[Cite as Risner v. Cyclone Servs., Inc., 2019-Ohio-5279.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     SANDUSKY COUNTY


Daniel A. Risner                                            Court of Appeals No. S-19-037

        Appellant                                           Trial Court No. 18CV753

v.

Cyclone Services, Inc.                                      DECISION AND JUDGMENT

        Appellee                                            Decided: December 20, 2019

                                                   *****

        Arthur C. Graves, for appellant.

        James H. Ellis III, for appellee.

                                                   *****

        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, Civ.R. 60(B)

motion for relief from default judgment. For the following reasons, we affirm the

judgment of the trial court.
                                        I. Background

          {¶ 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 R.C. 4123.512.1

Risner’s administrative appeal named both Cyclone and the Bureau’s administrator as

“Defendants-appellees.”

          {¶ 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.




1
 Although Risner’s administrative appeal is relevant to this case, the actual merits of the
administrative appeal are not before this court.



2.
        {¶ 5} On July 23, 2018, Risner filed the instant case—a wrongful termination

action against Cyclone, which was assigned Sandusky County case No. 18CV753.

Risner alleged that, during the processing of his workers’ compensation claim, the

Bureau scheduled a hearing on January 29, 2018, that he needed to attend. On that day,

Risner and Bowers got into a verbal altercation in Cyclone’s parking lot.

        {¶ 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.




3.
       {¶ 8} On January 24, 2019, Cyclone filed a motion for relief from judgment

pursuant to Civ.R. 60(B)(1). Cyclone argued that Bowers was confused by the service of

new process and believed that the summons and complaint were part of the ongoing

administrative appeal in which Cyclone had elected not to participate. Cyclone argued

that this confusion constituted excusable neglect and entitled it to relief from judgment.

The trial court agreed and on February 29, 2019, granted Cyclone’s motion for relief

from judgment.

       {¶ 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 Civ.R. 60(B) motion and to file a brief in opposition to the

motion. The trial court appears to have granted the motion to vacate because the parties

proceeded with discovery. 2 On July 1, 2019, Risner filed his opposition to Cyclone’s

motion for relief from default judgment along with a transcript of Bowers’ deposition.

       {¶ 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


2
 Although the record does not contain a written order on Risner’s motion to vacate, the
parties do not dispute that it was granted and the matter proceeded to discovery without
objection from Cyclone. Given that the parties submitted briefs on the Civ.R. 60(B)
motion and the trial court entered a new order on that motion, the lack of a written order
on Risner’s motion to vacate does not impact the resolution of this appeal.




4.
Cyclone relief from the previously entered default judgment pursuant to Civ.R. 60(B)(1).

Risner timely appealed and asserts the following error for our review:

             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

Civ.R. 60(B), a party may be relieved from a final judgment for the following reasons:

             (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




3
  The granting of a motion for relief from default judgment pursuant to Civ.R. 60(B) is a
final appealable order and we therefore have jurisdiction to determine the merits of this
appeal. See GTE Automatic Elec. Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351
N.E.5d 113 (1976).




5.
       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 Civ.R. 60(B), the

moving party must demonstrate: “(1) the party has a meritorious defense or claim to

present if relief is granted; (2) the party 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 Electric at paragraph two of the syllabus. We review a trial court

judgment granting a motion for relief from judgment under an abuse of discretion

standard. Id. at 150. An abuse of discretion connotes that the trial court’s attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983). Our review of the record reveals the trial court did not

abuse its discretion in determining Cyclone established each of the necessary elements.

     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




6.
in the form of “affidavits, depositions, written admissions, written stipulations, answers

to interrogatories, or other sworn testimony.” Hussein v. Hafner & Shugarman Enters.,

Inc., 6th Dist. Wood No. WD-10-083, 2011-Ohio-4738, ¶ 22, citing East Ohio Gas Co. v.

Walker, 59 Ohio App.2d 216, 221, 394 N.E.2d 348 (8th Dist.1978).

       {¶ 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, R.C. 4123.90 prohibits an employer from discharging an employee

because that employee “filed a claim or instituted, pursued or testified in any proceedings

under the workers’ compensation act[.]” R.C. 4123.90. Therefore, to succeed, Risner

must show that (1) he was terminated and (2) his termination was because he participated

in the Bureau’s January 29, 2018 hearing. If Cyclone did not terminate Risner or if he

was terminated for reasons other than his participation in the Bureau’s hearing, his

wrongful termination claim would be unsuccessful.

       {¶ 15} In support of its Civ.R. 60(B) motion, Cyclone relied upon an affidavit

from its president and secretary, Gerold Bowers, as well as the transcript of Bowers’

deposition. In the affidavit and at his deposition, Bowers denies that he ever told Risner

that he was not allowed to take time off from work to attend a hearing related to his

workers’ compensation claim. Bowers claims that he merely asked Risner to provide

medical documentation to verify that he could continue to operate Cyclone’s vehicles

given his recent injuries. Bowers also denies that he terminated Risner’s employment.




7.
Bowers maintains that Risner voluntarily quit after their verbal altercation over the

requested medical clearance.

       {¶ 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 Civ.R. 60(B)(1) on the

grounds that its conduct in failing to answer or respond to Risner’s complaint was

excusable neglect. The Ohio Supreme Court “define[s] excusable neglect in the negative:

a defendant’s inaction is not excusable neglect if it can be deemed a complete disregard

for the judicial system.” (Internal quotations and citations omitted.) State ex rel. Jackson

v. Ohio Adult Parole Auth., 140 Ohio St.3d 23, 2014-Ohio-2353, 14 N.E.3d 1003, ¶ 23.

When ruling on a Civ.R. 60(B) motion, the rule is to be “liberally construed with a view

toward effecting a just result.” Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21, 520

N.E.2d 564 (1988). Each case must be decided on its own particular facts. Hardy v.

Maverick Properties, 6th Dist. Lucas No. L-17-1167, 2018-Ohio-1235, ¶ 25, citing

Transamerican Ins. Co. v. Graham, 6th Dist. Wood No. WD-82-47, 1982 Ohio App.

LEXIS 15737 (Nov. 26, 1982).

       {¶ 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




8.
termination claim. That is, Cyclone elected not to participate in the administrative appeal

following a discussion with the Bureau’s counsel. When Bowers later received the

summons and complaint in the underlying case, he believed it was related to the ongoing

administrative appeal. As a result, he mistakenly believed that the duty to respond fell

under the Bureau’s defense of the administrative appeal and that Cyclone did not need to

respond. This confusion, Cyclone argues, supports a finding of excusable neglect under

Civ.R. 60(B).

       {¶ 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 Civ.R.

(60)(B)(1), arguing that although he was served with the trial court’s order requiring the




9.
retention of local counsel, he did not actually see the order. The trial court denied the

motion, finding that counsel’s actions did not constitute excusable neglect. On appeal,

we affirmed. We held that plaintiff’s out-of-state counsel’s failure to retain local counsel,

despite a properly-served order that required him to do so, was not excusable neglect

simply because he claimed to have never seen the court’s order. Id. at ¶ 22.

       {¶ 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,




10.
520 N.E.2d 564 (1988). We therefore find that the trial court did not abuse its discretion

in finding appellant’s failure to respond was the result of excusable neglect under Civ.R.

60(B)(1).

               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 Civ.R. 60(B).

                                      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 App.R. 24.


                                                                          Judgment affirmed
                                                                              and remanded.




11.
                                                        Risner v. Cyclone Servs., Inc.
                                                        C.A. No. S-19-037




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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/.




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