Hill v. Marshall , 2013 Ohio 5538 ( 2013 )

[Cite as Hill v. Marshall, 2013-Ohio-5538.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Mark A. Hill, :
Plaintiff-Appellant, :
No. 12AP-805
v. : (C.P.C. No. 11CVE-5543)
Le Andre Marshall, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on December 17, 2013
Mark A. Hill, pro se.
APPEAL from the Franklin County Court of Common Pleas
KLATT, P.J.
{¶ 1} Plaintiff-appellant, Mark A. Hill, appeals a judgment of the Franklin County
Court of Common Pleas that dismissed his case with prejudice for failure to prosecute.
For the following reasons, we reverse that judgment and remand the matter for further
proceedings.
I. Factual and Procedural Background
{¶ 2} On May 3, 2011, Hill filed a petition to foreclose a mechanic's lien against
defendant-appellee, Le Andre Marshall. In the petition, Hill claimed to have performed
work at a property owned by Marshall and that Marshall refused to pay him for the
agreed-upon work. As a result, Hill filed a mechanic's lien on the property. In the
petition, Hill requested the trial court to foreclose on the lien because Marshall still had
not paid him for the work. Hill first attempted to serve the petition on Marshall by
certified mail sent to the address of the property. On May 12, 2011, that mailing was
No. 12AP-805 2
returned to the court and marked "Vacant." On June 16, 2011, Hill filed a motion for
default judgment, arguing that Marshall had not filed an answer to his petition. The trial
court denied Hill's motion, noting that he had not properly served Marshall with the
petition.
{¶ 3} Hill then attempted to serve Marshall by publication pursuant to Civ.R.
4.4(A)(1). Such publication was made three times in the month of September 2011. As a
result, on November 17, 2011, Hill filed a second motion for default judgment. On
April 24, 2012, the trial court denied Hill's motion, concluding that he still had not
obtained service on Marshall. In that same decision, the trial court put Hill on notice that
it intended to dismiss Hill's complaint against Marshall for two reasons: for his failure to
obtain service on Marshall and for his failure to attend a pre-trial conference and to file
witness disclosure lists. The trial court ordered Hill to demonstrate good cause why it
should not dismiss the action for those reasons. It does not appear that Hill was served
with the decision.
{¶ 4} On May 11, 2012, the trial court sua sponte dismissed Hill's complaint with
prejudice for his failure to prosecute. The trial court found that Hill "failed to
demonstrate good cause for his failure to prosecute, having failed to appear at the pre-
trial conference, and having failed to appear at the May 2, 2012 trial."
II. The Appeal
{¶ 5} Hill appeals the dismissal and assigns the following errors:
[1]. The trial court abused its discretion, erring to the
prejudice of Appellant, when failing to serve notice of its
intent to dismiss foreclosure action for want of prosecution.
[2]. The trial court abused its discretion when failing to serve
its Judgment Entries, erring to the prejudice of Appellant.
[3]. The trial court's judgment denying Appellant's default
motion is against the manifest weight of the evidence.
A. Assignments of Error One and Two—Service of Judgment Entries
{¶ 6} In these assignments of error, Hill claims that the trial court did not serve
him with the April 24, 2012 entry that contained notice of the trial court's intent to
No. 12AP-805 3
dismiss his case for failure to prosecute.1 Because he did not receive notice of the trial
court's intent to dismiss pursuant to Civ.R. 41(B)(1), he argues that the trial court could
not dismiss the case. We agree.
{¶ 7} A decision to dismiss an action pursuant to Civ.R. 41(B)(1) is within the
sound discretion of the trial court. Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St. 3d
46, 47 (1997). Therefore, we review such a dismissal for an abuse of discretion.2 Id.;
Pearson v. Mansfield Corr. Inst., 10th Dist. No. 02AP-96, 2002-Ohio-5011, ¶ 19. An
abuse of discretion is typically defined as an unreasonable, arbitrary, or unconscionable
decision. State ex rel. Montgomery v. Columbus, 10th Dist. No. 02AP-963, 2003-Ohio-
2658, ¶ 14. No court, however, has the authority, within its discretion, to commit an error
of law. State v. Chandler, 10th Dist. No. 13AP-452, 2013-Ohio-4671, ¶ 8.
{¶ 8} A trial court may dismiss an action pursuant to Civ.R. 41(B)(1) when a
plaintiff fails to prosecute. Asres v. Dalton, 10th Dist. No. 05AP-632, 2006-Ohio-507,
¶ 12. However, the rule requires that a plaintiff receive notice before the dismissal,
thereby affording the plaintiff an opportunity to correct the default, or explain why the
case should not be dismissed with prejudice. Id., citing Metcalf v. Ohio State Univ.
Hosps., 2 Ohio App. 3d 166, 167 (10th Dist.1981); Cecil & Geiser, L.L.P. v. Plymale, 196
Ohio App. 3d 322, 2011-Ohio-5468, ¶ 23 (10th Dist.). A party receives sufficient notice
under that rule once it is informed that dismissal is a possibility and it has a reasonable
opportunity to defend against dismissal. Huntington Natl. Bank v. Zeune, 10th Dist. No.
08AP-1020, 2009-Ohio-3482, ¶ 24; Quonset Hut at 49. What constitutes notice and an
opportunity to respond must be examined on a case-by-case basis. Notice needs to be
formal but can be implied under circumstances that make it reasonable to do so.
Sazima at 155-56, citing Quonset Hut at 49 (noting that "the notice required by Civ.R. 41
[B][1] need not be actual but may be implied when reasonable under the
1 To the extent that Hill also claims the trial court did not serve him with the May 11, 2012 entry dismissing
his case, we have already resolved that issue in his favor, allowing this appeal to proceed even though he did
not file a timely appeal from the entry because the trial court docket failed to reveal that the clerk served Hill
with the entry. Hill v. Marshall, 10th Dist. No. 12AP-805 (Nov. 8, 2012) (memorandum decision). Thus,
any alleged error in this regard is harmless.
2 We note, however, that the Supreme Court of Ohio has applied a heightened standard of review when
reviewing decisions that forever deny a plaintiff a review of a claim's merits. Sazima v. Chalko, 86 Ohio
St.3d 151, 158 (1999).
No. 12AP-805 4
circumstances."); Cecil & Geiser at ¶ 24. At least one Ohio court is reluctant to imply
notice in this context, because of the harshness of the penalty and the resulting
foreclosure of a plaintiff's ability to seek redress. Jones v. All Tune & Lube, 8th Dist. No.
96674, 2011-Ohio-6432, ¶ 14, citing Whitaker v. Yelsky, 8th Dist. No. 77063 (Dec. 14,
2000).
{¶ 9} We find nothing in the record that would indicate Hill received express or
implied notice of the trial court's intent to dismiss. The trial court docket does not
indicate that Hill was served with the April 24, 2012 entry that contained the required
notice of intent to dismiss. Moreover, under these facts and circumstances, it is not
reasonable to imply notice on Hill of the trial court's intent to dismiss. Notice is normally
implied in this context where a motion to dismiss has been filed and served, which itself
provides notice of the possibility that the trial court may dismiss. Sazima at 155;
Tymachko v. Ohio Dept. of Mental Health, 10th Dist. No. 04AP-1285, 2005-Ohio-3454,
¶ 18-20; Pearson at ¶ 23. No such motion was filed in this case because the trial court
dismissed the case sua sponte. In other circumstances, notice may be implied when a
party does not comply with an outstanding order of the trial court. Quonset Hut at 49
(implied notice after two entries compelling discovery); Snyder v. Belmont Natl. Bank,
7th Dist. No. 09 BE 9, 2010-Ohio-1089, ¶ 17 (noting circumstances that could lead to
implied notice). Arguably, the only such order in this case was the April 24, 2012 entry
which Hill did not receive. Lastly, while some courts have found that notice of a trial date
is adequate notice of the possibility of a dismissal for a failure to appear at that trial, this
court has rejected that conclusion, noting that separate and additional notice must be
provided so the party can explain its non-appearance. Carr v. Green, 78 Ohio App. 3d
487, 491 (10th Dist.1992); Asres at ¶ 15-16, citing Logsdson v. Nichols, 72 Ohio St. 3d 124
(1995). There is no reasonable basis to imply notice under these circumstances.
{¶ 10} Because Hill had no express or implied notice of the trial court's intent to
dismiss, the trial court erred by dismissing his complaint pursuant to Civ.R. 41(B)(1).
Asres at ¶ 14. Accordingly, we sustain Hill's first and second assignments of error.
No. 12AP-805 5
B. Third Assignment of Error—The Denial of Hill's Motion for Default
Judgment
{¶ 11} Hill argues in this assignment of error that the trial court erred by denying
his second motion for default judgment because Marshall did not file an answer after
being served by publication. We disagree.
{¶ 12} An appellate court reviews a trial court's decision on a motion for default
judgment under an abuse of discretion standard. Davis v. Immediate Med. Servs., Inc.,
80 Ohio St. 3d 10, 14 (1997); Discover Bank v. Schiefer, 10th Dist. No. 09AP-1178, 2010-
Ohio-2980, ¶ 5. Civ.R. 55(A) permits a trial court to enter a default judgment against a
party who has failed to defend an action in compliance with the Ohio Rules of Civil
Procedure. Proper service of process is needed before a trial court can render a valid
default judgment. Westmoreland v. Valley Homes Mut. Hous. Corp., 42 Ohio St. 2d 291,
293-94 (1975). If service is not made according to the civil rules, such service is improper
and a valid judgment cannot be rendered against the defendant. T.S. Expediting Servs.,
Inc. v. Mexican Indus., Inc., 6th Dist. No. WD-01-060, 2002-Ohio-2268, ¶ 12; Anstaett v.
Benjamin, 1st Dist. No. C-010376, 2002-Ohio-7339, ¶ 13.
{¶ 13} The trial court denied Hill's motion for default judgment after concluding
that he had not properly served Marshall with his petition. Hill argues that he properly
served Marshall by publication pursuant to Civ.R. 4.4(A). According to that rule, service
by publication may be obtained if the residence of a defendant is unknown and where
such service is authorized by law. The rule also requires that the party seeking service by
publication file an affidavit which avers that service of summons cannot be made because
the residence of the defendant is unknown to the affiant, all of the efforts made on
behalf of the party to ascertain the residence of the defendant, and that the residence of
the defendant cannot be ascertained with reasonable diligence. See Anstaett at ¶ 11. A
party seeking to serve by publication must strictly comply with the rule's requirements.
Id. at ¶ 14; Pistner v. Baxter, 2 Ohio App. 3d 69, 70 (10th Dist.1981).
{¶ 14} Hill filed an affidavit in an attempt to comply with the requirements for
obtaining service by publication. The affidavit failed, however, to establish that he
exercised reasonable diligence in his attempt to locate Marshall. Sizemore v. Smith, 6
Ohio St. 3d 330, 331 (1983) ("[I]t is axiomatic that a plaintiff must exercise reasonable
No. 12AP-805 6
diligence in his attempt to locate a defendant before he is entitled to service by
publication."). Reasonable diligence requires taking steps that an individual of ordinary
prudence would reasonably expect to be successful in locating a defendant's address and
requires counsel to use common and readily available sources in the search, such as a
check of the telephone book or a call to the telephone company, checking the city
directory, a credit bureau, county records such as auto title department or board of
elections, or an inquiry of former neighbors. Id.; Chartier v. Hedges, 3d Dist. No. 3-03-
01, 2003-Ohio-2686, ¶ 8. These examples do not constitute a mandatory checklist.
What constitutes reasonable diligence will depend on the facts and circumstances of
each particular case. Id.
{¶ 15} In his affidavit, Hill stated that he made one effort to locate Marshall: He
requested Marshall's mailing address from the Franklin County Recorder's Office by
serving on the office a request for production of documents pursuant to Civ.R. 34(C).
Whether or not one would reasonably expect this step to be successful, this lone attempt
to locate Marshall does not meet the standard of reasonable diligence. More than this is
required of a party before service by publication will be allowed. See In re R.P., 9th Dist.
No. 26271, 2012-Ohio-4799, ¶ 16, quoting Sizemore at 332, quoting Black's Law
Dictionary 412 (5 Ed.1979) (noting that " 'Minimal efforts do not constitute reasonable
diligence[;]' rather, it is demonstrated by 'such diligence, care, or attention as might be
expected from a man of ordinary prudence and activity.' ").
{¶ 16} Because Hill did not comply with the requirements of Civ.R. 4.4(A) in order
to obtain valid service by publication, the trial court did not err by concluding he had not
properly served Marshall. Lewis v. Buxton, 2d Dist. No. 2006 CA 122, 2007-Ohio-5986,
¶ 7-9 (service by publication defective where affidavit did not establish compliance with
rules). Accordingly, absent proper service, the trial court did not err by denying Hill's
motion for default judgment. We overrule Hill's third assignment of error.
III. Conclusion
{¶ 17} In conclusion, we sustain Hill's first and second assignments of error and
overrule his third assignment of error. Accordingly, we reverse the judgment of the
No. 12AP-805 7
Franklin County Court of Common Pleas that dismissed Hill's complaint and remand the
matter for further proceedings.
Judgment reversed; cause remanded.
BROWN and SADLER, JJ., concur.