Court Rulings

Request for an extension to file answer Civ.R. 6(B)(2) excusable neglect Civ.R. 12(C) motion for judgment on the pleadings dismissal of a complaint legal malpractice. If a defendant moves for leave to answer after the date the answer is due, Civ.R. 6(B)(2) permits the trial court to grant the defendant's motion upon a showing of excusable neglect. A trial court's Civ.R. 6(B)(2) determination is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion. The test for excusable neglect under Civ.R. 6(B)(2) is less stringent than that applied under Civ.R. 60(B). The determination must take into consideration all the surrounding facts and circumstances, with the admonition that cases should be decided on their merits. In the instant case, Robey's counsel stated that he had been retained that afternoon, that he had just received the complaint, that he had reviewed the docket and noted that the answer had been due two days ago. In addition, Robey's counsel stated that he was unable to contact Johnson's counsel, as Johnson is pro se and appears to be in a correctional institution. Further, at the time of the request, Robey was out of rule by only two days and Johnson had yet to file a motion for default judgment. Considering all the surrounding facts and circumstances, as well as being mindful that cases should be decided on their merits, Johnson was not prejudiced by the trial court granting Robey a two-day extension to file his answer. We conclude there was no abuse of discretion in granting the two-day extension.

The petitioner, who had been convicted of sexual assault in the first degree and risk of injury to a child, sought a writ of habeas corpus, claiming that his trial counsel provided ineffective assistance. At the beginning of the habeas trial, the petitioner informed the court that he was with- drawing certain of his claims, including a claim that his trial counsel was ineffective in failing to present certain medical testimony. On the second day of trial, which occurred nearly two months later, the peti- tioner requested that the court permit him to ''unwithdrawn'' that claim, but the court denied the request to reinstate the claim. The habeas court rendered judgment denying the habeas petition, from which the petitioner, on the granting of certification, appealed to this court. Held: 1. The habeas court did not abuse its discretion when it denied the petition- er's request to reinstate the claim he had withdrawn: that court reason- ably recognized that almost all witnesses already had been examined when the request was made, and although not all of those witnesses would have been needed to address the claim, it would have been unfair to recall some witnesses after their dismissal, and to resurrect the claim would have required additional preparation and time to explore the claim with the previous witnesses; moreover, the petitioner waited nearly two months after the first day of trial to bring forth his request, which he could have explored at the end of the first day of trial or shortly there- after, it was the petitioner who originally brought the claim forward and then subsequently elected to withdraw it, and his claim that the habeas court should have treated the request as a motion to amend the pleadings was inadequately briefed and not reviewable. 2. The petitioner's claim that the habeas court should have allowed into evidence documents that related to his medical condition was unavailing; because the habeas court never ruled on the issue of the admissibilit