[Cite as Graham v. Higgins, 2010-Ohio-3674.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
NATHAN A. GRAHAM,
PLAINTIFF-APPELLANT, CASE NO. 5-09-39
v.
PATTERSON W. HIGGINS, OPINION
DEFENDANT-APPELLEE.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2005 CV 00218
Judgment Reversed and Cause Remanded
Date of Decision: August 9, 2010
APPEARANCES:
Nathan A. Graham, Appellant
Patterson W. Higgins for Appellee
Case No. 5-09-39
WILLAMOWSKI, P.J.
{¶1} Plaintiff-appellant Nathan A. Graham (“Graham”) brings this appeal
from the judgment of the Court of Common Pleas of Hancock County finding in
favor of defendant-appellee Patterson Higgins (“Higgins”). For the reasons set
forth below, the judgment is reversed.
{¶2} On April 8, 2005, Graham filed a complaint alleging professional
misconduct stemming from Higgins’ representation of Graham in a related civil
case. The complaint alleged that Higgins had agreed to represent Graham in the
case for a flat fee of $500, which included representation at trial and taking
Graham’s deposition. Higgins filed a motion to withdraw from his representation
of Graham, which was granted. Higgins did not return the $500 paid to him and
Graham sued to collect damages. Service of the summons and complaint was not
successful until July 18, 2005.
{¶3} On September 12, 2005, Higgins filed his answer denying the
allegations in the complaint. Graham filed a motion on September 22, 2005, to
have Higgins answer stricken as untimely filed. On September 29, 2005, Graham
filed a motion for default judgment. The trial court overruled these motions on
October 25, 2005. The case proceeded to trial and on November 20, 2009, the
trial court entered judgment in favor of Higgins. Graham appeals from the
October 25, 2005, judgment and raises the following assignment of error.
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Case No. 5-09-39
The trial court erred and abused its discretion when it allowed
[Higgins] to file an answer beyond rule date where there was no
showing of “excusable neglect” and [Higgins] failed to comply
with procedures outlined in Rule of Civil Procedure for late
filing.
{¶4} This court notes initially that Higgins has chosen not to file a brief
in this matter.
(A) * * * The appellee shall serve and file the appellee’s brief
within twenty days after service of the brief of the appellant.
***
(B) * * * If an appellee fails to file the appellee’s brief within
the time provided by this rule * * * the appellee will not be
heard at oral argument except by permission of the court upon
a showing of good cause submitted in writing prior to
argument; and in determining the appeal, the court may accept
the appellant’s statement of the facts and issues as correct and
reverse the judgment if appellant’s brief reasonably appears to
sustain such action.
App.R. 18.
{¶5} The sole assignment of error claims that the trial court erred by
allowing the late answer filing. Once a defendant has received a summons he or
she has 28 days to file their answer. Civ.R. 12(A). After the time to file an
answer has expired, the answer may only be filed if the defendant files a motion
requesting permission to file and where the failure was the result of excusable
neglect. Civ.R. 6(B). An answer filed after the deadline without a motion
seeking leave to file is a nullity because there is no showing of excusable neglect.
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Case No. 5-09-39
Matthews v. Rader, 11th Dist. No. 2003-L-092, 2005-Ohio-3271. “Allowing a
defendant to file an answer out of rule without moving for leave to file and
showing excusable neglect under Civ.R. 6(B) is an abuse of discretion.” Hillman
v. Edwards, 10th Dist. No. 08AP-1063, 2009-Ohio-5087, ¶8 (citing Miller v. Lint
(1980), 62 Ohio St.2d 209, 404 N.E.2d 752 and Davis v. Immediate Med. Serv.,
Inc. (1997), 80 Ohio St.3d 10, 684 N.E.2d 292). Thus, the denial of a motion to
strike an untimely answer filed without getting leave or showing excusable
neglect is reversible error. Id. at ¶9.
{¶6} In this case, Higgins was served with the summons on July 18,
2005. He did not file his answer until September 12, 2005, fifty-six days after
service. The record does not indicate that Higgins sought an extension of time to
file his answer before the twenty-eight days had expired. The record also does
not indicate that Higgins filed a motion seeking leave to file a late answer and
setting forth excusable neglect. Graham filed his motion to strike the answer on
September 22, 2005. Graham then filed a motion for default judgment on
September 29, 2005. Higgins did not file any responses to either of these
motions. On October 25, 2005, the trial court overruled Graham’s motions.
However, the trial court abused its discretion in denying the motion to strike the
answer and in denying the motion for default judgment when the answer was filed
out of rule, no motion requesting permission to file it had been filed, and no
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Case No. 5-09-39
showing of excusable neglect was made. The trial court also erred in denying
Graham’s motion for default judgment when the answer which was filed was a
nullity. Thus, the first assignment of error is sustained.
{¶7} The judgment of the Court of Common Pleas of Hancock County is
reversed and the matter is remanded for further proceedings.
Judgment Reversed
And Remanded
ROGERS and SHAW, J.J., concur.
/jlr
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