EQUABLE ASCENT FINANCIAL v. PHILLIP YBARRA
C.A. No. 12CA010190
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 30, 2013
2013-Ohio-4282
APPEAL FROM JUDGMENT ENTERED IN THE AVON LAKE MUNICIPAL COURT COUNTY OF LORAIN, OHIO CASE Nо. CVF 1100252
BELFANCE, Judge.
{1} Philip Ybarra appeals the trial court‘s decision granting Equable Ascent Financial‘s motion for relief from judgment. For the rеasons set forth below, we reverse.
I.
{2} Equable Ascent filed a complaint against Mr. Ybarra alleging that he owed $3086.85 on a сredit card account owned by Equable Ascent. Mr. Ybarra moved to dismiss the complaint, arguing that, because Equable Ascent was a collection agency, it could not bring the suit because it did not have a business location in Ohio as required by
{3} On January 3, 2012, Equable Ascent filed a motion for relief from judgment, arguing that it was not a collection agency and, therefore, not requirеd to comply with
{4} Mr. Ybarra has appealed, raising thrеe assignments of error. Because Mr. Ybarra‘s third assignment of error is dispositive, we address it first.
II.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION AND/OR IN ERROR ISSUED A [CIV.R.] 60(B) ORDER WHERE APPELLANT FAILED TO PROPER[L]Y RECEIVE TIMELY NOTICE OF SAME AND/OR WITHOUT GIVING APPELLANT OPPORTUNITY TO REVIEW AND/OR RESPOND TO SAID POSITION.
{5} Mr. Ybarra argues in his third assignment of error thаt the trial court erred in granting Equable Ascent‘s
{6} Equable Ascent filed a motion for relief from judgment more than six months after judgment had bеen entered against it. The trial court ruled on the motion that same day, giving Mr. Ybarra no opportunity to respond. Fundamental due process principles require that each party have the opportunity to be heard prior to a trial court rendering a decision. See, e.g., Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532, 542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.“) (Internal quotations and citations omitted.). Thus, we have previously concluded that, “[u]ntil the other party has a reasonable opportunity to file a written response, there is no reasonable consideration by the сourt of the issues involved.” (Internal quotations and citation omitted.) State v. Dalchuk, 9th Dist. Summit No. 21422, 2003-Ohio-4268, 5. See also Haley v. Nomad Preservation, 9th Dist. Summit No. 26492, 2013-Ohio-159, ¶ 17;
{7} Equablе Ascent argues that, to the extent an error occurred, such error was harmless because “even had [Mr.] Ybarra responded, the court already was armed with the applicable law and to construe it to the pleadings in a light most favorable to Equable [Ascent].” However, in order to be entitled to relief from judgment, the moving party must demonstrate that
(1) the pаrty 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, and, where the grounds of relief areCiv.R. 60(B)(1) , (2) or (3), not more than onе year after the judgment, order or proceeding was entered or taken.
Id. at paragraph two of the syllabus. Mr. Ybarra was entitled to have an opportunity to respond to Equable Ascent‘s motion to present his arguments that Equable Ascent could not meet one or more of those three prongs, and it was inappropriate to grant the motion without giving him thаt opportunity.
{8} Equable Ascent also argues that, to the extent the trial court erred, any such error is harmless because Mr. Ybarra has not demonstrated prejudice. However, the cases Equable Ascent cites in support were situations in whiсh the party complaining about a lack of notice had an opportunity to respond to the motion. For exаmple, in State v. Ross, 8th Dist. Cuyahoga No. 82785, 2004-Ohio-856, although the State complained that it had not received timely notice of the offender‘s motion for judiciаl release, it (1) had the opportunity to voice those concerns at a hearing, (2) was given a chance by the trial court to review the presentence investigation report but declined because it was familiar with the report, and (3) was given an opportunity to respond to the motion. Id. at ¶ 4. In other words, in contrast to this case, the State had an opрortunity to respond to the defendant‘s motion before the trial court entered judgment. Thus, Ross is not comparable to the case at hand.
{9} Under the circumstances presеnted in this case, the trial court erred when it entered judgment without giving Mr. Ybarra any opportunity to respond to Equable Ascent‘s motion for relief from judgment. See Haley, 2013-Ohio-159, at ¶ 17, citing Dalchuk, 2003-Ohio-4268, at ¶ 5. Mr. Ybarra‘s third assignment of error is sustained.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE [CIV.R] 60(B) MOTION IN FAVOR [OF] APPELLEE.
ASSIGNMENT OF ERROR II
THE TRIAL COURT IN ERROR GRANTED THE [CIV.R.] 60(B) MOTION IN FAVOR O[F] APPELLEE, IN THAT [CIV.R.] 60(B) SHALL NOT BE USED AS A SUBSTITUTE FOR APPEAL.
{10} In Mr. Ybarra‘s first and second assignments of error, he argues that the trial court should not have granted Equable Ascent‘s
{11} In light of the foregoing, the judgment of the Avon Municipal Court is reversed, and the matter is remanded for further proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a sрecial mandate issue out of this Court, directing the Avon Lake Municipal Court, County of Lorain, State of Ohio, to carry this judgment intо execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
MOORE, P. J.
WHITMORE, J.
CONCUR.
EVE V. BELFANCE
FOR THE COURT
TONY DALAYANIS, Attorney at Law, for Appellant.
MATTHEW G. BURG, Attorney at Law, for Appellee.