Basil Gibbs -V- Burley Trucking, L.L.C. et al.

Columbus, Ohio - Employment attorney represented Burley Trucking, L.L.C. and JAC Burley Trucking, L.L.C. with their second motion for relief from judgment.

Defendants-appellants, Burley Trucking, L.L.C. and JAC Burley Trucking,

L.L.C. ("L.L.C.s"), appeal the decision of the Franklin County Court of Common Pleas

denying their second motion for relief from judgment pursuant to Civ.R. 60(B) following

the trial court's grant of a default judgment against them. Their co-defendants Kelvin

Burley and Ernest Burley have not appealed this ruling and are not parties to this appeal.

The L.L.C.s assert two assignments of error with the trial court's ruling denying relief from

judgment:

[I]. The trial court erred in its decision and entry filed on July 2,

2020, by its failure to consider affidavits filed and incorporated

in defendant-appellants' second motion for relief from

judgment pursuant to Civ. R. 60(B). No. 20AP-357 2

[II.] The trial court erred in its decision and entry filed on

July 2, 2020, by its failure to properly apply the allegations, or

lack thereof, contained in the complaint to the elements

identified in the case Saavedra v. Mikado Japanese Steak

House & Sushi.

{¶ 2} This court has previously reviewed the underlying default judgment, but only

as it applied to defendant Kelvin Burley. See Gibbs v. Burley, 10th Dist. No. 19AP-141,

2020-Ohio-38 ("Burley I"). We reversed and remanded the default judgment against

Burley, holding that the trial court had improperly granted a default judgment against him

personally without first reviewing whether plaintiff's complaint failed to state a claim

against him personally. Id. at ¶ 9-18. Burley had appealed the default judgment pro se, and

the L.L.C.s, who had not participated in the litigation up to that point did not appeal at that

time. In reaching our decision, we observed that "[neither] of those entities is a party to this

appeal * * * and we previously have held that outside of small claims court, a non-lawyer

may not litigate on behalf of a limited liability company * * *." Id. at ¶ 18, fn. 1. Following

this court's remand in Burley I, the L.L.C.s entered an appearance in the case and filed the

Civ.R. 60(B) motion which was denied by the court and is now the subject of this appeal.

{¶ 3} In Burley I, we summarized the facts giving rise to this case as follows:

This case involves an adult son allegedly punching a person in

the face on the property of and in connection with businesses

owned or operated by the aggressor's father [Kelvin Burley].* *

* * [The plaintiff] Basil Gibbs filed a lawsuit against Kelvin

Burley's son Ernest Burley, and also named as defendants

Kelvin Burley; Burley Trucking, LLC; JAC Burley Trucking,

LLC; and John Does 1 and 2. The complaint alleged that (son)

Ernest Burley had punched Mr. Gibbs in the face while acting

as an employee of trucking companies incorporated by (father)

Kelvin Burley and/or Jacqueline Simmons Burley. "At all times

relevant herein," the complaint recited, "Defendants Ernest

Burley and Kelvin Burley were active participants in the

business operations of the defendants Burley Trucking and

JAC Burley Trucking." More specifically, the complaint alleged,

"[o]n or about March 25, 2017, Ernest Burley * * * was the son

of Kelvin Burley, the owner of Burley Trucking, LLC and a

management employee of Burley Trucking, LLC, and JAC

Burley Trucking, LLC, directing low level employees and

advising the owners in day to day operation of the companies."

On that day, too, Mr. Gibbs "was a business invitee" of those

companies. No. 20AP-357 3

The complaint further alleges that on March 25, 2017, "Mr.

Gibbs and Ernest [Burley] walked onto the trucking company

properties [from across the street] and were talking briefly

before Ernest suddenly and without provocation or warning

struck Mr. Gibbs in the face and jaw with his fist in the form of

a blow commonly known as a 'sucker punch.'" "Immediately

before the punch was thrown, Mr. Gibbs was looking at Kelvin

Burley and talking to him, and the next thing Mr. Gibbs knew,

Ernest delivered the sucker punch blow to his face and jaw."

The attack "left Mr. Gibbs * * * fearful of any follow up or

successive attack by Ernest * * *. However, after the attack

Ernest ran away."

The complaint claims that "Kelvin Burley, Burley Trucking and

JAC Burley Trucking[] and their ownership and management

were negligent in the hiring and retention (continued

employment) of Ernest Burley given his criminal record

propensity for violence and history of perpetrating aggressive

behavior toward others including co-workers and the public

during work hours and on his free time." Beyond this Count

One claim for "Negligence," the complaint adds overlapping

claims for "Respondeat Superior" (Count Two), "Negligent

Hiring, Training, and/or Supervision" (Count Three), and

"Recklessness" (Count Four).

The trial court found that service of the complaint was

completed on Kelvin Burley on July 9, 2018, but that he did not

file an answer. The month after service, on August 23, 2018,

Mr. Gibbs filed a motion for default judgment against all

defendants except Ernest Burley, the one alleged to have

thrown the punch. The trial court granted the default and

referred the matter to a magistrate for a damages hearing, at

which Kelvin Burley appeared and gave testimony (including

the information that "Defendant Ernest Burley is

incarcerated"); the magistrate awarded Mr. Gibbs $36,240 in

damages against Kelvin Burley and the trucking companies

together (including $11,240 in past and future medical

expenses), and the trial court adopted the magistrate's

decision.

(Citations omitted.) Burley I at ¶ 1-6.

{¶ 4} In Burley I, Kelvin Burley appealed the trial court's grant of summary

judgment and we reversed and remanded, holding that the complaint did not allege

sufficient facts to hold Kelvin Burley personally responsible for the tort committed by his

son. In their motion for relief from judgment, the L.L.C.s argued that the rationale requiring No. 20AP-357 4

relief to Kelvin Burley also applied to them. The L.L.C.s contended that the trial court failed

to examine whether plaintiff's complaint could withstand a challenge under Civ.R. 12(B)(6)

prior to granting the default judgment, and argued that the plaintiff's complaint not only

failed to state a claim against Kelvin Burley, it failed to state claims against the L.L.C.s

themselves.

{¶ 5} In reviewing the L.L.C.s' motion, the trial court took guidance from our

decision in Burley I and determined they were not entitled to Civ.R. 60(B) relief. The trial

court observed:

[W]hile the Court of Appeals held that the Complaint did not

allege the elements necessary to negligent hiring with regard to

Kelvin Burley individually, they did not make any such holding

regarding Defendants Burley Trucking LLC or JAC Burley

Trucking, LLC. The Court further finds, as the Court of Appeals

noted in regards to Kelvin Burley, that because Defendants

Burley Trucking LLC and JAC Burley Trucking, LLC did not

answer the Complaint, "they are deemed to have admitted

under these Counts the details of the attack by Ernest as

alleged, [including the allegation that Ernest was] 'a

management employee of Burley Trucking, LLC and JAC

Burley Trucking, LLC, directing low level employees and

advising the owners in day to day operation of the company's

[sic] * * *. ' "

* * * *

The Court finds that when viewing the facts and inferences

alleged in these paragraphs in favor of Plaintiff, Plaintiff has

sufficiently alleged that Defendant Ernest Burley was

incompetent, that Defendants Burley Trucking, LLC and JAC

Burley Trucking, LLC knew of Defendant Ernest Burley's

incompetence, and that Defendants Burley Trucking, LLC and

JAC Burley Trucking, LLC's act of hiring and retaining

Defendant Ernest Burley as an employee proximately caused

Plaintiff's injuries.

Therefore, based on the foregoing, the Court finds that when

Plaintiff's Complaint is reviewed under the Civ.R. 12(B)(6)

standard, Plaintiff has stated a valid negligent hiring and

retention claim upon which relief may be granted against

Defendants Burley Trucking, LLC and JAC Burley Trucking,

LLC. As such, the Court further finds that the previous default

judgment against Defendants Burley Trucking, LLC and JAC

Burley Trucking, LLC is valid, and accordingly hereby DENIES No. 20AP-357 5

Defendants' Second Motion for Relief from Judgment

Pursuant to Civ.R. 60(B) Instanter.

(Citations omitted.) Decision and Entry at **5-7.

{¶ 6} For ease of review, the L.L.C.s' assignments of error will be addressed

together. As noted, this case comes to us on review of the denial of a motion for Civ.R. 60(B)

relief, and we have frequently summarized the standards governing our review in such

cases. See, e.g., Cunningham v. ODOT, 10th Dist. No. 08AP-330, 2008-Ohio-6911, ¶ 33-

35. To prevail on a Civ.R. 60(B) motion, the movant must demonstrate that: (1) it has a

meritorious defense or claim to present if relief is granted; (2) it 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. See GTE

Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of

the syllabus. A party who files a motion for relief from judgment under Civ.R. 60(B) is not

automatically entitled to such relief, nor to a hearing on the motion. Cuervo v. Snell, 131

Ohio App.3d 560, 569 (10th Dist.1998). Instead, the movant bears the burden of

demonstrating that it is entitled to a hearing on the motion. Id. To warrant a hearing, the

movant must allege operative facts that, if true, would be sufficient to establish each of the

elements of the GTE test, and if the movant fails to allege operative facts with respect to

each of these elements, the court is not required to hold an evidentiary hearing. State ex rel.

Richard v. Seidner, 78 Ohio St.3d 116, 117 (1997). A decision on a Civ.R. 60(B) motion is

within the sound discretion of the trial court, and an appellate court will not reverse a trial

court's determination absent an abuse of discretion. See Moore v. Emmanuel Family

Training Ctr., 18 Ohio St.3d 64, 66 (1985). An abuse of discretion connotes more than an

error of law or judgment; it implies that the court's attitude was unreasonable, arbitrary, or

unconscionable. Cunningham at ¶ 34, citing Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983).

{¶ 7} There is simply no basis upon which we can conclude that the trial court

abused its discretion here. First and foremost, we must observe that the L.L.C.s made no

appearance in the case until May 18, 2019, some three months after the default judgment

was issued, which was itself some nine months after they were served with process and No. 20AP-357 6

some seven months after the motion for default judgment was filed. On May 18, 2019, the

L.L.C.s filed a joint motion for relief from judgment with defendant Kelvin Burley. At

approximately the same time, Kelvin Burley filed the pro se appeal that gave rise to our

decision in Burley I; when the pending Civ.R. 60(B) motion came to our attention, we

stayed the Burley I appeal and remanded the case back to the trial court for a decision on

the motion. Following an evidentiary hearing before a magistrate, on October 30, 2019 the

trial court denied the joint motion for Civ.R. 60(B) relief, and we then reactivated Kelvin

Burley's appeal and issued our decision in Burley I on January 9, 2020.

{¶ 8} But crucially, the L.L.C.s did not appeal from either the February 26, 2019

default judgment against them, and they did not appeal from the October 30, 2019 denial

of their motion for Civ.R. 60(B) relief. Instead, after our decision reversing the judgment

against their codefendant, the L.L.C.s filed a second Civ.R. 60(B) motion of their own—the

motion denied by the court we now review. Even if the L.L.C.s had presented a colorable

argument that the trial court erred in its initial default judgment decision against them, by

failing to appeal either that decision or the initial decision denying them Civ.R. 60(B) relief

they have forfeited their challenge, and the trial court would have been within its discretion

to deny them relief for that reason alone.

{¶ 9} But even on the merits of their argument, the L.L.C.s have wholly failed to

establish that their motion should have been granted or that the trial court erred. As noted

above, the trial court held that even "when Plaintiff's Complaint is reviewed under the

Civ.R. 12(B)(6) standard, Plaintiff has stated a valid negligent hiring and retention claim

upon which relief may be granted against Defendants Burley Trucking, LLC and JAC Burley

Trucking, LLC." (Decision and Entry at *8.) In Saavedra v. Mikado Japanese Steak House

& Sushi, 10th Dist. No. 14AP-757, 2015-Ohio-778, this court held that "[i]n order to

establish a claim for negligent hiring or retention, the following elements must be

demonstrated: (1) the existence of an employment relationship, (2) the employee's

incompetence, (3) the employer's actual or constructive knowledge of such incompetence,

(4) the employer's act or omission causing plaintiff's injuries, and (5) the employer's

negligence in hiring or retaining the employee as the proximate cause of plaintiff's injuries."

Id. at ¶ 6, citing Peterson v. Buckeye Steel Casings, 133 Ohio App.3d 715, 729 (10th

Dist.1999), citing Evans v. Ohio State Univ., 112 Ohio App.3d 724, 739 (10th Dist.1996). In No. 20AP-357 7

its denial of the L.L.C.s second motion for Civ.R. 60(B) relief, the trial court carefully

analyzed the plaintiff's complaint, specifically addressed each element of the cause of action

for negligent hiring/retention, tied its analysis to specific allegations of fact, concluded that

each element had been pled and supported by sufficient facts in the complaint, and held

that by failing to respond to the complaint that the L.L.C.s had admitted those facts. And

our own review of the plaintiff's complaint does not reveal that the plaintiff failed to allege

the operative facts required to state such a claim under Saavedra. In short, the trial court's

denial of the motion was correct under Civ.R. 60(B) and Cunningham, 2008-Ohio-6911,

since the L.L.C.s could not establish that they were entitled to relief under one of the

grounds stated in Civ.R. 60(B)(1) through (5)—which is precisely what the court held. And

given that the trial court's decision was not erroneous at all, we cannot conclude that it was

an abuse of that court's discretion, as is required by Moore, 18 Ohio St.3d at 66.

For all these reasons, the L.L.C.s' two assigned errors are overruled, and the

judgment of the trial court denying Civ.R. 60(B) relief is affirmed.



Judgment affirmed.