Court of Appeals of Ohio, Sixth District, Sandusky
Daniel A. Risner Appellant
Cyclone Services, Inc. Appellee
Court No. 18CV753
C. Graves, for appellant.
H. Ellis III, for appellee.
DECISION AND JUDGMENT
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.
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.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
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.  On July 1, 2019,