Hudson & Keyse L.L.C. v. Sherrills , 2022 Ohio 126 ( 2022 )

[Cite as Hudson & Keyse L.L.C. v. Sherrills, 2022-Ohio-126.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
HUDSON & KEYSE LLC, :
Plaintiff-Appellee, :
No. 110366
v. :
DENISE L. SHERRILLS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 20, 2022
Civil Appeal from the Lakewood Municipal Court
Case No. 2009-CVF-02022
Appearances:
Denise Sherrills, pro se.
FRANK D. CELEBREZZE, JR., P.J.:
Appellant Denise Sherrills (“appellant”) appeals the judgment of the
Lakewood Municipal Court reviving the dormant judgment of appellee Hudson &
Keyse LLC (“Hudson & Keyse”). After a thorough review of the applicable law and
facts, we affirm the judgment of the trial court.
I. Factual and Procedural History
Hudson & Keyse originally filed suit against appellant in 2009,
seeking collection of a debt that it claimed had been assigned to it by Huntington
National Bank. Certified mail service was issued, which was unclaimed. Service was
later made on appellant via ordinary mail.
After appellant failed to answer, Hudson & Keyse moved for default
judgment, which was granted in the amount of $3,386.24, plus 5 percent interest.
Hudson & Keyse did not execute upon the judgment, and after five
years, it was rendered dormant. On December 15, 2020, Hudson & Keyse filed a
motion for revivor of dormant judgment. Appellant was served with the motion and
filed her opposition thereto.
The trial court held an evidentiary hearing on the motion for revivor.
Appellant and counsel for Hudson & Keyse both appeared in court. In its entry
following the hearing, the court noted,
Although an attorney appeared for the plaintiff, the attorney was not
counsel of record and did not comply with the requirements of Civil
Rule 3 to file a notice of limited appearance. The case was heard and
submitted.
Subsequent to the hearing and after the defendant departed the court,
the attorney for the plaintiff came back to the court and filed a notice of
limited appearance and brief in opposition to the defendant’s
objections. The affect [sic] of the attorney’s action was to attempt to do
indirectly that which he could not do directly due to the failure to
comply with the Ohio Rules of Civil Procedure and file the required
notice of limited appearance. Moreover, the brief filed by the attorney
was done after the hearing was concluded and without leave of court,
all of which is an attempt to prevail on the motion without notice to the
defendant.
In the interest of justice, the court scheduled an additional hearing on
the motion. Appellee’s counsel then filed a proper notice of limited appearance.
Appellant, in turn, filed an objection/answer. Following the scheduled hearing, the
court noted as follows:
This case was called for a hearing on the defendant’s objections to the
plaintiff’s motion to revive a dormant judgment. A prior hearing was
continued due to procedural issues and the case was continued for
hearing to March 4, 2021 at 9:30 a.m. The defendant and counsel for
the plaintiff were present in court and given the notice of the March 4,
2021 hearing.
The case was called with only counsel for the plaintiff present in court.
The court waited a reasonable period of time in case the defendant
might appear, but after that time expired and no notice by the
defendant, the case proceeded. After the conclusion of the case and
counsel for the plaintiff left, the defendant appeared for the hearing.
The defendant filed objections to the motion for revivor and submitted
her objections to the clerk for filing. The record shows that the
defendant did not provide a copy of her objections to the plaintiff.
The court ultimately granted the motion to revive judgment, noting
that appellant’s objections to revivor included a collateral attack on the underlying
judgment that it could not consider. The court overruled appellant’s objections and
declared the judgment entered December 8, 2009, revived and in full force and
effect for execution.
Appellant then filed the instant appeal, raising the following three
paraphrased assignments of error for our review:
1. The trial court erred and abused its discretion in determining
Hudson & Keyse, LLC, properly notified appellant in 2009, by certified
mail at her address in Euclid, OH. The court further erred by allowing
Hudson & Keyse to be awarded money that appellant was unaware that
she owed. Appellant was not permitted to have her day in court to
defend against the action because she was never served at her address
and regular mail was sent to an address in Lakewood, Ohio.
2. The trial court erred and abused its discretion in permitting an
attorney who was not counsel for Hudson & Keyse LLC to attend the
hearing and present filings in the case.
3. The trial court erred and abused its discretion in allowing the
additional attorney to represent Hudson & Keyse, LLC, which no longer
exists, and by not continuing the hearing when she was ten minutes
late.
II. Law and Analysis
Appellant’s first assignment of error attempts to attack the judgment
by alleging that she was not properly served with the complaint. In her opposition
to the motion for revivor, appellant argued that it was beyond the ten years provided
for a dormant judgment, and thus the trial court erred in reviving the judgment.
R.C. 2325.15 provides that when a judgment is dormant, it may be
revived. R.C. 2325.18 requires that an action to revive a judgment be brought within
ten years from the time the judgment became dormant. In the instant matter, the
court noted that the judgment became dormant when it was not executed on for five
years after the judgment was entered.
A motion for revivor of a dormant judgment should be granted in the
amount the judge finds still due and unsatisfied unless sufficient cause is shown to
the contrary. Worldwide Asset Purchasing, L.L.C. v. Shuster, 8th Dist. Cuyahoga
No. 107431, 2019-Ohio-1441, ¶ 11, citing Columbus Check Cashers v. Cary, 196 Ohio
App.3d 132, 2011-Ohio-1091, 962 N.E.2d 812, ¶ 15 (10th Dist.). A trial court holds a
hearing on the motion for revivor, not a trial. “‘Seeking to revive a judgment does
not involve the creation of a new action, but merely the institution of a special
proceeding within the original action.’” Id. at ¶ 19, quoting Bartol v. Eckert, 50 Ohio
St. 31, 45, 33 N.E.294 (1893).
In her appellate brief, appellant appears to have abandoned her
argument about the timing of revivor and instead contends that the statute of
limitations had run on the debt Hudson & Keyes was seeking to collect, although she
does not provide any specific arguments regarding this proposition. App.R. 12
outlines the parameters of the appellate court’s exercise of its reviewing powers and
provides that a court of appeals is not required to consider errors that were not
assigned and argued. Hungler v. Cincinnati, 25 Ohio St.3d 338, 341, 496 N.E.2d
912 (1986). “[E]rrors not specifically pointed out in the record and separately
argued by brief may be disregarded.” State v. Hill, 8th Dist. Cuyahoga No. 70930,
1997 Ohio App. LEXIS 3006, 12 (July 10, 1997), citing C. Miller Chevrolet v.
Willoughby Hills, 38 Ohio St.2d 298, 313 N.E.2d 400 (1974).
We find that appellant’s brief did not present any argument or
authority in support of her statute-of-limitations argument, and we decline to craft
an argument for her.
However, even if appellant had fully addressed this argument, we
note that appellant did not raise the issue of the statute of limitations with regard to
the collection of the debt in the trial court and has only raised it on appeal. “[A]
party cannot raise new arguments and legal issues for the first time on appeal, and
that failure to raise an issue before the trial court waives that issue for appellate
purposes.” Miller v. Cardinal Care Mgt., 8th Dist. Cuyahoga No. 107730, 2019-
Ohio-2826, ¶ 23, citing Cleveland Town Ctr., L.L.C. v. Fin. Exchange Co. of Ohio,
Inc., 2017-Ohio-384, 83 N.E.3d 383, ¶ 28 (8th Dist.); Kalish v. Trans World
Airlines, Inc., 50 Ohio St.2d 73, 79, 362 N.E.2d 994 (1977) (appellate courts “will
not consider a question not presented, considered, or decided by a lower court”).
Thus, we will not consider this argument for the first time on appeal.
Appellant’s first assignment of error also raises issues with service of
the original complaint and appellant’s claimed lack of knowledge of the case. “A
challenge to the validity of the judgment cannot be asserted in a revivor proceeding.”
Huntington Natl. Bank v. Haas, 2019-Ohio-2556, 139 N.E.3d 601, ¶ 17 (5th Dist.),
citing Thompson v. Bayer, 5th Dist. Fairfield No. 2011-CA-00007, 2011-Ohio-5897.
As noted by the trial court, an objection to a motion to revive a dormant judgment
is limited to the issue of the revivor, not the underlying merits of the judgment. In
other words, objections to a motion for revivor may not be used to collaterally attack
the validity of the judgment or raise any defense that existed prior to the entry of
judgment. Heselden Plumbing Co. v. Justice, 10th Dist. Franklin No. 85AP-733,
1986 Ohio App. LEXIS 5950 (Mar. 13, 1986). “Ohio courts have held that, in order
to bar the revivor of a judgment, the debtor must show ‘the judgment has been paid,
settled or barred by the statute of limitations.’” (Emphasis sic.) Dillon v. Four Dev.
Co., 6th Dist. Lucas No. L-04-1384, 2005-Ohio-5253, ¶ 17, quoting Heselden at 7.
Consequently, any issues related to service and the validity of the
judgment cannot be considered with regard to the motion for revivor. Such issues
are properly presented to the trial court in a motion for relief from judgment. The
trial court did not err in granting the motion for revivor, and appellant’s first
assignment of error is overruled.
In her second assignment of error, appellant contends that the trial
court erred by allowing the attorney for Hudson & Keyse to continue to be on the
case when he was not proper counsel. Appellant appears to be referring to the fact
that an attorney who was not counsel of record appeared at the first scheduled
hearing on the motion for revivor. The court noted that counsel for Hudson & Keyse
appeared, but he was not counsel of record and had not complied with Civ.R. 3 with
regard to filing a notice of limited appearance.
The attorney subsequently attempted to file the proper notice, but the
court noted that it was after the hearing and filed without leave of court. In the
interest of justice, the court scheduled an additional evidentiary hearing on the
motion for revivor. In the intervening time, it appears that the attorney filed the
appropriate notice of appearance, and counsel for Hudson & Keyse properly
appeared at the additional hearing. Thus, we cannot find that the court erred, and
appellant’s second assignment of error is overruled.
Appellant’s third assignment of error essentially argues that a
judgment should not have been awarded in favor of Hudson & Keyse when it no
longer exists and that the court improperly held the hearing without her even though
she was only ten minutes late. Appellant does not provide any arguments in support
of this assignment of error and, again, it is not our obligation to craft arguments for
her. However, as noted above, any issues regarding the validity of the award in favor
of Hudson & Keyse would not be appropriately considered in a motion for revivor.
Moreover, the court explained that it waited a reasonable period of
time for appellant, but she did not appear in time for the hearing. We have
previously noted that a pro se litigant is presumed to have knowledge of the law and
of correct legal procedure and is held to the same standards as all other litigants.
Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th
Dist.1996). Nevertheless, we further acknowledge that “[u]nder the Due Process
Clause of the Fourteenth Amendment to the United States Constitution and Article
I, Section 16, of the Ohio Constitution, parties are entitled to reasonable notice of
judicial proceedings and a reasonable opportunity to be heard.” Hartman v.
Hartman, 8th Dist. Cuyahoga No. 107251, 2019-Ohio-1637, ¶ 23, citing Ohio Valley
Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 125, 502
N.E.2d 599 (1986).
In the instant matter, appellant was provided reasonable notice of the
hearing because she was present in the court when it was rescheduled. In addition,
the court stated that it waited a reasonable time for appellant to appear at the
rescheduled hearing. Thus, we find that the trial court did not err in holding the
hearing without appellant, and appellant’s third assignment of error is overruled.
III. Conclusion
The trial court did not err in granting the motion to revive dormant
judgment. The arguments raised by appellant in her objection were appropriate for
a motion for relief from judgment but could not be considered with regard to a
motion for revivor. All of appellant’s assignments of error are overruled, and the
judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EMANUELLA D. GROVES, J., CONCUR