[Cite as Gingrich v. G&G Feed & Supply, L.L.C., 2019-Ohio-4779.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



LORI J. GINGRICH                                 :           JUDGES:
                                                 :           Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                      :           Hon. Craig R. Baldwin, J.
                                                 :           Hon. Earle E. Wise, Jr., J.
-vs-                                             :
                                                 :
G&G FEED & SUPPLY LLC, ET AL.                    :           Case No. 2019 CA 00008
                                                 :
        Defendants-Appellees                     :           OPINION




CHARACTER OF PROCEEDING:                                     Appeal from the Court of Common
                                                             Pleas, Case No. 2018 CV 00410




JUDGMENT:                                                    Reversed and Remanded




DATE OF JUDGMENT:                                            November 18, 2019




APPEARANCES:

For Plaintiff-Appellant                                      For Defendants-Appellees

SANFORD A. MEIZLISH                                          ANGELA PAUL WHITFIELD
ROBERT E. DEROSE II                                          JILL ROGERS SPIKER
JASON C. COX                                                 280 North High Street
250 East Broad Street                                        Suite 1300
10th Floor                                                   Columbus, OH 43215
Licking County, Case No. 2019 CA 00008                                                   2


Columbus, OH 43215
Wise, Earle, J.

         {¶ 1} Plaintiff-Appellant, Lori J. Gingrich, appeals the January 15, 2019 decision

and order of the Court of Common Pleas of Licking County, Ohio, granting relief from

judgment to Defendants-Appellees, G&G Feed & Supply, LLC, Tera Gore, Global Vision

Alliance, Inc., and IronGate Equestrian Center.

                           FACTS AND PROCEDURAL HISTORY

         {¶ 2} On April 11, 2018, appellant filed a complaint against G&G Feed & Supply

alleging an intentional tort. Appellant worked for G&G which was owned and operated

by Tera Gore. An amended complaint was filed on April 13, 2018 to include as party

defendants Ms. Gore, and other employer-related entities owned and operated by Ms.

Gore, Global Vision Alliance, Inc., and IronGate Equestrian Center.         The amended

complaint alleged on April 15, 2016, Ms. Gore intentionally struck appellant with a heavy

metal clipboard causing her to sustain serious injuries. At the time of the incident,

appellant was working at an equestrian event and Ms. Gore was her boss.

         {¶ 3} In July 2016, appellant had filed a workers' compensation claim against one

of the appellees herein, G&G Feed & Supply. On November 20, 2017, appellant appealed

the administrative decision, seeking additional allowance considerations. Both actions

were filed with the court sub judice.1

         {¶ 4} None of the named defendants to the intentional tort case filed an answer.

As a result, appellant filed a motion for default judgment on June 26, 2018. By entry filed

July 26, 2018, the trial court granted the motion. A damages hearing was held on August




1This   appeal pertains to the intentional tort case only.
Licking County, Case No. 2019 CA 00008                                                     3


27, 2018. Appellees did not appear. By entry filed September 7, 2018, the trial court

awarded appellant $953,578.75 as against appellees.

       {¶ 5} On September 27, 2018, appellees filed a Civ.R. 60(B) motion for relief from

judgment, claiming excusable neglect under subsection (B)(1) and the catch-all provision

to relieve a person from the unjust operation of a judgment under subsection (B)(5).

Appellees argued they mistakenly believed the filings in the intentional tort case were part

of the workers' compensation case and were being handled in that case. By decision and

order filed January 15, 2019, the trial court granted the motion under both subsections.

       {¶ 6} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶ 7} "THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING

DEFENDANTS-APPELLEES' MOTION FOR RELIEF FROM JUDGMENT."

                                             I

       {¶ 8} In her sole assignment of error, appellant claims the trial court abused its

discretion in granting appellees' Civ.R. 60(B) motion for relief from judgment. We agree.

       {¶ 9} A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's

sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 514 N.E.2d 1122 (1987). In order

to find an abuse of that discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Appellees based

their Civ.R. 60(B) motion on "mistake, inadvertence, surprise or excusable neglect" and

"any other reason justifying relief from the judgment." Civ.R. 60(B)(1) and (5). In GTE
Licking County, Case No. 2019 CA 00008                                                     4


Automatic Electric Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),

paragraph two of the syllabus, the Supreme Court of Ohio held the following:



             To prevail on a motion brought under Civ.R. 60(B), the movant must

      demonstrate that: (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, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or

      (3), not more than one year after the judgment, order or proceeding was

      entered or taken.



      {¶ 10} In its decision and order granting the Civ.R. 60(B) motion, the trial court

found the following:



             Here, the Court finds that the Defendants did not act in a manner that

      demonstrated a complete disregard for the judicial system.               In fact,

      Defendants had retained counsel to represent them in the BWC proceeding

      which involved the same incident the claims asserted in this case are based

      on. As the Court noted in Russo v. Fonseca, 2012-Ohio-5714, a non-

      lawyer's confusion when there are multiple proceedings involving the same

      underlying incident is a compelling reason to grant a motion for relief from

      judgment.
Licking County, Case No. 2019 CA 00008                                                       5


              Further, the other factors supporting excusable neglect also weighs

       in favor of Defendants. First the amount of the judgment in this case is

       nearly $1,000,000.00.     Second, the delay between the entry awarding

       damages and the motion for relief from judgment was a mere 18 days.

              Finally, the Court also finds that the Defendants are entitled to relief

       under Rule 60(B)(5), which operates as a catch-all provision, and reflects

       the inherent power of a court to relieve a person from an unjust operation

       of a judgment. Here, Plaintiff has pursued relief for the same incident

       against some of the same Defendants in two different lawsuits. The Court

       finds that the Defendants made an understandable mistake in a situation

       that is relatively rare, where there are two separate proceedings in the same

       Court brought by the same Plaintiff against the same first Defendant arising

       from the same incident.



       {¶ 11} A review of the record belies the finding of a mere misunderstanding and/or

confusion between two cases. The intentional tort case involved four defendants. The

workers' compensation case involved two defendants: one named in the intentional tort

case (G&G Feed & Supply) and the Bureau of Workers' Compensation. On December

21, 2016, appellant sent letters to each of the four named defendants in the intentional

tort case, putting them on notice of her plan to file the intentional tort claim. The complaint

in the workers' compensation case was filed on December 19, 2017. The complaint in

the intentional tort case was filed on April 11, 2018, with an amended complaint filed two

days later. The record indicates service was complete to the four defendants. In fact,
Licking County, Case No. 2019 CA 00008                                                   6


Ms. Gore signed for three of the four defendants. The defendant she did not sign for was

G&G, the only defendant in the workers' compensation case. Clearly Ms. Gore was

placed on notice that three other defendants, including herself, were being sued.

       {¶ 12} Following the filing of the Civ.R. 60(B) motion, appellee took the deposition

of Ms. Gore. Ms. Gore could not recall if she received the December 21, 2016 notice

letters. Gore depo. at 52-53. When questioned on the receiving of multiple filings in the

intentional tort case, e.g., amended complaint, motion for default, hearing notices, she

repeatedly admitted to not opening and/or not reading the mailings, just assuming they

had something to do with the workers' compensation case. Id. at 106-108, 122, 125, 130,

175-176, 223. On the mail she did open, once she saw appellee's name and G&G Feed

& Supply, she did not flip past the first page. Id. at 107-108, 129-130, 183. She admitted

that once she saw any document with appellant's name on it, "I put it to the side." Id. at

120, 188-189. Although Ms. Gore signed for service of the amended complaint for herself,

Global Vision Alliance, Inc., and IronGate Equestrian Center, defendants not parties to

the workers' compensation case, she did not contact her attorneys or send her attorneys

any of the information. Id. at 103, 170-172. When questioned as to why she did not read

the amended complaint, she stated, "Because I receive stuff all the time from AultComp,

the BWC. At some point, I just got tired of reading the stuff." Id. at 189-190.

       {¶ 13} In Mason v. Mason, 5th Dist. Perry No. 10-CA-18, 2011-Ohio-4775, ¶27-28,

this court explained the concept of "excusable neglect" as follows:



              The Ohio Supreme Court has defined "excusable neglect" in the

       negative by stating that, " * * * the inaction of a defendant is not 'excusable
Licking County, Case No. 2019 CA 00008                                                    7


      neglect' if it can be labeled as a 'complete disregard for the judicial system.'

      " Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18, 20, 665 N.E.2d

      1102, citing GTE, supra, at 153, 351 N.E.2d 113.

             Although excusable neglect is an "elusive concept," Kay v. Marc

      Glassman, Inc., supra, "the failure to plead or respond after admittedly

      receiving a copy of a complaint is generally not excusable neglect." Dutton

      v. Potroos, 5th Dist. No. 2010CA00318, 2011-Ohio-3646 citing LaSalle Nat.

      Bank v. Mesas, 9th Dist. No. 02CA008028, 2002-Ohio-6117, at ¶ 13. It has

      been held that "[o]nly where the failure to respond is coupled with a

      complete lack of notice of the original motion may excusable neglect lie."

      Chuck Oeder Inc. v. Bower, 9th Dist. No. 23785, 2007-Ohio-7032, at ¶ 8,

      quoting Zimmerman v. Rourke, 9th Dist. No. 04CA008472, 2004-Ohio-

      6075, at ¶ 9. Excusable neglect has been further defined as some action

      "not in consequence of the party's own carelessness, inattention, or willful

      disregard of the process of the court, but in consequence of some

      unexpected or unavoidable hindrance or accident." Emery v. Smith, 5th

      Dist. Nos. 2005CA00051, 2005CA00098, 2005-Ohio-5526, ¶ 16 citing

      Vanest v. Pillsbury Co. (1997), 124 Ohio App.3d 525, 536 fn. 8, 706 N.E.2d

      825.



      {¶ 14} "In addition, '[w]hile unusual or special circumstances can justify neglect, if

a party could have controlled or guarded against the happening or event he later seeks

to excuse, the neglect is not excusable.' " Sandifer v. Yoder, 5th Dist. Tuscarawas No.
Licking County, Case No. 2019 CA 00008                                                     8


2015 AP 02 0008, 2015-Ohio-4270, ¶ 20, quoting National City Bank v. Kessler, 10th Dist.

No. 03AP–312, 2003–Ohio–6938, ¶ 14.

       {¶ 15} There cannot be a misunderstanding and/or confusion about the filings in

the intentional tort case when Ms. Gore did not even bother to open the mailings or read

the ones she did open. Opening the mail and reading the filings is step one. If she read

the filings in their entirety and then became confused, she could have followed up with

her attorneys. Ms. Gore is not a novice to the business world and legal proceedings. She

is a businesswoman who owned three separate entities, knew to employ attorneys, and

had been a named defendant in a prior lawsuit out of Tennessee. Gore depo. at 7-8.

She has shown a complete disregard for the judicial system and could have guarded

against the default judgment from which she sought relief. The default judgment was

caused by her own carelessness, inattention, and willful disregard of the process of the

court. Her actions did not constitute an "understandable mistake."

       {¶ 16} Upon review, we find the trial court's decision was unreasonable given the

facts of this case, and find the trial court abused its discretion in granting the motion for

relief from judgment pursuant to Civ.R. 60(B)(1) and (5).

       {¶ 17} The sole assignment of error is granted.
Licking County, Case No. 2019 CA 00008                                          9


      {¶ 18} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby reversed, and the matter is remanded to said court to reinstate the default

judgment and the damages award.

By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.




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