Opinion
No. 108059
05-23-2019
ROBERT T. RODGERS, Plaintiff-Appellee, v. CITY OF ROCKY RIVER, ET AL., Defendants-Appellants.
Appearances: Nager, Romaine & Schneiberg Co., L.P.A., Daniel A. Kirschner, Corey Kuzma, and Jennifer L. Lawther; for appellee Robert Rodgers. David A. Yost, Ohio Attorney General, and Steven K. Aronoff, Assistant Attorney General, for appellee Administrator, Bureau of Workers' Compensation. Andrew D. Bemer, Law Director, City of Rocky River, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-15-842851
Appearances:
Nager, Romaine & Schneiberg Co., L.P.A., Daniel A. Kirschner, Corey Kuzma, and Jennifer L. Lawther; for appellee Robert Rodgers. David A. Yost, Ohio Attorney General, and Steven K. Aronoff, Assistant Attorney General, for appellee Administrator, Bureau of Workers' Compensation. Andrew D. Bemer, Law Director, City of Rocky River, for appellant. KATHLEEN ANN KEOUGH, J.:
{¶ 1} This appeal is before the court on the accelerated docket pursuant to App.R. 11.1 and Loc.App.R. 11.1. The purpose of an accelerated appeal is to allow this court to render a brief and conclusory opinion. State v. Priest, 8th Dist. Cuyahoga No. 100614, 2014-Ohio-1735, ¶ 1.
{¶ 2} Defendant-appellant, the city of Rocky River ("the city"), appeals the trial court's decision denying its Civ.R. 60(B) motion for relief from judgment. For the reasons that follow, we affirm the trial court's decision.
{¶ 3} Plaintiff-appellee, Robert Rodgers, was employed by the city as a firefighter. In 2013, Rodgers was diagnosed with an occupational disease, lumbar spine lymphoma. Rodgers filed a workers' compensation claim, which was ultimately allowed for lumbar spine lymphoma. After exhausting its administrative appeals, the city filed a notice of appeal pursuant to R.C. 4123.512(A) with the Court of Common Pleas of Cuyahoga County, General Division. In response, Rodgers filed a complaint pursuant to R.C. 4123.512(D) with the court. In 2014, he dismissed his complaint without prejudice.
{¶ 4} In 2015, Rodgers refiled his complaint and in March 2016, the city withdrew its notice of appeal, thus terminating the case. In April 2016, the trial court assessed court costs against the city; no appeal was taken. On November 7, 2018, Rodgers filed a motion for attorney fees and costs pursuant to R.C. 4123.512(F). The city did not file a timely response and on November 14, 2018, the trial court granted Rodgers's motion, awarding costs and attorney fees in the amount of $3,734.45. On November 21, 2018, the city filed a Civ.R. 60(B) motion for relief from judgment, which the trial court denied two weeks later.
{¶ 5} The city now appeals, raising as its sole assignment of error that the trial court erred in denying its motion for relief from a judgment that awarded Rodgers attorney fees pursuant to R.C. 4123.512(F) by default. The scope of our appeal is limited only to the denial of the city's Civ.R. 60(B) motion; any challenge to the award of attorney fees will not be addressed.
{¶ 6} We review a trial court's decision on a motion for relief from judgment for an abuse of discretion. Bank of N.Y. v. Elliot, 8th Dist. Cuyahoga Nos. 97506 and 98179, 2012-Ohio-5285, ¶ 25. The term "abuse of discretion" implies that the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 7} To prevail on a motion for relief from judgment, the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if the relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)-(5); and (3) the motion is made within a reasonable time. GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. The movant must satisfy all three of these requirements to obtain relief. State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151, 666 N.E.2d 1134 (1996).
{¶ 8} Rodgers concedes that the city's motion that was filed one week after the trial court entered the judgment awarding attorney fees was timely. The issue is whether the city (1) presented evidence of a meritorious defense to present if relief is granted and (2) established that it should be entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)-(5). If the city failed to satisfy either one of these requirements, the city is not entitled to relief.
{¶ 9} The city brought its motion pursuant to Civ.R. 60(B)(1), which allows a court "on motion and upon such terms are just," to grant relief from a final judgment, order, or proceeding due to "mistake, inadvertence, surprise, or excusable neglect." In its motion, the city contends that it is entitled to relief from judgment under Civ.R. 60(B)(1) due to "mistake, inadvertence, or excusable neglect" because the law director was out of the office during a majority of the time allowed to respond to Rodgers's motion for attorney fees, and the law director acted under the assumption that he had a fourteen-day response time under the Ohio Civil Rules of Procedures, rather than the seven-day response time provided by Loc.R. 11 of the Court of Common Pleas of Cuyahoga County, General Division. Additionally, the city claimed that it had to search for the file because it had been closed for two years.
{¶ 10} The city does not allege that it did not receive timely service or that the motion was not properly served. In fact, the law director's affidavit attached to the city's Civ.R. 60(B) motion acknowledges receiving the motion by email on November 7, 2018. Additionally, the affidavit also acknowledges that counsel returned to the office the day before the response was due under the Local Rules. Nevertheless, the city did not request an extension nor file a response. Presumably, and as stated by the city, it acted under the premise that the Ohio Civil Rules allow for a fourteen-day response time period.
{¶ 11} A general definition of excusable neglect is "some action 'not in consequence of the party's own carelessness, inattention [inadvertence], or willful disregard of the process of the court, but in consequence of some unexpected or unavoidable hindrance or accident.'" McEnteer v. Moss, 9th Dist. Summit Nos. 22201 and 22220, 2005-Ohio-2679, ¶ 14 quoting Vanest v. Pillsbury Co., 124 Ohio App.3d 525, 536, fn. 8, 706 N.E.2d 825 (4th Dist.1997). Excusable neglect has been found when a party has neither actual notice nor knowledge of the lawsuit, or when unusual or special circumstances justify the neglect of the party or attorney. Id. at 536. It is inexcusable neglect, however, when those unusual or special circumstances could have been avoided or controlled by the party or his counsel. Id. Additionally, inexcusable neglect has been found when the inaction of a party can be labeled as a "complete disregard for the judicial system," when an attorney's conduct falls substantially below what is reasonable under the circumstances, or when the justification centers around the demands of being a busy lawyer or preoccupied with other litigation. Id.
{¶ 12} In this case, the city's failure to respond was not excusable neglect. The city admitted that it received the motion, but operated under the assumption that it had a longer time to respond. This assumption does not make the neglect excusable. "Attorneys are required to familiarize themselves with and abide by the local rules of practice." Cavalry Invest., L.L.C. v. Dzilinski, 8th Dist. Cuyahoga No. 88769, 2007-Ohio-3767, ¶ 12. Moreover, the city could have filed a motion for an extension of time to respond once it was discovered that the litigation file was closed. Opportunities existed for the city to avoid a default award of attorney fees.
{¶ 13} Even if this court were to find that excusable neglect existed, the city must still satisfy the requirement that a meritorious defense exists. The city contends that the trial court failed to recognize its meritorious defense that an award of attorney fees against a political subdivision is against public policy.
{¶ 14} Insofar as the city is attempting to collaterally attack the underlying judgment granting attorney fees, the city did not appeal this determination. A review of the record reveals that the city could have timely appealed the judgment awarding attorney fees after the trial court denied its motion for relief from judgment; the appeal clock had not expired. Accordingly, if the city wished to challenge the award of attorney fees, it could have done so through a direct appeal. We make no determination on whether the award of attorney fees was properly awarded in this case.
{¶ 15} However, we note that the plain language of R.C. 4123.512(F) authorizes the award of attorney fees and costs against "the employer" who contests an injured worker's right to participate in the workers' compensation system after an injured worker's right to participate is established. The statute does not differentiate between public and private employers, unlike in R.C. 4123.01(B) where the legislature provided different definitions of "employers" — public (political subdivisions) and private. This demonstrates that the legislature had the ability to establish immunity for political subdivisions or public employers from an award of attorney fees and costs, but elected not to do so. Moreover, this court in Powers v. N. Royalton, 103 Ohio App.3d 269, 659 N.E.2d 338 (8th Dist.1995), reaffirmed that a legitimate state interest exists for employees being compensated for work-related injuries. "'Taxing costs to employers who contest claims ultimately determined to be valid is a procedure rationally related to the state's interest in seeing those injured employees compensated.'" Id. at 273 quoting Sorci v. Gen. Motors Corp., 13 Ohio App.3d 223, 225, 468 N.E.2d 916 (8th Dist.1983). Accordingly, the city has not demonstrated that it has a meritorious defense to Rodgers's request for attorney fees.
{¶ 16} Based on the foregoing, the trial court did not err in denying the city's Civ.R. 60(B) motion for relief from judgment. The assignment of error is overruled.
{¶ 17} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
KATHLEEN ANN KEOUGH, JUDGE MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, SR., J., CONCUR.