[Cite as Yurina v. Wiser Oil Co., 2013-Ohio-4004.]

COURT OF APPEALS 

GUERNSEY COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

JOSEPH F. YURINA III, ET AL 

 Plaintiffs-Appellees 

-vsTHE WISER OIL COMPANY 

 Defendants-Appellants 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. Sheila G. Farmer, J. 

: Hon. Patricia A. Delaney, J. 

: 

: 

: Case No. 13 CA 13 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil appeal from the Guernsey County 

Court of Common Pleas, Case No. 

12OG000189 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: September 16, 2013 

APPEARANCES: 

For Plaintiffs-Appellees For Defendants-Appellants 

SCOTT EICKELBERGER LYLE BROWN 

RYAN LINN 41 South High Street, Ste 2200 

DAVID TARBERT Columbus, OH 43215 

WILLIAM TAYLOR 

50 North Fourth Street 

Box 1030 

Zanesville, OH 43702-1030 
[Cite as Yurina v. Wiser Oil Co., 2013-Ohio-4004.]

Gwin, P.J. 

{¶1} Defendant-appellants Forest Oil Corporation [“Forest”] and The Wiser Oil 

Company [“Wiser”] appeal the judgments of the Guernsey County Court of Common 

Pleas granting default judgments in favor of plaintiff-appellee’s Joseph F. Yurina III and 

Anthony M. Yurina, co-trustees of the Yurina Family Trust dated July 18, 1990 

[“Appellee”] and denying their motions for relief from judgment, for leave to file answers 

instanter and for reconsideration. 

Facts and Procedural History 

{¶2} Appellees initiated this litigation by filing a Complaint to quiet title and to 

forfeit a portion of an oil and gas lease with the Court of Common Pleas, Guernsey 

County, Ohio on April 13, 2012. 

{¶3} The Appellees predecessors in title Joseph Yurina, Jr. and Anna Yurina 

had executed the oil and gas lease in question. The original lessee was Wiser. The 

lease was dated June 22, 1967 and filed for record in the Guernsey County, Ohio, 

Lease Records, Volume 55, Page 757. 

{¶4} By an instrument titled Partial Assignment, Bill of Sale, and Agreement 

dated April 10, 1990 Wiser assigned its interest in the lease to Defendant Oxford Oil 

Company.1

 This Assignment was recorded at Guernsey County, Ohio, Official Records, 

Volume 3, Page 432. Oxford filed its Answer to the Complaint on April 25, 2012. 

{¶5} Under the terms of the assignment of the lease, Wiser reserved to "itself 

all rights below 100 feet to the base of the Clinton sand horizon and the right to produce 

 1

 Defendant Oxford Oil Company filed its Answer to the Complaint on April 25, 2012. They are not 

a party to this appeal. 
Guernsey County, Case No. 13 CA 13 3 

oil and gas from these sands..." There has never been any oil or gas produced from the 

formations that Wiser reserved to itself. 

{¶6} Forest acquired The Wiser Oil Company in 2004 by purchasing all issued 

and outstanding capital stock. Wiser subsequently was merged into Forest effective in 

November 2005. As of November 2005, Forest and Wiser effectively and legally were 

one entity. 

{¶7} Forest was served by certified mail on April 20, 2012. Appellees filed a 

Motion for Default Judgment against Forest on June 8, 2012. The Trial Court entered 

default judgment against Forest on July 12, 2012. Wiser was served by publication. 

Appellees filed a Motion for Default Judgment against Wiser on September 13, 2012. 

On October 24, 2012, Forest and Wiser filed their Motion for Relief from Judgment and 

for Leave to File Answer. 

{¶8} Forest and Wiser attached to their motion for relief from judgment the 

affidavit of Cristin C. Bracken who was Senior Counsel for Litigation for Forest. In her 

affidavit, Ms. Braken stated, “based upon the belief that Forest did not have an 

ownership interest in the subject lease for real property, the Forest legal department 

subsequently decided that Forest would not enter an appearance in the Litigation.” 

Furthermore, in an email attached to attorney Bracken’s affidavit, attorney Bracken 

advised senior level land managers in the Forest land department “I can just default on 

this petition and a judgment will be issued terminating the lease (which is the cheapest 

course for FOC), if we don’t care about this property – or even have a record of any 

Wiser ownership of it...” 
Guernsey County, Case No. 13 CA 13 4 

{¶9} The Trial Court entered a judgment denying the Motion for Relief on 

January 15, 2013. The Trial Court also entered a default judgment against Wiser on 

January 15, 2013. Forest and Wiser filed a "Motion for Reconsideration or, in the 

Alternative, to Amend Judgment Entries to Permit Immediate Appeal,” on February 13, 

2013. 

{¶10} On March 18, 2013, the Trial Court denied the Motion for Reconsideration 

in part, specifically with respect to the arguments addressing the Motion for Relief. 

However, the Trial Court granted Forest and Wiser's request for the issuance of final 

appealable orders. On March 18, 2013, the Trial Court issued the Forest Default 

Judgment Entry, the Wiser Default Judgment Entry, the Entry Denying Motion for Relief, 

and the Entry Denying Reconsideration. 

Assignments of Error 

{¶11} Forest and Wiser raise four assignments of error, 

{¶12} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY 

DENYING FOREST OIL CORPORATION'S MOTION FOR RELIEF FROM JUDGMENT 

PURSUANT TO RULE 60(B) OF THE OHIO RULES OF CIVIL PROCEDURE. 

(FOREST DEFAULT JUDGMENT ENTRY; ENTRY DENYING MOTION FOR RELIEF; 

ENTRY DENYING RECONSIDERATION.) 

{¶13} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY 

ENTERING DEFAULT JUDGMENT AGAINST THE WISER OIL COMPANY. (WISER 

DEFAULT JUDGMENT ENTRY; ENTRY DENYING MOTION FOR RELIEF.) 

{¶14} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY 

DENYING THE MOTION OF FOREST OIL CORPORATION AND THE WISER OIL 
Guernsey County, Case No. 13 CA 13 5 

COMPANY FOR LEAVE TO FILE INSTANTER THEIR ANSWER TO PLAINTIFFSAPPELLEES' COMPLAINT PURSUANT TO RULE 6(B) OF THE OHIO RULES OF 

CIVIL PROCEDURE. (WISER DEFAULT JUDGMENT ENTRY; ENTRY DENYING 

MOTION FOR RELIEF; ENTRY DENYING RECONSIDERATION.) 

{¶15} “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY 

DENYING THE MOTION OF FOREST OIL CORPORATION AND THE WISER OIL 

COMPANY FOR RECONSIDERATION OF: (A) THE TRIAL COURT'S NON-FINAL 

DEFAULT JUDGMENT ENTRY AS TO FOREST (FILED JULY 12, 2012); (B) THE 

TRIAL COURT'S NON-FINAL DEFAULT JUDGMENT ENTRY AS TO WISER (FILED 

JANUARY 15, 2013); AND (C) THE TRIAL COURT'S NON-FINAL ENTRY (FILED 

JANUARY 15, 2013) DENYING FOREST'S MOTION FOR RELIEF FROM JUDGMENT 

(FILED OCTOBER 24, 2012), DENYING FOREST AND WISER'S MOTION FOR 

LEAVE TO FILE ANSWER INSTANTER (FILED OCTOBER 24, 2012), AND 

GRANTING PLAINTIFFS-APPELLEES' MOTION FOR DEFAULT JUDGMENT 

AGAINST WISER (FILED SEPTEMBER 13, 2012). (ENTRY DENYING 

RECONSIDERATION.)” 

I, II, III & IV 

{¶16} Although Forest and Wiser purport to present four separate and distinct 

assignments of error, their argument for each is combined2. The crux of this appeal is 

whether the trial court abused its discretion in finding that Forest and Wiser failed to 

establish excusable neglect so as to be relieved from the default judgments entered 

against each of them. 

 2

 See, App.R.16 (A)(7); App. R. 12(A)(2). 
Guernsey County, Case No. 13 CA 13 6 

{¶17} When the defendant to an action fails to plead or otherwise defend the 

action, default judgment may be granted pursuant to Civ.R. 55(A). Davis v. Immediate 

Medical Services, Inc., 80 Ohio St.3d 10, 14, 684 N.E.2d 292 (1997). However, a 

defendant may seek relief from default judgment pursuant to Civ.R. 60(B). The Ohio 

Supreme Court set out the controlling test for Civ.R. 60(B) motions in GTE Automatic 

Elec., Inc. v. Arc Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113(1976). The court 

stated: 

 To prevail on a motion brought under Civ.R. 60(B), the movant 

must demonstrate that: (1) the party has a meritorious defense or claim to 

present if relief is granted; (2) the party 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. Id. at paragraph two of the syllabus. 

{¶18} The decision of whether to vacate a judgment rests within the trial court's 

discretion and will not be reversed absent an abuse of discretion. Doddridge v. 

Fitzpatrick, 53 Ohio St.2d 9, 12, 371 N.E.2d 214(1978). An abuse of discretion is more 

than simply an error of law, but rather implies that the trial court's attitude was 

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 

219, 450 N.E.2d 1140(1983). 

{¶19} In denying the motion for relief from judgment the trial court stated, 

 The Court finds that Wiser was properly served with the Complaint 

in accordance with the Ohio Rules of Civil Procedure. In addition, the 
Guernsey County, Case No. 13 CA 13 7 

Court finds that by Defendants' own admission Forest and Wiser are and 

have been merged since 2005 and therefore Wiser would have been put 

on notice of the Complaint at the same time as Forest and Forest could 

have filed Answer for Wiser, 

 The Court finds that pursuant to Civil Rule 60(B), a Court may 

relieve a party from judgment for excusable neglect. However, here, the 

Court finds that Forest's actions were not excusable neglect. There was 

not a disconnect or breakdown in employee protocol. Forest was noticed 

in the Complaint of a possible interest in an oil and gas lease and was 

directed to the exact Volume and Page where it could be found, which is 

filed for record at Guernsey County, Ohio, Lease Records, Volume 55, 

Page 757. Defendant then attached a copy of the oil and gas lease to their 

proposed Answer Instanter. After reviewing the pleadings, the Court finds 

that Forest had notice and made a decision to default for Forest and 

Wiser. Therefore, Defendants cannot use Civil Rule 60(B) as a backdoor 

as the Court finds there was no excusable neglect. 

{¶20} The Ohio Supreme Court has yet to develop a definitive definition of 

excusable neglect. However, it has described it in the negative stating, “the inaction of a 

defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for the 

judicial system.’” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 

1102(1996), quoting GTE Automatic Elec., Inc., 47 Ohio St.2d at 153, 351 N.E.2d 113. 

The court has further explained: 
Guernsey County, Case No. 13 CA 13 8 

 A trial court does not abuse its discretion in overruling a Civ.R. 

60(B)(1) motion for relief from a default judgment on the grounds of 

excusable neglect, if it is evident from all of the facts and circumstances in 

the case that the conduct of the defendant, combined with the conduct of 

those persons whose conduct is imputable to the defendant, exhibited a 

disregard for the judicial system and the rights of the plaintiff. 

Griffey v. Rajan (1987), 33 Ohio St.3d 75, 78, 514 N.E.2d 1122(1987), syllabus. 

{¶21} Additionally, this court has noted, “[a] denial of a Civ.R. 60(B) motion 

serves justice when there has been an intentional disregard for the legal process and a 

lack of good faith by the neglectful party.” Kebler v. Prudential Property & Cas. Ins. Co.,

5th Dist. Muskingum No. CT2002-0036, 2003-Ohio-2145, ¶ 49. 

{¶22} Forest and Wiser argue that it has a protocol in place for evaluating and 

responding to service of process. Once the Complaint was served upon the company, 

in-house counsel Cristin Bracken took immediate steps to inquire as to whether Forest 

had a possible ownership interest in the Lease. Forest had inherited over 1,300 leases 

throughout the United States and Canada through the Wiser acquisition. Ms. Bracken 

was unaware that Forest had acquired any oil and gas lease interests in Ohio, whether 

through the Wiser acquisition or otherwise. She therefore enlisted the assistance of 

employees in Forest's Eastern Business Unit, Land Group, to research possible 

ownership in the Lease. 

{¶23} Land technician Judi Dayton performed a quick, preliminary search of the 

computerized database and identified thirteen (13) leases in Ohio, but did not look at 

information specific to any particular lease. Based upon information she found in the 
Guernsey County, Case No. 13 CA 13 9 

database, Ms. Dayton believed that Wiser did not have a working interest in the land 

subject to the lease. Forest and Wise argue that a simple “disconnect” occurred because 

Ms. Bracken understood (i.e., that Wiser had no interest in the Lease), and what Ms. 

Dayton meant to convey and herself understood (i.e., that Wiser did not have a working 

interest in a particular well). The investigation undertaken by the Forest employees did 

not result in complete information being conveyed to the company's decision makers. 

The decision not to respond to the Complaint was made based upon the impression that 

Forest did not have a current interest in the Lease.

{¶24} The trial court did not abuse its discretion in finding that excusable neglect 

did not exist in this case. Forest and Wiser made a conscious decision not to enter and 

appearance or file an answer in the case after having been made aware that it may 

have an interest in the lease and/or the property that was subject to the lease. 

{¶25} In the case at bar, we agree with the trial court that the documents served 

upon Forest and Wiser clearly identified that a lawsuit had been commenced, as well as 

the property and the lease that were the subject of the lawsuit. According to Forest and 

Wiser’s own admission, they failed to properly research their interest. To allow a 

corporation to set aside a default judgment because the appropriate individuals claim 

they did not correctly research the issue in accordance with approved corporate 

procedure, even though the evidence demonstrates clearly the language of the 

documents received indicate a formal legal proceeding had been commenced in a court 

of law concerning a lease of record would be to render every corporate mistake 

excusable and Civ.R. 60(B) meaningless. 
Guernsey County, Case No. 13 CA 13 10 

{¶26} Therefore, we find that the trial court did not abuse its discretion in finding 

that Wiser and Forest failed in their burden to demonstrate excusable neglect justifying 

relief from judgment. 

{¶27} It is well settled that the decision to grant leave to plead is well within the 

discretion of the trial court. Patterson v. V & M Auto Body, 63 Ohio St.3d 573, 589 

N.E.2d 1366 (1992). Additionally, because the trial court did not abuse its discretion in 

finding that Wiser and Forest failed in their burden to demonstrate excusable neglect 

justifying relief from judgment, the trial court did not abuse its discretion in denying 

Forest and Wiser leave to file their answer instanter. To hold otherwise would be to 

circumvent the requirements for relief from judgment set forth in Civ.R.60 (B). 

{¶28} The Supreme Court of Ohio has held that a request for reconsideration of 

a final judgment at the trial court level is a nullity, as is any judgment or final order 

resulting from such a motion. State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 

Ohio St.3d 58, 60, 531 N.E.2d 713, 715(1988), citing Pitts v. Dept. of Transp., 67 Ohio 

St.2d 378, 381, 423 N.E.2d 1105(1981). Accordingly, the trial court did not err in 

denying Forest and Wiser’s motion for reconsideration. 
Guernsey County, Case No. 13 CA 13 11 

{¶29} Forest and Wiser’s four assignments of error are overruled in their entirety 

and the judgment of the Guernsey County Court of Common Pleas is affirmed. 

By Gwin, P.J., 

Farmer, J., and 

Delaney, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. SHEILA G. FARMER 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

WSG:clw 0904 
[Cite as Yurina v. Wiser Oil Co., 2013-Ohio-4004.]

IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

JOSEPH F. YURINA III, ET AL : 

 : 

 Plaintiffs-Appellees : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

THE WISER OIL COMPANY : 

 : 

 : 

 Defendants-Appellants : CASE NO. 13 CA 13 

 For the reasons stated in our accompanying Memorandum-Opinion, judgment of the 

Guernsey County Court of Common Pleas is affirmed. Costs to appellants. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. SHEILA G. FARMER 

 _________________________________ 

 HON. PATRICIA A. DELANEY