Heredia Realty, L.L.C. v. Harvey , 2021 Ohio 4218 ( 2021 )

[Cite as Heredia Realty, L.L.C. v. Harvey, 2021-Ohio-4218.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
HEREDIA REALTY, LLC, c/o RPM : APPEAL NO. C-210313
MIDWEST, LLC, TRIAL NO. 20CV-18185
:
Plaintiff-Appellee,
: O P I N I O N.
vs.
:
ERIN A. HARVEY,
:
KATHERINE W. CHANG,
:
and
:
MICHAEL P. HARVEY,
Defendants-Appellants. :
Civil Appeal From: Hamilton County Muncipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 3, 2021
Heyman Law, LLC, Scott Bobbitt, Matthew Faber and D. Andrew Heyman, for Plaintiff-
Appellee,
Michael P. Harvey Co., L.P.A., and Michael P. Harvey, for Defendants-Appellants.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} In this landlord-tenant dispute, the small claims court found the tenants
liable for just over $700 in damages for breach of a lease of real property located in
Hamilton County. On appeal from that judgment, the tenants insist that the small claims
court lacked personal jurisdiction over them for a suit arising from their lease. Consistent
with basic norms of personal jurisdiction, we hold that the small claims court appropriately
exercised personal jurisdiction over the tenants, we reject the related challenges by the
tenants, and we affirm the judgment of the small claims court.
I.
{¶2} In July 2017, plaintiff-appellee Heredia Realty, LLC, c/o RPM Midwest, LLC,
(“Heredia”) leased residential property located in Cincinnati, Ohio to defendants-appellants
Erin A. Harvey, Katherine W. Chang, and Michael P. Harvey1 (collectively, “the tenants”).
The lease eventually drew to a close, the tenants moved out, and everyone went their
separate ways.
{¶3} Several years later, however, Heredia filed a complaint against the tenants in
small claims court to recover $713 in damages for breach of contract. The tenants moved to
dismiss for lack of personal jurisdiction, but the magistrate denied the motion and set trial
for March 12. Then the tenants filed objections to the magistrate’s decision—again
challenging personal jurisdiction—but allegedly due to slow postal delivery, they missed the
operative deadline and the magistrate deemed the objections untimely. Next, the tenants
filed a Civ.R. 60(B) motion for relief from judgment, but the magistrate denied this motion
as well.
1 Mr. Harvey is not just a party—he is the attorney representing the tenants. He insists that he is merely
the tenants’ attorney, but the complaint identifies him as a defendant and the lease identifies him as a
lessee. This opinion, therefore, applies to Mr. Harvey in his personal capacity as a party to this litigation.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} On March 12, the magistrate granted judgment for Heredia with an entry that
included no rationale. Heredia claims that the magistrate granted a default judgment
because of the tenants’ nonappearance at the March 12 trial. On the other hand, the
tenants’ appellate brief claims that no hearings were held below (contrary to the trial court’s
docket). Regardless, the docket indicates that a trial occurred, but the tenants never
ordered the transcript. From a record standpoint, we are thus left in the dark about what
exactly transpired at the March 12 trial.
{¶5} The trial court adopted the magistrate’s factual and legal findings. On appeal,
the tenants raise four assignments of error, arguing that (1) Heredia did not establish
personal jurisdiction over them, (2) the trial court erred by treating their objections as
untimely, (3) the trial court abused its discretion by denying their Civ.R. 60(B) motion, and
(4) Heredia’s complaint provided insufficient substantiation of the existence of the lease.
II.
{¶6} As a threshold matter, because the tenants did not transmit the transcript of
the proceedings to the court on appeal, “[w]e therefore presume the regularity of
the proceedings.” Stroud v. Four E Properties, Inc., 1st Dist. Hamilton No. C-170215, 2018-
Ohio-1910, ¶ 16. A variety of due process issues swirl about in this appeal, but given the
appellants’ failure to order a transcript, it precludes our meaningful review of certain of
these issues, particularly related to the events of the March 12 trial. But the personal
jurisdiction issue that takes center stage can be evaluated based on the extant record, and
we proceed to analyze it.
A.
{¶7} The tenants’ first assignment of error asserts that the trial court failed to
require Heredia to establish personal jurisdiction over them. “ ‘Personal jurisdiction is a
question of law that appellate courts review de novo.’ ” CUC Properties VI, LLC v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Smartlink Ventures, Inc., 1st Dist. Hamilton No. C-210003, 2021-Ohio-3428, ¶ 7, quoting
Fraley v. Estate of Oeding, 138 Ohio St.3d 250, 2014-Ohio-452, 6 N.E.3d 9, ¶ 11. “When a
defendant moves to dismiss a case for lack of personal jurisdiction, the plaintiff bears
the burden of establishing that jurisdiction is proper.” Fern Exposition Servs., LLC v.
Lenhof, 1st Dist. Hamilton No. C-130791, 2014-Ohio-3246, ¶ 9; see Ed Map, Inc. v. Delta
Career Edn. Corp., 10th Dist. Franklin No. 18AP-712, 2020-Ohio-358, ¶ 7. “ ‘The trial court
may hold an evidentiary hearing and receive oral testimony or “hear” the matter on the
affidavits, depositions, and interrogatories.’ ” Fern Exposition Servs., LLC at ¶ 9, quoting
Timekeeping Systems v. Safekeeping Protection Universal, 8th Dist. Cuyahoga No. 99714,
2013-Ohio-3919, ¶ 16.
{¶8} Heredia readily established personal jurisdiction over Mr. Harvey because the
complaint alleged that he is a resident of Ohio, and he came forward with no evidence
disputing the point. Prouse, Dash & Crouch, L.L.P. v. DiMarco, 116 Ohio St.3d 167, 2007-
Ohio-5753, 876 N.E.2d 1226, ¶ 5 (“It is axiomatic that Ohio courts can exercise jurisdiction
over a person who is a resident of Ohio.”). To the contrary, it appears that Mr. Harvey is an
Ohio-licensed lawyer with a business address in Ohio.
{¶9} Ms. Harvey and Ms. Chang are non-residents, however. “Determining
whether an Ohio trial court has personal jurisdiction over a nonresident defendant involves
a two-step analysis.” Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-
Ohio-2551, 930 N.E.2d 784, ¶ 28. First, we must determine “whether the long-arm statute
and the applicable rule of civil procedure confer jurisdiction.” Id. If so, then we must
determine “whether the exercise of jurisdiction would deprive the nonresident defendant of
the right to due process of law under the Fourteenth Amendment to the United States
Constitution.” Id.
4OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} Ohio’s long-arm statute provides that “[a] court may exercise personal
jurisdiction over a person who acts directly or by agent, as to a cause of action arising from
the person’s * * * [h]aving an interest in, using, or possessing real property in this state.”
R.C. 2307.382(A)(8). Due process requires “minimum contacts with the forum state such
that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice.” Kauffman Racing at ¶ 45. Minimum contacts is satisfied “when a
nonresident defendant purposefully avails himself of the privilege of conducting activities
within the forum state.” Id.{¶11} Heredia met its burden of establishing personal jurisdiction over the tenants
by introducing the lease into the record below. The lease satisfies Ohio’s long-arm statute
because a lease of property located in Ohio gives the tenants an “interest in * * * possessing
real property in this state.” R.C. 2307.382(A)(8). And executing a lease for possession of
real property in a state satisfies minimum contacts for suits arising from that lease. See
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)
(“[W]ith respect to interstate contractual obligations, we have emphasized that parties who
‘reach out beyond one state and create continuing relationships and obligations with
citizens of another state’ are subject to regulation and sanctions in the other State for the
consequences of their activities.”), quoting Travelers Health Assn. v. Commonwealth of
Virginia ex rel. State Corp. Comm., 339 U.S. 643, 647, 70 S.Ct. 927, 94 L.Ed. 1154 (1950).
See also First Natl. Bank of Cincinnati v. Scott, 1st Dist. Hamilton No. C-850623, 1986 WL
8097, *3 (July 23, 1986) (minimum contacts was satisfied where the non-resident
defendant “knowingly undertook the continuing obligation to an Ohio bank to make
payments on [a] note”).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} As a matter of law, Heredia met its burden of establishing personal
jurisdiction based on Mr. Harvey’s residence, and based on all three of the tenants’ contacts
with Ohio. We accordingly overrule the tenants’ first assignment of error.
B.
{¶13} The resolution of the first assignment of error largely answers the second two
because they are both premised, at bottom, on a personal jurisdiction objection. We
address each in turn.
1.
{¶14} In their second assignment of error, the tenants maintain that the magistrate
erred by failing to acknowledge that the clerk’s alleged service error rendered it “impossible”
for the tenants to file objections to the magistrate’s decision.
{¶15} Civ.R. 53(D)(3)(b)(i) provides that “[a] party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision.” Under Civ.R.
53(D)(3)(a)(iii), “[a] magistrate’s decision shall be * * * served by the clerk on all parties or
their attorneys no later than three days after the decision is filed.” Civ.R. 5(B)(2)(c) permits
service by “mailing it to the person’s last known address by United States mail, in which
event service is complete upon mailing.”
{¶16} Here, the magistrate’s decision was filed on January 22, 2021, giving the
tenants until February 5 to file their objections. But the tenants did not receive notice of the
decision by mail until February 4—one day before objections were due. They sent their
objections by ordinary mail on February 8, and their objections arrived on February 24—19
days after the last day for filing objections.
{¶17} Service by ordinary mail is proper under Civ.R. 5(B)(2)(c), regardless of the
fact that external circumstances may cause delays in the mailing system. The tenants
concede that the magistrate’s decision was postmarked on January 25, 2021, and, thus,
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OHIO FIRST DISTRICT COURT OF APPEALS
within the three allotted days for serving the decision on the parties under Civ.R.
53(D)(3)(a)(iii). See Muranyi v. City of Oregon, 6th Dist. Lucas No. L-05-1415, 2006-Ohio-
203, ¶ 9 (holding that service was complete on the date that the notice was postmarked).
We do not see any service error by the clerk here.
{¶18} Moreover, on this record the clerk did not make it “impossible” for the
tenants to file objections. The tenants received the magistrate’s decision one day before
objections were due. We are certainly sympathetic to parties who encounter delays by
virtue of mail service. But such parties, including tenants here, have remedies at their
disposal such as e-filing, requesting an extension to file the objections, or moving for leave
to accept the tardy objections (while explaining the reasons for the delay). The tenants have
not explained how it was impossible for them to file objections under these circumstances.
{¶19} Regardless, since the objections challenge personal jurisdiction, and we have
already concluded that personal jurisdiction existed, any “error” here occasioned by slow
mail delivery was harmless. We accordingly overrule the tenants’ second assignment of
error.
2.
{¶20} The tenants also challenge the magistrate’s denial of their Civ.R. 60(B)
motion. A party seeking relief from judgment under Civ.R. 60(B) must show 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 * * *.” GTE Automatic Elec., Inc. v. ARC
Industries, Inc., 47 Ohio St.2d 146, 150-51, 351 N.E.2d 113 (1976).
{¶21} The tenants argue that they were entitled to relief from judgment under Civ.R.
60(B)(1) because of “mistake, inadvertence, surprise or excusable neglect.” While delays in
the United States mailing system could constitute grounds for relief under Civ.R. 60(B)(1),
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OHIO FIRST DISTRICT COURT OF APPEALS
the tenants have ultimately failed to demonstrate that they have a meritorious claim or
defense to present if relief is granted. See GTE at 150-151. If the tenants were granted relief
under Civ.R. 60(B), the magistrate would be required to consider the tenants’ objections to
the magistrate’s denial of their motion to dismiss. But the tenants’ objections merely
reiterate the personal jurisdiction theory that we rejected above. Since this personal
jurisdiction theory is meritless, the tenants cannot meet the first prong of the GTE test.
Accordingly, the trial court did not abuse its discretion by denying their Civ.R. 60(B)
motion. We overrule the tenants’ third assignment of error.
C.
{¶22} Finally, the tenants argue that Heredia’s complaint was defective under Civ.R.
10(D)(1). Civ.R. 10(D)(1) reads “[w]hen any claim or defense is founded on an account or
other written instrument, a copy of the account or written instrument must be attached to
the pleading. If the account or written instrument is not attached, the reason for the
omission must be stated in the pleading.”
{¶23} While the tenants are correct that Heredia did not attach the lease to its
complaint, they fail to recognize that the Ohio Rules of Civil Procedure do not necessarily
apply in small claims matters. See Civ.R. 1(C) (“These rules, to the extent that they would by
their nature be clearly inapplicable, shall not apply to procedure * * * in small claims
matters under Chapter 1925 of the Revised Code.”). In fact, the Second District has held
that R.C. 1925.04 supersedes the pleading requirements of Civ.R. 8 for small claims matters.
Lazaro v. Knight, 2d Dist. Montgomery No. 20144, 2004-Ohio-4928, ¶ 14 (“Those
provisions of R.C. 1925.04 supersede the more specific pleading requirements of Civ.R. 8
in small claims actions.”). Not only is the Second District’s approach consistent with the
text of R.C. Chapter 1925 and Civ.R. 1(C), but that approach makes sense in light of the
informal design of small claims proceedings. See Cleveland Bar Assn. v. Pearlman, 106
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio St.3d 136, 2005-Ohio-4107, 832 N.E.2d 1193, ¶ 15 (“[B]y design, proceedings
in small claims courts are informal and geared to allowing individuals to resolve
uncomplicated disputes quickly and inexpensively.”).
{¶24} We hold that R.C. 1925.04 supersedes the more specific pleading
requirements of Civ.R. 10. R.C. 1925.04 provides, in relevant part:
(A) An action is commenced in the small claims division when the plaintiff, or
the plaintiff’s attorney, states the amount and nature of the plaintiff’s claim to
the court as provided in this section. The commencement constitutes a
waiver of any right of the plaintiff to trial by jury upon such action.
***
(B) The plaintiff, or the plaintiff’s attorney, shall state to the administrative
assistant or other official designated by the court, the plaintiff’s and the
defendant’s place of residence, the military status of the defendant, and the
nature and amount of the plaintiff’s claim. The claim shall be reduced to
writing in concise, nontechnical form. Such writing shall be signed by the
plaintiff, or the plaintiff’s attorney, under oath.
Since R.C. 1925.04 includes no requirement that the contract or account be attached to the
pleading, we overrule the tenants’ fourth assignment of error.
* * *
{¶25} For the foregoing reasons, we overrule all of the tenants’ assignments of error
and affirm the judgment of the trial court.
Judgment affirmed.
MYERS, P. J., and CROUSE, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion
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