[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, O P I N I O N 

 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 

-2-

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. 
Case No. 5-09-39 

-3-

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. 
Case No. 5-09-39 

-4-

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 
Case No. 5-09-39 

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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