Hawkinberry v. Apple Associates12/7/1995
PER CURIAM
JUDGMENT: REVERSED AND REMANDED.
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 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 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" 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.
The record reflects that on February 17, 1993, appellant's attorney filed a "supplement" to the discovery responses. On June 14, 1993, the trial court set appellees' motion for default 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
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