William S. Freeh, Jr., Plaintiff-Appellee, v. Mark A. Hill, Defendant-Appellant, Equine Estates, LLC et al., Defendants-Appellees.
No. 13AP-377 (C.P.C. No. 07CV-13585)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
September 11, 2014
2014-Ohio-3929
O‘GRADY, J.
(REGULAR CALENDAR)
Rendered on September 11, 2014
Stephen A. Moyer, for appellee William S. Freeh, Jr.
Mark A. Hill, pro se.
APPEAL from the Franklin County Court of Common Pleas
O‘GRADY, J.
{¶ 1} Defendant-appellant, Mark A. Hill, appeals from a judgment entered by the Franklin County Court of Common Pleas denying his motions for relief from judgment in favor of plaintiff-appellee, William S. Freeh, Jr. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} In October 2007, Freeh filed a complaint alleging claims related to a real estate development venture against Hill, Equine Estates, LLC, and New Albany Polo,
{¶ 3} After failed attempts to serve Hill at other addresses, Hill was served with the summons and complaint at the following address in July 2008: P.O. Box #30823, Gahanna, Ohio (the “Gahanna address“). Hill, acting pro se, filed an answer to the complaint in August 2008. In March 2009, he filed a motion for leave to file an amended answer with counterclaims, which the trial court denied.2 In December 2009, Freeh filed a motion for summary judgment, which Hill opposed. Due to the pendency of Freeh‘s motion, the trial court moved the January 2010 trial date to March 2010. Subsequently, the trial date was moved additional times, at least once at Hill‘s request, and ultimately set for August 18, 2010. It is unclear from the record what, if anything, happened on that date. After the journal entry setting the August 2010 trial date, nothing appears in the record until February 2011. On February 24, 2011, Hill filed a request for admissions from Freeh. In this document, Hill used the Gahanna address in his signature block.
{¶ 4} On March 29, 2011, the trial court rescheduled the matter for trial on May 24, 2011. The hearing notice mailed to Hill at the Gahanna address was returned marked “return to sender not deliverable as addressed unable to forward.” (R. 215.) A document filed May 24, 2011 suggests the trial court decided to continue the trial until it ruled on the still pending motion for summary judgment. However, the court did not rule on the motion until February 21, 2013. The court granted Freeh summary judgment against Hill on the issue of liability and referred the matter to a magistrate for a damages hearing to be held in March 2013. A hearing notice sent to the Gahanna address was returned as undeliverable.
{¶ 5} Hill did not appear at the damages hearing, and the magistrate issued a decision awarding Freeh damages. The magistrate ordered Freeh to submit a judgment entry to the trial court within 21 days. A copy of the magistrate‘s decision sent to the Gahanna address was returned as undeliverable. On April 8, 2013, the trial court issued
{¶ 6} On April 23, 2013, Hill filed a combined motion for “leave to plead out of rule” and for acceptance of “the attached motion for relief as filed instanter.” (R. 233.) He also filed a motion “for the judgment entered against him to be vacated, and for such other relief as will put him in the same position relative to this case as he was on February 21, 2013.”3 (R. 234.) In an affidavit attached to the motions, Hill averred that he moved in August 2010 and he “visited, in person, the Office of the Franklin County Clerk of Courts sometime in the fall of 2010, and I handed, to one of the filing window employees, a hand written notice of my change of address.” (R. 234.) His new address was the Marengo address. Nonetheless, in 2013, the clerk‘s office sent documents to him at the Gahanna address, which he did not receive. Thus, Hill contended he could not file a motion for reconsideration of the summary judgment decision, challenge the referral to the magistrate for a damages hearing, appear and defend himself at the damages hearing, or file objections to the magistrate‘s decision. Hill claimed he learned about the court‘s activities when Freeh‘s attorney sent him a dismissal entry for approval. Hill argued the clerk‘s failure to record his change of address led to a deprivation of his due process rights. He asked the trial court to vacate its judgment.
{¶ 7} Freeh opposed the motions, which he interpreted as
{¶ 8} Before the trial court ruled on Hill‘s motions he filed a notice of appeal. The trial court found it lacked jurisdiction to consider Hill‘s motions because the filing of the notice of appeal divested it of jurisdiction to rule on a motion for relief from judgment. Howard v. Catholic Social Servs. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141, 147 (1994). Hill asked this court to remand the matter to the trial court to rule on his motions. We
{¶ 9} The trial court found Hill had the burden to notify the court of a change in his address. However, the docket was devoid of written notice from Hill. Also, as Freeh pointed out, Hill used the Gahanna address in a February 2011 filing. Because Hill‘s last known address was the Gahanna address, the trial court denied the April 23, 2013 motions.
II. ASSIGNMENT OF ERROR
{¶ 10} Hill appeals and presents one assignment of error for our review:
It was error for the Trial Court to Deny Defendant / Appellant‘s Motion for Leave to Plead out of Rule and for Relief from Judgment; and Defendant‘s Motion To Vacate Judgment, when Defendant had given a proper notice of change of address to the Clerk of Courts, and the Clerk‘s Office failed to notify Appellant of Trial Court activities.
III. DISCUSSION
{¶ 11} In his sole assignment of error, Hill contends the trial court erred when it denied his April 23, 2013 motions because he notified the clerk‘s office of his change of address, and the clerk‘s office failed to record the change and mail court documents to the Marengo address. Hill filed his motions after the trial court issued its final order on April 8, 2013. However, “[t]he only motions a trial court may consider and grant to relieve a party from a final order are motions, pursuant to
{¶ 12} The decision ” ‘[w]hether to grant a
{¶ 13}
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. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.
{¶ 14} ” ‘To prevail on a motion brought under
{¶ 15} Hill contends he moved on August 8, 2010 but did not immediately open a post office box in Marengo or close his post office box in Gahanna. Hill claims he gave the clerk‘s office notice of his address change sometime after he opened a post office box in Marengo on March 7, 2011. Thus, Hill acknowledges the averment in his affidavit that he notified the clerk‘s office of the change sometime in fall 2010 was incorrect. Hill claims he made this averment from memory, and subsequently obtained information from the postal service on when he opened or closed his post office boxes. In addition, Hill argues
{¶ 16} Neither Hill nor the trial court identified the specific grounds for relief under
{¶ 17} A party ” ‘bears the burden of formally notifying the court of a change of address.’ ” State ex rel. Halder v. Fuerst, 118 Ohio St.3d 142, 2008-Ohio-1968, ¶ 6, quoting Robb v. Smallwood, 165 Ohio App.3d 385, 2005-Ohio-5863, ¶ 11 (4th Dist.). This obligation applies equally to pro se litigants like Hill. See id. ” ‘Given that informing the trial court of a new address is relatively simple, it follows that the burden of satisfying this requirement cannot be shifted to the opposing party or the trial court.’ ” Id., quoting Nalbach v. Cacioppo, 11th Dist. No. 2001-T-0062 (Jan. 11, 2002).
{¶ 18} Here, the clerk mailed the documents or notices at issue to Hill‘s last known address in the record—the Gahanna address. Although Hill insists he gave the clerk‘s
{¶ 19} Although Hill attempts to use facts outside the record about when his post office boxes were operational to argue he simply made a mistake about the timing of the written notice he claims to have given, a ” ‘bedrock principle of appellate practice in Ohio is that an appeals court is limited to the record of the proceedings at trial.’ ” Colley v. Colley, 10th Dist. No. 09AP-333, 2009-Ohio-6776, ¶ 12, quoting Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, ¶ 13, citing
{¶ 20} Hill cites our decision in Cincinnati Emergency Servs., Inc. v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 02AP-1084, 2003-Ohio-3302 as support for his position on appeal. In that case, the appellant complained the trial court erred in granting a
{¶ 21} In this case, the only evidence before the trial court that Hill actually notified the clerk‘s office of the Marengo address was his own affidavit, which lacked credibility. Therefore, the trial court did not act in an unreasonable, arbitrary or
IV. CONCLUSION
{¶ 22} For the foregoing reasons, we overrule the sole assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK, J., concurs.
DORRIAN, J., dissents.
DORRIAN, J., dissenting.
{¶ 23} I respectfully dissent. I would find that it was an abuse of discretion to not grant Hill‘s motion per