Simindinger v. Meeker

2021 Ohio 3274

• Court: Ohio Court of Appeals
• Decided: September 20, 2021
• Docket: 11-21-02
• Status: Published

Opinion

[Cite as Simindinger v. Meeker, 2021-Ohio-3274.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PAULDING COUNTY

TIMOTHY W. SIMINDINGER,

PLAINTIFF-APPELLANT, CASE NO. 11-21-02

v.

BRENT J. MEEKER, OPINION DEFENDANT-APPELLEE.

Appeal from Paulding County Common Pleas Court Trial Court No. CI 18 129

Judgment Affirmed

Date of Decision: September 20, 2021

APPEARANCES:

Scott R. Gordon for Appellant

Shane M. Lee for Appellee Case No. 11-21-02

ZIMMERMAN, J.

{¶1} This appeal, having been placed on the accelerated calendar, is sua

sponte being assigned and considered on the regular calendar pursuant to Loc.R.

12(1). Under the authority of Loc.R. 12(5), we have elected to issue a full opinion

in lieu of a judgment entry.

{¶2} Plaintiff-appellant, Timothy W. Simindinger (“Simindinger”), appeals

from the judgment of the Paulding County Court of Common Pleas granting

Defendant-appellee, Brent J. Meeker’s (“Meeker”) motion for leave to file an

answer instanter, denying Simindinger’s second motion for default judgment, and

dismissing Simindinger’s complaint against Meeker. For the reasons that follow,

we affirm.

{¶3} The genesis of this case stems from a June 3, 2017 assault on

Simindinger by Meeker that took place at the Landing Strip Bar in the Village of

Oakwood, Paulding County, Ohio. (Doc. Nos. 1, 9).

{¶4} On July 30, 2018, Simindinger filed a complaint in the Paulding County

Common Pleas Court against Meeker. (Id.). Simindinger’s complaint alleged a

claim of an intentional tort for assault against Meeker. (Id.). Simindinger’s

complaint was initially sent by certified mail, which was unclaimed and returned to

the Paulding County Clerk of Court (“the clerk”) on August 29, 2018; however, a

notation was written on the envelope referencing a post-office box (“P.O. BOX”).

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(Doc. No. 3). Nonetheless, Simindinger filed a request to have the clerk serve the

complaint by ordinary mail at Meeker’s physical address and the same address listed

on the certified mailer (i.e., 318 North First Street, Oakwood, Ohio 45873) and not

the P.O. BOX. (Doc. No. 4, 5).

{¶5} Meeker failed to file an answer and a default judgment was entered

against Meeker in favor of Simindinger on January 24, 2019 in the trial court. (Doc.

Nos. 2, 3, 4, 5, 6, 7, 8). At a subsequent damages hearing, Meeker was held liable

for $4,271.20 (past economic damages) and $75,728.80 (non-economic damages)

by a judgment entry file stamped on July 15, 2019.1 (Doc. Nos. 8, 9, 10, 11).

{¶6} On November 19, 2019, Meeker filed a motion for relief from judgment

with an affidavit and a motion to stay the proceedings to enforce judgment. (Doc.

Nos. 12, 13). The trial court granted Meeker’s request to stay enforcement of the

judgment on November 27, 2019. (Doc. No. 14). Meeker’s motion alleged that he

was never served, and thus, the trial court lacked personal jurisdiction over him, and

that Simindinger was the aggressor in the altercation rendering Meeker’s actions

self-defense. (Doc. No. 12). Simindinger filed a memorandum in opposition to the

Meeker’s Civ.R. 60(B) motion on December 17, 2019. (Doc. No. 17).

1 A hearing was held on February 4, 2019 regarding damages; however, we were not provided with a transcript of this hearing. (Doc. Nos. 7, 9). See App.R. 9(B).

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{¶7} On March 19, 2020, the trial court held a hearing in the matter and then

took the case under advisement.2 (Doc. No. 25). Ultimately, the trial court granted

Meeker’s motion for relief from judgment and vacated the default judgment. (Id.).

Importantly, Simindinger did not appeal the trial court’s determinations.

{¶8} On September 23, 2020, Simindinger filed a praecipe requesting that

the complaint be served upon Meeker by personal service, and Meeker was served

by the Paulding County Sheriff’s Department on September 25, 2020 at 318 North

First Street, Oakwood, Ohio 45873. (Doc. No. 28); (Service Return, Sept. 28,

2020). There is no indication in the record that Meeker’s counsel of record had been

served with a copy of the complaint notwithstanding his involvement in the

litigation for the preceding 10 months. See Civ.R. 5(A).

{¶9} Nevertheless, and on December 7, 2020, Meeker filed a motion to

dismiss under Civ.R. 12(B)(6). (Doc. No. 29). Simindinger filed a memorandum in

opposition to Meeker’s motion to dismiss and a second motion for default judgment

on January 4, 2021. (Doc. No. 31).

{¶10} On January 22, 2021, Meeker filed a motion for leave of court to file

an answer instanter with the answer and a copy of his previously filed motion to

dismiss attached as exhibits as well as a memorandum in opposition to

Simindinger’s motion for default judgment. (Doc. Nos. 32, 33). (See Doc. No. 36).

2 No transcript from this hearing was transmitted to us as part the record on appeal. See App.R. 9(B).

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Ultimately, the trial court granted Meeker’s motion for leave to file an answer,

denied Simindinger’s second motion for default judgment, and granted Meeker’s

motion to dismiss. (Doc. No. 37).

{¶11} Simindinger filed the instant appeal and raises three assignments of

error for our review, which we will address separately. (Doc. No. 38). We begin

by addressing Simindinger’s first assignment of error, followed by his second

assignment of error, and conclude with his third assignment of error.

Assignment of Error No. I

The Trial Court erred in granting Appellee’s Motion for Relief from Stay on the basis that Plaintiff’s Complaint had not been properly served on Appellee in September 2018.

{¶12} In his first assignment of error, Simindinger argues that the trial court

erred in granting Meeker’s motion for relief from default judgment pursuant to

Civ.R. 60(B) on the basis Meeker had not been properly served under Civ.R. 4.1. 3

Standard of Review

{¶13} We review a trial court’s determination from a Civ.R. 60(B) motion

under an abuse of discretion standard of review. State ex rel. Russo v. Deters, 80

Ohio St.3d 152, 153 (1997), citing Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17,

3 While Simindinger argues that the “Motion for Relief from Stay” is the basis of his appeal, we note that Meeker filed a motion for relief from judgment under Civ.R. 60(B) and motion to stay [the] proceedings to enforce judgment pursuant to Civ.R. 62(A). (Doc. Nos. 12, 13). Importantly, his arguments direct us toward the trial court’s determinations as to defects in service relating specifically to his motion for relief from judgment and not his motion to stay the enforcement of the judgment. (See Doc. No. 25). Thus, we will address his assignment of error as it pertains to his motion for relief from judgment.

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20 (1988). An abuse of discretion exists where the trial court’s attitude is

“unreasonable, arbitrary, or unconscionable”. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).

Analysis

{¶14} As a preliminary matter, we must address a jurisdictional question that

was raised by Meeker. See McCracken v. Lee, 10th Dist. Franklin No. 19AP-553,

2020-Ohio-3125, ¶ 9. Notably, Simindinger failed to challenge the trial court’s

judgment entry granting Meeker’s Civ.R. 60(B) motion vacating the default

judgment, which was file stamped April 3, 2020. Because the trial court adjudicated

both liability and damages when it granted default judgment, the trial court’s

determinations in granting Meeker’s Civ.R. 60(B) motion constituted a final

appealable order within the meaning of R.C. 2505.02. See G & E HC Reit II

Parkway Medical Center, L.L.C. v. Drs. Ford & Soud, Inc., 8th Dist. Cuyahoga No.

107172, 2019-Ohio-791, ¶ 16, citing Bussa v. Hadsel Chem. Processing, L.L.C., 4th

Dist. Pike No. 16CA865, 2016-Ohio-5718, ¶ 10, and Schelich v. Theatre Effects,

111 Ohio App.3d 271, 272 (3d Dist.1996), citing Wolford v. Newark City School

Bd. of Edn., 73 Ohio App.3d 218, (5th Dist.1991). Significantly, Simindinger failed

to file a notice of appeal seeking our review of the trial court’s determinations on or

before May 3, 2020, and thus, the trial court’s determinations subsequently became

the law of the case. See App.R. 4(A)(1). See also Nolan v. Nolan, 11 Ohio St.3d 1,

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3 (1984), citing Gohman v. St. Bernard, 111 Ohio St. 726, 730 (1924), overruled in

part on other grounds, New York Life Ins. Co. v. Hosbrook, 130 Ohio St. 101 (1935),

paragraph two of the syllabus, and Gottfried v. Yocum, 72 Ohio Laws Abs. 343, 133

N.E.2d 389, 391 (3d Dist.1953). Consequently, Simindinger’s first assignment of

error is not properly before this court as we lack jurisdiction to consider the same.

{¶15} Simindinger’s first assignment of error is therefore overruled.

Assignment of Error No. II

The Trial Court erred as a matter of law in granting Appellee’s Motion to [sic] for Leave to Court to file [sic] Answer on the basis of “excusable neglect.”

{¶16} In his second assignment of error, Simindinger argues that the trial

court erred as a matter of law by granting Meeker’s motion for leave to file an

answer after granting him relief from default judgment. Specifically, he argues that

Meeker’s counsel of record was aware that his client had been served with the

complaint, and that the trial court permitted Meeker to file an out-of-rule answer

based on inexcusable neglect.

{¶17} The review of a trial court’s determination of motions for leave to file

an answer instanter pursuant to Civ.R. 6(B)(2) is addressed to the sound discretion

of the trial court and will not be disturbed on appeal “absent a showing of an abuse

of discretion.” Marion Prod. Credit Assn. v. Cochran, 40 Ohio St.3d 265, 271

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(1988). See also Lester v. Chivington, 3d Dist. Marion No. 9-15-21, 2015-Ohio-

5446, ¶ 17. An abuse of discretion implies the court’s decision is arbitrary,

unreasonable, or unconscionable. Blakemore, 5 Ohio St.3d at 219. When applying

the abuse of discretion standard of review, an appellate court is precluded from

simply substituting its own judgment for that of the trial court. Lester at ¶ 17, citing

Pons v. Ohio St. Med. Bd., 66 Ohio St.3d 619, 624 (1993).

{¶18} Civil Rule 12(A)(1) requires that a defendant serve his or her answer

to a complaint within 28 days of service of the summons and complaint. When a

defendant fails to timely plead in response to an affirmative pleading, a default

judgment can be entered against a defendant. See Civ.R. 55. Hence,

[o]nly when the defendant “fails to contest the opposing party’s allegations” by either pleading or otherwise defending does a default arise. Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn (1986), 28 Ohio St.3d 118, 121 []. Generally, default judgments are disfavored. Suki[ v. Blume, 9 Ohio App.3d 289,] 290[][(1983)]. Granting a default judgment, analogous to granting a dismissal, is a harsh remedy that should be imposed only when the actions of the defaulting party create a presumption of willfulness or bad faith. Haddad v. English (2001), 145 Ohio App.3d 598, 603[]. Instead, when possible, cases should be decided on their merits rather than on procedural grounds. Fowler v. Coleman (Dec. 28, 1999), 10th Dist. [Franklin ]No. 99AP319[, 1999 WL 1262052, *3].

Hillman v. Edwards, 10th Dist. Franklin No. 08AP-1063, 2009-Ohio-5087, ¶ 6. To

mitigate the harshness of default judgments, Civ.R. 6(B)(2) allows a trial court “in

its discretion” to grant leave to extend this period to file an answer where a

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defendant files a motion beyond the 28-day time frame pursuant to rule and to

demonstrate that the failure to timely plead “was the result of excusable neglect[.]”

{¶19} “In determining whether neglect is excusable or inexcusable, this

Court must take into consideration the surrounding facts and circumstances, and

must be mindful of the admonition that cases should be decided on their merits,

where possible, rather than procedural grounds.” Univ. of Akron v. Mangan, 9th

Dist. Summit No. 24167, 2008-Ohio-4844, ¶ 10, citing Marion, 40 Ohio St.3d at

271. When considering these facts and circumstances and acknowledging the

preference for deciding cases on the merits, rather than procedural grounds, we are

cognizant that “the test for excusable neglect under Civ.R. 6(B)(2) is less stringent

than that applied under Civ.R. 60(B).” (Emphasis added.) State ex rel.

Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464, 466 (1995).

{¶20} The term “excusable neglect” is a nebulous concept that trial courts

find challenging to define and to apply. Lester, 2015-Ohio-5446, at ¶ 19, citing Kay

v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20 (1996). In Lester, we analyzed cases

discussing “excusable neglect” gleaning some general principles. Id., citing id.

Examples of instances where a court might find excusable neglect include the following: the party had neither knowledge nor notice of the pending legal action; counsel of record suffers from personal or family illness; and counsel of record fails to appear for trial because he has not received notice of a rescheduled trial date. Doddridge v. Fitzpatrick, 53 Ohio St.2d 9, 13 (1978); The Bluffs of Wildwood Homeowners' Assn., Inc. v. Dinkel, 96 Ohio App.3d 278, 281 (1994); Columbia Gas of Ohio v. Riley, 38 Ohio App.3d 151 (1987),

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paragraph two of the syllabus. A majority of the cases finding excusable neglect also have found unusual or special circumstances that justified the neglect of the party or attorney. Kay, supra.

Id. Contrast with neglect that is inexcusable under Civ.R. 6(B), such as a party’s

“‘complete disregard for the judicial system.’” Reimund v. Reimund, 3d Dist.

Hancock No. 5-04-52, 2005-Ohio-2775, ¶ 16, quoting GTE Automatic Elec., Inc. v.

ARC Industries, Inc., 47 Ohio St.2d 146, 153 (1976). Similarly, conduct falling

“‘substantially below what is reasonable under the circumstances’” can also

constitute inexcusable neglect. Id., quoting GTE Automatic Elec., Inc. at 152.

Moreover, neglect will be inexcusable, if the party could have prevented the

circumstances from occurring. Id., citing McKinley v. Rhee, 3d Dist. Allen No. 1-

01-168, 2002-Ohio-1768, *1 (Apr. 1, 2002).

{¶21} Here, Simindinger argues that the Meeker’s counsel’s failure to file a

timely responsive pleading (i.e., an answer) constitutes inexcusable neglect. We

disagree.

{¶22} At the point when Meeker obtained relief from the default judgment

on the basis that the trial court lacked personal jurisdiction over him, Meeker had

no duty to answer an unserved complaint absent a waiver. See Civ.R. 4.1; 4.2.

Furthermore, Meeker’s counsel was never served with the summons and complaint;

despite his appearance as counsel of record throughout the pendency of the case.

See Civ.R. 5. Meeker’s counsel (unaware that Meeker had been personally served

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with the complaint on September 25, 2020) filed a motion to dismiss on December

7, 2020. (Doc. No. 29). The trial court noted in its judgment entry granting leave

to file the answer that “[w]hile the [trial] court and counsel probably should have

been discussing proper service of the Complaint on [Meeker], we were not.” (Doc.

No. 37). However, on January 22, 2020 and after having reviewed Simindinger’s

filings indicating that service had been perfected on Meeker, Meeker’s counsel

immediately filed a motion for leave of court to file an answer instanter with

attached exhibits noting that the certificate of service for Simindinger’s previous

filing was sent to an incorrect email address.4 (Doc. Nos. 31, 32). Thus, the trial

court determined that Meeker’s failure to file an answer was “excusable neglect”

under Civ.R. 6(B)(2) and granted Meeker leave to file his answer. (Doc. No. 37).

{¶23} Considering the specific facts and circumstances of the case before us,

we do not conclude that the trial court’s determination that Meeker was permitted

to file an out-of-rule answer based on “excusable neglect” is arbitrary, unreasonable,

or unconscionable, and thus constitutes an abuse of discretion.

{¶24} Accordingly, Simindinger’s second assignment of error is without

merit and is overruled.

Assignment of Error No. III

The Trial Court erred as a matter of law in granting Appellee’s Motion to Dismiss, on the basis of a Statute of Limitations defense,

4 Meeker’s counsel’s email address is attyshanelee@ymail.com. The filings were sent to attyshanelee@gmail.com.

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which was waived by Appellee when it was not properly or timely asserted.

{¶25} In his third assignment of error, Simindinger asserts that the trial court

erred as a matter of law in granting Meeker’s motion to dismiss. Specifically,

Simindinger argues that because Meeker failed to assert a statute-of-limitations

defense to Simindinger’s claims in a timely manner and failed to request leave of

court prior to filing his motion to dismiss, he waived this defense.

{¶26} A motion to dismiss for failure to state a claim on which relief can be

granted tests the sufficiency of the complaint. Volbers–Klarich v. Middletown Mgt.,

125 Ohio St.3d 494, 2010-Ohio-2057, ¶ 11 (2010), citing Assn. for the Defense of

the Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). In

construing a complaint upon a Civ.R. 12(B)(6) motion, a court must presume that

all factual allegations in the complaint are true and make all reasonable inferences

in the plaintiff’s favor. Id. at ¶ 12; LeRoy v. Allen, Yurasek & Merklin, 114 Ohio

St.3d 323, 2007-Ohio-3608, ¶ 14, citing Kenty v. Transamerica Premium Ins. Co.,

72 Ohio St.3d 415, 418 (1995). A court may dismiss a claim under Civ.R. 12(B)(6)

for failing to comply with the applicable statute of limitations when the face of the

complaint conclusively shows that the claim is time barred. Ohio Bur. of Workers’

Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, ¶ 13, citing Doe v.

Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, ¶ 11; Strahm v.

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Kagy, 3d Dist. Allen No. 1-17-08, 2017-Ohio-4220, ¶ 7, citing McKinley at ¶ 13,

Doe at ¶ 11, and Dibert v. Watson, 3d Dist. Logan No. 8-09-02, 2009-Ohio-2098, ¶

10. Appellate court review of a trial court’s decision to dismiss a claim pursuant to

Civ.R. 12(B)(6) is de novo. Volbers–Klarich at ¶ 12.

{¶27} Simindinger asserts that Meeker initially appeared in the case on

November 19, 2019, but failed to assert his statute-of-limitations defense until

December 7, 2020, which he argues is untimely. Important to this discussion,

following the trial court’s vacation of its default judgment, the trial court was left

with a civil action that had not yet commenced. See Civ.R. 3(A). And, because no

civil action had commenced in this case, there was no obligation upon Meeker under

the Civil Rules to move or otherwise plead during that time frame, and his failure

to do so did not result in a waiver of his right to raise any affirmative defenses. See

Maryhew v. Yova, 11 Ohio St.3d 154, 157 (1984). “Inaction upon the part of a

defendant who is not served with process, even though he might be aware of the

filing of the action, does not dispense with the necessity of service.” Id. quoting

Haley v. Hanna, 93 Ohio St. 49, 52 (1915). The Civil Rules do not modify this

common law of Ohio. Id.

{¶28} Moreover, and because Simindinger raises the issue of waiver on

appeal, we note that the Supreme Court has held that a defendant waives a statute-

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of-limitations defense if it is not initially raised: (1) in a prepleading motion to

dismiss; (2) in an answer; or (3) in an amended answer. Mills v. Whitehouse, 40

Ohio St.2d 55, 59 (1974). Specifically, Civ.R. 8(C) provides “[i]n pleading to a

preceding pleading” (otherwise known as a responsive pleading) that “a party shall

set forth affirmatively * * * statute of limitations * * * and any other matter

constituting an avoidance or affirmative defense.”

{¶29} Civ.R. 12(B) mandates that “[e]very defense, in law or fact, to a claim

for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party

claim, shall be asserted in the responsive pleading”. Exceptions to this rule are set

forth in Civ.R. 12(B)(1)-(7). Meeker asserted his affirmative defense under Civ.R.

12(B)(6). Significantly, “[a] motion making any of these defenses shall be made

before pleading if a further pleading is permitted. No defense or objection is waived

by being joined with one or more other defenses or objections in a responsive

pleading or motion.” (Emphasis added.) Civ.R. 12(B). Although failure to adhere

to the requirements of Civ.R. 8 and 12 can expose a party to waiver of an affirmative

defense “[i]n the real world[,] * * * failure to plead an affirmative defense will rarely

result in [waiver]” because of the protection of Civ.R. 15(A). Hoover v. Sumlin, 12

Ohio St.3d 1, 5 (1984), modified on other grounds, Jim’s Steak House, Inc. v. City

of Cleveland, 81 Ohio St.3d 18 (1998), quoting Bobbitt v. Victorian House, Inc.,

532 F.Supp. 734, 736 (N.D.Ill.1982). Civ.R. 15(A)’s liberal amendment policy

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allows for the amendment of pleadings by leave of court or by written consent of

the other party after a responsive pleading has been made and expressly providing

that leave “shall be freely given when justice so requires.”

{¶30} As we emphasized in Simindinger’s second assignment of error, the

parties and trial court never discussed the insufficiency of service upon Meeker after

the default judgment was vacated on March 19, 2020. (Doc. No. 37). Importantly,

the trial court continued to assign pre-trial conference dates and dates by which

discovery-related matters were to be concluded. (Assignment Notice, May 21,

2020); (Doc. Nos. 26, 27). Moreover, Simindinger failed to file a praecipe to have

Meeker re-served with the original complaint until September 22, 2020. (Doc. No.

28). Thus, our determinations in Simindinger’s second assignment of error lead us

to the conclusion that less than four months had passed from the time that service

was made upon Meeker. Further, Meeker’s counsel was not aware of such service

until January 4, 2021, after which he filed his motion for leave to file an answer on

January 22, 2021. (Doc. No. 32). Hence, we will not say that Meeker’s motion was

asserted untimely and waived given the procedural posture of this case.

Accordingly, Simindinger’s argument lacks merit.

{¶31} Next, we turn to Simindinger’s argument that Meeker’s counsel was

required to seek leave of court prior to seeking dismissal under Civ.R. 12(B)(6).

“Initially, this court notes that at least one Ohio Supreme Court case has held that a

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motion to dismiss pursuant to Civ.R. 12(B)(6) [unlike a motion for summary

judgment] does not require leave of court [after a pretrial has been conducted].”

Apseloff v. Brookside Golf & Country Club Co., 10th Dist. Franklin No. 97APE07-

925, 1997 WL 798322, *4, citing State ex rel. Lantz v. Indus. Comm., 66 Ohio St.3d

29, 31 (1993).

{¶32} Because the motion to dismiss was a prepleading filing and since we

concluded the trial court’s determination as to Simindinger’s second assignment of

error was not an abuse of discretion, we do not conclude that the trial court erred as

a matter of law by not requiring Meeker to request leave of court to seek dismissal

of Simindinger’s claims.

{¶33} Accordingly, and based on our review of the record, Meeker properly

asserted the statute-of-limitations defense in both a prepleading motion and an out-

of-rule answer based on “excusable neglect”. Specifically, Simindinger’s complaint

alleged assault, which has a one-year statute of limitations evident on the face of the

complaint. (See Doc. No. 1); R.C. 2305.111(B). Because Simindinger’s complaint

was filed more than one-year after the purported assault, we will not conclude that

the trial court erred as a matter of law in determining that Simindinger’s complaint

failed to state a claim upon which relief could be granted since the statute of

limitations operated as a time bar of Simindinger’s claims.

{¶34} Accordingly, Simindinger’s third assignment of error is overruled.

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{¶35} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

WILLAMOWSKI, P.J. and MILLER, J., concur.

/jlr

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