Davis v. BartonDavis v. Barton
Atty. James Gentile, DeGenova & Yarwood, Ltd., The Liberty Building, 42 North Phelps Street, Youngstown, Ohio 44503 for Defendants-Appellees.
{¶1} Plaintiff-Appellant Lawrence Daniel Davis appeals the May 4, 2020 judgment of the Struthers Municipal Court, which denied his motion for findings of fact and conclusions of law on a dismissal judgment and his motion to vacate the dismissal judgment. The March 11, 2020 dismissal was granted on the motion of Defendant-Appellees Daniel and Shelly Barton.
{¶2} Appellant claims the trial court erred in denying his motion for findings of facts and conclusions of law. However,
{¶3} Appellant further argues the trial court erred in granting the motion to dismiss. Because Appellant’s notice of appeal did not designate the March 11, 2020 dismissal judgment entry in violation of
STATEMENT OF THE CASE
{¶4} On October 26, 2016, Appellant filed a complaint against Appellees for breach of contract and unjust enrichment. He alleged he furnished material or performed labor, between April 4, 2014 and February 18, 2015, at Appellees’ property in Poland, Ohio “in pursuance of a certain contract with Defendants, the owners, part owners, lessees, original contractors, subcontractors, or other persons, as the case may be.” The complaint said the agreement entitled Appellant to $23,867 and he was still owed $8,263.
{¶5} Rather than attach a contract, invoice, or account to the complaint, Appellant attached a March 18, 2015 email he received from the bank’s mortgage loan vice president. The email referenced Appellant’s invoice to FJP Contracting LLC in the amount of $23,867 and dated January 1, 2014. The bank officer said he received the
{¶6} Appellees’ answer denied they had a contract with Appellant and denied any money remained due from them for the project mentioned in the complaint. The allegations under the breach of contract and unjust enrichment claims were likewise denied. The answer claimed Appellant failed to state a claim and raised the defense of accord and satisfaction.
{¶7} On January 4, 2017, the judge recused himself from the case. Nothing occurred of record on the case for nearly three years.
{¶8} On September 17, 2019, a notice was issued by the clerk of the municipal court under a local rule, asking Appellant to advise the court of the case status within 30 days or suffer dismissal under
{¶9} On February 7, 2020, Appellees filed a “Motion to Dismiss” under
{¶10} Appellant did not respond to the motion. On March 4, 2020, Appellant filed a motion to continue the March 12 trial date, stating he would be at a convention. On March 11, 2020, the court denied the motion to continue the trial.
{¶12} On April 13, 2020, Appellant filed a motion for findings of fact and conclusions of law, citing
{¶13} On April 20, 2020, Appellees filed a memorandum in opposition to the motions. They asserted that Appellant was not entitled to findings of fact and conclusions of law under
{¶14} In opposing the motion to vacate, Appellees pointed out that Appellant failed to explain the lack of response to their motion to dismiss but merely said he deemed the motion to dismiss under
{¶15} Appellees argued that Appellant failed to demonstrate entitlement to relief under one of the grounds in
{¶16} On May 4, 2020, the trial court denied the motion for findings of fact and conclusions law because no hearing was conducted. In the same judgment entry, the
APPELLATE PROCEEDINGS
{¶17} On June 3, 2020, Appellant filed a timely notice of appeal. The notice of appeal designated only the May 4, 2020 judgment as the order being appealed.
{¶18} On June 24, 2020, Appellees filed a motion to dismiss the appeal claiming Appellant should have appealed the March 11, 2020 judgment dismissing the case, rather than file an inapplicable
{¶19} Appellees said Appellant was barred from raising whether the trial court erred in dismissing the case because he failed to appeal the March 11, 2020 judgment.2 Appellees also argued the time for appealing the March 11, 2020 order had passed. However, there was the Supreme Court’s pandemic tolling order to consider. See Ohio Supreme Court, 3/27/2020 Administrative Actions, 2020-Ohio-1166 (tolling effective Mar. 9. 2020 through July 30, 2020).
{¶21} On September 30, 2020, this court denied Appellees’ motion to dismiss the appeal. We agreed a motion to vacate is not a substitute for an appeal of the judgment sought to be vacated. However, we pointed out the March 11, 2020 judgment was not the only final appealable order: the May 4, 2020 denial of
{¶22} Appellees’ motion to dismiss the appeal was predicting what assignments of error would be raised by Appellant in the future based on non-binding filings. The motion did not account for Appellant’s right to appeal from the denial of
{¶23} Our September 30, 2020 judgment ordered Appellant to file his brief within 20 days. After two extensions, Appellant filed his brief on December 22, 2020.
{¶24} Appellant’s first assignment of error claims the March 11, 2020 dismissal was erroneous, but this judgment was never designated in the notice of appeal. Appellant’s second assignment of error is divided into two arguments about the court’s May 4, 2020 judgment, which was the only judgment designated in the notice of appeal: part one claims the court erred by denying the motion for findings of fact and conclusions of law, and part two claims the court erred by denying the
{¶25} We begin with the two-part second assignment of error as it involves the judgment that was designated in the notice of appeal. Additionally, if a trial court errs in failing to issue findings of fact and conclusions of law, a case can be remanded for their
FINDINGS OF FACT AND CONCLUSIONS OF LAW
{¶26} As to the trial court’s May 4, 2020 judgment, which was the subject of the notice of appeal, Appellant first contends:
“THE TRIAL COURT ERRED BY NOT PROVIDING APPELLANT FINDINGS OF FACT AND CONCLUSIONS OF LAW, AS ITS JUDGMENT ENTRY OF DISMISSAL INDICATED NO FACTUAL OR LEGAL BASIS FOR SAME AND APPELLEES’ MOTION WAS NOT SUPPORTED BY ANY AFFIDAVIT.”
{¶27} On this topic, Appellant says: the trial court did not hold a hearing on the motion to dismiss; the motion was not supported by an affidavit; and the trial court granted the dismissal motion for the reasons set forth in the motion. Appellant claims the court should have issued findings of fact and conclusions of law because
{¶28} Appellant relies on
When questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise before the entry of judgment pursuant to
Civ. R. 58 , or not later than seven days after the party filing the request has been given notice of the court‘s announcement of its decision, whichever is later, in which case, the court shall state in writing the findings of fact found separately from the conclusions of law.* * *
Findings of fact and conclusions of law required by this rule and by
Civ.R. 41(B)(2) andCiv.R. 23(G)(3) are unnecessary upon all other motions including those pursuant toCiv.R. 12 ,Civ.R. 55 andCiv.R. 56 .
{¶29} A request for findings of fact and conclusions of law under
{¶30} Therefore, where an appellant files a post-judgment motion listed in
{¶31} On the issue of whether Appellant’s request for findings and conclusions under
{¶33} Therefore, an appellant is not entitled to findings of fact and conclusions of law on a
{¶34} Appellant is essentially stating the trial court should have held a factual hearing rather than grant the motion to dismiss and thus should be required to file findings and conclusions because a factual hearing should have been held. However, this is contrary to the plain language of the rule, which applies when “questions of fact are tried by the court.”
{¶35} Appellant suggests a motion on joinder requires the consideration of facts and thus
{¶37} Lastly, we note even though various types of evidence like affidavits are considered in ruling on a
{¶38} In conclusion, questions of fact were not “tried by the court without a jury” and the trial court granted a
MOTION FOR RELIEF FROM JUDGMENT
{¶39} Appellant’s other contention challenging the trial court’s May 4, 2020 judgment argues:
“THE TRIAL COURT ERRED BY NOT VACATING ITS JUDGMENT, PURSUANT TO APPELLANT’S 60(B) MOTION, AND/OR CONDUCTING A HEARING, AS ITS JUDGMENT ENTRY OF DISMISSAL INDICATED NO FACTUAL OR LEGAL BASIS FOR SAME AND APPELLEES’ MOTION WAS NOT SUPPORTED BY ANY AFFIDAVIT.”
{¶40} We review the denial of a
{¶41} To prevail on a
{¶42} Appellant states the trial court should have granted relief from judgment or scheduled a hearing on the
{¶43} In alleging a meritorious claim or defense under this assignment of error, Appellant’s brief says his meritorious claim in the action was clear as he performed the work and the contractor was not the only person liable. He also construes this as a defense to the dismissal motion, while complaining Appellees’ motion to dismiss for failure to join a party was not supported by an affidavit and no hearing was held. We note in a different assignment of error contesting the dismissal of the case, Appellant suggested a homeowner is liable to a subcontractor for breach of contract even if the homeowner only contracted with the contractor; he also said his unjust enrichment claim could proceed regardless of privity of contract principles and regardless of whether the contractor was a party to the litigation.
{¶44} However, in reviewing the trial court’s decision for an abuse of discretion, it is the arguments Appellant disclosed to the trial court that govern. J.P. Morgan Chase Bank v. Macejko, 7th Dist. Mahoning No. 07-MA-148, 2010-Ohio-3152, ¶ 37 (“We cannot find that the trial court abused its discretion in denying
{¶45} As Appellees’ response pointed out, Appellant did not indicate to the trial court why Appellant believed Appellees’
{¶46} “Under
A general conclusory allegation is insufficient to meet the burden. A motion to vacate can be denied without a hearing where operative facts are not outlined to demonstrate the defense. Thus, a hearing is only required to verify or discredit facts where sufficient operative facts in support of the alleged defense are initially set forth.
Second Natl. Bank of Warren v. Sorice, 7th Dist. Mahoning No. 01 CA 63, 2002-Ohio-3204, ¶ 10. See also Carkido v. Hasler, 129 Ohio App.3d 539, 550, 718 N.E.2d 496 (7th Dist.1998) (“Appellant presented absolutely no operative facts to show that he would have a meritorious defense if the trial court agreed to vacate the judgment that granted a default judgment against appellant. Therefore, we cannot hold that the trial court abused its discretion by overruling the motion for relief from judgment without first holding an evidentiary hearing”).
{¶47} Appellant’s motion merely contained a general conclusory statement that he believed there was no merit to the dismissal motion (which was granted without a hearing). As Appellees’ point out, the motion had no operative facts related to the underlying claim in the lawsuit or related to a defense to the dismissal motion.
{¶48} Furthermore, Appellant failed to allege entitlement to relief under one of the grounds set forth in
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under
Rule 59(B) ; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment.
{¶49} As aforementioned, the movant must demonstrate he “is entitled to relief under one of the grounds stated in
{¶50} “[I]t is well established that a
{¶51} In a case where a
{¶52} Here, Appellant’s motion did not even name a ground for relief in
{¶53} As to the need for a hearing on a
{¶54} “Conversely, an evidentiary hearing is not required where the motion and attached evidentiary material do not contain allegations of operative facts which would warrant relief under
There is no automatic right to a hearing on a motion to vacate. A court is required to conduct an evidentiary hearing only if the motion contains allegations of operative facts which would warrant relief under
Civ.R. 60(B) . Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18, 19, 665 N.E.2d 1102. The court‘s decision in this regard is within its discretion. Id. Even a cursory reading of appellant‘s motion reveals that it in no way complies withCiv.R. 60 . He does not set forth grounds for relief nor operative facts to establish any of the grounds found inCiv.R. 60(B) .
Vos v. Village of Washingtonville, 7th Dist. Columbiana No. 03-CO-20, 2004-Ohio-1388, ¶ 31. “Neither a responding party nor a trial court can be expected to divine the specific grounds under which a movant seeks relief.” Mattingly v. Deveaux, 10th Dist. Franklin No. 03AP-793, 2004-Ohio-2506, ¶ 9 (overruling the appellant’s argument on the failure to hold a hearing on a motion to vacate which lacked operative facts).
{¶55} In conclusion, Appellant’s motion did not allege grounds for relief under
DISMISSAL JUDGMENT NOT DESIGNATED IN NOTICE OF APPEAL
{¶56} Appellant sets forth an assignment of error contesting the March 11, 2020 dismissal judgment, arguing:
“THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S CASE, PURSUANT TO
CIV.R. 19 , AS APPELLEES’ CONTRACTOR WAS NOT AN INDISPENSABLE PARTY.”
{¶57} Appellant’s notice of appeal explicitly said Appellant was “appealing the Motion For Findings of Facts and Motion to Vacate decision entered by said trial court on the 4th of May, 2020 to the Seventh District Court of Appeals. A copy of this decision is attached.” (6/3/20 Notice of Appeal). Consistent with this language, Appellant attached only the May 4, 2020 judgment (denying the motion for findings of fact and conclusions of law and the motion to vacate).
{¶58} Typically, a party files a notice of appeal from a final judgment separately from the notice of appeal filed from a subsequent final judgment denying
{¶59} “Subject to the provisions of
Filing the Notice of Appeal. An appeal as of right shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by
Rule 4 . Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal.
(Emphases added.)
{¶61} In one Supreme Court case, a “notice of appeal mistakenly specified that the appeal was taken from the order denying the motion for new trial rather than from the final judgment entered on the merits.” Maritime Manufacturers Inc. v. Hi-Skipper Marina, 70 Ohio St.2d 257, 258, 436 N.E.2d 1034 (1982). The appellate court dismissed the appeal as all arguments in the brief pertained to the decision entered after the trial rather than the decision on the new trial motion which was designated in the notice of appeal.
{¶62} However, the Supreme Court ruled the appellate court did not lack jurisdiction to hear the appeal and reversed the dismissal, opining the issue was a mere technicality under the circumstances of the case, including the clear intent behind the appeal combined with assignments of error which probed the same issues as the new trial motion. Id. at 258-260. We note the motion for new trial was linked to the final judgment in that case as it was timely and properly filed after a trial.
{¶64} However, the Ohio Supreme Court refused to “interpret the Ohio rule so strictly.” Transamerica, 72 Ohio St.3d at 322. The Court ruled:
Pursuant to
App.R. 3(A) , the only jurisdictional requirement for a valid appeal is the timely filing of a notice of appeal. When presented with other defects in the notice of appeal, a court of appeals is vested with discretion to determine whether sanctions, including dismissal, are warranted, and its decision will not be overturned absent an abuse of discretion.
Id. at syllabus. Therefore, although the “Content of the Notice of Appeal” provision in
{¶65} The Court then found the appellate court abused its discretion in not considering the appeal of Linda Wallace. Transamerica Ins., 72 Ohio St.3d at 322. The Court discussed some relevant considerations: good faith mistake and who made it, lack of prejudice to other party by the designation, and proportionality of the sanction considering the overriding objective of deciding cases on the merits. Id. at 322-323. Notable considerations in that case would have included: the judgment appealed by “Dennis Wallace et al.” only related to the claims of Dennis and Linda Wallace; the Wallaces were both the parents of a decedent whose death prompted their similar claims; the addition of et al. after specifying Dennis Wallace as the appellant in the notice of
{¶66} Citing Transamerica, appellate courts recognize the timely filing of a notice of appeal in a trial court case is the sole jurisdictional requirement (which can be satisfied even if the notice fails to designate one of the judgments) and the court then exercises discretion to decide whether to refuse to address certain assignments of error where the appellant violated
{¶67} In a unanimous eleven-judge en banc decision on reconsideration, the Eighth District exercised its discretion to refuse to consider two assignments of error challenging interlocutory orders that were not designated in or attached to the notice of appeal. Midland Funding, 2014-Ohio-5680 at ¶ 3-4 (after confirming the lacking designation was not jurisdictional). The court noted the local appellate rule was violated in addition to
{¶68} The Tenth District exercised its discretion to address assignments of error where the notice of appeal designated a repetitive judgment entered the day after the final summary judgment order was addressed in the brief. Bank of America, 10th Dist. No. 13AP-278 at ¶ 4, 12-15. The court emphasized the case had only one final appealable order and the notice of appeal contained sufficient information to show it was the order being appealed, resulting in a lack of prejudice to the opposing party. Id. at ¶ 15.
{¶69} In Grenga, this district exercised our discretion to review assignments of error addressing interlocutory orders after the notice of appeal designated only the final order. However, we also observed: “We routinely allow parties to address errors relating to prior orders not specifically designated in the notice of appeal as long as none of those prior orders were final appealable orders, and if the remaining parties are not prejudiced
{¶70} Our local appellate rule provides: “A notice of appeal * * * shall designate the judgment or order appealed from, including the date of the judgment of order * * *. Failure to follow this rule may result in dismissal of the appeal.” 7th Dist. Loc.R. 3A.
{¶71} Here, Appellant’s notice of appeal named only one final appealable order, even though there existed more than one final appealable order (unlike in Grenga and Bank of America). See Grenga, 7th Dist. No. 04 MA 94 at ¶ 9 (one final order, plus interlocutory orders merge); Bank of America, 10th Dist. No. 13AP-278 at ¶ 4, 15 (only one final order, plus the order appealed was a repeat of the summary judgment entered the day before). It is also notable the two final judgments were separated in time by almost two months.
{¶72} The designation issue here is not akin to a notice of appeal designating a judgment denying a new trial motion instead of the original judgment where the appeal was only timely because the new trial was timely and proper (as in Maritime). Here, the denial of findings and conclusions was improper and thus not linked to the final judgment of dismissal.
{¶73} Moreover, the designation defect in this case is more serious than a designation of a final order with a failure to designate interlocutory orders (as in Grenga, where our district exercised its discretion to address the assignments related to the interlocutory orders, or as in Midland Funding, where the Eighth District used its discretion to strike the assignments of error related to the interlocutory orders, even though they merged into and only became final as a result of the judgment named in the notice of appeal and merged into the final judgment).
{¶74} The failure of Appellant’s notice of appeal to designate the final judgment of dismissal in conjunction with the notice of appeal’s specific designation of a subsequent final judgment denying a motion to vacate (which also denied an improper
{¶75} Notably, Appellees’ June 24, 2020 motion to dismiss the appeal reminded Appellant that he never designated the March 11, 2020 judgment in his June 3, 2020 notice of appeal. Upon learning of this issue, Appellant could have then acted to designate the earlier judgment if he intended to directly contest it on appeal (in case his argument on findings of fact and conclusions of law failed). At that point, there was still time remaining for Appellant to file a notice of appeal from the March 11, 2020 judgment. The pandemic tolling order was retroactive to March 9, 2020 and lasted through July 30, 2020, giving an appellant until Monday, August 31, 2020 to file a notice of appeal where a final judgment was rendered during the tolling period. Ohio Supreme Court, 3/27/2020 Administrative Actions, 2020-Ohio-1166. However, Appellant: did not designate the March 11, 2020 judgment in the June 3, 2020 notice of appeal; never responded to Appellees’ motion to dismiss the appeal; did not attempt to amend the notice of appeal during the pandemic tolling order; and did not thereafter seek leave to amend the notice of appeal during the extensions he received within which to file his brief.
{¶76} Lastly, we note as to our September 30, 2020 judgment denying Appellees’ motion to dismiss the entire appeal: Appellees’ motion was denied because they were incorrect as to the effect of Appellant’s failure to designate the antecedent dismissal judgment on his ability to appeal the subsequent final judgment (refusing to grant relief from the dismissal judgment and refusing to issue findings and conclusions on the dismissal). As outlined in our Appellate Proceedings section supra, our ruling was confined to the issue of whether the entire appeal had to be dismissed. Because the May 4, 2020 decision denying the motion to vacate was “itself a final appealable order,” we refused to dismiss Appellant’s timely appeal designating that judgment. We did not sua sponte grant Appellant leave to assign any error from any judgment entry filed in the case as we do not prejudge an appeal based on a predicted assignment of error set forth in a praecipe or docketing statement. Nor do we address a jurisdictional motion by making peremptory conclusions on which assignments of error are allowable and which are not by attempting to interpret a handwritten outline of ideas in those pre-briefing documents.
CONCLUSION
{¶78} For the foregoing reasons, we dismiss Appellant’s first assignment of error contesting the trial court’s March 11, 2020 dismissal judgment. Appellant’s two-part second assignment of error is overruled. The trial court properly denied Appellant’s request for findings of fact and conclusions of law on the dismissal entry and Appellant’s
Donofrio, P J., concurs.
D’Apolito, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to
NOTICE TO COUNSEL
This document constitutes a final judgment entry.