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Risner v. Cyclone Services, Inc.

Court of Appeals of Ohio, Sixth District, Sandusky

December 20, 2019

Daniel A. Risner Appellant
v.
Cyclone Services, Inc. Appellee

          Trial Court No. 18CV753

          Arthur C. Graves, for appellant.

          James H. Ellis III, for appellee.

          DECISION AND JUDGMENT

          MAYLE, P.J.

         {¶ 1} In this accelerated appeal, appellant, Daniel Risner, appeals the trial court's July 23, 2019 judgment entry granting appellee, Cyclone Services, Inc.'s, Civ.R. 60(B) motion for relief from default judgment. For the following reasons, we affirm the judgment of the trial court.

         I. Background

         {¶ 2} On June 22, 2017, appellant, Daniel Risner, suffered an injury in the course and scope of his employment with appellee, Cyclone Services, Inc. ("Cyclone"). Appellant filed a claim with the Ohio Bureau of Workers' Compensation ("the Bureau") alleging multiple conditions arising from the injury for which he sought compensation benefits. Ultimately, the Bureau issued an order that allowed some conditions but denied others.

         {¶ 3} On May 29, 2018, Risner filed an administrative appeal with the Sandusky County Court of Common Pleas, case No. 18CV599, pursuant to R.C. 4123.512.[1]Risner's administrative appeal named both Cyclone and the Bureau's administrator as "Defendants-appellees."

         {¶ 4} Shortly after the filing of the administrative appeal, Cyclone received correspondence from the Bureau indicating that if it elected not to actively participate in the appeal, the Bureau would defend the administrative judgment on Cyclone's behalf. In response, Cyclone's president and secretary, Gerold Bowers, informed the Bureau's counsel that the company would not participate in the administrative appeal. Thereafter, Cyclone did not respond to any filings in the administrative appeal or appear for any hearings.

         {¶ 5} On July 23, 2018, Risner filed the instant case-a wrongful termination action against Cyclone, which was assigned Sandusky County case No. 18CV753. Risner alleged that, during the processing of his workers' compensation claim, the Bureau scheduled a hearing on January 29, 2018, that he needed to attend. On that day, Risner and Bowers got into a verbal altercation in Cyclone's parking lot.

         {¶ 6} Risner's complaint alleges that the altercation ensued because Bowers ordered him not to attend the hearing, and then fired him when he refused to comply with that order. Bowers, however, maintains that he merely asked Risner to provide a physician's note that cleared him to drive Cyclone's vehicles despite any ongoing medical conditions related to the workplace injury. Bowers claims that Risner got angry at this request, engaged in a verbal argument, and then quit. Bowers argues that he did not order Risner not to attend the hearing, or terminate his employment. Despite the differing version of events, it is undisputed that Risner did not return to work after that date.

         {¶ 7} Cyclone was served with a summons and a copy of the complaint on July 30, 2018. It failed to file an answer or otherwise respond to the complaint within 28 days of service. On October 31, 2018, Risner filed a motion for default judgment. The trial court set a hearing on Risner's motion for December 17, 2018. Cyclone was served with notice of the hearing but did not appear. On December 28, 2018, the trial court granted appellant's motion and entered default judgment against Cyclone.

         {¶ 8} On January 24, 2019, Cyclone filed a motion for relief from judgment pursuant to Civ.R. 60(B)(1). Cyclone argued that Bowers was confused by the service of new process and believed that the summons and complaint were part of the ongoing administrative appeal in which Cyclone had elected not to participate. Cyclone argued that this confusion constituted excusable neglect and entitled it to relief from judgment. The trial court agreed and on February 29, 2019, granted Cyclone's motion for relief from judgment.

         {¶ 9} On April 15, 2019, Risner filed a motion to vacate the order granting relief from judgment, arguing that he had not been served with a copy of Cyclone's motion. Risner asked the trial court to vacate its previous order, and to permit him to conduct discovery related to the Civ.R. 60(B) motion and to file a brief in opposition to the motion. The trial court appears to have granted the motion to vacate because the parties proceeded with discovery. [2] On July 1, 2019, ...


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