[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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Case No. 11-21-02
{¶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.
Standard of Review
{¶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).
Analysis
{¶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 [email protected]. The filings were sent to
[email protected].
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Case No. 11-21-02
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.
Standard of Review
{¶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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Case No. 11-21-02
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.
Analysis
{¶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.
Judgment Affirmed
WILLAMOWSKI, P.J. and MILLER, J., concur.
/jlr
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