[Cite as Nelson v. Powers, 2016-Ohio-1159.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     GEAUGA COUNTY, OHIO


INGRID M. NELSON,                                 :        OPINION

                 Plaintiff-Appellee,              :
                                                           CASE NO. 2015-G-0031
        - vs -                                    :

DAN POWERS, et al.,                               :

                 Defendants-Appellants.           :


Civil Appeal from the Chardon Municipal Court, Case No. 2015 CVF 000014.

Judgment: Reversed and remanded.


Matthew W. Rolf, 145 Main Street, Suite 201, Chardon, OH              44024 (For Plaintiff-
Appellee).

Jeffrey M. McGaffick, 571 East 185th Street, Cleveland, OH 44119 (For Defendants-
Appellants).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellants, Dan Powers, et al., appeal from the judgment of the Chardon

Municipal Court, denying their Civ.R. 60(B) motion for relief from default judgment

entered in favor of appellee, Ingrid M. Nelson. We reverse and remand the matter for

further proceedings.

        {¶2}     On November 17, 2014, appellee filed a pro se, small-claims complaint

seeking damages in the amount of $3,000 against appellants.             Appellants filed an

answer and a counterclaim.             Subsequently, appellants filed a motion for leave to
transfer the case to the general civil docket. The motion was granted and the trial court

issued a judgment stating appellee had until February 23, 2015 to file her amended

complaint and appellants “shall have fourteen days from that date within which to file an

answer.”

       {¶3}   Appellee retained counsel and, on February 23, 2015, filed an amended

complaint, seeking $15,000 in economic damages and $5,000 in non-economic

damages, as well as attorney fees. The amended complaint was different from the

original in nearly all respects. Appellants failed to file an answer within the time allotted

by the court and, on March 18, 2015, appellee filed a motion for default judgment. On

March 27, 2015, a magistrate’s order was issued denying the motion for default

judgment for appellee’s failure to attach a Military Affidavit, pursuant to the local rules.

On March 30, 2015, appellee filed an amended motion for default judgment with the

appropriate attachments.

       {¶4}   On April 6, 2015, appellants filed their answer. On April 17, 2015,

however, the trial court granted appellee’s motion for default judgment and awarded

damages. Appellants subsequently moved the trial court, pursuant to Civ.R. 60(A) and

(B) for relief from judgment.

       {¶5}   In their motion, appellants asserted counsel mistakenly believed he had

28 days, rather than 14 days to file their pleading. This error, appellants maintained,

was a result of excusable neglect, therefore justifying relief from default judgment.

       {¶6}   Appellants further asserted they attempted to file their answer and

counterclaim by regular mail on March 23, 2015; on April 6, 2015, however, counsel

received the pleading returned and unfiled with a message from the Clerk’s office




                                             2
indicating a certain filing fee had not been paid.           According to appellants, counsel

personally drove to the Clerk’s office and explained the pleading contained no additional

claims or changes from their original answer. Appellants asserted the Clerk’s office did

not charge them any additional fee. According to appellants, the misunderstanding

resulted in an additional delay to their filing.

         {¶7}   Appellants also asserted the delay in filing may have been a result of an

error in the case-number affixed to the pleading.             Instead of reflecting the proper

municipal court number, it reflected the small-claims number.              Appellants argued,

however, this was a coincidental clerical error and, as a result, should not form the basis

of default judgment. In light of the foregoing arguments and facts, appellants concluded

they were entitled to relief from judgment.

         {¶8}   After a status hearing, appellee filed a memorandum in opposition to

appellants’ motion. In the memorandum, appellee primarily emphasized that appellants

failed to set forth a meritorious defense to the suit, a necessary element for receiving

relief from judgment under Civ.R. 60(B).               On this basis alone, appellee asserted

appellants’ motion should be denied.

         {¶9}   Assuming, however, arguendo the trial court found the motion sufficient,

appellee argued that counsel’s failure to recognize the 14-day deadline for responding

to appellee’s amended complaint did not constitute excusable neglect; similarly,

appellee asserted the purported misunderstanding with the Clerk’s office did not

constitute excusable neglect because appellants were on notice of the pending default

judgment, but took no effort to verify the acceptance or denial of the pleading with the

Clerk.




                                                   3
       {¶10} Appellants filed a reply to appellee’s memorandum in opposition, asserting

it did have a meritorious defense to the claims. Appellants asserted the defenses “were

already clearly established in the record by [their] properly filed and accepted answer to

[appellee’s] initial complaint. Appellants proceeded to list the specific defenses and

counterclaims asserted in its original answer, concluding appellee’s claims “essentially

constitute a complete sham.”

       {¶11} On June 12, 2015, the magistrate issued his decision denying appellants’

motion for relief from the default judgment and additionally struck appellants’ answer

and counterclaim. Appellants filed objections to the magistrate’s decision, emphasizing

that their failure to file the pleadings within the timeframe set by the court was excusable

neglect. Appellee duly responded. And, on July 2, 2015, the trial court adopted the

magistrate’s decision. Appellants appeal, assigning two errors, they provide:

       {¶12} “[1.] The trial court committed prejudicial error in denying appellants’

Civ.R. 60(A) and (B) motion for relief from judgment.

       {¶13} “[2.] The trial court committed prejudicial error in striking appellants’

counterclaims.”

       {¶14} A trial court’s decision to adopt, reject, or modify a magistrate's decision is

reviewed for an abuse of discretion. In re Gochneaur, 11th Dist. Ashtabula No. 2007-A-

0089, 2008-Ohio-3987, ¶16. The phrase “abuse of discretion” is one of art, “connoting

judgment exercised by a court, which neither comports with reason, nor the record.”

State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶30. This court

has previously observed that when an appellate court is reviewing a pure issue of law,

“‘the mere fact that the reviewing court would decide the issue differently is enough to




                                             4
find error * * *. [In] contrast, where the issue on review has been confined to the

discretion of the trial court, the mere fact that the reviewing court would have reached a

different result is not enough, without more, to find error.’” Sertz v. Sertz, 11th Dist. Lake

No. 2011-L-063, 2012-Ohio-2120, ¶31, quoting State v. Beechler, 2d Dist. Clark No. 09-

CA-54, 2010-Ohio-1900, ¶67.

       {¶15} We first point out a crucial point overlooked by each party; to wit, the trial

court’s entry of default judgment did not resolve all claims or rights of the parties. While

the default judgment did resolve the claims alleged in appellee’s supplemental

complaint in appellee’s favor, it did not resolve appellants’ counterclaims. Accordingly,

the default judgment was interlocutory pursuant to Civ.R. 54(B) (providing, in relevant

part that a judgment adjudicating fewer than all of the claims, rights or liabilities of the

parties “is subject to revision at any time” before final judgment.) By its own terms,

Civ.R. 60(B) only applies to final judgments.       This court has observed, “‘[a] motion

which seeks relief from an interlocutory order is more properly characterized as a

motion for reconsideration.’” State ex rel. Dewine v. Big Sky Energy, 11th Dist.

Ashtabula No. 2014-A-0060, 2015-Ohio-2594, ¶7, quoting Thorpe v. Oakford, 11th Dist.

Portage No. 94-P-0057, 1996 Ohio App. LEXIS 129, *7 (Jan. 19, 1996), see also In re

Estate of Horowitz, 11th Dist. Trumbull No. 92-T-4710, 1993 Ohio App. LEXIS 1827

(Mar. 31, 1993). Under the circumstances, the magistrate and trial court should have

construed appellants’ purported Civ.R. 60(B) motion as a motion for reconsideration.

       {¶16} Although Ohio's Civil Rules do not specifically provide for a motion for

reconsideration of interlocutory orders of a trial court, the Ohio Supreme Court has

stated that such a motion is a permissible procedural tool. Pitts v. Ohio Dept. of Transp.,




                                              5
67 Ohio St.2d 378, 380 (1981). This principle is consistent with the general rule that a

trial court has plenary power to review its own interlocutory rulings prior to entering final

judgment. Vanest v. Pillsbury Co., 124 Ohio App.3d 525, 535 (4th Dist.1997) Requests

for reconsideration of interlocutory orders in the trial court “may be entertained at the

discretion of the court.” Carnavale v. Carnavale, 11th Dist. Trumbull Nos. 99-T-0113,

99-T-0164, & 2000-T-0013, 2001 Ohio App. LEXIS 2961, fn. 2 (June 28, 2001), quoting

LaBarbera v. Batsch, 117 Ohio App. 273, 276 (8th Dist.1962).

       {¶17} Prior to considering the merits of appellants’ motion for reconsideration

and appellee’s memorandum in opposition, the parties convened before the magistrate

for a status hearing on April 21, 2015. During that hearing, the magistrate remarked:

       {¶18} Okay. Let me tell you. And I wanted to have this just because I
             wanted to let you know what I’m thinking. You know, in looking
             through the file, the Defendant has responded to everything so far.
             So it’s not like we’ve got a normal default situation where
             somebody hasn’t answered and nothing’s been done. You know
             what I’m saying? Okay?

       {¶19} So my tendency is to grant the 60(B) and just let’s kick in the suit
             and get done, because you’ve got a claim, you got a counterclaim.
             And you know, we’re just wasting time here.

       {¶20} I mean, do you think that any response to the 60(B) is going to be
             very persuasive? I mean, I’ve looked through the file extensively
             today. There’s been responses. You know what I’m saying. The
             normal default, somebody who doesn’t answer, they’re ignoring
             discovery, they’re not doing stuff. Stuff’s been indeed done here.
             Okay. And we have just a screw-up between the office and the
             filing of the one answer. So I’m just inclined to grant the 60(B) and
             let’s move forward getting done with the case.

       {¶21} After the following monologue, counsel for appellee indicated he

nevertheless wished the court to consider his arguments contra appellants’ motion. The

magistrate agreed and appellee subsequently filed a memorandum in opposition. After




                                             6
considering the parties’ relative positions, the magistrate issued his decision. In the

decision, the magistrate’s tone and position was considerably different from his

statements made from the bench. His decision stated, in relevant part:

       {¶22} The case file demonstrates that the Defendant[s] repeatedly failed
             to timely file pleadings even when given time and a date certain
             within which to respond to a pleading. Excusable neglect does not
             encompass the continual failure to meet deadlines in this case by
             the Defendant[s]. Defendant’s [sic] additional claims of ‘clerical
             mistakes’ also falls on deaf ears here, as the history of untimeliness
             in this case (in regards to the filing of documents as well as
             following proper procedure when dealing with the court) does not
             rise to the level of error justifying the granting of the Defendant’s
             [sic] motion to vacate. (Emphasis added.)

       {¶23} A review of the record indicates appellants failed to adhere to the court’s

order requiring that their answer to the supplemental complaint be filed within 14 days

after that complaint was filed. The pleading was apparently mailed 28 days after the

supplemental complaint was filed due to counsel’s error in reading the order.

Appellants’ counsel acknowledged this error and, upon recognizing it, took action to

assure the pleading was filed properly. After resolving a misunderstanding with the

Clerk’s office, the pleading was filed on April 6, 2015, 11 days before the trial court

entered default judgment.

       {¶24} The supplemental complaint was filed on February 23, 2015; the answer,

therefore, was filed late and out of rule. Nevertheless, appellants were actively involved

in defending the case and discovery had commenced. Although appellants were late in

filing their answer to appellee’s supplemental complaint, nothing indicates the delay was

a result of an intentional disregard for the judicial process, dilatory tactics, or frivolous

gamesmanship. Moreover, the record simply does not support the magistrate’s finding

that appellants had repeatedly and continually missed deadlines or had a history of



                                             7
untimeliness. Under the circumstances, we conclude the magistrate’s finding in support

of his decision is both unreasonable and unsupported by the record. The magistrate

therefore abused his discretion in denying appellants’ motion to reconsider.

      {¶25} Moreover, the magistrate failed to provide any rationale for striking

appellants’ counterclaim. It appears that his decision to do so was inherently premised

upon his decision to deny appellants’ motion for reconsideration. The decision not to

grant relief from a default judgment is unrelated to whether a counter-claimant’s claims

are procedurally or substantively sufficient.    Because there was no independent,

supplemental basis for striking appellants’ counterclaim, we further conclude the

magistrate abused his discretion in doing so.

      {¶26} We therefore conclude the trial court abused its discretion in adopting the

magistrate’s decision. Given the facts and circumstances of this case, the magistrate

should have granted appellants’ motion for reconsideration and allowed the case to

proceed pursuant to appellee’s supplemental complaint as well as appellants’ answer

and counterclaims.

      {¶27} Appellants’ first and second assignments of error are sustained.

      {¶28} For the reasons discussed in this opinion, the judgment of the Chardon

Municipal Court is reversed and the matter is remanded for further proceedings.



TIMOTHY P. CANNON, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




                                            8
