Worthington v. Adm'r, BWC

• Decision Date: 26 March 2021
• Docket Number: No. 2020-CA-10,2020-CA-10
• Citation: 169 N.E.3d 735
• Parties: Lori L. WORTHINGTON, Plaintiff-Appellee v. ADMINISTRATOR, BWC, et al., Defendants-Appellants
• Court: Ohio Court of Appeals

169 N.E.3d 735

Lori L. WORTHINGTON, Plaintiff-Appellee

v.ADMINISTRATOR, BWC, et al., Defendants-Appellants

No. 2020-CA-10

Court of Appeals of Ohio, Second District, Miami County.

Rendered on March 26, 2021

SHAWN M. WOLLAM, Atty. Reg. No. 0078244, 2323 West Fifth Avenue, Suite 240, Columbus, Ohio 43204, Attorney for Plaintiff-Appellee.

MARK C. ENGLING, Atty. Reg. No. 0070870, 1 South Main Street, Suite 1800, Dayton, Ohio 45402, Attorney for Defendant-Appellant, Ulbrichs Inc..

NATALIE J. TACKETT, Atty. Reg. No. 0040221, 150 East Gay Street, 22nd Floor, Columbus, Ohio 43215, Attorney for Defendant-Appellant, Ohio Bureau of Workers’ Compensation.

OPINION

WELBAUM, J.

{¶ 1} Defendant-Appellant, Ulbrichs Inc., appeals from a trial court order granting relief from judgment under Civ.R. 60(B)(5) to Plaintiff-Appellee, Lori L. Worthington. According to Ulbrichs, the trial court abused its discretion in granting the motion for relief from judgment because Worthington had failed to establish the existence of a meritorious claim. In addition, Ulbrichs contends that relief from judgment was barred because Worthington failed to appeal from the involuntary dismissal of her action. Ulbrichs further argues that the court's dismissal improperly operated as a Civ.R. 41(A)(2) dismissal, allowing Worthington an extra opportunity to dismiss her case and re-file.

{¶ 2} We conclude that relief from judgment was barred by res judicata because Worthington failed to appeal from the prior judgment dismissing the action. Furthermore, even if relief were not barred by res judicata, Worthington failed to establish that she had a meritorious claim for relief. The trial court's decision to grant the motion for relief from judgment therefore was an abuse of discretion. In view of these facts, the issue raised in the last assignment of error is moot.

{¶ 3} The trial court's judgment will be reversed, and this cause will be remanded for further proceedings.

I. Facts and Course of Proceedings

{¶ 4} According to the record before us, Worthington passed out at work and fell on October 27, 2018. As a result, she was taken to Upper Valley Medical Center Emergency Room for treatment. In the forms Worthington signed and in the medical records that day, no mention was made of a claim that Worthington had struck her right shoulder on a table when she fell. However, Worthington did make such a claim on November 29, 2018, when she saw Dr. Scott Short. See Ohio Industrial Commission Record of Proceedings attached to Notice of Appeal, p. 1. After Worthington filed a claim for workers’ compensation benefits, a district hearing officer denied the claim on December 13, 2018. Worthington then appealed to a staff hearing officer, who affirmed the denial on January 16, 2019. Id. at p. 1-2.

{¶ 5} The Staff Hearing Officer found that Worthington had failed to meet her "burden to eliminate idiopathic causes for her fall," that there was "no contemporaneous evidence that she fell and struck her right shoulder on a table when she passed out at work and fell," and that Worthington "did not meet her burden to prove that her idiopathic fall was worsened as a result of any condition of her employment." Id. at p. 1.

{¶ 6} Worthington appealed from that decision on February 8, 2019, and the Industrial Commission denied the appeal on February 15, 2019. The decision also notified Worthington of her right to pursue an appeal to the common pleas court. Id. at p. 3. Subsequently, on April 10, 2019, Worthington filed a notice of appeal with the Miami County Common Pleas Court and attached the record from the Industrial Commission.

{¶ 7} In the complaint that was filed with the notice of appeal, Worthington alleged that she had sustained right shoulder injuries on October 27, 2018, while working for Ulbrichs, and asked the court to hold that she had the right to participate in the workers’ compensation system. After the Bureau of Workers’ Compensation (BWC) Administrator and Ulbrichs filed answers, the trial court issued an order on July 30, 2019, setting various deadlines, including a discovery deadline of December 17, 2019, and a trial date of March 17, 2020.

{¶ 8} On November 6, 2019, Ulbrichs filed a motion to compel discovery. The affidavit attached to the motion, Exhibit A, stated that Worthington had been served on September 23, 2019, with a first set of interrogatories, a request for production of documents, and unexecuted medical and employment authorizations. Ex. A, ¶ 2. After receiving no discovery, Ulbrichs sent Worthington's counsel an email on October 22, 2019, to ask about the overdue responses. Having received no response to this email, Ulbrichs sent a follow-up letter on October 28, 2019. Id. at ¶ 3-4. However, Ulbrichs received no response to this letter, nor any explanation. Ulbrichs then filed the motion to compel. Id. at ¶ 5.

{¶ 9} Worthington also did not respond to the motion to compel. As a result, on December 9, 2019, Ulrich filed another request for an order to compel discovery. On December 30, 2019, the trial court filed an order compelling Worthington to serve her responses on or before January 13, 2020 (which was after the initial discovery deadline had passed). After holding a scheduling conference, the court filed an amended order on January 15, 2020, extending the discovery deadline to March 10, 2020, and setting a trial date for July 22, 2020.

{¶ 10} By agreement of the parties, Ulbrichs was to take Worthington's deposition on March 11, 2020, which was one day after the discovery deadline expired. However, Worthington failed to appear for her deposition. Ulbrichs then filed a motion asking the court to involuntarily dismiss Worthington's action pursuant to Civ.R. 41(B)(1). Worthington did not respond to this motion either. As a result, the court granted the motion for involuntary dismissal and dismissed the case with prejudice on May 11, 2020.

{¶ 11} Worthington did not appeal from the judgment of involuntary dismissal.¹ Subsequently, on June 30, 2020, Worthington filed a notice of dismissal in the trial court, pursuant to Civ.R. 41(A)(1)(a). The same day, Worthington filed a motion for relief from the judgment of involuntary dismissal, citing Civ.R. 60(B)(1) and (5). The motion was based on the March 27, 2020 decision of the Supreme Court of Ohio related to the COVID-19 pandemic, which tolled time requirements for filings and deadlines, retroactive to March 11, 2020, and through July 30, 2020. See In re Tolling of Time Requirements Imposed by Rules Promulgated by Supreme Court & Use of Technology , 158 Ohio St.3d 1447, 2020-Ohio-1166, 141 N.E.3d 974.

{¶ 12} Ulbrichs did not respond to the motion for relief from judgment.² On July 28, 2020, the trial court granted Worthington's motion for relief from judgment and vacated the involuntary order of dismissal with prejudice. See Judgment Granting Relief from Judgment. The court rejected the idea of excusable neglect, but concluded that relief was warranted under Civ.R. 60(B)(5), because under the court's own tolling order, Worthington would not have been obligated to respond to the motion for involuntary dismissal until May 18, 2020. However, the court had ordered dismissal on May 11, 2020, before the response was due. Id. at p. 3. The court therefore vacated the order dismissing the case with prejudice. In a footnote, the court commented that, "The Court notes Plaintiff filed a notice of voluntary dismissal, Civ.R. 41(A)(1)(a) on June 30, 2020; therefore, the case is dismissed without prejudice, effective with this order." Id. at p. 3, fn. 1.

{¶ 13} Ulbrichs timely appealed from the judgment on August 26, 2020, and has raised two assignments of error.

II. Abuse of Discretion in Granting Civ.R. 60(B) Relief

{¶ 14} Ulbrichs's First Assignment of Error states:

The Trial Court Abused Its Discretion in Granting Worthington's Motion for Relief From Judgment Where Worthington Failed to Establish the Existence of a Meritorious Claim or Entitlement to Relief under Civ.R. 60(B)(1).

{¶ 15} Under this assignment of error, Ulbrichs contends that the trial court abused its discretion in granting relief because Worthington's motion failed to make even a prima facie showing that her claims had merit. Ulbrichs further argues that the trial court should not have applied Civ.R. 60(B)(5) when no excusable neglect occurred. And finally, Ulbrichs contends that res judicata applied because Worthington did not appeal from the court's initial judgment.

{¶ 16} As pertinent here, Civ.R. 60(B) provides that:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; * * * or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.

{¶ 17} "To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken." GTE Automatic Elec., Inc. v. ARC Industries, Inc. , 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. These requirements are "independent and in the conjunctive, not the disjunctive." Id. at 151, 351 N.E.2d 113.

{¶ 18} " Civ.R. 60(B)(5) is intended as a catch-all provision reflecting the inherent power of a court to relieve a person from the unjust operation of a judgment, but it is not to be used as a substitute for any of the other more specific provisions of Civ.R. 60(B)." Caruso-Ciresi,...