[Cite as Yurina v. Wiser Oil Co., 2013-Ohio-4004.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                             JUDGES:
JOSEPH F. YURINA III, ET AL                          :       Hon. W. Scott Gwin, P.J.
                                                     :       Hon. Sheila G. Farmer, J.
                      Plaintiffs-Appellees           :       Hon. Patricia A. Delaney, J.
                                                     :
-vs-                                                 :
                                                     :       Case No. 13 CA 13
THE WISER OIL COMPANY                                :
                                                     :
                  Defendants-Appellants              :       OPINION




CHARACTER OF PROCEEDING:                                 Civil appeal from the Guernsey County
                                                         Court of Common Pleas, Case No.
                                                         12OG000189


JUDGMENT:                                                Affirmed


DATE OF JUDGMENT ENTRY:                                  September 16, 2013

APPEARANCES:

For Plaintiffs-Appellees                                 For Defendants-Appellants

SCOTT EICKELBERGER                                       LYLE BROWN
RYAN LINN                                                41 South High Street, Ste 2200
DAVID TARBERT                                            Columbus, OH 43215
WILLIAM TAYLOR
50 North Fourth Street
Box 1030
Zanesville, OH 43702-1030
[Cite as Yurina v. Wiser Oil Co., 2013-Ohio-4004.]


Gwin, P.J.

        {¶1}     Defendant-appellants Forest Oil Corporation [“Forest”] and The Wiser Oil

Company [“Wiser”] appeal the judgments of the Guernsey County Court of Common

Pleas granting default judgments in favor of plaintiff-appellee’s Joseph F. Yurina III and

Anthony M. Yurina, co-trustees of the Yurina Family Trust dated July 18, 1990

[“Appellee”] and denying their motions for relief from judgment, for leave to file answers

instanter and for reconsideration.

                                         Facts and Procedural History

        {¶2}     Appellees initiated this litigation by filing a Complaint to quiet title and to

forfeit a portion of an oil and gas lease with the Court of Common Pleas, Guernsey

County, Ohio on April 13, 2012.

        {¶3}     The Appellees predecessors in title Joseph Yurina, Jr. and Anna Yurina

had executed the oil and gas lease in question. The original lessee was Wiser. The

lease was dated June 22, 1967 and filed for record in the Guernsey County, Ohio,

Lease Records, Volume 55, Page 757.

        {¶4}     By an instrument titled Partial Assignment, Bill of Sale, and Agreement

dated April 10, 1990 Wiser assigned its interest in the lease to Defendant Oxford Oil

Company.1 This Assignment was recorded at Guernsey County, Ohio, Official Records,

Volume 3, Page 432. Oxford filed its Answer to the Complaint on April 25, 2012.

        {¶5}     Under the terms of the assignment of the lease, Wiser reserved to "itself

all rights below 100 feet to the base of the Clinton sand horizon and the right to produce




        1
          Defendant Oxford Oil Company filed its Answer to the Complaint on April 25, 2012. They are not
a party to this appeal.
Guernsey County, Case No. 13 CA 13                                                    3


oil and gas from these sands..." There has never been any oil or gas produced from the

formations that Wiser reserved to itself.

       {¶6}   Forest acquired The Wiser Oil Company in 2004 by purchasing all issued

and outstanding capital stock. Wiser subsequently was merged into Forest effective in

November 2005. As of November 2005, Forest and Wiser effectively and legally were

one entity.

       {¶7}   Forest was served by certified mail on April 20, 2012. Appellees filed a

Motion for Default Judgment against Forest on June 8, 2012. The Trial Court entered

default judgment against Forest on July 12, 2012. Wiser was served by publication.

Appellees filed a Motion for Default Judgment against Wiser on September 13, 2012.

On October 24, 2012, Forest and Wiser filed their Motion for Relief from Judgment and

for Leave to File Answer.

       {¶8}   Forest and Wiser attached to their motion for relief from judgment the

affidavit of Cristin C. Bracken who was Senior Counsel for Litigation for Forest. In her

affidavit, Ms. Braken stated, “based upon the belief that Forest did not have an

ownership interest in the subject lease for real property, the Forest legal department

subsequently decided that Forest would not enter an appearance in the Litigation.”

Furthermore, in an email attached to attorney Bracken’s affidavit, attorney Bracken

advised senior level land managers in the Forest land department “I can just default on

this petition and a judgment will be issued terminating the lease (which is the cheapest

course for FOC), if we don’t care about this property – or even have a record of any

Wiser ownership of it...”
Guernsey County, Case No. 13 CA 13                                                  4


        {¶9}   The Trial Court entered a judgment denying the Motion for Relief on

January 15, 2013. The Trial Court also entered a default judgment against Wiser on

January 15, 2013. Forest and Wiser filed a "Motion for Reconsideration or, in the

Alternative, to Amend Judgment Entries to Permit Immediate Appeal,” on February 13,

2013.

        {¶10} On March 18, 2013, the Trial Court denied the Motion for Reconsideration

in part, specifically with respect to the arguments addressing the Motion for Relief.

However, the Trial Court granted Forest and Wiser's request for the issuance of final

appealable orders. On March 18, 2013, the Trial Court issued the Forest Default

Judgment Entry, the Wiser Default Judgment Entry, the Entry Denying Motion for Relief,

and the Entry Denying Reconsideration.

                                     Assignments of Error

        {¶11} Forest and Wiser raise four assignments of error,

        {¶12} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

DENYING FOREST OIL CORPORATION'S MOTION FOR RELIEF FROM JUDGMENT

PURSUANT TO RULE 60(B) OF THE OHIO RULES OF CIVIL PROCEDURE.

(FOREST DEFAULT JUDGMENT ENTRY; ENTRY DENYING MOTION FOR RELIEF;

ENTRY DENYING RECONSIDERATION.)

        {¶13} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

ENTERING DEFAULT JUDGMENT AGAINST THE WISER OIL COMPANY. (WISER

DEFAULT JUDGMENT ENTRY; ENTRY DENYING MOTION FOR RELIEF.)

        {¶14} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

DENYING THE MOTION OF FOREST OIL CORPORATION AND THE WISER OIL
Guernsey County, Case No. 13 CA 13                                                             5

COMPANY FOR LEAVE TO FILE INSTANTER THEIR ANSWER TO PLAINTIFFS-

APPELLEES' COMPLAINT PURSUANT TO RULE 6(B) OF THE OHIO RULES OF

CIVIL PROCEDURE. (WISER DEFAULT JUDGMENT ENTRY; ENTRY DENYING

MOTION FOR RELIEF; ENTRY DENYING RECONSIDERATION.)

      {¶15} “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

DENYING THE MOTION OF FOREST OIL CORPORATION AND THE WISER OIL

COMPANY FOR RECONSIDERATION OF: (A) THE TRIAL COURT'S NON-FINAL

DEFAULT JUDGMENT ENTRY AS TO FOREST (FILED JULY 12, 2012); (B) THE

TRIAL COURT'S NON-FINAL DEFAULT JUDGMENT ENTRY AS TO WISER (FILED

JANUARY 15, 2013); AND (C) THE TRIAL COURT'S NON-FINAL ENTRY (FILED

JANUARY 15, 2013) DENYING FOREST'S MOTION FOR RELIEF FROM JUDGMENT

(FILED OCTOBER 24, 2012), DENYING FOREST AND WISER'S MOTION FOR

LEAVE TO FILE ANSWER INSTANTER (FILED OCTOBER 24, 2012), AND

GRANTING         PLAINTIFFS-APPELLEES'                MOTION          FOR   DEFAULT     JUDGMENT

AGAINST        WISER        (FILED      SEPTEMBER              13,    2012).   (ENTRY    DENYING

RECONSIDERATION.)”

                                                    I, II, III & IV

      {¶16} Although Forest and Wiser purport to present four separate and distinct

assignments of error, their argument for each is combined2. The crux of this appeal is

whether the trial court abused its discretion in finding that Forest and Wiser failed to

establish excusable neglect so as to be relieved from the default judgments entered

against each of them.



      2
          See, App.R.16 (A)(7); App. R. 12(A)(2).
Guernsey County, Case No. 13 CA 13                                                         6


      {¶17} When the defendant to an action fails to plead or otherwise defend the

action, default judgment may be granted pursuant to Civ.R. 55(A). Davis v. Immediate

Medical Services, Inc., 80 Ohio St.3d 10, 14, 684 N.E.2d 292 (1997). However, a

defendant may seek relief from default judgment pursuant to Civ.R. 60(B). The Ohio

Supreme Court set out the controlling test for Civ.R. 60(B) motions in GTE Automatic

Elec., Inc. v. Arc Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113(1976). The court

stated:

             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. Id. at paragraph two of the syllabus.

      {¶18} The decision of whether to vacate a judgment rests within the trial court's

discretion and will not be reversed absent an abuse of discretion. Doddridge v.

Fitzpatrick, 53 Ohio St.2d 9, 12, 371 N.E.2d 214(1978). An abuse of discretion is more

than simply an error of law, but rather implies that the trial court's attitude was

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

219, 450 N.E.2d 1140(1983).

      {¶19} In denying the motion for relief from judgment the trial court stated,

             The Court finds that Wiser was properly served with the Complaint

      in accordance with the Ohio Rules of Civil Procedure. In addition, the
Guernsey County, Case No. 13 CA 13                                                       7


      Court finds that by Defendants' own admission Forest and Wiser are and

      have been merged since 2005 and therefore Wiser would have been put

      on notice of the Complaint at the same time as Forest and Forest could

      have filed Answer for Wiser,

             The Court finds that pursuant to Civil Rule 60(B), a Court may

      relieve a party from judgment for excusable neglect. However, here, the

      Court finds that Forest's actions were not excusable neglect. There was

      not a disconnect or breakdown in employee protocol. Forest was noticed

      in the Complaint of a possible interest in an oil and gas lease and was

      directed to the exact Volume and Page where it could be found, which is

      filed for record at Guernsey County, Ohio, Lease Records, Volume 55,

      Page 757. Defendant then attached a copy of the oil and gas lease to their

      proposed Answer Instanter. After reviewing the pleadings, the Court finds

      that Forest had notice and made a decision to default for Forest and

      Wiser. Therefore, Defendants cannot use Civil Rule 60(B) as a backdoor

      as the Court finds there was no excusable neglect.

      {¶20} The Ohio Supreme Court has yet to develop a definitive definition of

excusable neglect. However, it has described it in the negative stating, “the inaction of a

defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for the

judicial system.’” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d

1102(1996), quoting GTE Automatic Elec., Inc., 47 Ohio St.2d at 153, 351 N.E.2d 113.

The court has further explained:
Guernsey County, Case No. 13 CA 13                                                       8


             A trial court does not abuse its discretion in overruling a Civ.R.

      60(B)(1) motion for relief from a default judgment on the grounds of

      excusable neglect, if it is evident from all of the facts and circumstances in

      the case that the conduct of the defendant, combined with the conduct of

      those persons whose conduct is imputable to the defendant, exhibited a

      disregard for the judicial system and the rights of the plaintiff.

Griffey v. Rajan (1987), 33 Ohio St.3d 75, 78, 514 N.E.2d 1122(1987), syllabus.

      {¶21} Additionally, this court has noted, “[a] denial of a Civ.R. 60(B) motion

serves justice when there has been an intentional disregard for the legal process and a

lack of good faith by the neglectful party.” Kebler v. Prudential Property & Cas. Ins. Co.,

5th Dist. Muskingum No. CT2002-0036, 2003-Ohio-2145, ¶ 49.

      {¶22} Forest and Wiser argue that it has a protocol in place for evaluating and

responding to service of process. Once the Complaint was served upon the company,

in-house counsel Cristin Bracken took immediate steps to inquire as to whether Forest

had a possible ownership interest in the Lease. Forest had inherited over 1,300 leases

throughout the United States and Canada through the Wiser acquisition. Ms. Bracken

was unaware that Forest had acquired any oil and gas lease interests in Ohio, whether

through the Wiser acquisition or otherwise. She therefore enlisted the assistance of

employees in Forest's Eastern Business Unit, Land Group, to research possible

ownership in the Lease.

      {¶23} Land technician Judi Dayton performed a quick, preliminary search of the

computerized database and identified thirteen (13) leases in Ohio, but did not look at

information specific to any particular lease. Based upon information she found in the
Guernsey County, Case No. 13 CA 13                                                      9


database, Ms. Dayton believed that Wiser did not have a working interest in the land

subject to the lease. Forest and Wise argue that a simple “disconnect” occurred because

Ms. Bracken understood (i.e., that Wiser had no interest in the Lease), and what Ms.

Dayton meant to convey and herself understood (i.e., that Wiser did not have a working

interest in a particular well). The investigation undertaken by the Forest employees did

not result in complete information being conveyed to the company's decision makers.

The decision not to respond to the Complaint was made based upon the impression that

Forest did not have a current interest in the Lease.

      {¶24} The trial court did not abuse its discretion in finding that excusable neglect

did not exist in this case. Forest and Wiser made a conscious decision not to enter and

appearance or file an answer in the case after having been made aware that it may

have an interest in the lease and/or the property that was subject to the lease.

      {¶25} In the case at bar, we agree with the trial court that the documents served

upon Forest and Wiser clearly identified that a lawsuit had been commenced, as well as

the property and the lease that were the subject of the lawsuit. According to Forest and

Wiser’s own admission, they failed to properly research their interest. To allow a

corporation to set aside a default judgment because the appropriate individuals claim

they did not correctly research the issue in accordance with approved corporate

procedure, even though the evidence demonstrates clearly the language of the

documents received indicate a formal legal proceeding had been commenced in a court

of law concerning a lease of record would be to render every corporate mistake

excusable and Civ.R. 60(B) meaningless.
Guernsey County, Case No. 13 CA 13                                                      10


      {¶26} Therefore, we find that the trial court did not abuse its discretion in finding

that Wiser and Forest failed in their burden to demonstrate excusable neglect justifying

relief from judgment.

      {¶27} It is well settled that the decision to grant leave to plead is well within the

discretion of the trial court. Patterson v. V & M Auto Body, 63 Ohio St.3d 573, 589

N.E.2d 1366 (1992). Additionally, because the trial court did not abuse its discretion in

finding that Wiser and Forest failed in their burden to demonstrate excusable neglect

justifying relief from judgment, the trial court did not abuse its discretion in denying

Forest and Wiser leave to file their answer instanter. To hold otherwise would be to

circumvent the requirements for relief from judgment set forth in Civ.R.60 (B).

      {¶28} The Supreme Court of Ohio has held that a request for reconsideration of

a final judgment at the trial court level is a nullity, as is any judgment or final order

resulting from such a motion. State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40

Ohio St.3d 58, 60, 531 N.E.2d 713, 715(1988), citing Pitts v. Dept. of Transp., 67 Ohio

St.2d 378, 381, 423 N.E.2d 1105(1981). Accordingly, the trial court did not err in

denying Forest and Wiser’s motion for reconsideration.
Guernsey County, Case No. 13 CA 13                                                   11


      {¶29} Forest and Wiser’s four assignments of error are overruled in their entirety

and the judgment of the Guernsey County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur




                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. SHEILA G. FARMER


                                            _________________________________
                                            HON. PATRICIA A. DELANEY



WSG:clw 0904
[Cite as Yurina v. Wiser Oil Co., 2013-Ohio-4004.]


             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


JOSEPH F. YURINA III, ET AL                          :
                                                     :
                          Plaintiffs-Appellees       :
                                                     :
                                                     :
-vs-                                                 :       JUDGMENT ENTRY
                                                     :
THE WISER OIL COMPANY                                :
                                                     :
                                                     :
                     Defendants-Appellants           :       CASE NO. 13 CA 13




       For the reasons stated in our accompanying Memorandum-Opinion, judgment of the

Guernsey County Court of Common Pleas is affirmed. Costs to appellants.




                                                         _________________________________
                                                         HON. W. SCOTT GWIN


                                                         _________________________________
                                                         HON. SHEILA G. FARMER


                                                         _________________________________
                                                         HON. PATRICIA A. DELANEY
