Hazelwood Assn., Inc. v. Helfrich ( 2022 )

[Cite as Hazelwood Assn., Inc. v. Helfrich, 2022-Ohio-174.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
HAZELWOOD ASSOCIATION, INC. JUDGES:
Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2021 CA 00033
JAMES HELFRICH
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Case No. 21 CV 043
JUDGMENT: Reversed
DATE OF JUDGMENT ENTRY: January 24, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL J. BENNETT JAMES HELFRICH
Bennett Law Group, LLC P.O. Box 921
81 Mill Street, Suite #300 Pataskala, Ohio 43062
Gahanna, Ohio 43230
Licking County, Case No. 2021 CA 00033 2
Hoffman, J.
{¶1} Defendant-appellant James C. Helfrich appeals the judgment entered by
the Licking County Common Pleas Court granting Plaintiff-appellee’s Civ. R. 60(B) motion
for relief from judgment.
STATEMENT OF THE CASE1
{¶2} On October 8, 2020, Appellee filed the instant action as a small claims
complaint in the Licking County Municipal Court, claiming Appellant owed Appellee
homeowners’ association fees totaling $4,432.73. Appellant filed a jury demand and a
request to transfer the action from small claims court to municipal court. The request to
transfer was overruled.
{¶3} Appellant filed a renewed motion to transfer the case to municipal court on
December 15, 2020. By judgment entry filed December 22, 2020, the small claims court
found during an email exchange between Appellant and Appellee, Appellant notified
Appellee it intended to call counsel for Appellee as a witness at trial. Appellee responded
if Appellant did so, the retention of outside counsel for Appellee would be required, the
fees of which would be eligible as damages estimated at $15,000.00 to $25,000.00.
Because this potential damage award would exceed the monetary jurisdiction of both the
small claims and general divisions of the Licking County Municipal Court, the small claims
division transferred the case to the Licking County Common Pleas Court (hereinafter “trial
court”).
{¶4} On December 23, 2020, the clerk of the trial court sent both parties a notice,
which read as follows:
1 A rendition of the facts is unnecessary to the issues raised in this appeal.
Licking County, Case No. 2021 CA 00033 3
To Whom It May Concern:
Our office has received a transfer case from Licking County
Municipal Court, 20 CVI 138, Hazelwood Association, Inc. vs. James
Helfrich. Unfortunately, we are unable to file it without the deposit of
$200.00.
Please remit $200 to the address below as soon as possible.
{¶5} An identical “second request” was sent to the parties on January 5, 2021.
On January 19, 2021, the following notice was sent from the clerk to the parties:
TO WHOM IT MAY CONCERN:
THIS OFFICE HAS RECEIVED CASE 20 CVI 138 AS A TRANSFER
FROM THE LICKING COUNTY MUNICIPAL COURT. WE FILED THE
CASE HERE IN LICKING COUNTY ON 1/19/21 AS CASE 2021 CV 00043.
THE CASE WAS ASSIGNED TO JUDGE THOMAS M. MARCELAIN.
PLEASE REMIT $200.00 TO THE ADDRESS BELOW.
{¶6} Without further notice, on February 2, 2021, the trial court dismissed the
case pursuant to Civ. R. 41(B)(1) for failure to prosecute.
{¶7} Appellee filed a motion for relief from judgment pursuant to Civ. R. 60(A)
and Civ. R. 60(B)(1) and (5) on March 29, 2021. Appellee argued pursuant to Civ. R.
60(A), the trial court’s dismissal with prejudice pursuant to Civ. R. 41(B)(1) was a clerical
error, which should be corrected. Appellee argued pursuant to Civ. R. 60(B), it did not
Licking County, Case No. 2021 CA 00033 4
receive notice the case could be dismissed for failing to pay the filing fees, and further the
notice sent by the clerk was ambiguous as to which party was responsible for paying the
filing fee.
{¶8} Following a hearing, the trial court granted Appellee’s motion for Civ. R.
60(B) relief, finding no notice of a possible dismissal was provided to Appellee. The trial
court reinstated the case.
{¶9} It is from the April 29, 2021 judgment of the trial court Appellant prosecutes
his appeal, assigning as error:
I. DID THE TRIAL COURT ERROR WHEN IT GRANTED A CIVIL
RULE 60(B) MOTION FOR RELIEF OF JUDGEMENT OF A DISMISSAL
OF AN ACTION WHEN THE MOVING PARTY FAILED TO ARGUE THEIR
CLAIMS FOR RELIEF WERE MERITORIOUS IF THE CASE WAS
REINSTATED.
II. DID THE TRIAL COURT ERROR WHEN IT REINSTATED AN
ACTION AS A RESULT OF THE TRIAL COURT’S MISTAKE.
III. DID THE TRIAL COURT ERROR WHEN IT GRANTED A
MOTION FOR RELIEF OF JUDGEMENT AND NOT CONSIDER IF THE
APPELLEES REASONS FOR WAITING 55 DAYS TO FILE WERE
EXCUSABLE OR INEXCUSABLE.
IV. DID THE TRIAL COURT ERROR WHEN IT GRANTED A
MOTION FOR RELIEF OF JUDGEMENT 55 DAYS AFTER A NOTICE OF
DISMISSAL WAS FILED WHEN NO ADDITIONAL ARGUMENTS WERE
Licking County, Case No. 2021 CA 00033 5
MADE THAT COULD NOT HAVE BEEN MADE ON THE DAY OF
DISMISSAL.
V. DID THE TRIAL COURT ERROR WHEN IT GRANTED THE
MOTION FOR RELIEF OF JUDGEMENT WITHOUT CONSIDERING THE
DETRIMENT TO THE APPELLANT WITH THE LOSS OF DEFENSE.
VI. DID THE TRIAL COURT ERROR WHEN IT GRANTED A
MOTION FOR RELIEF OF JUDGMENT AND NOT CONSIDER IF THE
APPELLEES REASONS WERE EXCUSABLE OR INEXCUSABLE.
IV.
{¶10} In his fourth assignment of error, Appellant argues the trial court erred in
granting Appellee’s motion for Civ. R. 60(B) relief because the motion was a substitute
for appeal. We address this assignment of error first because we find it to be dispositive
of the appeal.
{¶11} “Civ.R. 60(B) exists to resolve injustices that are so great that they demand
a departure from the strict constraints of res judicata. * * * However, the rule does not
exist to allow a party to obtain relief from his or her own choice to forgo an appeal from
an adverse decision.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275,
21 N.E.3d 1040, ¶ 15. See also Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d
128, 502 N.E.2d 605 (1986), paragraph two of the syllabus (“[a] party may not use a
Civ.R. 60(B) motion as a substitute for a timely appeal”).
{¶12} “Where the defect of the judgment is apparent from the record, an appeal
will lie; where it is not, relief must be sought under Civ.R. 60(B), because error cannot be
Licking County, Case No. 2021 CA 00033 6
demonstrated from the record. * * * ‘Thus, when one party merely reiterates arguments
that concern the merits of the case and that could have been raised on appeal, relief
under Civ.R. 60(B) is not available as a substitute for appeal.’ ” Deutsche Bank Tr. Co.
Americas v. Ziegler, 2d Dist. Montgomery No. 26287, 2015-Ohio-1586, ¶ 56, quoting
Blount v. Smith, 8th Dist. Cuyahoga No. 96991, 2012-Ohio-595, ¶ 9.
{¶13} Appellee argues based on the Ohio Supreme Court’s decision in Moore v.
Emmanuel Family Training Ctr., Inc., 18 Ohio St.3d 64, 479 N.E.2d 879 (1985), Civ. R.
60(B) is the appropriate remedy to seek relief when a judgment of dismissal is rendered
pursuant to Civ. R. 41(B)(1) without prior notice to the party affected. Moore involved two
appeals where Civ. R. 60(B) relief was denied to a party whose case had been dismissed
pursuant to Civ. R. 41(B)(1). In one of the two appeals, the trial court failed to give notice
to Appellee, as required by Civ. R. 41(B)(1), that the case could be dismissed for failure
to prosecute. In both cases, the Ohio Supreme Court found excusable neglect on the
part of the plaintiff, and reversed the decisions of the trial court denying Civ. R. 60(B)
relief.
{¶14} At the outset, we note the instant case is factually distinguishable from the
two cases in Moore because it appears from the statement of facts in Moore, the plaintiffs
did not receive proper notice of the dismissal entries from the trial court, thus potentially
excusing their failure to take a timely direct appeal. Id. at 65.
{¶15} More importantly, the Moore court did not specifically address any argument
the Civ. R. 60(B) motion was a substitute for appeal. While the Moore court did note the
trial court failed to provide the notice required by Civ. R. 41(B)(1), the issue raised in the
appeals, and the corresponding legal discussion of the court, centers on the issue of
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whether the plaintiff demonstrated excusable neglect in the trial court. As noted by
Justice Kennedy in her dissent in State ex rel. Ryan Alternative Staffing, Inc. v. Moss,
2021-Ohio-3539, ¶36, the court will not normally address issues not briefed by the parties,
thereby injecting new arguments into the case. “As Judge Richard Posner once
explained, ‘we cannot write a party's brief, pronounce ourselves convinced by it, and so
rule in the party's favor. That's not how an adversarial system of adjudication works.’” Id.,citing Xue Juan Chen v. Holder, 737 F.3d 1084, 1085 (7th Cir. 2013). Thus, we decline
to infer from Moore the general rule Civ. R. 60(B) may not be used as a substitute for
appeal is not applicable when the trial court fails to give Civ. R. 41(B)(1) notice prior to
dismissal. (See, also, Svoboda v. City of Brunswick, 6 Ohio St.3d 348, 352, 453 N.E.2d
648 (1983), where the dissenting justices noted the majority’s discussion of the underlying
trial court order and the failure to give Civ. R. 41(B)(1) notice prior to dismissal to be in
error where the issue raised by the parties dealt with excusable neglect, and
consideration of Civ. R. 41(B) would render the Civ. R. 60(B) motion a substitute for
appeal).
{¶16} In Worthington v. Admr., BWC, 2nd Dist. No. 2020-CA-10, 2021-Ohio-978,
169 N.E.3d 735, the plaintiff’s case was dismissed for failing to respond to a motion. She
filed a motion for Civ. R. 60(B) relief, arguing her time to respond to the motion was
extended due to the Covid-19 tolling rules. The trial court granted the motion.
{¶17} The Court of Appeals for the Second District reversed, finding the Civ. R.
60(B) motion to be a substitute for appeal:
Licking County, Case No. 2021 CA 00033 8
Here, the matters at issue in connection with the initial involuntary
dismissal were apparent in the record and could have been resolved on
appeal. First, the tolling order of the Supreme Court of Ohio was available,
and Worthington could have argued that the involuntary dismissal was
erroneous based on that ground. Specifically, the March 27, 2020 tolling
order for filing deadlines was imposed retroactively to March 9, 2020, and
extended until July 30, 2020, or when the COVID-19 emergency ended,
whichever was sooner. In re Tolling of Time Requirements, 158 Ohio St.3d
1447, 2020-Ohio-1166, 141 N.E.3d 974, at subsection (A) and (B)(2).
More importantly, Subsection (G) of the tolling order gave local
courts authority to impose their own tolling orders. Specifically, this
subsection stated:
“Notwithstanding the tolling of time requirements imposed by this
order, the Court, local court, hearing panel, board, or commission, as
applicable, may still require filing in accordance with existing rules and
issue orders setting a specific schedule in a case or requiring parties to
file documents by a specific due date if pertaining to a situation that
requires immediate attention. A specific order in a case issued on or
after March 9, 2020, shall supersede the tolling provisions of this order,
unless otherwise noted in that specific order.”
Consistent with this authority, the Miami County Common Pleas
Court issued its own tolling order on March 20, 2020, stating, “All non-
essential trials, hearings and proceedings in the criminal, civil and domestic
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relations cases are hereby suspended and continued for a period of forty[-
]five (45) days.” See Further Temporary Order in Response to the Covid-19
(Coronavirus) Public Health Crisis (Miami C.P., Mar. 20, 2020). By its own
terms, that order expired on May 4, 2020.
As the trial court noted in its entry granting relief from judgment, this
would have extended the 14-day period for Worthington's response to May
18, 2020, which was after the court entered the involuntary dismissal. This
was apparent on the face of the record, and Worthington could have raised
it on appeal. Rather than doing so, Worthington filed a motion for relief from
judgment.
{¶18} Id. at ¶¶23-26.
{¶19} We find the reasoning of the Worthington court equally applicable to the
instant case. Appellee’s claim it did not receive notice prior to dismissal was apparent
from the face of the record on the date the case was dismissed, and Appellee could have
raised it on direct appeal. At the Civ. R. 60(B) hearing, Appellee proffered the testimony
of Donald Dye, previous counsel for Appellee, in support of its motion. In an affidavit
setting forth his proffered testimony, Dye averred upon inquiry as to which party was to
pay the filing fee, the clerk’s office notified his office there was no rule stating which party
needed to pay the fee. He further averred because he believed the case would be
remanded to the Licking County Municipal Court if the fee was not paid in the Common
Pleas Court, he took no action and ignored the two subsequent notices given by the clerk.
Licking County, Case No. 2021 CA 00033 10
He further averred he received no notice, written or oral, his claims would be dismissed if
Appellee failed to pay the filing fees.
{¶20} We find Appellee’s arguments concerning who was required to pay the filing
fees are a proverbial “red herring” in the instant case. Confusion over the payment of
fees is irrelevant to the issue raised in its Civ. R. 60(B) motion, which was whether
Appellee received notice of the possibility of dismissal. The record in this case
affirmatively demonstrated on the date of dismissal, no notice had been provided to
Appellee pursuant to Civ. R. 41(B)(1) its case could be dismissed for failure to prosecute.
We find Appellee’s argument it needed to provide evidence outside the record to
demonstrate it did not receive oral notice is without merit. A direct appeal will lie from
the improper dismissal of a case without providing notice where the lack of notice is
demonstrated by the record, as it was in the instant case. See, e.g., Ohio Furniture Co.
v. Mindala, 22 Ohio St.3d 99, 100, 488 N.E.2d 881, 882 (1986); Hillabrand v. Drypers
Corp., 87 Ohio St.3d 517, 518, 721 N.E.2d 1029, 1031 (2000); Perotti v. Ferguson, 7 Ohio
St.3d 1, 3, 454 N.E.2d 951, 952 (1983).
{¶21} Because the record affirmatively demonstrated Appellee did not receive
notice of the possibility of dismissal from the trial court as required by Civ. R. 41(B)(1) at
the time the trial court dismissed the case, we find the instant Civ. R. 60(B) motion was a
substitute for appeal, and thus barred by res judicata. The fourth assignment of error is
sustained.
{¶22} Appellant’s remaining assignments of error are rendered moot by our
decision on his fourth assignment of error.
Licking County, Case No. 2021 CA 00033 11
{¶23} The judgment of the Licking County Common Pleas Court granting Civ. R.
60(B) relief and vacating its prior dismissal order is reversed, and the February 2, 2021
entry dismissing the case is reinstated.
By: Hoffman, J.
Wise, Earle, P.J. and
Baldwin, J. concur