CITY OF DUBLIN v. JACK K. BEATLEY, ET AL.
Case No. 16 CAE 04 0021
COURT OF APPEALS, DELAWARE COUNTY, OHIO, FIFTH APPELLATE DISTRICT
August 24, 2016
2016-Ohio-5606
Hon. Sheila G. Farmer, P.J.; Hon. William B. Hoffman, J.; Hon. John W. Wise, J.
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CITY OF DUBLIN : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
-vs- :
:
JACK K. BEATLEY, ET AL. : Case No. 16 CAE 04 0021
:
Defendants-Appellants : O P I N I O N
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 15 CVH 09 0598
JUDGMENT: Reversed
DATE OF JUDGMENT: August 24, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PHILIP K. HARTMANN KEVIN E. HUMPHREYS
YAZAN S. ASHRAWI 332 West 6th Avenue
10 West Broad Street Colubus, OH 43201
Suite 2300
Columbus, OH 43215
Farmer, P.J.
{¶1} On September 9, 2015, appellee, city of Dublin, filed a complaint against appellant, Jack Beatley, seeking to appropriate a portion of his property. On October 21, 2015, appellant filed a
{¶2} On January 8, 2016, appellee filed a
{¶3} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I
{¶4} “THE TRIAL COURT COMMITTED AN ERROR OF LAW BY MISAPPLYING
II
{¶5} “THE TRIAL COURT COMMITTED AN ERROR OF LAW IN ITS CONCLUSION THAT CONSTRUCTIVE SERVICE FOR PURPOSES OF THE JURISDICTIONAL PRIORITY RULE, CAN BE EXTENDED TO OPERATE AS A SUBSTITUTE METHOD OF SERVICE REQUIRED BY THE APPROPRIATION PROVISIONS OF
III
{¶6} “THE TRIAL COURT COMMITTED AN ERROR OF LAW BY ALLOWING
IV
{¶7} “THE TRIAL COURT COMMITTED AN ERROR OF LAW BY MISAPPLYING
V
{¶8} “THE TRIAL COURT COMMITTED AN ERROR OF LAW BY FAILING TO HOLD A HEARING BEFORE GRANTING
VI
{¶9} “THE TRIAL COURT COMMITTED AN ERROR OF LAW WHEN IT GRANTED LEAVE TO THE PLAINTIFF TO AMEND THE COMPLAINT WHEN ITS EXERCISE OF JURISDICTION WAS LACKING.”
I, II, III, IV
{¶10} Appellant claims the trial court erred in granting appellee‘s
{¶11} A motion for relief from judgment under
To prevail on a motion brought under
Civ.R. 60(B) , the movant must demonstrate 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 inCiv.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief areCiv.R.
{¶12} From the face of the
{¶13} In its December 21, 2015 judgment entry granting the motion to dismiss, the trial court referenced the missing affidavits as follows:
Lastly, Plaintiff submits that it has met the requirements of
R.C. 163.04 and163.041 because the law does not require it to engage in futile efforts. Plaintiff contends that Defendant has purposely evaded the certified mail and personal delivery service attempts by Plaintiff. Although Plaintiff refers to Exhibits E, F, and G – attempts to achieve certified mail service and personal service by Dublin police officers – these exhibits are not attached to Plaintiff’ memorandum in opposition filed with the Court. Plaintiff has failed to establish that any effort on its part to serve Defendant with the required notice would be futile.
{¶14} Attached to appellee‘s January 8, 2016 motion for relief from judgment is the affidavit of Janet Pettibone, a legal secretary, who averred the following in part:
4. As part of my assistance with the above-captioned matter, I electronically filed the City of Dublin‘s Memorandum in Opposition of Defendant Jack K. Beatley‘s Motion to Dismiss and Plaintiff City of Dublin‘s Request for Hearing on November 4, 2015.
5. The filing was originally rejected twice and I was advised that the file was either “corrupt or damaged.” I spoke with Angela Wheeler, Deputy Clerk, about this issue and she advised that the file may be too large due to the fact that some exhibits were in color.
6. I re-scanned the color exhibits in black and white and proceeded to file the memorandum in opposition along with exhibits through the Delaware County Court of Common Pleas electronic filing system.
7. I checked the Court‘s online docket to confirm that the memorandum in opposition was filed. The memorandum in opposition appeared on the Court‘s docket and was stamped on the first page as having been E-Filed on November 4, 2015, at 4:02 p.m.
8. I did not receive another further notification from Delaware County regarding any issues with the City‘s filing.
{¶15} Appellee presented sufficient operable facts of mistake and excusable neglect in its motion for relief from judgment. Appellee‘s claims were based upon an error in the electronic filing system that was unknown to appellee until the judgment entry of dismissal. We therefore conclude the trial court did not abuse its discretion in revisiting the motion to dismiss via the
{¶16} However, in our analysis of appellee‘s assertion of a meritorious defense, we find, as a matter of law, the trial court erred in finding constructive service to be sufficient despite the statutory requirements of
{¶17} In its April 19, 2016 judgment entry granting the motion for relief from judgment, the trial court specifically expanded the jurisdictional requirement of
***I conclude that in an appropriation case, a party must provide evidence that an opposing party has been evading service and that the opposing party has notice of the intended appropriation action in order to request that the court find that the opposing party has been constructively served.
Here, I believe that the Defendant has been evading service and that the Plaintiff should not be required to make further attempts to serve the Defendant. The Plaintiff attempted to serve the Defendant through certified mail and personally. Service by publication under
Civ.R. 4.4 is not available to the Plaintiff in this case. At this stage of the litigation, I believe that the Defendant has notice not only of the Plaintiff‘s intent to move forward with the appropriation, but also the specifics of the Plaintiff‘s
offer and plan. Although this court has held that strict compliance with statutory service requirements is necessary, other avenues must be available to the Plaintiff if the Defendant is intentionally avoiding service. I am willing to extend the appellate court‘s logic in B-Dry [Systems, Inc. v. Kronenthal, 2nd Dist. Montgomery Nos. 17130 and 17619, 1999 WL 961248 (June 30, 1999)] to this situation, and believe that the Plaintiff has shown that the Defendant has received proper notice of the city‘s intent to appropriate as required by
R.C. 163.04 .
{¶18} The detailed language of the notice form was codified in
{¶19}
At least thirty days before filing a petition pursuant to section 163.05 of the Revised Code, an agency shall provide notice to the owner of the agency‘s intent to acquire the property. The notice shall be substantially in the form set forth in section 163.041 of the Revised Code. The notice shall be delivered personally on, or by certified mail to, the owner of the property or the owner‘s designated representative. (Emphasis added.)
{¶20}
{¶21}
{¶22} It is appellee‘s position that appellant purposefully avoided service of notice under
(C) Exceptions. These rules, to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure (1) upon appeal to review any judgment, order or ruling, (2) in the appropriation of property, (3) in forcible entry and detainer, (4) in small claims matters under Chapter 1925 of the Revised Code, (5) in uniform reciprocal support actions, (6) in the commitment of the mentally ill, (7) in adoption proceedings under Chapter 3107 of the Revised Code, (8) in all other special statutory proceedings; provided, that where any statute provides for procedure by a general or specific reference to all the statutes
governing procedure in civil actions such procedure shall be in accordance with these rules.
{¶23} Upon review, we find the trial court erred in granting the
{¶24} Assignment of Error I is denied. Assignments of Error II, III, and IV are granted. Assignments of Error V and VI are moot.
{¶25} The judgment of the Court of Common Pleas of Delaware County, Ohio is hereby reversed, and the trial court‘s December 21, 2015 judgment entry granting appellant‘s motion to dismiss is reinstated.
By Farmer, P.J.
Hoffman, J. and
Wise, J. concur.