COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67975 DIANE L. HAWKINBERRY, ET AL., : ACCELERATED DOCKET : : JOURNAL ENTRY Plaintiffs-Appellees : : AND v. : : OPINION APPLE ASSOCIATES, INC., ET AL., : : PER CURIAM : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 7, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 216024 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiffs-appellees: Robert S. Bauders 1700 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For defendant-appellant, David A. Corrado Arthur Dowling: Atrium Office Plaza #535 668 Euclid Avenue Cleveland, Ohio 44114 For defendant-appellant, John N. Moore Apple Associates, Inc.: P.O. Box 360659 Strongsville, Ohio 44136 -2- PER CURIAM: Defendant-appellant Arthur Dowling appeals from the trial court order which overruled his motion for relief from judgment. The record reflects that on August 12, 1991 plaintiffs- appellees Diane L. Hawkinberry and Ernest Hawkinberry filed an action in the Cuyahoga County Court of Common Pleas against 1 appellant and his company, Apple Associates, Inc. Appellees alleged six causes of action as follows: 1) sexual harassment and constructive discharge in violation of R.C. 4112.02(A); 2) assault; 3) battery; 4) invasion of privacy; 5) interference with employment relations; and 6) loss of consortium. Appellees prayed for $100,000 in compensatory and $200,000 in exemplary damages with respect to each of the first five claims and for $50,000 in compensatory and $100,000 in exemplary damages with respect to the consortium claim. Appellant and Apple Associates, Inc. filed separate but identical answers, in which only sixteen of the thirty-one numbered paragraphs of the complaint were specifically denied. Both of the answers were submitted by the same attorney, who listed only a post office box number in Strongsville, Ohio as his address. The record reflects appellees went forward with discovery; however, despite several case management conferences and trial court orders on the matter, appellant's attorney was uncooperative 1 Although another defendant was named in the complaint, it subsequently filed a successful motion for summary judgment. Neither the party nor the trial court's ruling on the motion is a subject of this appeal. -3- in furnishing the items appellees requested. Ultimately, on June 11, 1992, appellees filed a motion to compel discovery. While that motion was pending, appellant's attorney filed a motion to withdraw as counsel only for Apple Associates, Inc. The attorney specifically stated he would continue to represent appellant. On July 10, 1992, the trial court issued several orders: it granted appellees' motion to compel discovery, it granted appellant's attorney's motion to withdraw as counsel for Apple Associates, Inc., and it set a date for a "settlement conference" 2 on December 1, 1992. The record reflects the conference was held as scheduled; appellant's attorney appeared. On December 8, 1992, the trial court issued an order stating both that appellant had one week to submit the requested discovery and that if appellant did not comply, appellees could file a motion for default judgment on December 22, 1992. Appellees filed their motion for default judgment on the date specified by the trial court, arguing appellant's failure to respond to the trial court's discovery order fell within the purview of Civ.R. 37(B)(2)(a); thus, with the facts alleged in the complaint deemed established, they were entitled to judgment. 2 Thereafter, despite the trial court's order to do so, Apple Associates, Inc. never notified the trial court it had obtained new counsel. -4- The record reflects that on February 17, 1993, appellant's 3 attorney filed a "supplement" to the discovery responses. On June 14, 1993, the trial court set appellees' motion for default 4 judgment for hearing on July 1, 1993. Thereafter, on July 8, 1993, the trial court granted appellees' motion for default judgment against appellant and Apple Associates, Inc. as follows: $100,000 to Diane L. Hawkinberry and $50,000 to Ernest Hawkinberry as compensatory damages, $200,000 to Diane L. Hawkinberry and $100,000 to Ernest Hawkinberry as punitive damages, $8,000 in attorney fees and costs. On July 7, 1994, appellant, now with new counsel, filed a motion for relief from judgment pursuant to Civ.R. 60(B)(1) and (5). Therein, appellant asserted his former attorney had moved out of state in September, 1992, did not attend either the December 1, 1992 case management conference or the default judgment hearing, and did not notify appellant of the default judgment. Appellant asserted he did not discover the judgment until February, 1994. The motion was supported by appellant's affidavit, wherein he reiterated the assertions of his motion and stated the attorney had kept him only "somewhat appraised of the status of the lawsuit." Appellant further averred that the allegations of appellees' complaint were "not true," rather, Mrs. Hawkinberry voluntarily 3 None of appellant's "original" responses were filed in the trial court. 4 No transcript of this hearing appears in the record. -5- left her employment after being told she had been demoted due to poor job performance. Appellees opposed appellant's motion with a brief and supporting documents, including copies of affidavits attached to their original motion for default judgment together with a new affidavit of their counsel. Appellees' counsel stated: 1) he had several times informed appellant's counsel in the spring of 1992 that he would seek the court's help in discovery matters; 2) he never received a copy of the "supplemental response" filed on February 17, 1993; and 3) appellant had never indicated he was having difficulty contacting his counsel. On August 19, 1994, the trial court overruled appellant's motion for relief from judgment. Appellant has filed an appeal from the foregoing order which was assigned to the accelerated calendar pursuant to App.R. 11.1 and Loc. App.R. 25. Appellant presents six errors for this court's review. Appellant's first and second assignments of error have merit since the record is sufficient to reflect appellant demonstrated all the necessary requirements of a successful Civ.R. 60(B) motion. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146. Appellant's affidavit served to explain his delay in taking action in this case; therefore, the motion was timely. Goodrick v. Duqum (Aug. 5, 1993), Cuyahogoa App. No. 63327, unreported; cf., Mount Olive Baptist Church v. Pipkins Paints (1979), 64 Ohio App.2d 285. -6- Appellant also averred that appellee Mrs. Hawkinberry had been demoted for just cause and had thereafter voluntarily quit her employment; thus, he had a meritorious defense to the various allegations of the suit. See, e.g., BancOhio Natl. Bank v. Schiesswohl (1988), 51 Ohio App.3d 130. As to the third requirement, this court has previously held that the "excessive award of damages [ex parte] is sufficient to trigger relief pursuant to Civ.R. 60(B)(5)." Bajtkiewicz v. Wisniewski (Jan. 28, 1993), Cuyahoga App. No. 63661, unreported. See, also, Brodart v. Frontier Roofing & Supply Co. (Apr. 29, 1993), Cuyahoga App. Nos. 62376, 62933 and 63225, unreported; Goodrick v. Duqum, supra; cf. Carr v. Charter Natl. Life Ins. Co. (1986), 22 Ohio St.3d 11; Brown v. Akron Beacon Journal Publishing (1991), 81 Ohio App.3d 135. In view of this court's disposition of his first two assignments of error, appellant's third assignment of error, regarding the award of punitive damages, is rendered moot. App.R. 12(A)(1)(c). Appellant's fourth and fifth assignments of error are overruled since appellant failed to raise these arguments in the trial court. State v. Williams (1977), 51 Ohio St.2d 11; Security Ins. Co. v. Regional Transit Authority (1982), 4 Ohio App.3d 24. In his sixth assignment of error, appellant argues the trial court abused its discretion by failing to hold an evidentiary hearing on his motion for relief from judgment. Since appellant's evidence contained operative facts which would support a conclusion that a hearing was warranted, this assignment of error is -7- sustained. See, e.g., Adomeit v. Baltimore (1974), 39 Ohio App.2d 97. The judgment of the trial court is therefore reversed and this case is remanded for further proceedings consistent with this opinion. -8- This cause is reversed and remanded for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees its costs herein. 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. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .