[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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