[Cite as Gibbs v. Burley,

.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Basil Gibbs, :

Plaintiff-Appellee, :

v. : No. 19AP-141 (C.P.C. No. 18CV-5632) Ernest Burley et al., : (REGULAR CALENDAR) Defendants-Appellees, :

(Kelvin Burley, :

Defendant-Appellant). :

D E C I S I O N

Rendered on January 9, 2020

On brief: Kelvin Burley, pro se.

APPEAL from the Franklin County Court of Common Pleas

NELSON, J. {¶ 1} 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.

The person who was struck sued the son who punched him, and also sued the businesses

and the father. Various defendants were found to be in default of an answer, but only the

father properly appealed. The question before us is whether the facts as pleaded in the

complaint give rise to liability on the part of the father. Our answer, at least with respect to

the complaint as currently constituted, is no. No. 19AP-141 2

{¶ 2} Defendant-appellant Kelvin Burley appeals from a default judgment entered

by the Franklin County Court of Common Pleas. Although the default judgment is against

multiple parties, only Kelvin Burley has filed a timely appeal. By way of procedural

background, we note that on May 18, 2019, Kelvin Burley's counsel filed in the trial court a

Civil Rule 60(B) motion for relief from judgment; we stayed the appeal until the trial court

had ruled on that motion. See Aug. 21, 2019 Journal Entry. On the recommendation of a

magistrate, the trial court denied the motion. Oct. 4, 2019 Magistrate's Decision Denying

Defendants' Motion for Relief from Judgment; Oct. 30, 2019 Decision and Entry Adopting

Magistrate's Decision. That ruling has not been appealed, but Kelvin Burley did file here

motions asking us to "reactivate" the case and to allow supplemental briefing. Oct. 14, 2019

Motion to Reactivate; Oct. 14, 2019 Motion to Allow Re-Briefing of Case. We granted those

motions, permitting Kelvin Burley to file supplemental briefing "within 15 days of the filing

of [that] entry" and permitting appellee Basil Gibbs to file a brief "within 15 days of the filing

of appellant's supplemental brief." Nov. 4, 2019 Journal Entry. Neither party filed such

briefs. Through counsel, too, Burley Trucking, LLC and JAC Burley Trucking, LLC moved

to be added as appellants (although they had not timely filed any notice of appeal). Oct. 14,

2019 Motion. We denied that motion. Nov. 4, 2019 Journal Entry. Pursuant to a motion

subsequently filed by Kelvin Burley, we stayed execution of the trial court's judgment as to

him pending determination of his appeal, see Dec. 16, 2019 Motion and Dec. 19, 2019

Journal Entry, to which we now turn.

{¶ 3} 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) No. 19AP-141 3

Kelvin Burley and/or Jacqueline Simmons Burley. July 2, 2018 Complaint at ¶ 3, 4, 11, 13,

25. "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." Id. at ¶ 7. 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." Id. at ¶ 11. On that day, too, Mr. Gibbs "was a business invitee"

of those companies. Id. at ¶ 10.

{¶ 4} 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.'

" Id. at ¶ 13. "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." Id. at ¶ 14. The attack "left Mr. Gibbs * * * fearful of any

follow up or successive attack by Ernest * * *. However, after the attack Ernest ran away."

Id. at ¶ 16.

{¶ 5} 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." Id. at ¶ 18. Beyond this Count One claim

for "Negligence," the complaint adds overlapping claims for "Respondeat Superior" (Count No. 19AP-141 4

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

(Count Four). See id. at pages 3, 6, 7 (capitalizations adjusted).

{¶ 6} 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. See Magistrate's Decision

Denying Defendants' Motion for Relief from Judgment at 1; compare October 29, 2018

Entry of Default Judgment. 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. January 15, 2019 Magistrate's Decision on Damages;

February 26, 2019 Judgment Entry Adopting the Magistrate's January 15, 2019 Decision

on Damages.

{¶ 7} It is from this judgment that Kelvin Burley appeals. He assigns one error for

our review: "The trial court erred and abused it's [sic] discretion in dismissing Appellant's

action." Appellant's Brief at 7. We interpret this statement to mean that the trial court erred

in granting the judgment it did rather than dismissing the action against him. Compare

Harris v. Dept. of Rehab & Corr., 10th Dist. No. 14AP-668,

, ¶ 8 ("in the

interest of justice, to the extent we are able to discern the issue and any implied error, we

will address them * * * ").

{¶ 8} "A default judgment is proper against an unresponsive defendant ' "as [and,

we would add here, to the extent that] liability has been admitted or 'confessed' by the No. 19AP-141 5

omission of statements refuting the plaintiff's claims." ' " Lopez v. Quezada, 10th Dist.

13AP-389,

, quoting Ohio Valley Radiology Assoc., Inc. v. Ohio Valley

Hosp. Assn.,

(1986), quoting Reese v. Proppe,

(8th Dist. 1981). "Pursuant to Civ.R. 8(D), an unresponsive defendant's failure to deny

the specific allegations in a complaint results in the admission of those allegations."

(citation omitted).

{¶ 9} However, an overarching principle to guide a trial court in considering a

default judgment application is that " '[a] plaintiff still needs to allege a valid claim in order

to prevail, even against a neglectful defendant.' " Id. at ¶ 13 (citation omitted). "On appeal,

* * * we must ascertain whether the plaintiff pleaded sufficient facts to support the claim,

and otherwise pleaded a claim for which relief may be granted." Huntington Natl. Bank v.

R Kids Count Learning Ctr., LLC, 10th Dist. No. 16AP-688,

, ¶ 15 citing

, citing Whiteside v. Williams, 12th Dist. No. 2006-06-021,

. "As part of our review of the trial court's exercise of discretion in granting default

judgment, therefore, we must examine the complaint to see whether it can 'withstand a

Civ.R. 12(B)(6) motion for failure to state a claim.' " Huntington at ¶ 15, quoting

. " '[W]hen a plaintiff fails to state a claim, a court cannot grant default judgment with

regard to that alleged claim.' "

Consequently, we return to Mr. Gibbs's complaint.

{¶ 10} Counts One and Three of the complaint both allege theories related to

negligent hiring. Count Three recites more crisply that "Defendants Kelvin Burley, Burley

Trucking and JAC Burley Trucking negligently and/or recklessly hired, trained and/or

supervised and retained Defendant Ernest Burley as an employee of the Named trucking

Defendants," Complaint at ¶ 30, while Count One similarly alleges that "Kelvin Burley,

Burley Trucking and JAC Burley Trucking, and their ownership and management were No. 19AP-141 6

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 c0-workers and the public during work hours and on his free time,"

id. at ¶ 18 (adding at ¶ 19 that "Defendant John Doe # 1 was an agent, employee and/or staff

member of Burley Trucking, and JAC Burley Trucking or an agent of Burley Trucking, LLC

who was acting within his or her authorized course and scope of employment or position

within the company whose name and address could not be discovered, thereby imputing

the negligence of John Doe # 1 to Defendants Kelvin Burley, Burley Trucking and JAC

Burley trucking").

{¶ 11} To make out a claim for negligent hiring, "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."

Saavedra v. Mikado Japanese Steak House & Sushi, 1oth Dist. No. 14AP-757, 2015-Ohio-

778, ¶ 6 (citation omitted) (emphasis added). Because Kelvin Burley did not answer the

complaint, he is deemed to have admitted under these Counts the details of the attack by

Ernest as alleged and that, among other things, both he and Ernest "were active participants

in the business operations of the defendants Burley Trucking and JAC Burley Trucking,"

Complaint at ¶ 7; that Ernest "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

companys [sic]," id. at ¶ 11; and that Ernest had a "criminal record propensity for violence

and history of aggressive behavior," id. at ¶ 18. Again, however, the gravamen of these No. 19AP-141 7

counts is that father Kelvin Burley and the trucking companies were "negligent in the hiring

and retention (continued employment)" of Ernest Burley, and that they "negligently and/or

recklessly hired, trained and/or supervised and retained Defendant Ernest Burley as an

employee of the Named trucking Defendants." Id. at ¶ 18, 30.

{¶ 12} While the allegations of the complaint, fairly read, portray an employer-

employee relationship between Ernest Burley and the two trucking companies, they do not

allege that Ernest was in the employ of his father as an individual. Rather, although

paragraph 11 of the complaint is somewhat ambiguous as to who (between son Ernest and

Burley Trucking owner Kelvin) 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 compan[ies]," the complaint is clear that the assertions of negligent

hiring and the like are with regard to the employment of "Defendant Ernest Burley as an

employee of the Named trucking Defendants.," id. at ¶ 30.

{¶ 13} The complaint provides no cause to disregard the corporate form of the

trucking companies, and it would be their employment relationship with Ernest Burley and

their hiring, training, and retention of him that would be at issue in a negligent hiring claim.

Put another way, the complaint does not allege the elements necessary to negligent hiring

and the like (including "the employer's negligence" in hiring) with regard to Kelvin Burley

individually, who is not alleged to be the employer. Compare, Colston v. Cleveland Pub.

Library,

(6th Cir. 2013) ("Colston's Ohio state-law claim for

negligent hiring, retention, supervision, and failure to train ('negligent hiring') fails as a

matter of law. Because the negligent hiring claim can only be asserted against the Library,

and not individuals, the district court correctly held that [the plaintiff] cannot pursue such

a claim against" named individual people); Strock v. Pressnell,

, 217 No. 19AP-141 8

(1988) ("an underlying requirement in actions for negligent supervision and negligent

training is that [an] employee [read, Ernest Burley] is individually liable for a tort or guilty

of a claimed wrong against a third person, who then seeks recovery against the employer

[here, allegedly, the trucking companies]").

{¶ 14} For similar reasons, Mr. Gibbs's claim that Kelvin Burley is responsible under

a theory of "respondeat superior" for the bad acts of Ernest as an employee of the trucking

companies also fails. See, e.g., Buckeye Ret. Co., LLC, Ltd. v. Busch, 2d Dist. No. 2016-CA-

32,

, quoting Hauser v. Dayton Police Dept.,

,

, ¶ 11 for the proposition that "[r]espondeat superior speaks only to the

vicarious liability of an employer; it does not simultaneously create an express cause of

action against individual agents and servants of the employer." (Emphasis in both

decisions.) Although the complaint here alleged that Ernest Burley somehow was acting

within the course and scope of his trucking company employment when he launched his

sudden attack, compare Bauman v. Bob Evans Farms, Inc., 10th Dist. No. 06AP-737,

(for an employer to be liable for an intentional tort under respondeat

superior, the tort has to have been "calculated to facilitate or promote the employer's

business or interest"); Cooper v. Grace Baptist Church, Inc.,

(10th

Dist. 1992) ("[t]he employer/principal is not liable for the independent, self-serving conduct

of its employee/agent which does not so facilitate its business"), Kelvin Burley individually

is not liable under a theory of respondeat superior on the basis of the facts as alleged. In

this context, although an employer can be liable under the doctrine of respondeat superior

where the tort was calculated to promote the employer's business interests, respondeat

superior cannot be stretched to claim individual liability on the part of Kelvin Burley (either

as a supervisor or as a father). No. 19AP-141 9

{¶ 15} For another reason, too, a theory of respondeat superior would not make

Kelvin responsible for his son having acted "suddenly and without provocation or warning,"

complaint at ¶ 13, or for "the impulsiveness of Ernest Burley,"

at ¶ 26: Under such a

theory, at least, even "the employer would not be liable if an employee physically assaulted

a patron without provocation * * *. '[A]n intentional and willful attack committed by an

agent or employee, to vent his own spleen or malevolence against the injured person, is a

clear departure from his employment and his principal or employer is not responsible

therefor.' " Byrd v. Faber,

(1991) (citations omitted).

{¶ 16} Finally, Count Four seems to repackage the negligent hiring and respondeat

superior theories of the three preceding counts. With regard to Kelvin Burley himself, the

complaint recites no facts to support its bald conclusions that he displayed "wanton reckless

malice, indifference and malicious disregard for the safety of others," complaint at ¶ 36, or

"demonstrated a willful, wanton and malicious disregard for the safety of others," id. at ¶

34, and the formulaic allegation that he (in addition to the trucking companies) "expressly

or impliedly authorized participated in or ratified the willful and malicious conduct," id. at

¶ 33, does not, in context, state any sort of negligence (or "recklessness") claim against

Kelvin Burley in Count Four. Compare, e.g., Hendrickson v. Haven Place, Inc., 8th Dist.

No. 100816,

("there are no factual allegations that would lead

to reckless, wanton, or willful conduct." Under notice pleading requirements, a "well-pled

complaint must include factual allegations going to each element of the claim, and

conclusory statements without any factual allegations in support are insufficient. * * * *

Here, there is no link or any factual allegations that would lead to the conclusion that county

employees acted recklessly, wantonly, or in clear disregard for a foreseeable risk of harm,

even where facts are construed in [plaintiff's] favor. 'Ohio remains a notice pleading state, No. 19AP-141 10

but the complaint must still advance a rational basis for holding a defendant liable' ")

(citations omitted); Mitchell v. Lawson Milk Co.,

(1988)

("Unsupported conclusions that appellant committed an intentional tort are not taken as

admitted by a motion to dismiss and are not sufficient to withstand such a motion")

(emphasis in original; claim of intentional tort against employer); Michelson v.

Volkswagen Aktiengesellschaft, 8th Dist. No. 105960,

(upholding

dismissal of CPSA claim; "bare legal conclusion * * * is not supported by any facts in the

complaint"; " 'obligation to provide the grounds of * * * entitlement to relief requires more

than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do' ") (citation omitted).

{¶ 17} What the complaint does allege factually is that Kelvin Burley had been

"talking briefly" with Mr. Gibbs "before Ernest suddenly and without provocation or

warning struck Mr. Gibbs in the face and jaw" with a " 'sucker punch.' " Id. at ¶ 13. What

the complaint elsewhere calls "the impulsiveness of Ernest Burley" is not on these facts

chargeable to Kelvin Burley, who is not said to have planned, anticipated, ordered, or

directed the "sudden[ ]" punch, or to have undertaken any action in aid of Ernest Burley

thereafter. Compare also, e.g., State ex rel. Hickman v. Capots,

(1989)

("Unsupported conclusions of a complaint are not considered admitted, * * * and are not

sufficient to withstand a motion to dismiss") (citations omitted).

{¶ 18} So in a nutshell, Kelvin Burley's son Ernest Burley apparently punched Basil

Gibbs while allegedly acting "as an employee of the Named trucking Defendants" operated

at least in part by Kelvin. The "sucker punch" came "suddenly" and "without provocation."

The circumstances as described by the complaint and without more do not make the father

liable for the sins of the son on the asserted and related theories of negligence, recklessness, No. 19AP-141 11

or respondeat superior. Because the trial court abused its discretion in granting the default

judgment against Kelvin Burley, we reverse that judgment of the Franklin County Court of

Common Pleas (as to Kelvin Burley) and remand the matter to the trial court for further

proceedings in accordance with this decision.1

Judgment reversed; case remanded.

KLATT and LUPER SCHUSTER, JJ., concur. _________________

1We deny Mr. Gibbs's motion filed January 3, 2020 to dismiss this appeal for want of prosecution, noting that "Appellant's Brief" was filed here April 26, 2019 (after an earlier version had been turned away on April 5, 2019 as not in conformity with our rules), that Mr. Burley appeared and argued his appeal on July 24, 2019 (while neither Mr. Gibbs nor his counsel appeared), and that our Journal Entry of November 4, 2019 permitted ("may file") but did not require the supplemental briefing that Mr. Burley had requested in the aftermath of the trial court's denial of the 60(B) motion. We also deny a series of "Motion[s]" filed January 2 and 3, 2020 "For Stay of Execution of the Trial Court's Judgment," purportedly submitted by Jacqueline Simmons Burley on behalf of "Jackies Trucking LLC," "Burley Trucking LLC," "JAC Burley Trucking LLC," and "Jacqueline Simmons Burley." None of those entities is a party to this appeal (and some of them may not have been parties in the trial court proceedings); Ms. Burley, moreover, does not indicate an Ohio bar number, and we previously have held that outside of small claims court, a non-lawyer may not litigate on behalf of a limited liability company, see, e.g., Campus Pitt Stop, L.L.C. v. Ohio Liquor Control Comm., 10th Dist. No. 13AP-622,

.