[Cite as Smith v. Conti, 2026-Ohio-2151.]
IN THE OHIO COURT OF APPEALS FIFTH APPELLATE DISTRICT HOLMES COUNTY, OHIO
DARRELL JAMES SMITH, Case No. 25CA011
Plaintiff - Appellant Opinion & Judgment Entry
-vs- Appeal from the Court of Common Pleas of Holmes County, Case No. 24CV090 DAVID CONTI, et al., Judgment: Affirmed Defendants - Appellees Date of Judgment: June 5, 2026
BEFORE: Craig R. Baldwin, Robert G. Montgomery, and David M. Gormley, Judges
APPEARANCES: Darrell J. Smith, Chillicothe, Ohio, briefed the case on his own behalf as Plaintiff-Appellant; John E. Chapman, Cuyahoga Falls, Ohio, for Defendants- Appellees.
Gormley, J.
{¶1} Appellant Darrell Smith challenges the trial court’s decision granting
summary judgment in favor of the defendants. He also alleges that the trial court earlier
erred by vacating a default judgment against the defendants and by denying his motion
asking for permission to amend his complaint. For the reasons that follow, we find no
errors in the trial-court proceedings, and we affirm the judgment in favor of the
defendants.
The Key Facts
{¶2} The events giving rise to the lawsuit in this case occurred in October 2022.
At some point before that date, Smith (our plaintiff) had resided with Julie Saffell (one of
the defendants) at a home on State Route 514 in Holmes County’s Ripley Township. Ms.
Saffell’s parents — David and Elizabeth Conti (who were also named as defendants in
Smith’s complaint) — owned the Ripley Township home. Julie, by October 2022, had moved with her parents and her adult daughter — Desiree Culbertson (also a named
defendant in the case) — to a home in Wayne County.
{¶3} On October 16, 2022, Smith and Julie were in Smith’s camper in the
backyard of the Conti property in Ripley Township when Julie’s daughter Desiree arrived
and entered the camper. Smith alleged in his complaint that Desiree then shot him
without provocation using a gun that she had brought to the property. Desiree in turn
(according to an affidavit that she filed during trial-court proceedings on Smith’s
complaint) acknowledges that she shot Smith, but she did so, she says, because Smith was
armed with a pipe wrench when she entered the camper, and he raised it menacingly
toward her there. After a police investigation of the shooting, no criminal charges were
filed against Desiree.
{¶4} Smith filed his complaint in October 2024 against the four defendants
(Desiree, Julie, and Julie’s parents) to recover damages for the physical injuries he
suffered from the shooting. The complaint — prepared by Smith himself without the aid
of legal counsel — did not specify any particular causes of action but did include phrases
such as “[d]uty of care owed to trespasser” under R.C. 2305.402, “[c]ivil recovery by
persons injured” under R.C. 2307.60, and “[b]odily [i]njury” under R.C. 2305.10. Smith
also sought damages for what he described as conspiracy to commit civil aggravated
assault and aggravated injury and for “[i]ntentional [s]evere [b]odily [i]njury,”
“[p]remises [l]iability,” and “[n]egligence in an [i]ntentional or [r]eckless [t]ort [c]laim.”
Smith sought over $2 million in damages from the defendants.
{¶5} In response, the defendants filed a joint answer and counterclaim, but that
pleading was filed after the due date, and the defendants filed it without first seeking the
trial court’s permission for the tardy filing. Smith in turn moved to strike the defendants’ untimely answer and counterclaim, and he also asked the trial court to grant a default
judgment in his favor. The trial court sided with Smith, striking the defendants’ tardy
pleading and granting a default judgment to Smith. The case was then set for a damages
hearing.
{¶6} Before that hearing took place, though, the defendants — at that point
represented by new counsel — filed a motion asking the trial court to not only vacate the
default judgment but also allow the defendants to file a new answer to Smith’s complaint.
The trial court agreed, and the defendants then filed that new answer.
{¶7} Next — roughly 11 months after he had filed his complaint — Smith sought
permission from the trial court to file an amended complaint, and the defendants
meanwhile moved for summary judgment on all of the claims in Smith’s original
complaint. The trial court denied Smith’s motion to amend the complaint and then
granted the defendants’ motion for summary judgment. Smith now appeals that
judgment. (His notice of appeal to our court was filed after the 30-day deadline set by
Ohio’s Appellate Rules, but we have nonetheless agreed to hear the appeal because service
by the trial-court clerk of the trial court’s summary-judgment ruling likewise appears to
have been tardy.)
{¶8} One other filing hiccup arose during the briefing stage of this appeal: The
proof-of-service page at the end of the appellees’ brief does not list a “manner of service”
as that term is used in App.R. 13(E), and that shortcoming prompted Smith to ask us to
strike the appellees’ brief. Though we did direct the appellees to provide us with a
corrected proof-of-service page, none was ever filed. For that reason, we have, in
accordance with App.R. 13(E), “not . . . considered” the appellees’ brief. {¶9} As for Smith’s brief, he lists 15 assignments of error, some of which are
closely related. In addressing them, we have grouped some of those related arguments
together where appropriate.
The Trial Court Did Not Abuse Its Discretion by Vacating the Default Judgment
{¶10} Smith argues that the trial court abused its discretion by vacating the default
judgment granted in his favor. He also contends that the trial court should not have relied
on Civil Rule 60(B) when vacating that initial judgment because that rule allows a trial
court to grant relief only from a “final judgment,” and the default-judgment order in favor
of Smith was not a final one.
{¶11} We certainly agree that a default judgment that “determines the issue of
liability but continues the matter for a determination of damages is not a final judgment.”
Arledge v. Brown, 2007-Ohio-57, ¶ 4 (5th Dist.). Unquestionably, too, “Civ.R. 60(B) only
permits the vacation of final judgments.” Yoakam v. Boyd, 2009-Ohio-395, ¶ 14 (6th
Dist.).
{¶12} But “interlocutory orders — as opposed to final judgments — can be
reconsidered and altered by a trial court while litigation is ongoing.” Wood v. Energex
Power, Inc., 2026-Ohio-729, ¶ 10 (5th Dist.). See also Civ.R. 54(B) (“any order” that
“adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties” does not “terminate the action,” and “the order or other form of decision is subject
to revision at any time before the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties”).
{¶13} Trial-court proceedings on Smith’s complaint remained unfinished once the
trial court had granted Smith’s motion for a default judgment and scheduled a hearing on the amount of damages to be awarded. See White Stag Aircraft Leasing United States
LLC v. JP Morgan Chase Bank, N.A., 2021-Ohio-1245, ¶ 14 (7th Dist.) (“the entry of
default judgment with a damages hearing pending was not a final judgment; a Civ.R.
60(B) motion may only be directed to final judgments; and the motion was actually a
motion to reconsider an interlocutory order which is not appealable”).
{¶14} The trial court, therefore, did have authority to reconsider its order granting
a default judgment in favor of Smith. And we review the trial court’s decision for an abuse
of discretion. Nelson v. Powers, 2016-Ohio-1159, ¶ 16 (11th Dist.). An abuse of discretion
is more than a mere error of law; “it implies that the court’s attitude is unreasonable,
arbitrary[,] or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶15} The four defendants initially hired attorney Wesley Johnston to represent
them in the trial court. Attorney Johnston failed to timely file an answer on their behalf
and later failed to seek permission from the trial court for his tardy filing of an answer
and counterclaim. After the trial court granted Smith’s motion to strike the defendants’
tardy pleading as well as his motion for a default judgment, the defendants retained new
counsel. That new lawyer then filed a motion asking the trial court to vacate the default
judgment, and that motion was accompanied by an affidavit from attorney Johnston in
which he claimed that his failure to timely file an answer for the defendants was
attributable to his own inadvertent and unintentional missteps.
{¶16} “In determining whether neglect is excusable or inexcusable, this Court
must take into consideration all 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.” Doepker v. Willo Sec., Inc., 2008-Ohio-2008, ¶ 22 (5th Dist.). The trial court presumably chose not to impute to the defendants the
inattentiveness of their attorney.
{¶17} The defendants, in their motion seeking relief from the default judgment,
also noted that they had identified a colorable statute-of-limitations defense to the causes
of action that Smith’s complaint appeared to have alleged against them. “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. v. ARC Industries, Inc., 47 Ohio
St.2d 146 (1976), paragraph three of the syllabus.
{¶18} We find that the trial court did not abuse its discretion when it reconsidered
its non-final order granting Smith’s motion for a default judgment. The trial court acted
within the permissible scope of its discretion when it evidently concluded that the
defendants should not suffer the consequences of their prior counsel’s carelessness.
The Trial Court Did Not Abuse Its Discretion by Denying Smith’s Motion to Amend His Complaint As Well As His Request that the Case-Management Schedule Be Modified
{¶19} Smith also argues that the trial court abused its discretion by denying his
motions to amend his complaint and modify the case-management schedule.
{¶20} “The decision of whether to grant a motion for leave to amend a pleading is
within the discretion of the trial court.” Meehan v. Mardis, 2022-Ohio-1379, ¶ 4 (1st
Dist.). Although Civil Rule 15(A) provides that leave to amend a pleading should be
“‘freely granted when justice so requires,’” a trial court should deny leave “‘if there is a
showing of bad faith, undue delay, or undue prejudice to the opposing party.’” Id. at ¶ 5,
quoting Turner v. Cent. Local School Dist., 85 Ohio St.3d 95, 99 (1999). “[W]here a
motion for leave to file an amended complaint is not timely tendered and there is no apparent reason to justify the delay, a trial court does not abuse its discretion in denying
a proposed amendment.” Franciscan Communities, Inc. v. Rice, 2021-Ohio-1729, ¶ 37
(8th Dist.).
{¶21} After the trial court, in April 2025, vacated its entry granting a default
judgment in Smith’s favor, that court also modified the case-management schedule by
setting a new dispositive-motion deadline of September 15, 2025. Smith’s motion to
modify the case-management schedule was filed on September 8, 2025, and his motion
to amend his complaint was filed on September 9, 2025. The defendants filed their
motion for summary judgment on September 11, 2025.
{¶22} In his motion seeking permission to amend his complaint, Smith claimed
that he had just learned additional facts that supported additional causes of action. But
in its entry denying Smith’s motion, the trial court found that the alleged additional facts
came from a report prepared by the county sheriff’s office that was presumably available
to him as a public record when he filed his original complaint. The trial court also found
that any new facts that had in fact been uncovered by Smith could support his existing
claims, and he need not file an amended complaint to raise them.
{¶23} As for Smith’s motion to modify the case-management schedule, the trial
court noted that Smith had already sought and been granted an earlier change in the case
schedule, and, given that the defendants had by then filed a motion for summary
judgment, additional delays or any reopening of the discovery window would, in the trial
court’s view, be unfairly prejudicial to them.
{¶24} Trial courts have the inherent authority to manage their own proceedings
and to control their own dockets. Collier v. Conley, 2014-Ohio-2609, ¶ 16 (5th Dist.). In
our review of the record in this case, we cannot say that the trial court abused its discretion when it denied Smith’s motion to amend his complaint as well as his motion asking the
trial court to modify the case-management schedule.
The Trial Court Properly Granted the Defendants’ Motion for Summary Judgment
{¶25} Next, we turn to the merits of the trial court’s summary-judgment decision.
Appellate courts review with fresh eyes a trial court’s decision on a motion for summary
judgment. Smathers v. Glass, 2022-Ohio-4595, ¶ 30 (“an appellate court applies a de
novo standard of review” when a summary-judgment decision is challenged). In
reviewing the trial court’s judgment in this case, we must conduct “an independent review
of the evidence without deference to the trial court’s findings.” Id. In doing so, we
examine the evidence available in the record and determine whether summary judgment
is appropriate. Id.
{¶26} Under Civ.R. 56(C), summary judgment may be granted only after the trial
court determines that: (1) no genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of law; and (3) it appears from
the evidence that reasonable minds can come to but one conclusion, and — viewing the
evidence most strongly in favor of the party against whom the motion for summary
judgment is made — that conclusion is adverse to that party. PNC Bank Natl. Assn. v.
Whitaker, 2025-Ohio-1078, ¶ 17 (5th Dist.), citing Temple v. Wean United, Inc., 50 Ohio
St.2d 317, 327 (1977). The party seeking summary judgment bears the initial burden of
demonstrating that no issues of material fact exist for trial. Dresher v. Burt, 75 Ohio St.3d
280, 292 (1996). The moving party must be able to point to some evidence of the type
listed in Civ.R. 56(C) affirmatively demonstrating that the nonmoving party has no
evidence to support its claims. Id. at 292–293. If the moving party satisfies its initial burden, the nonmoving party then has the reciprocal burden outlined in Civ.R. 56(E) to
set forth specific facts showing that there is a genuine issue for trial. Id. at 293. The
record on summary judgment must be viewed in a light most favorable to the nonmoving
party. Williams v. First United Church of Christ, 37 Ohio St.2d 150, 152 (1974).
1. Smith’s Claims Against Desiree Were Time Barred
{¶27} The defendants, in their motion for summary judgment, argued that Smith’s
complaint was barred by the statute of limitations. Affidavits from three of the four
defendants — David Conti, Desiree Culbertson, and Julie Saffell — were attached to that
motion. Smith moved to strike the affidavits, claiming that they had not been properly
attached to or referenced in the motion and had not been labeled as exhibits to it. The
trial court did not specifically address Smith’s argument that the affidavits should be
stricken, but the trial court did, in its summary-judgment decision, deny “[a]ll other
pending motions,” and that court does appear to have considered the affidavits in ruling
on the defendants’ motion for summary judgment.
{¶28} Civil Rule 56(A) provides that a party “may move with or without supporting
affidavits for a summary judgment in the party’s favor.” Civil Rule 56(E) further provides
that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated in the affidavit.” The rule does not
specify any particular reference requirements or labeling rules for summary-judgment
affidavits. And Smith does not provide any authority to support his position that the way
the defendants attached the affidavits to the motion for summary judgment was not
sufficient. {¶29} Smith’s complaint — filed two years after the shooting — alleges various
theories for the recovery of damages sustained from the gunshot wound. “When bodily
injury results from negligence, the two-year statute of limitations, R.C. 2305.10, is the
appropriate statute of limitations. However, when bodily injury results from an assault
or battery, the one-year statute of limitations, R.C. 2305.111, is applicable.” Love v. City
of Port Clinton, 37 Ohio St.3d 98, 98 (1988).
{¶30} The Supreme Court of Ohio has held that “‘in determining which limitation
period will apply, courts must look to the actual nature or subject matter of the case,
rather than to the form in which the action is pleaded.’” Id. at 99, quoting Hambleton v.
R.G. Barry Corp., 12 Ohio St.3d 179, 183 (1984). “Where the essential character of an
alleged tort is an intentional, offensive touching, the statute of limitations for assault and
battery governs even if the touching is pled as an act of negligence.” Love at syllabus.
{¶31} In this case, the specific act that Smith complains of — being shot by Desiree
— is an act of intentional contact that, unless it is privileged, constitutes a battery. “A
person is subject to liability for battery when he acts intending to cause a harmful or
offensive contact, and when a harmful contact results.” Id. at 99.
{¶32} Although nearly any assault and battery can be pled as a claim in negligence,
“assault and battery cannot be transferred into another type of action subject to a longer
statute of limitations as it would circumvent the statute of limitations for assault and
battery to allow that to be done.” Grimm v. White, 70 Ohio App.2d 201, 203 (10th Dist.).
See also Kuhar v. Marc Glassman, Inc., 2009-Ohio-2379, ¶ 8 (8th Dist.) (“When the
essential character of the alleged tort is an intentional, offensive touching, the statute of
limitations for assault and battery applies, even if the touching is pled as an act of
negligence”). {¶33} Any cause of action arising out of an assault and battery is barred by the
one-year statute of limitations. See Jordan v. Howard, 2021-Ohio-4025, ¶ 32 (2d Dist.)
(“the underlying cause of action was for assault and battery, and the statute of limitations
for civil conspiracy would also be the one-year statute applied to that claim”); Ettayem v.
H.E.R., LLC, 2020-Ohio-4647, ¶ 24 (5th Dist.) (adopting — and including as an appendix
— the trial court’s decision, in which that court had held that a claim brought under R.C.
2307.60 (a civil action for damages for a criminal act) is subject to the one-year statute of
limitations); Estill v. Waltz, 2002-Ohio-5004, ¶ 24 (10th Dist.) (applying the one-year
limitations period and explaining that “the fact that Ryan struck plaintiff in the head in
apparent self-defense, based on Ryan’s allegedly mistaken belief that plaintiff’s gesture
toward him was hostile, may justify Ryan’s intentional use of force against plaintiff, but
it does not transform Ryan’s act from an intentional to a negligent act”). And any cause
of action against Desiree’s mother and grandparents for imputed liability based upon the
theory of assault and battery is also barred by the statute of limitations. Grimm at 204.
2. The Owners of the Property Where the Shooting Occurred Owed No Duty of Care to Smith
{¶34} As for Smith’s claims against the defendant property owners — David and
Elizabeth Conti — Smith “must establish the existence of a legal duty the respective
defendants owed” to him. Estill at ¶ 27. In other words, for the Contis — who were not
on the property when Smith was injured by Desiree — to be liable for negligence, they
must have breached a duty owed to Smith. Id.
{¶35} “In general, absent some special relationship, there is no duty to act
affirmatively for the protection of another person or to prevent a third person from
causing harm to another person.” Id. at ¶ 28. “In a negligence action involving premises liability, as here, the status of a person who enters upon the land of another determines
the scope of legal duty owed to him.” Id. The three recognized categories for a person
who enters onto the land of another are: (1) trespasser; (2) licensee; and (3) invitee. Id.
{¶36} It is undisputed that the Contis did not invite Smith onto their property. In
his affidavit, David Conti stated that he had previously ordered Smith not to return to the
property and had not given him permission to be there on the day of the shooting. Smith
does not allege in his complaint that the Contis gave him permission to be at the property
that day.
{¶37} Landowners owe no duty to trespassers except to refrain from willful,
wanton, or reckless conduct that is likely to cause injury. Gladon v. Greater Cleveland
Regional Transit Auth., 75 Ohio St.3d 312, 317 (1996). Neither David nor Elizabeth Conti
caused physical harm to Smith. It was their adult granddaughter — Desiree Culbertson
— who shot Smith. “Ordinarily, there is no duty to control the conduct of a third person
by preventing him or her from causing harm to another, except in cases where there exists
a special relationship between the actor and the third person which gives rise to a duty to
control.” Fed. Steel & Wire Corp. v. Ruhlin Constr. Co., 45 Ohio St.3d 171, 173 (1989).
{¶38} Smith has failed to show that a special relationship existed between Desiree
and the Contis. “Relationships that may give rise to a duty to control a third person’s
conduct include the following: (1) parent and child; (2) master and servant; and (3)
custodian and person with dangerous propensities.” Hall v. Watson, 2002-Ohio-3176, ¶
16 (7th Dist.). None of those relationships were present in this case, and the Contis’ mere
act of providing Desiree with a ride to the property does not establish a special
relationship. {¶39} Whether a duty exists also depends on the foreseeability of the injury.
Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984). “The test for
foreseeability is whether a reasonably prudent person would have anticipated that an
injury was likely to result from the performance or nonperformance of an act.” Id.
{¶40} There is nothing in the record to support the conclusion that Smith’s injury
was foreseeable to the Contis. Even with all evidence in the record construed most
strongly in Smith’s favor, we find no support for Smith’s view that the Contis should have
anticipated that Desiree would shoot Smith in what Desiree characterized to law-
enforcement officers as self-defense.
3. None of Smith’s Allegations Point to Any Liability on the Part of Desiree’s Mother
{¶41} Finally, we readily conclude that summary judgment was properly granted
in favor of the one other defendant named in Smith’s complaint. That person — Julie
Saffel, who is the mother of Desiree and the daughter of the Contis — neither caused
Smith’s injuries nor owned the property where the shooting occurred. She was in the
trailer with Smith when Desiree shot Smith, but no evidence in the record suggests that
Julie invited Smith there, that she caused the shooting to occur, or that she said or did
anything, whether intentionally or negligently, that caused harm to Smith.
***
{¶42} In short, we find that Smith’s complaint alleges, in substance, an action in
battery, and any such claim against any of the four defendants is barred by R.C.
2305.111(B)’s one-year limitations period. And Smith has failed to state any other viable
tort claims — whether based on a theory of premises liability for dangerous conditions on
real property or for other negligent, reckless, or intentional acts — against any of the defendants. We therefore find that the trial court properly granted the defendants’
motion for summary judgment.
{¶43} For these reasons, the judgment of the Court of Common Pleas of Holmes
County is affirmed. Costs are to be paid by Appellant Darrell Smith.
By: Gormley, J.;
Baldwin, P.J. and
Montgomery, J. concur.