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Gibbs v. Burley

Court of Appeals of Ohio, Tenth District

January 9, 2020

Basil Gibbs, Plaintiff-Appellee,
v.
Ernest Burley et al., Defendants-Appellees, Kelvin Burley, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 18CV-5632

         On brief:

          Kelvin Burley, pro se.

          DECISION

          NELSON, J.

         {¶ 1} This case involves an adult son allegedly punching a person in the face on the property of and in connection with businesses owned or operated by the aggressor's father. The person who was struck sued the son who punched him, and also sued the businesses and the father. Various defendants were found to be in default of an answer, but only the father properly appealed. The question before us is whether the facts as pleaded in the complaint give rise to liability on the part of the father. Our answer, at least with respect to the complaint as currently constituted, is no.

         {¶ 2} Defendant-appellant Kelvin Burley appeals from a default judgment entered by the Franklin County Court of Common Pleas. Although the default judgment is against multiple parties, only Kelvin Burley has filed a timely appeal. By way of procedural background, we note that on May 18, 2019, Kelvin Burley's counsel filed in the trial court a Civil Rule 60(B) motion for relief from judgment; we stayed the appeal until the trial court had ruled on that motion. See Aug. 21, 2019 Journal Entry. On the recommendation of a magistrate, the trial court denied the motion. Oct. 4, 2019 Magistrate's Decision Denying Defendants' Motion for Relief from Judgment; Oct. 30, 2019 Decision and Entry Adopting Magistrate's Decision. That ruling has not been appealed, but Kelvin Burley did file here motions asking us to "reactivate" the case and to allow supplemental briefing. Oct. 14, 2019 Motion to Reactivate; Oct. 14, 2019 Motion to Allow Re-Briefing of Case. We granted those motions, permitting Kelvin Burley to file supplemental briefing "within 15 days of the filing of [that] entry" and permitting appellee Basil Gibbs to file a brief "within 15 days of the filing of appellant's supplemental brief." Nov. 4, 2019 Journal Entry. Neither party filed such briefs. Through counsel, too, Burley Trucking, LLC and JAC Burley Trucking, LLC moved to be added as appellants (although they had not timely filed any notice of appeal). Oct. 14, 2019 Motion. We denied that motion. Nov. 4, 2019 Journal Entry. Pursuant to a motion subsequently filed by Kelvin Burley, we stayed execution of the trial court's judgment as to him pending determination of his appeal, see Dec. 16, 2019 Motion and Dec. 19, 2019 Journal Entry, to which we now turn.

         {¶ 3} Basil Gibbs filed a lawsuit against Kelvin Burley's son Ernest Burley, and also named as defendants Kelvin Burley; Burley Trucking, LLC; JAC Burley Trucking, LLC; and John Does 1 and 2. The complaint alleged that (son) Ernest Burley had punched Mr. Gibbs in the face while acting as an employee of trucking companies incorporated by (father) Kelvin Burley and/or Jacqueline Simmons Burley. July 2, 2018 Complaint at ¶ 3, 4, 11, 13, 25. "At all times relevant herein," the complaint recited, "Defendants Ernest Burley and Kelvin Burley were active participants in the business operations of the defendants Burley Trucking and JAC Burley Trucking." Id. at ¶ 7. More specifically, the complaint alleged, "[o]n or about March 25, 2017, Ernest Burley * * * was the son of Kelvin Burley, the owner of Burley Trucking, LLC and a management employee of Burley Trucking, LLC, and JAC Burley Trucking, LLC, directing low level employees and advising the owners in day to day operation of the companies." Id. at ¶ 11. On that day, too, Mr. Gibbs "was a business invitee" of those companies. Id. at ¶ 10.

         {¶ 4} The complaint further alleges that on March 25, 2017, "Mr. Gibbs and Ernest [Burley] walked onto the trucking company properties [from across the street] and were talking briefly before Ernest suddenly and without provocation or warning struck Mr. Gibbs in the face and jaw with his fist in the form of a blow commonly known as a 'sucker punch.'" Id. at ¶ 13. "Immediately before the punch was thrown, Mr. Gibbs was looking at Kelvin Burley and talking to him, and the next thing Mr. Gibbs knew, Ernest delivered the sucker punch blow to his face and jaw." Id. at ¶ 14. The attack "left Mr. Gibbs * * * fearful of any follow up or successive attack by Ernest * * *. However, after the attack Ernest ran away." Id. at ¶ 16.

         {¶ 5} The complaint claims that "Kelvin Burley, Burley Trucking and JAC Burley Trucking[] and their ownership and management were negligent in the hiring and retention (continued employment) of Ernest Burley given his criminal record propensity for violence and history of perpetrating aggressive behavior toward others including co-workers and the public during work hours and on his free time." Id. at ¶ 18. Beyond this Count One claim for "Negligence," the complaint adds overlapping claims for "Respondeat Superior" (Count Two), "Negligent Hiring, Training, and/or Supervision" (Count Three), and "Recklessness" (Count Four). See id. at pages 3, 6, 7 (capitalizations adjusted).

         {¶ 6} The trial court found that service of the complaint was completed on Kelvin Burley on July 9, 2018, but that he did not file an answer. See Magistrate's Decision Denying Defendants' Motion for Relief from Judgment at 1; compare October 29, 2018 Entry of Default Judgment. The month after service, on August 23, 2018, Mr. Gibbs filed a motion for default judgment against all defendants except Ernest Burley, the one alleged to have thrown the punch. The trial court granted the default and referred the matter to a magistrate for a damages hearing, at which Kelvin Burley appeared and gave testimony (including the information that "Defendant Ernest Burley is incarcerated"); the magistrate awarded Mr. Gibbs $36, 240 in damages against Kelvin Burley and the trucking companies together (including $11, 240 in past and future medical expenses), and the trial court adopted the magistrate's decision. January 15, 2019 Magistrate's Decision on Damages; February 26, 2019 Judgment Entry Adopting the Magistrate's January 15, 2019 Decision on Damages.

         {¶ 7} It is from this judgment that Kelvin Burley appeals. He assigns one error for our review: "The trial court erred and abused it's [sic] discretion in dismissing Appellant's action." Appellant's Brief at 7. We interpret this statement to mean that the trial court erred in granting the judgment it did rather than dismissing the action against him. Compare Harris v. Dept. of Rehab & Corr., 10th Dist. No. 14AP-668, 2015-Ohio-1237, ¶ 8 ("in the interest of justice, to the extent we are able to discern the issue and any implied error, we will address them * * * ").

         {¶ 8} "A default judgment is proper against an unresponsive defendant' "as [and, we would add here, to the extent that] liability has been admitted or 'confessed' by the omission of statements refuting the plaintiffs claims." '" Lopez v. Quezada, 10th Dist. 13AP-389, 2014-Ohio-367, ¶ 12, quoting Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 121 (1986), quoting Reese v. Proppe, 3 Ohio App.3d 103, 105 (8th Dist.1981). "Pursuant to Civ.R. 8(D), an unresponsive defendant's failure to deny the specific allegations in a complaint results in the admission of those allegations." Lopez at ¶ 12 (citation omitted).

         {¶ 9} However, an overarching principle to guide a trial court in considering a default judgment application is that" '[a] plaintiff still needs to allege a valid claim in order to prevail, even against a neglectful defendant.'" Id. at ¶ 13 (citation omitted). "On appeal, * * * we must ascertain whether the plaintiff pleaded sufficient facts to support the claim, and otherwise pleaded a claim for which relief may be granted." Huntington Natl. Bank v. R Kids Count Learning Ctr., LLC, 10th Dist. No. 16AP-688, 2017-Ohio-7837, ¶ 15 citing Lopez at ¶ 13, citing Whiteside v. Williams, 12th Dist. No. 2006-06-021, 2007-Ohio-1100, ¶ 12. "As part of our review of the trial court's exercise of discretion in granting default judgment, therefore, we must examine the complaint to see whether it can 'withstand a Civ.R. 12(B)(6) motion for failure to state a claim.'" Huntington at ¶ 15, quoting Lopez at ¶ 17." '[W]hen a plaintiff fails to state a claim, a court cannot grant default judgment with regard to that alleged claim.'" Id. Consequently, we return to Mr. Gibbs's complaint.

         {¶ 10} Counts One and Three of the complaint both allege theories related to negligent hiring. Count Three recites more crisply that "Defendants Kelvin Burley, Burley Trucking and JAC Burley Trucking negligently and/or recklessly hired, trained and/or supervised and retained Defendant Ernest Burley as an employee of the Named trucking Defendants," Complaint at ¶ 30, while Count One similarly alleges that "Kelvin Burley, Burley Trucking and JAC Burley Trucking, and their ownership and management were negligent in the hiring and retention (continued employment) of Ernest Burley given his criminal record propensity for violence and history of perpetrating aggressive behavior toward others including c0-workers and the public during work hours and on his free time," id. at ¶ 18 (adding at ¶ 19 that "Defendant John Doe # 1 was an agent, employee and/or staff member of Burley Trucking, and JAC Burley Trucking or an agent of Burley Trucking, LLC who was acting within his or her ...


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