[Cite as Kitson v. Gordon Food Serv., 2016-Ohio-7079.]


STATE OF OHIO                    )                           IN THE COURT OF APPEALS
                                 )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

TYLER KITSON                                                 C.A. No.   15CA0078-M

        Appellant

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
GORDON FOOD SERVICE, et al.                                  COURT OF COMMON PLEAS
                                                             COUNTY OF MEDINA, OHIO
        Appellees                                            CASE No.   13CIV1478

                                DECISION AND JOURNAL ENTRY

Dated: September 30, 2016



        WHITMORE, Judge.

        {¶1}    Appellant, Tyler Kitson, appeals a judgment of the Medina County Court of

Common Pleas. This Court affirms.

                                                         I

        {¶2}    Mr. Kitson alleged that he was injured during his employment with Gordon Food

Services when the door of a freezer that he was stocking struck him from behind. When his

workers compensation claim was disallowed, Mr. Kitson appealed the decision to the Medina

County Court of Common Pleas and filed a complaint asserting his right to participate in the

workers compensation system pursuant to R.C. 4123.512. Mr. Kitson also filed a civil case in

the Medina Municipal Court against a coworker, Chris Ashley. In that case, Mr. Kitson alleged

that Mr. Ashley was liable for negligence, battery, assault, and intentional infliction of emotional

distress in connection with his injuries. The Municipal Court transferred the case to the Court of
                                                 2


Common Pleas, where it was sua sponte consolidated with Mr. Kitson’s workers compensation

appeal.

          {¶3}   Mr. Kitson voluntarily dismissed his workers compensation appeal, leaving only

his tort claims pending in the Court of Common Pleas. He filed an amended complaint that

added a claim for bad faith against Mr. Ashley’s insurer, which had assumed his defense. Mr.

Ashley moved to dismiss the bad faith claim. After the trial court granted the motion to dismiss

that claim, Mr. Kitson moved for default judgment against Mr. Ashley, alleging that he failed to

answer the amended complaint filed in the Court of Common Pleas. The trial court denied the

motion for default judgment and permitted Mr. Kitson to answer instanter. The trial court denied

the parties’ respective motions for summary judgment and set the matter for a jury trial.

          {¶4}   Before the case was submitted to the jury, the trial court granted Mr. Ashley’s

motion for a directed verdict with respect to Mr. Kitson’s claims for assault and intentional

infliction of emotional distress. The jury returned a verdict finding that Mr. Ashley was not

negligent and, although he did commit battery, that Mr. Ashley’s actions were not the proximate

cause of Mr. Kitson’s claimed injuries. The trial court entered judgment in favor of Mr. Ashley

and, in the same judgment, ordered Mr. Kitson to bear the costs of the proceeding. Nonetheless,

Mr. Kitson moved the trial court for an award of costs as the prevailing party thirty days after the

trial court entered judgment. Only five minutes later, Mr. Kitson filed this appeal.

                                                 II

                               Assignment of Error Number One

          THE TRIAL COURT ERRED WHEN IT DENIED [MR. KITSON’S] MOTION
          FOR COSTS AS A PREVAILING PARTY BECAUSE THE JURY FOUND
          [MR. ASHLEY] LIABLE FOR CIVIL BATTERY AGAINST [MR. KITSON].
                                                 3


        {¶5}   Mr. Kitson’s first assignment of error is that the trial court erred by denying his

motion to tax costs to Mr. Ashley because, according to Mr. Kitson, he was the prevailing party

despite the fact that the trial court entered judgment in favor of Mr. Ashley on each claim.

        {¶6}   This Court cannot consider the merits of Mr. Kitson’s argument for two

fundamental reasons. Because Mr. Kitson filed his notice of appeal only five minutes after

moving the trial court to award costs, the trial court did not have jurisdiction to rule on that

motion. See In re S.J., 106 Ohio St. 3d 11, 2005-Ohio-3215, at ¶ 9 (concluding that once a case

has been appealed, the trial court loses jurisdiction except to take action in aid of the appeal). In

this respect, we note that Mr. Kitson’s motion to tax costs was directed to the substance of the

jury’s verdict and the trial court’s judgment that Mr. Ashley’s actions did not proximately result

in Mr. Kitson’s injuries. The motion was therefore inconsistent with this Court’s jurisdiction to

reverse, modify, or affirm the judgment on appeal. See id. When a trial court acts beyond its

jurisdiction while an appeal is pending, its order is void. Ormandy v. Dudzinski, 9th Dist. Lorain

No. 09CA009713, 2010-Ohio-2017, ¶ 11.

        {¶7}   In addition, because the trial court had already taxed costs to Mr. Kitson in the

judgment, the substance of Mr. Kitson’s motion is a request that the trial court reconsider an

aspect of that judgment. See Armbruster v. Loach, 9th Dist. Lorain No. 05CA008851, 2006-

Ohio-5049, ¶ 6-7 (construing a motion for costs as a motion for reconsideration and concluding

that a trial court did not have jurisdiction to change the allocation of costs in response to a post-

judgment motion once costs had been awarded in the final judgment). Once a trial court enters a

final judgment, that judgment can only be modified as provided by the Ohio Rules of Civil

Procedure, and a trial court does not have jurisdiction to reconsider the terms of a final judgment.

Id. at ¶ 7.
                                                   4


       {¶8}      The trial court, therefore, did not have jurisdiction to reallocate costs in response

to Mr. Kitson’s motion. His first assignment of error is overruled.

                                Assignment of Error Number Two

       THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. KITSON]
       WHEN IT INSTRUCTED THE JURY ON PROXIMATE CAUSE AS BEING A
       REQUIREMENT OF CIVIL BATTERY.

       {¶9}      Mr. Kitson’s second assignment of error argues that the trial court did not provide

the jury with instructions that accurately and completely stated the law regarding Mr. Kitson’s

battery claim.

       {¶10} Civ.R. 51(A) provides that “[o]n appeal, a party may not assign as error the giving

or the failure to give any instruction unless the party objects before the jury retires to consider its

verdict, stating specifically the matter objected to and the grounds of the objection.” Mr. Kitson

concedes that he did not object to the jury instructions as required by Civ.R. 51(A), so our review

is limited to plain error. See Yungwirth v. McAvoy, 32 Ohio St.2d 285, 288 (1972). The

Supreme Court of Ohio has explained that:

        In appeals of civil cases, the plain error doctrine is not favored and may be
       applied only in the extremely rare case involving exceptional circumstances
       where error, to which no objection was made at the trial court, seriously affects
       the basic fairness, integrity, or public reputation of the judicial process, thereby
       challenging the legitimacy of the underlying judicial process itself.

Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus. This is a “very high standard.” Perez

v. Falls Financial, Inc., 87 Ohio St.3d 371, 375 (2000).

       {¶11} We cannot adequately review Mr. Kitson’s second assignment of error in light of

this standard because he has failed in his burden to provide us with an adequate record on appeal.

When an appellant does not provide a complete record to facilitate our review, we must presume

regularity in the trial court’s proceedings and affirm. State v. Jalwan, 9th Dist. Medina No.
                                                 5


09CA0065-M, 2010-Ohio-3001, ¶ 12, citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197,

199 (1980). In this case, Mr. Kitson’s docketing statement indicated that the record on appeal

would consist of a transcript of proceedings and either a statement prepared under App.R. 9(C)

or App.R. 9(D), but Mr. Kitson did not file either a praecipe to the court reporter or an App.R.

9(C) or 9(D) statement. As such, this Court does not have a copy of the jury instructions as

preserved for the record by the trial court under Civ.R. 51(A) or a record of the trial proceedings.

In these circumstances, we cannot review either the content of the jury instructions as given or

their context in the underlying proceedings for purposes of considering whether this is the

extreme case in which we should notice plain error.

       {¶12} Mr. Kitson’s second assignment of error is overruled.

                              Assignment of Error Number Three

       THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING
       APPELLEE TO FILE AN ANSWER TO APPELLANT’S AMENDED
       COMPLAINT OVER TIME AND RULE.

       {¶13} Mr. Kitson’s final assignment of error argues that the trial court abused its

discretion by allowing Mr. Ashley to file an answer to a successive amended complaint instanter

after Mr. Kitson moved for default judgment. We disagree.

       {¶14} Civ.R. 6(B)(2) explains when a court may grant leave for a late filing:

       When by these rules or by a notice given thereunder or by order of court an act is
       required or allowed to be done at or within a specified time, the court for cause
       shown may at any time in its discretion * * * upon motion made after the
       expiration of the specified period permit the act to be done where the failure to act
       was the result of excusable neglect; but it may not extend the time for taking any
       action under Civ.R. 50(B), Civ.R. 59(B), Civ.R. 59(D), and Civ.R. 60(B), except
       to the extent and under the conditions stated in them.

Although Civ.R. 55(A) permits a default judgment when a defendant fails to answer or otherwise

defend an action, a trial court has the discretion to permit an answer to be filed after the time for
                                                  6


filing has run in the case of excusable neglect. Davis v. Immediate Med. Serv., Inc., 80 Ohio

St.3d 10, 14 (1997). “Neglect under Civ.R. 6(B)(2) has been described as conduct that falls

substantially below what is reasonable under the circumstances.” Id., citing State ex rel. Weiss v.

Indus. Comm., 65 Ohio St.3d 470, 473 (1992). This determination is made with reference to all

of the surrounding facts and circumstances and with due consideration for the principle that cases

should be decided on their merits when possible. State ex rel. Lindenschmidt v. Butler Cty. Bd.

of Commrs., 72 Ohio St.3d 464, 466 (1995). A trial court’s decision in this regard is reviewed

for an abuse of discretion. Id. at 465.

       {¶15} The trial court did not abuse its discretion in this case. Mr. Kitson filed his

complaint against Mr. Ashley in municipal court on January 2, 2014. He filed his first amended

complaint only four days later, and Mr. Ashley answered within the time provided by Civ.R.

12(A)(1). Six months later, the municipal court transferred the case to the common pleas court,

where it was consolidated with the workers compensation appeal. On November 17, 2014, Mr.

Kitson filed another amended complaint. Mr. Kitson’s motion for leave to file this amendment

represented that Mr. Ashley would not be prejudiced because the only change was the addition of

a claim against Mr. Ashley’s insurer for alleged bad faith. Mr. Ashley moved to dismiss the

newly-added bad faith claim within the timeframe provided by Civ.R. 12. The trial court granted

the motion to dismiss with respect to the bad faith claim, and over the next few months, Mr.

Ashley continued to actively defend the action.

       {¶16} On April 3, 2015, Mr. Kitson moved for default judgment against Mr. Ashley. In

response, Mr. Ashley argued that he had actively defended the case from its inception through

filing a motion for summary judgment and noted that the trial court’s order that dismissed the

bad faith claim left the case in exactly the same position it was in before the amended complaint
                                                7


was filed. The trial court permitted Mr. Ashley to answer instanter and, on May 7, 2015, Mr.

Ashley answered the amended complaint, which was then substantively identical to the pre-

amendment version.

        {¶17} Considering these circumstances, we cannot conclude that the trial court abused

its discretion by permitting Mr. Ashley to answer the amended complaint instanter. It is a basic

tenet of Ohio law that cases should be decided on their merits. Perotti v. Ferguson, 7 Ohio St.3d

1, 3 (1983). Mr. Ashley had defended the action vigorously since it commenced and continued

to do so between the time the trial court dismissed the bad faith claim and Mr. Kitson moved for

default judgment. The dismissal of the bad faith claim left the parties in the same position they

had been in before the amendment was filed, and by that point, Mr. Kitson was thoroughly

informed of Mr. Ashley’s potential defenses to the claims and suffered no prejudice as a result of

the trial court’s decision.

        {¶18} The trial court did not abuse its discretion by permitting Mr. Ashley to answer the

amended complaint instanter. Mr. Kitson’s third assignment of error is overruled.

                                               III

        {¶19} Mr. Kitson’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




        There were reasonable grounds for this appeal.
                                                 8


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



CARR, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

NATALIE L. GRUBB and MARK E. OWENS, Attorneys at Law, for Appellant.

LAVELL O. PAYNE and LAUREL E. LETTS, Attorneys at Law, for Appellee.
