McDonald v. Berry
| Decision Date | 23 November 1992 |
| Docket Number | No. 61359,61359 |
| Parties | McDONALD, Appellant, v. BERRY, Appellee. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. The trial court did not abuse its discretion in assessing sanctions against plaintiff's attorney where evidence of tactics used to delay the proceedings supports such a decision.
2. The trial court abused its discretion in granting plaintiff leave to file his untimely answer without a showing of excusable neglect and when he failed to comply even substantially with the Civil Rules by filing such a delayed answer. Civ.R. 6(B)(2). Defendant was entitled to the default judgment against plaintiff on her counterclaim.
Vicki Lynn Ward, Cleveland, for appellant James McDonald.
Jerome Silver & Assoc., Cleveland, for appellee Edith Berry.
This appeal is taken from the trial court's grant of appellee's motion for default judgment against the appellant. Appellant filed the first of two complaints against the appellee on June 21, 1988.
Appellee filed her corresponding answer and counterclaim on July 11, 1988. On April 25, 1989, appellee filed a third-party indemnification complaint in the event that appellee lost to appellant. The third-party complaint was disposed of January 16, 1991 when the trial court found it rendered moot by the disposition of the major claims in the case in favor of appellee.
Numerous motions were filed and pretrials had. Most pertinent to this appeal are those dealing with appellee's counterclaim against the appellant. A second complaint alleging essentially the same claims against appellee was filed on September 6, 1989 by the appellant. The trial court dismissed appellant's first complaint for want of prosecution, without prejudice, on October 4, 1989. A motion to consolidate the two cases was granted on October 23, 1989. At that point in time, the trial court had before it appellee's counterclaim and third-party complaint and appellant's new complaint.
On December 28, 1989, appellee moved for default judgment against appellant, which was properly served. January 9, 1990, appellant filed a motion for leave to answer appellee's counterclaim, claiming that it was "merely oversight" that it was not answered previously in writing. The trial court filed an entry January 16, 1991, nunc pro tunc to January 9, 1990, allowing appellant leave to file his answer instanter, eighteen months after appellee had filed her counterclaim.
On November 19, 1990, the trial court held a hearing on appellee's motion for default judgment against appellant. The trial court subsequently dismissed appellant's second complaint as moot, December 24, 1990, pursuant to the court's action on appellee's motion for default. On January 16, 1991, the trial court granted appellee's motion for default judgment against appellant and assessed sanctions against appellant's attorney for engaging "in tactics which have had the effect of delaying and otherwise prolonging this litigation * * *, pursuant to Civ.R. 11." On that same day the third-party complaint was also disposed of as moot.
Appellant asserts two assignments of error.
"The trial court committed error prejudicial to the plaintiff and plaintiff's attorney when it entered judgment against plaintiff's attorney pursuant to Ohio Civil Rule 11."
Appellant argues that the trial court has rendered judgment against his attorney in error because his pleading was not "interposed for delay." He also asserts that the true basis for the trial court's assessment of sanctions was because appellant's counsel failed to appear for a pretrial which would not violate Civ.R. 11 because the rule relates only to pleadings.
First, at no point in the record of proceedings below does the asserted basis for the sanctions of a missed pretrial appear. The journal entry cites tactics which delayed the proceedings. With nothing to support it, appellant's argument is obviously not well taken.
Second, we find that the record contains sufficient evidence to prove that appellant's attorney signed a pleading which he willfully interposed for the purpose of delay. Cf. Haubeil & Sons Asphalt & Materials, Inc. v. Brewer & Brewer Sons, Inc. (1989), 57 Ohio App.3d 22, 565 N.E.2d 1278. Civ.R. 11 reads in pertinent part:
The appellant's purpose in filing the second pleading is unclear. The second pleading asserted the same allegations as appellant's first complaint, which was dismissed nearly a month after the second complaint was filed. Appellant's failure to adequately respond to appellee's counterclaim for eighteen months is further support for the trial court's finding that the attorney's tactics were used to delay and prolong the proceedings. The court's assessment of sanctions was justified pursuant to Civ.R. 11.
The Ohio Supreme Court has held that State ex rel. Fant v. Sykes (1987), 29 Ohio St.3d 65, 29 OBR 446, 447, 505 N.E.2d 966, 966. We find no abuse of discretion on the part of the trial judge in assessing the sanctions where there is evidence to support the decision. Accordingly, appellant's first assignment of error is overruled.
"The trial court committed prejudicial error in granting appellee defendant's motion for default judgment against appellant-plaintiff."
Appellant argues that he vigorously defended himself against the counterclaim, filed July 11, 1988. This argument lacks merit. A vigorous defense would not flagrantly disregard the Ohio Rules of Civil Procedure by filing an answer seventeen months too late without even a hint of a showing of excusable neglect.
Although not argued by appellee, the law in Ohio...
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