First Resolution Invest. Corp. v. Salem, 24049 (5-28-2008)First Resolution Invest. Corp. v. Salem, 24049 (5-28-2008)
- Reporters:
- ,
- Before:
- Slaby, Whitmore, Dickinson
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{¶ 1} Plaintiff/Appellant, First Resolution Investment Corp. (“FRIC“), appeals a decision vacating default judgment against Defendant/Appellee, Chadan Salem, by the Akron Municipal Court. We reverse and remand.
{¶ 2} On June 18, 2007, FRIC filed a complaint against Salem for monies due and owing on a credit card account originally held by CitiBank, but which had been assigned to FRIC. Certified mail service of the complaint failed but Salem was served by regular mail on July 13, 2007. Salem did not answer the complaint, causing FRIC to file a motion for default judgment on August 29, 2007, which was granted on the same day. On October 30, 2007, FRIC sought to enforce its judgment by garnishment of Salem‘s wages. In response thereto, Salem appeared pro se and filed a request for a hearing on November 15, 2007.
FRIC waived its appearance at the garnishment hearing, which was held on December 5, 2007, during which Salem challenged the default judgment and was advised by the trial court to file a motion to vacate pursuant to
{¶ 3} FRIC timely appealed the Vacate Entry and raises two assignments of error.
Assignment of Error No. 1
“The trial court erred in granting [Salem‘s] motion for relief from judgment where said motion was not served upon [FRIC‘s] counsel and did not have a proof of service endorsed thereon.”
{¶ 4} FRIC asserts that the trial court erred in considering and granting Salem‘s motion to vacate judgment where the motion was not properly served pursuant to
{¶ 5} The question of whether relief should be granted is within the sound discretion of the trial court. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. This Court, therefore, will not reverse the trial court‘s decision absent an abuse of discretion. See Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18, 19-20. The phrase “abuse of discretion” connotes more than an error of judgment; rather, it implies that the trial court‘s attitude was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St .3d 217, 219. When applying the abuse of discretion standard, this court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd, (1993), 66 Ohio St.3d 619, 621.
{¶ 6}
{¶ 7} Salem‘s motion for relief from judgment did not contain a certificate of service or any indication that service of the motion was made upon FRIC. “A party has a right to represent himself, but if he does so, he is subject to the same
“In Erie, a pro se defendant filed an answer to a complaint that lacked a certificate of service, a violation of
Civ.R. 5(A) . The trial court, despite the defendant‘s failure to comply withCiv.R 5(A) , treated the answer as properly served upon the plaintiffs. The plaintiffs filed a motion for default judgment in which they argued that the defendant‘s answer did not comport withCiv.R. 5(A) . The trial court denied this motion. A trial was held and the trial court found in favor of the defendant. The plaintiff appealed. The issue before the appellate court was whether `[b]ecause [the defendant‘s] Answer did not comply withCiv.R. 5(A) [,] * * * the [trial court] erred by considering it.’ (Alterations sic.) Erie, 2002-Ohio-6139, at ¶ 21. The Erie court found that the defendant‘s answer did not comply withCiv.R. 5(A) because the answer did not contain a certificate of service. Id. at ¶ 24. The Erie court concluded that because the defendant‘s answer lacked a certificate of service, and one was never filed with the trial court, the trial court could not have properly considered the defendant‘s answer. Id. at ¶ 25. As a result, the Erie court held that the trial court erred in proceeding to trial on the merits. Id. at ¶ 29.” Martin at ¶ 15.
{¶ 8} Although this Court has never specifically addressed whether a trial court may consider a motion filed by a pro se litigant that failed to contain a certificate of service as required by
{¶ 9} FRIC‘s first assignment of error is sustained.
Assignment of Error No. 2
“The trial court erred by granting [Salem‘s] motion for relief from judgment where [Salem] did not introduce any admissible evidence indicting grounds for relief under
Civil Rule 60(B)(1) -(5) and no evidentiary hearing was conducted.”
{¶ 10} In its second assignment of error, FRIC argues that the trial court improperly granted Salem‘s motion for relief from judgment absent evidence required by
{¶ 11} FRIC‘s first assignment of error is sustained and this matter is remanded for proceedings consistent with this opinion. FRIC‘s second assignment of error is moot. We note that because the trial court improperly considered the motion for relief from judgment, the default judgment against Salem remains and the trial court‘s judgment dismissing FRIC‘s claims pursuant to
Judgment reversed, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
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.
Costs taxed to Appellee.
WHITMORE, J. CONCURS
DICKINSON, J. CONCURS, SAYING:
{¶ 12} The issue presented by First Resolution‘s first assignment of error is whether Mr. Salem failed to do something that