negotiate a settlement with Plaintiffs while Crum & Forster
was processing the paperwork for our D&O policy coverage.
Quintin Lindsmith of Bricker & Eckler, LLP was substituted
and began serving as our counsel in this lawsuit.
109. During this time, mid January 2013, * * * [w]e were
informed by Mr. Hone that all paperwork was submitted to
Crum & Forster for coverage, but coverage at this juncture
was not an overriding concern because it appeared we were on
the verge of resolving the dispute.
***
111. On August 8, 2013, the Court reactivated this case at the
request of Plaintiffs after the terms of the settlement
agreement were not met.
***
113. Upon the reactivation of this case, we contacted Mr.
Hone at Gordon Silver and inquired into the status of Crum &
Forster providing us coverage and a defense to Plaintiffs'
claims.
114. Mr. Hone represented that he would follow-up with
Crum & Forster to determine the status of its coverage for the
paperwork he told us he submitted in October of 2012.
115. In June of 2014, through conversations with Gordon
Silver, we learned that Quintin Lindsmith would be
withdrawing as counsel, but were assured by Mr. Hone that
Crum & Forster would be providing us coverage and a
defense.
116. Because Fred and I were without the financial ability to
hire a lawyer to represent us, coverage under our D&O policy
was imperative and we communicated this with Mr. Hone on
a number of separate occasions.
117. On December 15, 2014, Plaintiffs submitted a Motion for
Summary Judgment and according to the Certificate of
No. 15AP-1109 9
Service, the motion was mailed to our residence in Franklin
Tennessee since we were without counsel at this time.
118. Neither Fred nor I received Plaintiffs' Motion for
Summary Judgment.
119. In January of 2015, Fred and I received a pleading filed
by Plaintiffs notifying us that the briefing on their Motion for
Summary Judgment was completed. We were shocked to
learn Plaintiffs filed a motion for summary judgment. This
was the first time we learned about the Motion for Summary
Judgment.
120. * * * We immediately contacted Mr. Hone at Gordon
Silver for further information about coverage under our D&O
policy. We likewise informed Mr. Hone the Plaintiffs had
recently filed a motion for summary judgment and coverage
was of the upmost importance.
121. Mr. Hone again represented to us that he would follow-
up with Crum & Forster and again represented that Crum &
Forster would provide coverage and a defense.
122. Unbeknownst to Fred and I, by the time we spoke with
Mr. Hone in January of 2015, the Court had already granted
Plaintiffs' Motion and entered a judgment against us on
January 21, 2015.
***
124. After Fred submitted our Relief from Judgment, we
spoke with Mr. Hone again and it was at this time he
apologized and informed us that he had failed to promptly
remit the necessary paperwork to Crum & Forster when the
lawsuit was initially filed in October of 2012.
125. According to Mr. Hone, because he had failed to
promptly send in the paperwork for D&O policy coverage,
Crum & Forster denied coverage and that he had known this
for some time, but never informed us because he was trying to
have Crum & Forster change its position in regards to
coverage, which it ultimately refused to do.
126. Fred and I would never have ignored or disregarded
Plaintiffs' Motion for Summary Judgment. Prior to and
following our discovery of the Motion, we immediately took
No. 15AP-1109 10
steps to obtain representation under our D&O policy and were
misled by Gordon Silver that we would receive a defense to
the claims against us.1
(Katherine Cooper Aff. at 15-18.)
{¶ 23} The averments in appellants' affidavits, if taken as true, establish that
appellants relied on attorney Hone's representations that their insurance carrier would
defend them in this action. In our opinion, appellants' alleged reliance on attorney Hone's
representations does not excuse their neglect in this case. It is evident from the affidavits
that appellants had been pursuing coverage under their insurance policy for more than
two years prior to the time the trial court entered judgment in this case. During this time
period, appellants' insurance carrier never proffered a defense to this action. Appellants
do not claim that attorney Hone ever told them that their insurance carrier had agreed to
provide them with a defense to this action. Nor do appellants claim that attorney Hone
gave them any time frame for obtaining coverage and a defense. Moreover, appellants'
affidavits support the conclusion that appellants did not rely on their carrier to supply a
defense to this action. Rather, appellants initially hired attorney Burkhart to represent
them and, shortly thereafter, hired attorney Lindsmith. Under the circumstances, it was
inexcusable for appellants to sit back and wait for their carrier to supply a defense in this
action after attorney Lindsmith withdrew from the case, regardless of the representations
made by attorney Hone.
{¶ 24} Appellants' attempt to excuse their own neglect by placing the blame on
their Nevada attorney is inconsistent with the concept of "excusable neglect" under Civ.R.
60(B). As a general rule, the misconduct of an attorney is imputed to the party who
retained the attorney. Swan v. Swan, 10th Dist. No. 04AP-1089, 2005-Ohio-4636. In
Swan, this court explained the rule of imputed misconduct in the context of excusable
neglect under Civ.R. 60(B)(1) as follows:
Because parties to civil actions voluntarily chose their own
attorneys, they cannot avoid the consequences of the acts or
omissions of their freely-selected representative. [GTE
Automatic Elec., Inc.] at 152, quoting Link v. Wabash R.R. Co.
1The relevant averments of appellant Fredrick A. Cooper's affidavit mirror those of appellant Katherine
Cooper with regard to excusable neglect.
No. 15AP-1109 11
(1962), 370 U.S. 626, 633-634, 82 S. Ct. 1386, 8 L. Ed. 2d 734.
"Any other notion would be wholly inconsistent with our
system of representative litigation, in which each party is
deemed bound by the acts of his lawyer/agent * * * ." Id. If an
attorney's representation falls substantially below what is
reasonable under the circumstances, the client's remedy is
against that attorney in a suit for malpractice. Id., quoting
Link, supra, at 634 fn.10. Any other remedy would amount to
"visiting the sins" of the attorney of the moving party upon the
innocent party.
Id. at ¶ 10.
{¶ 25} Though appellants did not employ attorney Hone to defend them in the
instant litigation, appellants seek to excuse their own failure to obtain counsel or
otherwise respond to the motion for summary judgment by pointing the finger at their
retained counsel in Nevada. Because appellants voluntarily chose attorney Hone to
represent them in their pursuit of insurance coverage, they cannot avoid the
consequences of his negligence as it relates to the defense of this action. If attorney
Hone's representation in securing coverage fell substantially below what is reasonable
under the circumstances, their remedy is against attorney Hone in a suit for malpractice.
To conclude that appellants' misplaced reliance on attorney Hone's representations
excused appellants' neglect in this case would amount to "visiting the sins" of appellants'
Nevada counsel on appellees. See, e.g., Vanest v. Pillsbury Co., 124 Ohio App.3d 525 (4th
Dist.1997) (appellant's attorneys alleged preoccupation with another case did not excuse
appellant's neglect in failing to oppose appellee's motion for summary judgment); Brown
v. Akron Beacon Journal Publishing Co., 81 Ohio App.3d 135 (9th Dist.1991) (out-of-state
attorney's failure to timely file opposition to summary judgment due to unfamiliarity with
the local rules of court was not excusable neglect); PHH Mtge. Corp. v. Northup, 4th Dist.
No. 11CA6, 2011-Ohio-6814, ¶ 20 (allowing appellant to escape summary judgment due to
the alleged neglect of his attorney in failing to oppose the motion for summary judgment
"would be visiting the sins of appellant's attorney upon the appellee"). But see Bohannan
v. Gallager Pipino, Inc., 8th Dist. No. 92325, 2009-Ohio-3469 (a party's neglect in failing
No. 15AP-1109 12
to oppose a motion for summary judgment is excusable where the court, in violation of a
local rule, grants the motion for leave to file the motion for summary judgment on the
same day it grants the motion for summary judgment).
{¶ 26} Appellants allege that they were unable to afford counsel following attorney
Lindsmith's withdrawal. Even if we accept this representation as true, appellants have
provided no explanation for their own failure to contact the court regarding the status of
their case or to check the docket to determine whether any action was required in the six-
month period in which they were unrepresented. In the context of relief from judgment,
"[a] party involved in litigation cannot simply sit back and claim ignorance of the
proceedings." Northup at ¶ 22 ("[A]lthough appellant claims that he was unaware of the
status of his case or of his attorney's failure to respond to appellee's summary judgment
motion, he also had a duty to keep himself informed of the status of the case. His
ignorance * * * does not demonstrate excusable neglect."). Rather, "a party to an action
must keep himself informed of the status of the case." Id., citing State Farm Mut. Auto.
Ins. Co. v. Peller, 63 Ohio App.3d 357, 361 (8th Dist.1989). Here, appellants completely
disregarded their duty to keep themselves informed of the status of this action after
attorney Lindsmith withdrew. It is certainly reasonable to infer from appellants' affidavits
that appellants did not intend to take any action with respect to this litigation other than
continuing to contact attorney Hone regarding insurance coverage. Such inaction is
inexcusable. See Wells Fargo Bank v. Grutsch, 5th Dist. No. 14 CAE 100067, 2015-Ohio-
4721 (appellants did not establish that their failure to oppose summary judgment was the
result of excusable neglect even though it was shown that the motion was not served to
counsel's correct mailing address where the record showed that appellants were
personally aware of the motion prior to the trial court's ruling).
{¶ 27} The only reasonable conclusion to be drawn from the evidence submitted is
that appellants knew they were unrepresented in the litigation from June 2014 when
attorney Lindsmith moved to withdraw from the case through January 21, 2015, when the
trial court granted appellees' motion for summary judgment. The trial court found that
appellants were aware of the August 5, 2014 order permitting their local counsel to
withdraw as well as "the importance of the same." (Nov. 13, 2015 trial court decision at
3.) Furthermore, having been served with attorney Lindsmith's motion to withdraw and
No. 15AP-1109 13
memorandum in support, appellants knew in June 2014 that appellees had
"recommence[d] the active prosecution of their claims in this matter and [had] served
correspondence requesting follow-up information as to written discovery and requesting
depositions." (Attorney Lindsmith's Mot. to Withdraw at 2.) Appellants make no effort in
their affidavits to rebut the representations made by attorney Lindsmith in his motion for
leave to withdraw, including his claim that appellants failed to communicate with counsel
and failed to fulfill the terms of engagement. Under such circumstances, appellants'
subsequent inaction was inexcusable.
{¶ 28} Appellants claim that certain language in the trial court's decision regarding
appellants' "pre-motion delays" and "an inexcusable misuse of process" suggests that the
trial court applied an incorrect standard in reviewing their claim of excusable neglect in
this case. (Trial court decision at 9, 10.) We interpret the language used by the trial court
as a commentary on the merits of appellants' claim of excusable neglect, which the trial
court found completely wanting. Moreover, our review of the trial court decision reveals
that the trial court applied the correct standard in reviewing appellants' motion for relief
from judgment.
{¶ 29} Similarly, appellant Katherine Cooper's bald assertion that "[n]either Fred
nor I received Plaintiffs' Motion for Summary Judgment" does not establish excusable
neglect. (Katherine Cooper Aff. at 17.) There is no allegation by appellants that appellees
improperly served the motion. Appellants admit that "the motion was mailed to our
residence in Franklin, Tennessee." (Katherine Cooper Aff. at 17.) Appellants admit to
subsequently receiving a copy of appellees' "Notice of Completion of Briefing on Plaintiffs'
Motion for Partial Summary Judgment" at the same address. The trial court noted that
appellees' counsel represented to the court at the damages hearing that the regular mail
containing the motion for partial summary judgment had not been returned undelivered.
Appellants do not dispute this representation. Additionally, we note that appellants'
February 3, 2015 motion for relief from judgment filed by appellant Fredrick A. Cooper,
pro se, fails to mention that neither he nor appellant Katherine Cooper received the
No. 15AP-1109 14
motion for partial summary judgment.2 Accordingly, based on the information in the
record, we cannot say that the trial court abused its discretion when it disregarded
appellants' unsupported allegation that they did not receive the motion for partial
summary judgment.
{¶ 30} "Excusable neglect is not present if the party seeking relief could have
prevented the circumstances from occurring." Stuller at ¶ 52. Here, appellants could
have prevented the circumstances that resulted in the judgment against them by either
hiring counsel to represent them in this matter following attorney Lindsmith's withdrawal
or by otherwise defending the action. In our view, the trial court did not abuse its
discretion in overruling a Civ.R. 60(B)(1) motion for relief from judgment because it is
evident from all the facts and circumstances in the case that the conduct of appellants,
combined with the conduct of the person whose conduct is imputed to appellants,
exhibited a disregard for the judicial system and the rights of appellees. Boling at ¶ 11,
quoting Griffey at syllabus. Under the facts and circumstances of this case, we cannot say
that the trial court acted unreasonably, arbitrarily, or unconscionably in finding that
appellants evidenced a complete disregard for the judicial system.
{¶ 31} For the foregoing reasons, appellants' first assignment of error is overruled.
B. Second Assignment of Error
{¶ 32} In appellants' second assignment of error, appellants argue that the trial
court erred by not conducting the Civ.R. 60(B) analysis advocated by the Supreme Court
in cases involving default judgment. In Colley, the Supreme Court held that when a
defendant relies on his insurance carrier to defend the lawsuit after being served with a
summons and a complaint alleging a covered claim, the defendant's failure to file an
answer or to determine that his carrier has failed to file an answer leading to a default
judgment may constitute "excusable neglect" under Civ.R. 60(B) depending on the
particular facts and the circumstances of the case. In concluding that the trial court
abused its discretion by not granting relief in the case, the Colley court stated the
following:
2 In a January 17, 2015 email appellant Fredrick A. Cooper sent to appellees' counsel, appellants
acknowledge that they received appellees' "notice of completion of briefing on plaintiff's motion for partial
summary judgment." The email does not mention that appellants never received a copy of the motion for
partial summary judgment.
No. 15AP-1109 15
In our view, the concept of "excusable neglect" must be
construed in keeping with the proposition that Civ.R. 60(B)(1)
is a remedial rule to be liberally construed, while bearing in
mind that Civ.R. 60(B) constitutes an attempt to "strike a
proper balance between the conflicting principles that
litigation must be brought to an end and justice should be
done." 11 Wright & Miller, Federal Practice & Procedure 140,
Section 2851, quoted in Doddridge v. Fitzpatrick (1978), 53
Ohio St.2d 9, 12. We note that the default judgment was
granted within a week of the defendant's failure to file a timely
answer or a responsive pleading. Under these circumstances,
the inaction of the defendant had not ripened to the point
where it could be labeled as a "complete disregard for the
judicial system" as condemned in GTE Automatic Electric,
supra, at page 153.
[The] inquiry must of necessity take into consideration all the
surrounding facts and circumstances [including] whether the
defendant promptly notified his carrier of the litigation[,] * * *
the lapse of time between the last day for the filing of a timely
answer and the granting of the default judgment[,] * * * the
amount of the judgment granted [and] the experience and
understanding of the defendant with respect to litigation
matters.
Id. at 248-49.
{¶ 33} Appellees argue that the Colley case is distinguishable on its facts and that
the Colley factors are not relevant to the analysis under the particular facts of this case.
We agree.
{¶ 34} Colley involved the entry of a default judgment due to the failure of
defendant's insurance carrier to file an answer after having notice of the action against its
insured. In this case, appellants retained their own counsel from the outset of this
litigation and appellants' insurance carrier never proffered a defense of appellants in this
action. Additionally, this litigation had progressed well beyond the pleadings stage and
had been pending for nearly two and one-half years when appellees filed their motion for
summary judgment. Thus, this case presents significantly different facts and
circumstances than Colley and those cases applying the Colley factors. Appellants have
not cited a single case applying the Colley factors in the review of a Civ.R. 60(B) motion
No. 15AP-1109 16
claiming that a party's failure to respond to a motion for summary judgment was the
result of excusable neglect. Nor has this court found any such case.
{¶ 35} Moreover, in Colley, and subsequent cases decided thereunder, the
defaulting party did not know that they were unrepresented in the action until they
received notice that judgment had been rendered against them. The question in such
cases is whether the neglect of the party to either file an answer or determine whether
their carrier had done so was excusable or inexcusable under the circumstances of the
particular case. Here, appellants were well aware that they were unrepresented in this
litigation for more than six months before the trial court rendered judgment against them.
As noted above, by the time the trial court entered judgment in this case, appellants had
been unsuccessfully seeking coverage for the claims in this case for more than two years.
Under the particular facts and circumstances of this case, we find the Colley factors are
inapplicable.
{¶ 36} For the foregoing reasons, appellants' second assignment of error is
overruled.
C. Third Assignment of Error
{¶ 37} In appellants' third assignment of error, appellants argue that the trial court
abused its discretion by failing to hold an evidentiary hearing on appellants' motion for
relief from judgment. We disagree.
{¶ 38} " '[A] party who files a Civ.R. 60(B) motion for relief from judgment is not
automatically entitled to a hearing on the motion.' " Hillman v. Edwards, 10th Dist. No.
14AP-496, 2014-Ohio-5667, ¶ 19, quoting PNC Bank Natl. Assn. v. Botts, 10th Dist. No.
12AP-256, 2012-Ohio-5383, ¶ 10, citing Adomeit v. Baltimore, 39 Ohio App.2d 97, 105
(8th Dist.1974). " ' "[I]f the Civ.R. 60(B) motion contains allegations of operative facts
which would warrant relief from judgment, the trial court should grant a hearing to take
evidence to verify those facts before it rules on the motion." ' " Id., quoting Flagstar
Bank, FSB v. Hairston, 10th Dist. No. 12AP-679, 2013-Ohio-1151, ¶ 12, quoting Richard at
151. " ' "Conversely, an evidentiary hearing is not required where the motion and attached
evidentiary material do not contain allegations of operative facts which would warrant
relief under Civ.R. 60(B)." ' " Id., quoting Hairston at ¶ 12, quoting Richard at 151.
No. 15AP-1109 17
{¶ 39} The relevant averments of appellants' affidavits do not excuse their conduct
in knowingly remaining unrepresented in this action for a period of six or seven months
and failing to either oppose a properly served motion for summary judgment or otherwise
defend the action. Under the circumstances, the trial court did not abuse its discretion by
ruling on appellants' motion without first conducting an evidentiary hearing to determine
the truth of the operative facts alleged therein.
{¶ 40} For the foregoing reasons, we overrule appellants' third assignment of error.
V. CONCLUSION
{¶ 41} Having overruled appellants' three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and HORTON, JJ., concur.
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