Duck Creek v. O'Dell

2024 Ohio 1051

• Court: Ohio Court of Appeals
• Decided: March 21, 2024
• Docket: 113211
• Status: Published

Opinion

[Cite as Duck Creek v. O'Dell, 2024-Ohio-1051.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

DUCK CREEK ENERGY, INC., :

Plaintiff-Appellee, : No. 113211 v. :

TISH O’DELL, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 21, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-778554

Appearances:

Benesch, Friedlander, Coplan & Aronoff LLP and Robert A. Zimmerman, for appellee.

Terry J. Lodge, for appellants.

KATHLEEN ANN KEOUGH, A.J.:

Defendants-appellants, Tish O’Dell and Michelle Aini (“appellants”),

appeal from the trial court’s judgment denying their Civ.R. 60(B) motion for relief

from judgment. Finding no merit to the appeal, we affirm. I. Background

In March 2012, plaintiff-appellee, Duck Creek Energy, Inc. (“Duck

Creek”), brought suit against appellants, asserting claims for defamation, tortious

interference with business relationships, and tortious interference with prospective

business relationships, based on statements that appellants made about Duck

Creek’s liquid roadway de-icing product, AquaSalina. Appellants countersued for

abuse of process.

All parties were represented by counsel throughout the litigation.

After discovery, the parties filed cross-motions for summary judgment. In June

2013, the trial court issued a 27-page journal entry and decision, meticulously

analyzing and deciding each of the claims and counterclaims asserted by the parties,

ultimately granting summary judgment in part and denying summary judgment in

part regarding the parties’ claims.

On September 10, 2013, after a settlement conference with the court,

the parties entered into a confidential settlement agreement. As part of the

agreement, on September 27, 2013, the trial court entered a consent judgment and

order granting permanent injunctive relief. The judgment prohibited and enjoined

appellants from “referring to, describing, or implying AquaSalina as, or any

synonyms for: fracwater, fracking waster, frack waste, fracking fluid, fracking by-

product, toxic, carcinogenic, cancer causing, poisonous, [and] radioactive.” The

judgment further provided that Duck Creek would test AquaSalina on an annual

basis for the presence of volatile chemicals, as required by the Ohio Department of Natural Resources (“ODNR”), and would not sell AquaSalina to customers unless it

had met the ODNR testing requirements. The consent judgment enjoined Duck

Creek from stating that AquaSalina is approved by the Ohio EPA unless such

approval has been issued.

The consent judgment also required appellants to pay Duck Creek a

sum of money as specified in the confidential settlement agreement and ordered that

by virtue of the consent judgment, appellants acknowledged that “AquaSalina is

filtered brine” and “their previous statements that AquaSalina is frac water, fracking

fluid, fracking waste, frac waster, or a by-product of fracking were incorrect and are

retracted.” The consent judgment and order dismissed Duck Creek’s complaint and

appellants’ counterclaim with prejudice and ordered that the court retained

jurisdiction for purposes of enforcing the consent judgment and order and the

confidential settlement agreement.

Nearly ten years later, on June 16, 2023, appellants filed a motion for

relief from judgment pursuant to Civ.R. 60(B)(4) and (5), asking the court to vacate

the September 27, 2013 consent judgment “and prospectively to terminate all

limitations on the exercise of their speech right that it directly or indirectly imposes.”

In their motion, appellants argued that they had a meritorious defense to Duck

Creek’s defamation and tortious interference with business relationships claims

because “the contemporary, updated scientific understanding of the contents of

drilling wastes and its comparative toxicity would lead a reasonable member of the

jury to find now and prospectively that [appellants’] terminology is not defamatory.” (Brief in support of motion for relief from judgment, p. 4-5.) Appellants argued that,

under Civ.R. 60(B)(4), it was no longer equitable that the consent judgment should

have prospective application because “the growing body of published media,

articles, and studies that has emerged since the settlement largely describes and

legitimizes the concerns that Defendants voiced in 2013.” Id. at p. 6. In short,

appellants argued that it was inequitable to prospectively preclude them from

publicly questioning AquaSalina’s toxicity and radioactivity while scientists, science

journalists, and activists were actively doing so. Id. at p. 8. Appellants also argued

that they were entitled to relief from judgment under Civ.R. 60(B)(5) because the

consent judgment is a prior restraint on speech and thus should be vacated as

unconstitutional.

In its brief in opposition, Duck Creek argued that appellants’ motion

should be denied because settlement agreements should be enforced and appellants

had no right to relief under Civ.R. 60(B)(4) and (5). Duck Creek argued further that

ten years is not a reasonable time to file a motion for relief from judgment under

either Civ.R. 60(B)(4) or (5) and that appellants gave “absolutely no explanation”

and provided no evidence whatsoever as to why they waited a decade to file their

motion.

Appellants filed a reply to Duck Creek’s brief in opposition in which

they asserted that they filed their motion for relief from judgment because they

received a “cease-and-desist letter” from Duck Creek’s counsel on October 28, 2021,

in response to an October 15, 2021 op-ed in the Akron Beacon Journal that was co- authored by appellant O’Dell. The letter demanded that O’Dell stop making

defamatory statements about AquaSalina and threatened that Duck Creek would file

a motion for contempt if she did not adhere to the consent judgment. Appellants

argued that their motion for relief from judgment should be granted because the

trial court had the inherent power to modify or vacate a permanent injunction and

they did not waive their First Amendment rights by settling the case.

In its sur-reply, Duck Creek argued that even if the October 2021

cease-and-desist letter prompted appellants’ motion for relief from judgment, the

motion was not filed until June 2023, further demonstrating appellants’

unreasonable delay in filing their motion. Duck Creek also pointed out that the

injunction issued as part of the consent judgment is narrow; it prohibits appellants

from saying that AquaSalina is any of the ten listed words or phrases in the

injunction but does not prohibit them from saying anything else about AquaSalina,

including what it may contain. Duck Creek noted that appellant O’Dell continues to

speak about AquaSalina, as demonstrated by exhibit No. 1 to its sur-reply — a copy

of written testimony submitted by O’Dell in 2021 in opposition to proposed Ohio

Senate Bill 171 — wherein O’Dell mentioned AquaSalina by name and her efforts to

dissuade its use.

Finally, Duck Creek pointed out that appellants’ First Amendment

argument was misplaced because the consent judgment was an agreement between

private parties and no state action was involved. See Denver Area Edn. Telcoms.

Consortium v. FCC, 518 U.S. 727, 737, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (“We recognize that the First Amendment, the terms of which apply to governmental

action, ordinarily does not itself throw into constitutional doubt the decisions of

private citizens to permit, or to restrict, speech.”); Kneebinding, Inc. v. Howell, 208

Vt. 576, 2018-VT-101, 201 A.3d 326, ¶ 58 (“Private parties may enter agreements

that waive their respective free speech rights, and courts may enforce those

agreements, without running afoul of the First Amendment.”); Aultman Corp. v.

Roach, 5th Dist. Stark No. 2007CA0009, 2007-Ohio-5686, ¶ 44 (rejecting argument

that a preliminary injunction incorporating the terms of the parties’ settlement

agreement was a violation of the right to free speech).

The trial court subsequently entered a judgment entry denying

appellants’ motion for relief from judgment “for being untimely filed.” The court

reasoned, “[t]he defendants are asking the court to vacate a judgment from

September 27, 2013. Filing a motion for relief from judgment almost ten years after

the judgment was entered is untimely.” The court further found that it had the

authority to deny a Civ.R. 60(B) motion without a hearing because the motion was

untimely filed. This appeal followed.

II. Law and Analysis

In their single assignment of error, appellants contend that the trial

court abused its discretion in denying their motion for relief from judgment as

untimely filed.

To prevail on a motion for relief from judgment, the movant must

demonstrate that: (1) the party has a meritorious defense or claim to present if the relief is granted; (2) the party is entitled to relief under one of the grounds stated in

Civ.R. 60(B)(1)-(5); and (3) the motion is made within a reasonable time.1 GTE

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

paragraph two of the syllabus. The movant must satisfy all three of these

requirements to obtain relief. Bank of N.Y. v. Elliot, 8th Dist. Cuyahoga Nos. 97506

and 98179, 2012-Ohio-5285, ¶ 24, citing State ex rel. Richard v. Seidner, 76 Ohio

St.3d 149, 151, 666 N.E.2d 1134 (1996); see also Rose Chevrolet, Inc. v. Adams, 36

Ohio St.3d 17, 20, 520 N.E.2d 564 (1988) (a trial court should overrule a Civ.R.

60(B) motion if the movant fails to meet any one of the three requirements).

An appellate court reviews a trial court’s judgment regarding a

motion for relief from judgment under an abuse-of-discretion standard. Waszak v.

Waszak, 8th Dist. Cuyahoga No. 101462, 2015-Ohio-2262, ¶ 8, citing Rose

Chevrolet at id. The Ohio Supreme Court has defined “‘abuse of discretion’ as an

‘unreasonable, arbitrary, or unconscionable use of discretion, or as a view or action

that no conscientious judge could honestly have taken.’” State v. Kirkland, 140 Ohio

St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio

St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. “‘Abuse of discretion’ has been

described as including a ruling that lacks a ‘sound reasoning process.’” State v.

Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA

Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

1 Where the grounds for relief are Civ.R. 60(B)(1), (2), or (3), the motion must be

filed not more than one year after the judgment was entered. 157, 161, 553 N.E.2d 597 (1990). We find no abuse of discretion in the trial court’s

judgment denying the motion for relief from judgment as untimely.

Although a motion filed pursuant to Civ.R. 60(B)(4) and (5) is not

subject to the one-year time limitation applicable to motions brought pursuant to

Civ.R. 60(B)(1), (2), and (3), such motions “still must be filed within a ‘reasonable’

time.” Waszak at ¶ 13, quoting GTE at paragraph two of the syllabus. The movant

“‘has the burden of presenting “allegations of operative facts to demonstrate that he

is filing his motion within a reasonable period of time.”’” Michael v. Miller, 8th Dist.

Cuyahoga No. 110537, 2022-Ohio-1493, ¶ 14, quoting Mayer v. Mayer, 8th Dist.

Cuyahoga No. 104748, 2017-Ohio-1450, ¶ 6, quoting McBroom v. McBroom, 6th

Dist. Lucas No. L-03-1-27, 2003-Ohio-5198, ¶ 33. “What constitutes a ‘reasonable

time’ is dependent upon the facts and circumstances of any particular case.”

Simmons v. Simmons, 8th Dist. Cuyahoga No. 97975, 2012-Ohio-4164, ¶ 8.

“Timeliness is an issue that is left to the discretion of the trial court, with each case

decided on its own merits.” Id. at id.

As noted above, the consent judgment and order granting permanent

injunctive relief was journalized on September 27, 2013. Appellants did not file their

Civ.R. 60(B) motion for relief from judgment until nearly ten years later, on June

16, 2023. Although appellants acknowledged the “reasonable time” requirement on

page 3 of their brief in support of their motion, they made no reference to this

requirement in any other part of their brief. They did not address whether their

motion was timely and gave no explanation or justification for the nearly ten-year delay in filing their motion. In their reply to Duck Creek’s brief in opposition to their

motion, appellants for the first time asserted that they filed their motion in response

to an October 28, 2021 cease-and-desist letter from Duck Creek’s counsel. Even

then, however, appellants offered no explanation regarding why they waited more

than a year and a half after receipt of the letter to file their motion.

This court has stated that “‘[i]n the absence of any explanation or

justification for the delay in filing a Civ.R. 60(B)(5) motion, the motion should be

denied.’” Michael at ¶ 14, quoting Household Realty Corp. v. Cipperley, 7th Dist.

Mahoning No. 12 MA 113, 2013-Ohio-4365, ¶ 16; see also Mt. Olive Baptist Church

v. Pipkins Paints & Home Improvement Ctr., 64 Ohio App.2d 285, 289, 413 N.E.2d

850 (8th Dist.1979) (“In the absence of any evidence explaining the delay, the

movant has failed to demonstrate the timeliness of the motion.”). Appellants had

the burden of “submit[ting] factual material that on its face demonstrate[d] the

timeliness of the motion.” Simmons at ¶ 6. Without any explanation whatsoever as

to why they waited nearly ten years to file their motion, appellants failed to establish

the “reasonable time” requirement for relief from judgment under Civ.R. 60(B)(4)

or (5). Accordingly, the trial court did not abuse its discretion in denying the motion

as untimely filed. The assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

MICHELLE J. SHEEHAN, J., and LISA B. FORBES, J., CONCUR