Lankford v. Weller

2023 Ohio 430

• Court: Ohio Court of Appeals
• Decided: February 13, 2023
• Docket: 21CA19
• Status: Published

Opinion

[Cite as Lankford v. Weller, 2023-Ohio-430.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

Jason Lankford, etc., et al., : Case No. 21CA19 : Plaintiffs-Appellees, : : v. : DECISION AND JUDGMENT : ENTRY Debra Weller, as Executor of the : Estate of Edwin D. Hammond, : (Deceased), et al., : : RELEASED: 02/13/2023 Defendants-Appellants. :

APPEARANCES:

Mark D. Tolles, II and Michael L. Benson, Benson & Sesser, LLC, Chillicothe, Ohio for Appellant, Debra Weller, as Executor of the Estate of Edwin D. Hammond (Deceased).

John M. Snider and Jefferson M. Kiser, Lancaster, Ohio, for Appellee, Matthew W. Gibson.

Wilkin, J.

{¶1} Appellant, Debra Weller, executor of the estate of Edwin D.

Hammond (“estate”), appeals the Pickaway County Court of Common Pleas

judgment that granted appellee’s, Matthew W. Gibson’s (“Gibson”), Civ.R. 60(B)

motion for relief from the estate’s default judgment. The estate presents two

assignments of error: (1) the trial court abused its discretion granting Gibson’s

motion for relief from default judgment because he was properly served and he

failed to provide any excusable neglect, and (2) under Civil Rules 55(A) and 5(A),

because Gibson had defaulted and failed to appear in the underlying action, he

was not entitled to notice of the motion for default judgment or the default Pickaway App. No. 21CA19 2

judgment damages hearing. Therefore, the trial court abused its discretion in

vacating the default judgment.

{¶2} In response, Gibson, claims that (1) the trial court did not abuse its

discretion in granting his motion for relief from judgment, and (2) he was entitled

to notice of the May 28, 2021 default judgment damages hearing. Therefore, the

trial court did not abuse its discretion in vacating the estate’s default judgment.

Further, the estate’s second assignment of error is moot because the default

judgment was properly vacated.

{¶3} After reviewing the parties’ arguments, the record, and the applicable

law, we find that the trial court did not abuse its discretion in granting Gibson’s

Civ.R. 60(B) motion for relief from the estate’s default judgment, and affirm its

judgment.

FACTS AND PROCEDURAL BACKGROUND

{¶4} Gibson resides at 22365 Alkire Road, Circleville, Ohio (Alkire-Road

property”). He also operates three businesses from that address with his two

sons, Matthew S. Gibson (“Skyler”), and Bryant S. Gibson. The businesses

include: Gibson Lime Services, GIB Properties (a property management

company), and a farm. Gibson averred that he receives deliveries for GIB

Properties and the farm at the Alkire-Road property that require a signature. “In

order to keep up with the large amount of mail we receive on a daily basis,

especially during the last quarter of the year, we will routinely sign for each other

and for GIB.” Gibson also owns an approximate six-acre property located at Pickaway App. No. 21CA19 3

26055 U.S. Rt. 23 (“Gibson’s Rt. 23 property”) that is leased by Gibson to

FirstFleet through GIB Properties.

{¶5} On March 28, 2019, Edwin Hammond was driving north on U.S. Rt.

23 in Pickaway County with his two foster children, Jason and Joshua Lankford.

At the same time, a trailer truck owned by Transco Lines (“Transco”), and

operated by Christopher Gatewood was pulling out of a driveway that originated

from Gibson’s Rt. 23 property, onto U.S. Rt. 23 into the path of Hammond’s

vehicle causing an accident, which killed Hammond, and injured the Lankford

children.

{¶6} On September 27, 2019, the Lankford children, through their mother,

filed a complaint against the estate, Gatewood, and Transco Lines. The

complaint sought to recover damages on the children’s behalf.

{¶7} On October 29, 2019, the estate filed a counterclaim against the

Lankford children. On that same day, the estate also filed cross claims against

Gatewood and Transco, and a third-party complaint against several entities,

including Roundtown Parts and Service Center, LLC (“Roundtown”) and Gibson.

The third-party complaint alleged that these parties, including Gibson, were

“negligent and/or reckless with respect to how [he] maintained the [Route 23

property], including but not limited to, the entrance and exit of the premises[,]”

which made it more probable for the accident herein to occur.

{¶8} On November 1, 2019, the Pickaway County Clerk’s Office (clerk’s

office”) sent a summons and a copy of the estate’s third-party complaint by

certified mail with return receipt to “Matthew W. Gibson” at the Alkire-Road Pickaway App. No. 21CA19 4

property. The certified mail return-receipt signed “Matthew W. Gibson” was

received by the clerk’s office on November 12, 2019. However, Gibson did not

file a timely answer, or otherwise file a timely response to the estate’s third-party

complaint.

{¶9} On March 30, 2020, third-party defendant, Roundtown, filed an

answer to the estate’s third-party complaint. Roundtown’s answer was served on

Gibson by ordinary mail.

{¶10} On March 11, 2021, the estate filed a motion for default judgment

against Gibson. Five days later, the trial court granted the estate’s motion and

set a damages hearing for May 28, 2021. On May 27, 2021, attorneys for the

estate submitted instructions for service of the default judgment on various

parties, including Gibson. The estate settled with the other defendants

(Gatewood, Transco, and Roundtown).

{¶11} On May 28, 2021, the court held a damages hearing regarding the

default judgment against Gibson. Neither, Gibson nor a representative on his

behalf was present. On June 1, 2021, the trial court issued a judgment granting

the estate damages in the amount of $2,904,014.66 (“$2.9 million”) against

Gibson.

{¶12} On June 16, 2021, Gibson filed a motion to vacate the trial court’s

default and damages judgment entries pursuant to Civ.R. 60 and for a new trial

pursuant to Civ.R. 59. Gibson maintained that his failure to timely respond to the

estate’s complaint was excusable neglect within Civ.R. 60(B)(1). Gibson claimed

that Skyler “signed for the envelope containing the Complaint and Summons [in Pickaway App. No. 21CA19 5

November of 2019] having no appreciation that it contained a lawsuit seeking to

hold [Gibson] accountable for an accident that he had nothing to do with.”

Although Skyler “was careless in not paying strict attention to what was in the

envelope he signed for, his carelessness should not be held to be the foundation

for a $2.9 million dollar judgment against his father.” Gibson also argued his

motion was filed in a reasonable time because it was well within a year of the

default judgment. Finally, he maintained that “[n]umerous meritorious arguments

exist in this case in [his] defense.” Alternatively, Gibson argued that the default

judgment could not be sustained by the weight of the evidence.

{¶13} On November 16, 2021, the trial court issued a decision and entry

addressing Gibson’s motion for relief from the default judgment. The court first

concluded the estate had perfected service on Gibson based on the return of the

certified mail receipt pertaining to the delivery of the complaint to Gibson’s Alkire-

Road property that contained the signature, “Matthew W. Gibson.” The court

then analyzed whether Gibson could satisfy the three prong test from GTE

Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St. 2d 146, 351 N.E.2d 113

(1976) necessary to grant a Civ.R. 60(B)(1) motion, which is a timely filed motion,

a meritorious defense, and excusable neglect.

{¶14} The court first found that Gibson had filed his motion in a timely

manner because he filed it within 15 days of June 1, 2021, the date that the trial

court journalized its May 28, 2021 entry granting the estate $2.9 million dollars in

damages. Pickaway App. No. 21CA19 6

{¶15} The court made a factual determination that Skyler signed Gibson’s

signature on the receipt for the envelope that contained the summons and

complaint. The court considered whether Skyler’s failure to forward the

summons and complaint to Gibson was “excusable neglect.” The trial court

relied on a First District Court of Appeals decision wherein a plaintiff perfected

service upon a corporation, but a corporate employee failed to forward the

summons and complaint to the appropriate person. Heard v. Dubose, 1st Dist.

Hamilton No. C-060265, 2007-Ohio-551. The court in Heard held that

employee’s neglect was excusable. The trial court herein applied Heard by way

of analogy, and similarly held that Gibson’s neglect in failing to forward the

envelope containing the lawsuit to Gibson was excusable.

{¶16} Finally, the trial court found that Gibson had a meritorious defense

based on the testimony of an engineer that Gibson had no ownership of the

driveway from which the semi-truck emerged onto U.S. Rt. 23 causing the

accident. Finding all three elements required to support a successful Civ.R.

60(B) motion, the trial court granted Gibson’s motion.

{¶17} It is this judgment that the estate appeals.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ABUSED ITS DISCRETION IN VACATING ITS MARCH 30, 2021 AND JUNE 1, 2021 JUDGMENT ENTRIES REGARDING DEBRA WELLERS CLAIMS AGAINST MATTHEW W. GIBSON ON THE BASIS OF CIV.R. 60(B)(1) WHERE MATTHEW W. GIBSON WAS PROPERLY SERVED AND FAILED TO DEMONSTRATE ANY EXCUSIBLE NEGLECT FOR HIS FAILURE TO RESPOND TO DEBRA WELLER’S THIRD-PARTY COMPLAINT

II. PURSUANT TO CIV.R. 55(A) AND CIV.R.5(A), A PARTY WHO IS IN DEFAULT AND HAS NOT ENTERED AN APPEARANCE IN AN Pickaway App. No. 21CA19 7

ACTION IS NOT ENTITLED TO NOTICE OF THE FILING OF A MOTION FOR DEFAULT JUDGMENT OR A DEFAULT JUDGMENT DAMAGES HEARING. THEREFORE, THE TRIAL COURT ABUSED ITS DISCRETION IN VACATING THE JUNE 1, 2021 DEFAULT JUDGMENT DAMAGES AWARD AGAINST MATTHEW W. GIBSON ON THE BASIS THAT MR. GIBSON DID NOT HAVE ADVANCE NOTICE OF THE DEFAULT JUDGMENT DAMAGES HEARING

ASSIGNMENT OF ERROR I

{¶18} The estate first argues that the evidence indicates that it was

Gibson who signed the complaint, not his son Skyler, as the trial court found.

The estate offered testimony from a handwriting expert who testified that in his

opinion the signature on the receipt for the envelope containing the complaint

was Gibson’s handwriting, not Skyler’s. The estate asserts that because Gibson

signed for the complaint personally “his failure to respond to [the estate’s

complaint] would certainly constituted (sic) neglect.” The estate maintains being

unable to offer an explanation as to what happened to the complaint “cannot

serve as a basis for finding excusable neglect.”

{¶19} Alternatively, the estate claims that even if Skyler signed for the

complaint, his neglect is imputable to Gibson. The estate maintains that “ ‘[t]he

acts of [a principal] and its agents must be examined together to determine

whether excusable or inexcusable neglect occurred.’ Wagner v. Bank One, 4th

Dist. Gallia App. 95CA7, 1995 Ohio App. LEXIS 5849, * 13 (1995)[.]” According

to the estate, the evidence shows that Skyler was acting as Gibson’s agent in

signing for the complaint. The estate contends that “ ‘[i]nsufficient or negligent

internal procedures in an organization may not comprise excusable neglect and,

therefore, they may not support the vacation of a default judgment[,]’ ” citing Pickaway App. No. 21CA19 8

Andrew Bihl Sons v. Trembly, 67 Ohio App.3d 664, 667, 588 N.E.2d 172 (4th

Dist. 1990). Therefore, Skyler’s accepting and signing for the complaint, and his

inability to explain the disposition of the complaint, is imputed to Gibson, and is

not excusable neglect.

{¶20} The estate also argues that a copy of Roundtown’s answer to the

estate’s third-party complaint was served upon Gibson in March of 2020 by

ordinary mail, which included references to Gibson as party to the lawsuit. The

estate maintains that this pleading would also have put Gibson on notice of his

need “to inquire about why [he] was receiving filings in a lawsuit[,]” but he failed

to do so demonstrating “a complete disregard to the judicial system and the

rights of [the estate].”

{¶21} The estate also claims that Gibson failed to set out a meritorious

defense. The estate claims that a driveway provides the only access to and from

U.S. Rt. 23 to Gibson’s Rt. 23 property, where the semi-trailer trucks (“trucks”)

park. And, even if Gibson does not own the gravel edge of the driveway that

abuts U.S. Rt. 23, it does not absolve him of liability because he owns the

remainder of the driveway that extends onto his property over which the trucks

would have to traverse to exit onto U.S. Rt. 23. Consequently, Gibson would still

be liable for defects (potholes) in that part of the property that the estate alleges

would affect trucks exiting onto U.S. Rt. 23.

{¶22} Therefore, the estate concludes that the trial court abused its

discretion in granting Gibson’s Civ.R. 60(B) motion to vacate the estate’s default

judgment against him. Pickaway App. No. 21CA19 9

{¶23} In response, Gibson maintains that he has met the requirements of

Civ.R. 60(B), i.e., (1) he has a meritorious defense, (2) he is entitled to relief

under Civ.R. 60(B)(1), and (3) he filed his motion within a reasonable time.

{¶24} Gibson claims that the Alkire-Road property where the summons

and complaint were served is his home and where he and his two sons operate

three businesses. Therefore, a large amount of mail is delivered to that address.

Gibson claims that he and his sons all sign for each other’s mail.

{¶25} Gibson testified that the signature on the receipt for the envelope

containing the complaint was not his. And Skyler testified that the signature was

his. Skyler also testified that he was not aware that the envelope contained a

complaint. After learning of the estate’s lawsuit in June of 2021, Skyler testified

that he searched for the envelope but could not find it and presumed it was

accidently thrown away. Gibson claims that the envelope was received during

the busy season for their businesses. Gibson cites several cases in support

including Heard, 1st Dist. Hamilton No. C-060265, 2007-Ohio-551 (the decision

relied upon by the trial court herein), Williams v. Nored, 2d Dist. Montgomery No.

20480, 2005-Ohio-605, and Mann v. Shkurka, 8th Dist. Cuyahoga No. 42418,

1981 Ohio App. LEXIS 5849 for the proposition a family member’s acceptance of

service and neglect in failing to get the document to the proper family member is

excusable.

{¶26} Under the facts of this case, Gibson argues that the neglect was not

a total disregard of the judicial system. Gibson maintains that it makes no sense

to ignore a complaint that could lead to financial liability. Contrary to the estate’s Pickaway App. No. 21CA19 10

position, Gibson claims that it is not essential for him to identify what occurred to

the complaint in order for the neglect to be excusable. Gibson also maintains

that finding the neglect excusable will serve the remedial nature of Civ.R. 60.

Gibson contends that imposing a $2.9 million judgment on him would “work an

injustice.”

{¶27} Gibson also argues that he has presented a meritorious defense.

He maintains that his surveyor provided unrebutted testimony that Gibson does

not own the part of the driveway from which the semi-truck left when pulling onto

U.S. Rt. 23. Because he does not own the driveway, Gibson claims that he has

no obligation to maintain it and thus could not be liable for its condition.

{¶28} Therefore, Gibson maintains that the trial court did not abuse its

discretion in granting his Civ.R. 60(B) motion for relief from the estate’s default

LAW

A. Standard of Review

{¶29} “We review a trial court’s decision granting or denying a Civ.R.

60(B) motion for relief from a judgment for an abuse of discretion.” Eitel's Towing

Serv., Inc. v. D H Trucking, Inc., 4th Dist. Ross No. 21CA3753, 2022-Ohio-1639,

¶ 23, citing Whited v. Whited, 4th Dist. Washington No. 19CA26, 2020-Ohio-

5067, ¶ 8. “Under this highly deferential standard, an appellate court's review is

limited to determining whether the trial court acted unreasonably, arbitrarily, or

unconscionably; in doing so, the appellate court may not simply substitute its

judgment for that of the trial court.” Id. at ¶ 8, citing Dunford v. Dunford, 4th Dist. Pickaway App. No. 21CA19 11

Gallia No. 13CA7, 2014-Ohio-617, ¶ 3. “ ‘It is not sufficient for an appellate court

to determine that a trial court abused its discretion simply because the

appellate court might not have reached the same conclusion or is, itself, less

persuaded by the trial court's reasoning process than by the countervailing

arguments.’ ” Eitel's Towing Serv. at ¶ 24, quoting State v. Morris, 132 Ohio St.

3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14 .

{¶30} In reviewing a trial court’s judgment addressing a motion for relief

under Civ.R. 60(B) for an abuse of discretion, an appellate court examines the

“entire record.” See Turner v. Turner, 4th Dist. Gallia No. 96CA4, 1996 WL

599387, *4 (Oct. 16, 1996); Cockeram v. Seifer, 2d Montgomery No. 9814, 1986

WL 9085, *2 (Aug. 25, 1986); Middleton v. Luna's Rest. & Deli, L.L.C., 5th Dist.

Stark No. 2011 CA 00004, 2011-Ohio-4388, ¶ 25; Cecilia R. v. Eddie M., 6th Dist.

Lucas No. L-04-1044, 2005-Ohio-1676, ¶ 24; Scheibert v. Hatton, 9th Dist.

Wayne No. 2625, 1991 WL 161356, *3 (Aug. 21, 1991). Moreover, a reviewing

court can affirm that a trial court has acted within its discretion in deciding a

Civ.R. 60(B) motion, even if on other grounds. See Quinn v. Fry, 5th Dist. Knox

No. 02CA3, 2002-Ohio-3075, *2; Campbell v. Goodall, 6th Dist. Lucas No. L-15-

1234, 2016-Ohio-736, ¶ 22.

B. Civ.R. 60(B)

{¶31} In order

to prevail on a Civ.R. 60(B) motion, a movant must demonstrate: (1) a meritorious defense or claim to present if relief is granted; (2) Pickaway App. No. 21CA19 12

entitlement 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.

Whited, 4th Dist. Washington No. 19CA26, 2020-Ohio-5067, ¶ 10, citing Bank of Am., N.A., Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1030, ¶ 10- 11, citing GTE Automatic Elec. Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.

“These [three] requirements are independent and in the conjunctive; thus the test

is not fulfilled if any one of the requirements is not met.” Id., citing Strack v.

Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994).

{¶32} “Where timely relief is sought from a default judgment and the

movant has a meritorious defense, doubt, if any, should be resolved in favor of

the motion to set aside the judgment so that cases may be decided on their

merits.” GTE Automatic Elec., Inc., 47 Ohio St. 2d 146, 351 N.E.2d 113,

paragraph three of the syllabus (1976).

1. Meritorious Defense

{¶33} “ ‘A meritorious defense is one which, if proved, would entitle a party

to the relief requested.’ ” Cullimore v. Cullimore, 4th Dist. Hocking No. 21CA7,

2022-Ohio-3208, ¶ 41, quoting Williamson v. Saranda Consol. Ltd. Partnership,

2d Dist. Montgomery No. 11507, 1989 WL 150791, *4 (Dec. 14, 1989).

However, “[u]nder Civ.R. 60(B), a movant's burden is only to allege

a meritorious defense, not to prove that he will prevail on that defense.” Rose

Chevrolet, Inc. v. Adams, 36 Ohio St. 3d 17, 20, 520 N.E.2d 564 (1988), citing

Moore v. Emmanuel Family Training Ctr., 18 Ohio St.3d 64, 67, 479 N.E.2d 879

(1985). “This requires the moving party to allege operative facts ‘with enough Pickaway App. No. 21CA19 13

specificity to allow the trial court to decide whether he or she has met that test.’

” Byers v. Dearth, 4th Dist. Ross No. 09CA3117, 2010-Ohio-1988, ¶ 12, quoting

Syphard v. Vrable, 141 Ohio App.3d 460, 463, 751 N.E.2d 564 (7th Dist. 2001).

“Ultimately, ‘a proffered defense is meritorious if it is not a sham and when, if

true, it states a defense in part, or in whole, to the claims for relief set forth in the

complaint.’ ” Spaulding-Buescher v. Skaggs Masonry, Inc., 4th Dist. Hocking No.

8CA1, 2008-Ohio-6272, ¶ 10, quoting Amzee Corp. v. Comerica Bank–

Midwest, 10th Dist. Franklin No. 01-AP-465, 2002-Ohio-3084, ¶ 20.

2. Excusable Neglect

{¶34} The term “ ‘excusable neglect’ is ‘an elusive concept which has

been difficult to define and to apply.’ ” Settlers Bank v. Burton, 4th Dist.

Washington Nos. 12CA36, 12CA38, 2014-Ohio-335, ¶ 40, quoting Kay v.

Glassman, 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996), citing GTE Automatic

Elec., 47 Ohio St.2d at 153, 351 N.E.2d 113 (1976). “ ‘ “[T]here is a fine line

between excusable and inexcusable neglect and the courts, including this court,

must defer to the trial court's determination on whether the neglect is excusable

given our abuse of discretion standard.” ’ ” (Brackets sic.) Eitel's Towing Serv.,

Inc., 4th Dist. Ross No. 21CA3753, 2022-Ohio-1639, ¶ 28, quoting Settlers Bank

at ¶ 41, quoting Norman v. Hanoverton Motor Cars, Inc., 7th Dist. Hanover No.

11 CO 13, 2012-Ohio-2697, ¶ 27. But some “cases generally suggest that if the

party or his attorney could have controlled or guarded against the happening of

the special or unusual circumstance, the neglect is not excusable.” Dayton

Power & Light v. Holdren, 4th Dist. Highland No. 7CA21, 2008-Ohio-5121, ¶ 11. Pickaway App. No. 21CA19 14

Therefore, “[g]enerally, a failure to plead or respond after admittedly receiving a

copy of a court document is not ‘excusable neglect.’ ” Natl. City Home Loan

Servs., Inc. v. Gillette, 4th Dist. Scioto No. 5CA3027, 2006-Ohio-2881, ¶ 18,

citing Katko v. Modic, 85 Ohio App. 3d 834, 838, 621 N.E.2d 809 (4th Dist.

1993).

{¶35} However, excusable neglect “ ‘must take into consideration all the

surrounding facts and circumstances, and courts must be mindful that cases

should be decided on their merits, where possible, rather than procedural

grounds.’ ” Eitel's Towing Serv., 4th Dist. Ross No. 21CA3753, 2022-Ohio-1639,

at ¶ 29, quoting Seniah Corp. v. Buckingham, Doolittle & Burroughs, L.L.P., 5th

Dist. Stark No. 2016CA00039, 2016-Ohio-7516, ¶ 25, citing Rajan, 33 Ohio St.3d

at 79-81, 514 N.E.2d 1122 (1987). “ ‘These include the amount of time between

the last day that an answer would have timely been filed and the date the default

judgment was granted, the amount of the judgment awarded, and “the

experience and understanding of the defendant with respect to litigation matters.”

’ ” Peoples Bank, Natl. Assn. v. McGhee, 4th Dist. Gallia Nos. 12CA11, 13CA4,

2013-Ohio-3859, ¶ 14, quoting State v. Hulgin, 9th Dist. Summit No 26719, 2013-

Ohio-2794, ¶ 13, quoting Colley v. Bazell, 64 Ohio St 2d 243, 249,

416 N.E.2d 605 (1980). It is important that “courts must remain mindful of the

fact that ‘ “[m]atters involving large sums should not be determined by default

judgments if it can reasonabl[y] be avoided.” ’ ” Id., quoting Colley at 249, fn5,

quoting Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 245 (3d Cir.1951). Pickaway App. No. 21CA19 15

{¶36} Ultimately, [a] court must interpret the concept of excusable neglect

in a manner consistent with the proposition that Civ.R. 60(B)(1) is a remedial rule

to be liberally construed, while bearing in mind that Civ.R. 60(B) constitutes an

attempt to strike a balance between the conflicting principles of finality and

justice.” Williams v. Roe, 4th Dist. Scioto No. 95CA2373, 1996 WL 49222, *2

(Feb. 2, 1996), citing Colley, 64 Ohio St.2d 243, 248 (1980); McGhee, 4th Dist.

Gallia Nos. 12CA11, 13CA4, 2013-Ohio-3859, ¶ 13.

3. Reasonable Time

{¶37} Finally, “[t]o prevail on a motion for relief from judgment, the movant

must establish that the motion is made within a reasonable time, and, where the

grounds for relief are Civ.R. 60(B)(1), (2), or (3), no more than one year after the

judgment sought to be vacated was entered. Civ.R. 60(B).” (Emphasis added)

Struckman v. Bd. of Educ. of Teays Valley Loc. Sch. Dist., 2019-Ohio-115, 128

N.E.3d 709, ¶ 24 (4th Dist.).

ANALYSIS

A. Civ. R. 60(B) Requirements

1. Timeliness

{¶38} Gibson filed his Civ.R. 60(B) motion for relief well within a year of

the date that the default judgment was entered as required by the rule. The trial

court also found that Gibson’s Civ.R. 60(B) motion was filed within a reasonable

time, and the estate does not contest the timeliness of Gibson’s motion.

Therefore, we find that the trial court did not abuse its discretion in finding that

Gibson filed his Civ.R. 60(B) motion within a reasonable time. Pickaway App. No. 21CA19 16

2. Meritorious Defense

{¶39} The estate’s theory of liability against Gibson is that he was

negligent or reckless in maintaining the driveway that connects his Rt. 23

property to U.S. Rt. 23, which “made it more probable for the accident herein to

occur.” For example, the estate argues that the evidence shows Gibson owned

part of the driveway that contained potholes. When exiting Gibson’s Rt. 23

property, all trucks would traverse that part of the driveway with the potholes

causing the trucks difficulty entering U.S. Rt. 23. Therefore, the estate alleges

that Gibson is liable for the death and injuries caused by the accident herein.

{¶40} Gibson claims that he does not own the portion of the driveway that

the trucks use to enter U.S. Rt. 23, and therefore would not be liable for any

failure to maintain that portion of the driveway. Simpson v. Big Bear Stores Co.,

73 Ohio St.3d 130, 135, 652 N.E.2d 702 (1995).

{¶41} Gibson presented testimony from Craig Stevenson, a civil engineer

who surveyed Gibson’s Rt. 23 property. The survey map depicts Gibson’s

approximately six-acre property, which lies west of, and adjacent to, U.S. Rt. 23.

Stevenson testified that the driveway provides the only access point from

Gibson’s Rt. 23 property to U.S. Rt. 23. Stevenson opined that

[b]ased on all the findings from the title documentation and survey completed on Mr. Gibson’s [Rt. 23] property I have definitely concluded that the driveway access from US Route 23 where it enters the ODOT right-of-way lies within the 60’ wide strip to the south of Mr. Gibson’s [Rt. 23] property. I can also definitely state that none of the access area from US Route 23 lies on Matt Gibson’s 6.39 acre tract of land. Additionally, I can definitively state that Matt Gibson’s property does not have an access point directly onto US Route 23. Pickaway App. No. 21CA19 17

{¶42} Stevenson testified that “where the driveway intersects the right-of-

way of U.S. Rt. 23 is owned [not by Gibson, but] by BJM Company, Inc.”

{¶43} The evidence shows that trucks are parked on Gibson’s Rt. 23

property, including the one that was involved in the accident herein. The

evidence further shows the trucks use the driveway to exit Gibson’s Rt. 23

property onto U.S. Rt. 23. While the evidence does appear to show that as the

trucks leave Gibson’s Rt. 23 property and enter the driveway, they are still on

Gibson’s property. However, as the trucks get closer to U.S. Rt. 23, it appears

that BJM’s ownership of the driveway increases to the point that BJM owns the

entire driveway at its access point with U.S. Rt. 23. Most notably, in viewing a

picture of a semi-trailer truck positioned on the driveway about to enter U.S. Rt.

23, Stevenson opined that it “appears to be on the BJM Company, Inc. property.”

{¶44} Therefore, we find that the trial court’s determination that Gibson

presented operative facts that could support that he has a meritorious defense

(i.e., he did not own the property that allegedly effects trucks exiting the driveway

onto U.S. Rt. 23) is not unreasonable, arbitrary, or unconscionable. We need not

reach a definite conclusion as to whether Gibson’s defense will succeed.

Accordingly, the trial court did not abuse its discretion in finding that Gibson set

forth a meritorious defense.

3. Excusable Neglect

a. Signature Pickaway App. No. 21CA19 18

{¶45} We begin our analysis of the excusable neglect elements by

recalling that the trial court found that the estate perfected service of its complaint

to Gibson at his Alkire-Road property based on the return receipt that contains

the signature, “Matthew W. Gibson,” and neither party disputes that conclusion.

{¶46} However, the estate disputes the trial court’s finding that Skyler

signed Gibson’s signature in accepting the complaint. The estate asserts that it

presented testimony from a handwriting expert who opined that it was Gibson

who signed for the envelope, not Skyler. Therefore, the estate maintains that the

trial court improperly determined that Skyler signed Gibson’s signature in

accepting the envelope.

{¶47} At the Civ.R. 60(B) hearing, Skyler testified that he was “[o]ne

hundred percent” certain that he signed “Matthew W. Gibson” on the receipt for

the envelope that contained the complaint when it was served in November

2019. Gibson corroborated Skyler’s testimony, asserting that he did not recall

seeing or signing for the complaint at that time.

{¶48} The estate offered the testimony of expert witness, Curtis Baggett, a

forensic document examiner. Baggett testified that using his training and a

magnifying glass, he can compare a known signature to an unknown signature,

and opine whether the signatures were written by the same person. Baggett

testified that he examined several documents that contained Gibson’s known

signatures, as well as several documents that contained Skyler’s known

signatures. He then examined the signature on the certified mail return receipt

for the estate’s summons and complaint and compared it to the signatures of Pickaway App. No. 21CA19 19

Skyler and Gibson. Based on a reasonable degree of certainty and based on his

education, knowledge, experience, and training, Baggett opined that the

signature on the certified mail return receipt for the estate’s summons and

complaint was not Skyler’s, but Gibson’s.

{¶49} “Credibility determinations must be left to the trial court’s sound

discretion, and ‘a trial court is free to believe all, part, or none of the testimony of

any witness who appears before it.’ ” (Emphasis added.) Matter of Adoption of

F.L.S., 4th Dist. Hocking No. 19CA9, 2020-Ohio-936, ¶ 15, quoting In re

Adoption of K.C., 3rd Dist. Logan No. 8-14-03, 2014-Ohio-3985, ¶ 26.

[A]n “appellate court may not simply substitute its judgment for that of the trial court so long as there is some competent, credible evidence to support the lower court findings.’ ” State ex rel. Celebrezze v. Environmental Enterprises, Inc., 53 Ohio St.3d 147, 154, 559 N.E.2d 1335 (1990). When an appellate court reviews a trial court's judgment, it must generally defer to the fact- finder's weight of the evidence and credibility determinations. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984).”

A.V. v. McNichols, 2019-Ohio-2180, 137 N.E.3d 534, ¶ 15 (4th Dist.).

{¶50} The trial court found that the signature on the receipt for the

envelope containing the complaint was Skyler’s, inferring that it believed the

testimony from Skyler and Gibson over Baggett’s. Because their testimony is

some evidence that supports that Skyler signed Gibson’s name, it is not our role

to substitute our judgment for that of the trial court. Therefore, we find that the

trial court’s determination that Skyler signed Gibson’s name on the receipt was

not an abuse of its discretion.

b. Agency Pickaway App. No. 21CA19 20

{¶51} The estate argues that even if Skyler signed Gibson’s name, Skyler

was acting as Gibson’s agent, so Skyler’s neglect in failing to forward the

complaint to Gibson and otherwise preserve the complaint was imputed to

{¶52} An agency relationship arises by an express or implied agreement

between the alleged principal and agent. Hagley v. Lurty, 4th Dist. Ross No. 91

CA1832, 1992 WL 208907, *5 (Aug. 7, 1992), citing 3 Ohio Jurisprudence 3d

(1978) 32, Agency, Section 18. “[T]he doctrine of imputed notice to a * * *

principal rests upon the ground that the * * * agent has knowledge of something,

material to the particular transaction, which it is his duty to communicate to his

principal.” Pitzer v. Littleton, 4th Dist. Highland No. 8CA1, 2008-Ohio-5966, ¶

16, citing American Export & Inland Coal Corp. v. Matthew Addy Co., 112 Ohio

St. 186, 197, 147 N.E. 89 (1925). “The general rule is that notice to an agent,

which acted for his principal, of facts affecting the character of the transaction, is

constructive notice to the principal.” Id., citing American Export & Inland Coal

Corp. at 198.

{¶53} Gibson testified that both his personal, as well as business mail is

delivered to his Alkire-Road property. He further testified that if the delivery

requires a signature, both he and his sons sign for all such mailings. Skyler

corroborated that he signs for mail deliveries made to the Alkire-Road property.

And even if Skyler did not open the envelope, he understood that many, if not

most, were business documents for Gibson. Pickaway App. No. 21CA19 21

{¶54} Therefore, we find that the trial court did not err in finding that

Skyler’s neglect in failing to forward the complaint to Gibson and ultimately losing

it was imputed to Gibson. Littleton, 4th Dist. Highland No. 8CA1, 2008-Ohio-

5966, ¶ 16.

c. Excusable Neglect

{¶55} The trial court found that Skyler’s neglect was excusable relying on

the First District’s decision in Heard, 1st Dist. Hamilton No. C-060265, 2007-

Ohio-551, which stated that “excusable neglect occur[s] when service is properly

made on a corporation, but a corporate employee fail[s] to forward the summons

and complaint to the appropriate person.” Applying Heard by way of analogy, the

trial court found that Skyler’s neglect was excusable under Civ.R. 60(B).

{¶56} The Fourth Appellate District does not ascribe to the general

proposition that the neglect of inadvertently failing to forward a document to the

appropriate person is excusable. See Trembly, 67 Ohio App.3d 664, 667, 588

N.E.2d 172 (4th Dist.) (“Insufficient or negligent internal procedures in an

organization may not compromise excusable neglect[.]”). Therefore, we find that

the trial court erred in relying on Heard for that proposition in determining Skyler’s

neglect was excusable.

{¶57} Gibson cites two cases in support of the trial court’s judgment,

Williams v. Nored, 2d Montgomery No. 20480, 2005-Ohio-605, and Shkurka, 8th

Dist. Cuyahoga No. LEXIS 42418. Gibson claims that Nored is persuasive

because “the court of appeals affirmed the trial court’s finding of excusable Pickaway App. No. 21CA19 22

neglect largely because process was served on a father on a holiday when family

members were at the father’s house.”

Gibson argues that Shkurka is persuasive because the court of appeals

found no abuse of discretion when the trial court found Civ.R. 60(B)(1) excusable neglect as to a default which occurred when a member of the defendant’s household accepted service of process and failed to inform [the defendant] of that, even though service was technically valid. The appellate court would not impute to the defendant the negligent conduct of the family member. The court found that since the defendant had no knowledge nor reason to know of the lawsuit prior to the entry of default judgment, he was entitled to relief under Civ.R. 60(B)(1)

{¶58} While Gibson and Skyler are members of the same family, when

they are signing for mail deliveries at the Alkire-Road property most are for the

businesses that operate from that address. Certainly from time to time they may

sign for Gibson’s personal mail, but that does not change that Gibson and his

sons for years have signed for mail delivered to that address, and understand

that most of it is for the business and needs to be opened and addressed in a

timely manner. And unlike Shkurka, we found supra the evidence indicates that

Skyler acted as Gibson’s agent in accepting his mail, which means that Skyler’s

neglect in accepting the complaint was imputed to Gibson. Therefore, we find

that neither case is persuasive herein.

{¶59} Additionally, Skyler knew the envelope that contained the complaint

was addressed to his father, irrespective of whether it was personal or business

related. And even if he did not open the envelope, merely glancing at the return

address on the envelope, which was the clerk of courts, would have put him on

notice that the envelope contained a legal document that needed to get to Pickaway App. No. 21CA19 23

Gibson immediately. Instead, Skyler lost the envelope, which Gibson

characterized as “carelessness.” And similar to Trembly, Gibson admitted that

he had “sort of a system but evidently it’s failed.” Finally, months after the

service of the complaint, Roundtown served its answer by ordinary mail to

Gibson at his Alkire- Road property, which could further have alerted Gibson to

the lawsuit, although he testified that he never saw that document prior to June of

2020. Under these facts, it is difficult to envision Skyler’s neglect, which is

imputed to Gibson, as being excusable under Trembly.

{¶60} That said, courts “must consider all the facts and circumstances[,]”

which includes the amount of the judgment. (Emphasis added.) Colley, 64 Ohio

St.2d at 249. It has been recognized that “[m]atters involving large sums [of

money] should not be determined by default judgments[.]” Estate of Orth v.

Inman, 10th Dist. Franklin No. 99AP-504, 2002-Ohio-3728, ¶ 30.

{¶61} In Guggenheim Realty, Inc. v. 3690 Corp., the Eighth District Court

of Appeals reviewing the denial of a Civ.R. 60(B) motion stated, inter alia, “since

the amount of the judgment is significant [$4,496.88], and since trial courts are

encouraged to resolve cases on their merits when deciding Civ.R.60(B) motions,

we hold that the failure of these three defendants to respond to the amended

complaint within 14 days was excusable.” 8th Dist. Cuyahoga No. 50416, 1986

WL 4401, at *2 (Apr. 10, 1986). In Wilson v. Lee, the Second District Court of

Appeals reviewing the denial of a Civ.R. 60(B) motion, found that “resolution of

this claim in excess of $69,000 should be addressed on the merits.” 172 Ohio Pickaway App. No. 21CA19 24

App. 3d 791, 876 N.E.2d 1312, ¶ 20 (2d Dist.). And although it was in dissent,

we find Justice Wright’s comments in Rajan enlightening:

[t]he most disturbing aspect of this case is the size of the default judgment award—$115,000, plus costs. An award of this magnitude, which is literally handed to the plaintiff without a trial on the merits, only reinforces the philosophy that Civ.R. 60(B) is a remedial rule that should be liberally construed to encourage trials on their merits.

Griffey v. Rajan, 33 Ohio St.3d 75, 83, 514 N.E.2d 1122 (1987) (Wright, J., dissenting).

{¶62} While all these cases are older, imputing their respective judgments

into a simple inflation calculator reveals the value their judgments today:

Guggenheim (1987: $4,496.88; 2022: $11,338.67), Wilson (2010: $69,000; 2022:

$92,777) and Rajan (1986: $115,000; 2022: $284,532.52). Inflation Calculator,

http://www.calculator.net/inflation-calculator. The amounts of all these

judgments, even at today’s value, are exponentially less than $2.9 million dollar

judgment in this case, and yet both courts and a Justice of the Supreme Court

opined these judgments were large enough to constitute excusable neglect.

{¶63} The trial court’s decision does not expressly rely on the amount of

the judgment as specific grounds for finding that Skyler’s neglect was excusable.

However, on review of a trial court’s decision addressing a Civ.R. 60(B) motion, a

court of appeals examines the “entire record.” See Turner v. Turner, 4th Dist.

Gallia No. 96CA4, 1996 WL 599387, *4 (Oct. 16, 1996); First Nat'l Bank of

Dayton v. Kuntz, 2d Dist. Montgomery No. CA8299, 1984 WL 5412, *3 (Jan. 5,

1984). And a reviewing court can affirm that a trial court has acted within its

discretion in deciding a Civ.R. 60(B) motion even if on other grounds. See Quinn Pickaway App. No. 21CA19 25

v. Fry, 5th Dist. Knox No. CA3, 2002-Ohio-3075, *2; Campbell v. Goodall, 6th

Dist. Lucas No. L–15–1234, 2016-Ohio-736, ¶ 22.

{¶64} “A decision is unreasonable, and thus an abuse of discretion, if

there is no sound reasoning process that would support that decision[.]”

(Emphasis added). Brown v. Burnett, 2020-Ohio-297, 144 N.E.3d 475 (2d Dist.)

¶ 21, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Based solely on Skyler’s

failures, his neglect here could very well be inexcusable, but we find that based

on the extremely large amount of the judgment against Gibson and that Skyler’s

actions were not intentional there is a “sound reasoning process” that would

support the trial court’s judgment. Id. As the Tenth District Court of Appeals has

recognized “[m]atters involving large sums [of money] should not be determined

by default judgments[.]” Inman, 10th Dist. Franklin No. 99AP–504, 2002-Ohio-

3728, ¶ 30.

{¶65} Futhermore, the evidence does not appear to indicate that Skyler

intentionally threw away the complaint, or otherwise intentionally failed to deliver

it to Gibson, which would have been a “complete disregard for the judicial

system,” making his neglect inexcusable. See Burton, 4th Dist. Washington Nos.

12CA36, 12CA38, 2014-Ohio-335, at ¶ 40, citing Glassman, 76 Ohio St.3d at 20,

665 N.E.2d 1102 (1996).

{¶66} Finally, we note that the trial court’s decision finding Gibson’s

neglect to be excusable is also consistent with two tenets of Civ.R. 60(B). The

first is that “[w]here timely relief is sought from a default judgment and the Pickaway App. No. 21CA19 26

movant has a meritorious defense, doubt, if any, should be resolved in favor of

the motion to set aside the judgment so that cases may be decided on their

merits.” GTE Automatic Elec., Inc., 47 Ohio St. 2d 146, 351 N.E.2d 113,

paragraph three of the syllabus (1976). The second is that “Civ.R. 60(B)(1) is a

remedial rule to be liberally construed, while bearing in mind that Civ.R. 60(B)

constitutes an attempt to strike a balance between the conflicting principles of

finality and justice.” Roe, 4th Dist. Scioto No. 95CA2373, 1996 WL 49222, at *2

(Feb. 2, 1996).

{¶67} Therefore, we hold that the trial court’s finding that Skyler’s neglect

was excusable is not an abuse of discretion because it is not unreasonable,

arbitrary, or unconscionable. Whited, 4th Dist. Washington No. 19CA26, 2020-

Ohio-5067, ¶ 8.

ASSIGNMENT OF ERROR II

{¶68} In its second assignment of error, the estate argues that there was

no legal obligation for the trial court to serve on Gibson, its entry of default, which

also set the damages hearing. The estate cites Civ.R. 55(A), which in pertinent

part states: “If the party against whom judgment by default is sought has

appeared in the action, he (or, if appearing by representative, his representative)

shall be served with written notice of the application for judgment at least seven

days prior to the hearing on such application.”

{¶69} Regardless of whether the law required it, the Clerk of Courts

served the default entry on Gibson on May 28, 2021, which incidentally was

requested by the estate’s counsel. And shortly after receiving notice of the Pickaway App. No. 21CA19 27

default, Gibson acquired counsel, who promptly filed a Civ.R. 60(B) motion for

relief on Gibson’s behalf, which was granted by the trial court and we now affirm.

Therefore, we find that the estate’s second assignment of error is moot.

CONCLUSION

{¶70} Finding that the trial court did not abuse its discretion granting

Gibson’s Civ.R. 60(B) motion for relief from the default judgment, and the

estate’s second assignment of error is moot, we overrule both of the estate’s

assignments of error. Accordingly, we affirm the trial court’s judgment that

vacated its default judgment against Gibson in favor of the estate.

JUDGMENT AFFIRMED. Pickaway App. No. 21CA19 28

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

P.J., Smith and Abele, J.: Concur in Judgment and Opinion.

For the Court,

BY: ____________________________ Kristy S. Wilkin, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.-