SHIRLEY A. KOSSOUDJI v. RICK D. STAMPS, et al.
Appellate Case No. 27170
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
November 10, 2016
2016-Ohio-7693
WELBAUM, J.
Trial Court Case No. 2014-CV-4211 (Civil Appeal from Common Pleas Court)
Rendered on the 10th day of November, 2016.
MATTHEW C. SORG, Atty. Reg. No. 0062971, 40 North Main Street, Suite 2700, Dayton, Ohio 45423 Attorney for Plaintiff-Appellee
F. HARRISON GREEN, Atty. Reg. No. 0039234, 4015 Executive Park Drive, Suite 230, Cincinnati, Ohio 45241 Attorney for Defendants-Appellants
{¶ 2} We conclude that the trial court did not err in overruling the motion based on
I. Facts and Course of Proceedings
{¶ 3} In July 2014, Plaintiff-Appellee, Shirley Kossoudji, filed a complaint for money damages against the Stamps. Kossoudji alleged in the complaint that she was the deeded owner of premises known as 1915-1927 Troy Street, Dayton, Ohio, and had entered into a land contract with the Stamps in 2010 for their purchase of the property. The purchase price was $115,000, with interest accruing on the unpaid balance at 8% per annum from the commencement date of the contract.
{¶ 4} Under the contract, the Stamps agreed to pay $849 per month for 60 months beginning January 1, 2010, with a final balloon payment of $101,521 due at the end of the 60-month period. Late charges of 5% were assessed for untimely payments, and the Stamps were also required to pay one-twelfth of the annual real estate taxes in equal
{¶ 5} Further, the contract allowed Kossoudji to declare all remaining installments and amounts provided by the contract immediately due upon the Stamps’ failure to pay an installment of the purchase price when due, or upon their failure to comply with any of the terms of the contract.
{¶ 6} According to the complaint, the Stamps had not made payments since July 2013, and had failed to remedy the default after being notified. The complaint also alleged that the Stamps failed to pay real estate taxes and had made significant structural changes, including destruction of an improved structure on the property. Two claims for relief were included in the complaint. One was a request for an amount of $118,145.43, based on past-due installments and taxes, plus acceleration of the balloon payment. The second claim was based on the demolition of the structure on the property and significant environmental harm, which allegedly had caused diminution in the property‘s value in excess of $25,000.
{¶ 7} On August 21, 2014, the Stamps’ attorney, Thomas Kendo, filed an answer on their behalf and a request for mediation. After Kossoudji served requests for production of documents and for admissions on the Stamps, the court referred the case to a magistrate and set a scheduling conference for October 10, 2014. Based on this conference, the magistrate filed a final pretrial order on October 15, 2014, setting deadlines for discovery and filing summary judgment motions. The order also set a trial
{¶ 8} The final pretrial order, which was sent to the parties’ attorneys through the court‘s e-filing system, contained the following statement:
FAILURE TO APPEAR AT THE TRIAL, OR FAILURE TO HAVE A WELL INFORMED SUBSTITUTE AVAILABLE, WILL RESULT IN DISMISSAL OF THE ABSENT PARTIES’ CLAIMS FOR FAILURE TO PROSECUTE UNDER CIVIL RULE 41(B)(1), OR, IF APPROPRIATE, THE CASE WILL PROCEED WITHOUT THE ABSENT PARTY OR COUNSEL. COUNSEL AND/OR PARTIES WHO FAIL TO APPEAR MAY ALSO BE SUBJECT TO OTHER APPROPRIATE SANCTIONS.
(Bolding and all-capitals format in original). October 15, 2014 Final Pretrial Order, Doc. #25, p. 3.
{¶ 9} On December 1, 2014, Kossoudji filed a motion for partial summary judgment, based on Kossoudji‘s affidavit and the Stamps’ responses to the request for admissions and the interrogatories. The Stamps then filed a request for an extension of time to respond, and received an extension to January 5, 2015. However, the Stamps did not file a timely response. On January 20, 2015, the Stamps filed another motion to extend the response time to January 23, 2015. The court granted an extension to January 20, 2015, and the Stamps then filed an untimely response on January 23, 2015.
{¶ 10} On January 23, 2015, attorney Andrew Engel, who was associated with Kendo‘s firm, entered his appearance as co-counsel for the Stamps. Subsequently, Kossoudji filed her identification of trial exhibits on January 26, 2015, and later objected to any trial exhibits that the Stamps would proffer, based on their failure to identify exhibits
{¶ 11} On February 11, 2015, the Magistrate filed a decision denying Kossoudji‘s partial motion for summary judgment. The decision noted that the Stamps had admitted these matters: entering into the land installment contract; not making any payments since June 2013; and failing to timely remedy their default. However, the magistrate concluded that a genuine issue of material fact existed regarding damages, because Kossoudji failed to offer an accounting on which the court could rely to decide damages. The magistrate‘s decision further noted that trial was set for February 25, 2015, and that the decision was electronically filed with the court‘s e-filing system. In addition, the decision stated that the system would post a record of the filing to the e-filing account “Notifications” tab of several participants, including Kendo and Engel. February 11, 2015 Magistrate‘s Decision, Doc. #42, p. 6.
{¶ 12} The trial was held on February 25, 2015, but the Stamps did not appear for trial. Their attorneys also did not appear. On April 3, 2015, the magistrate filed a decision, noting these facts, and further noting that Kossoudji had appeared for trial and had presented uncontroverted evidence as to her ownership of the real estate. The magistrate also observed that Kossoudji had clearly and convincingly proven that the Stamps were in breach of contract for non-payment. In addition, the decision stated that Kossoudji had provided an accounting that was entered into evidence, and that the damages based on breach of contract were $133,929.44. The magistrate then awarded Kossoudji that amount, plus statutory interest from February 25, 2015. Again, a copy of the decision was posted to the e-filing system and distributed to the Stamps’ attorneys.
{¶ 14} On April 27, 2015, the Stamps’ attorney filed a motion for an extension of time to file objections to the magistrate‘s amended decision. The court granted the motion, and gave the Stamps until May 12, 2015, to file their objections. However, no objections were filed, and on May 15, 2015, the trial court filed a judgment entry adopting the magistrate‘s decision dated April 15, 2015. The court, therefore, awarded Kossoudji $133,929.44, plus statutory interest from February 25, 2015, and also ordered the Stamps to quit-claim their interest in the property within seven days. Again, the court stated that upon the Stamps’ failure to quit-claim the property, the magistrate‘s decision and court‘s entry adopting the decision would operate as a properly executed document conveying the property.
{¶ 15} After stating that the order was a final appealable order, and that there was no just reason for delay, the trial court directed the clerk to serve each party with notice of the entry of judgment and its date of entry on the journal. As before, the court posted its judgment on the e-filing system, with notification to Kendo and Engel.
{¶ 17} Subsequently, on March 21, 2016, the Stamps, using different counsel, filed a motion for relief from judgment, based on
II. Excusable Neglect
{¶ 18} The Stamps’ First Assignment of Error states that:
The Trial Court Erred in Overruling Defendants-Appellants’ Rule 60(B) Motion Because Appellants’ Failure to be Present at the Hearing Was an Instance of Excusable Neglect.
{¶ 19} Under this assignment of error, the Stamps contend that they are entitled to relief based on excusable neglect. In this regard, the Stamps argue that they had a meritorious defense against the breach of contract claim and were diligently litigating the case until the final hearing when they failed to appear. They additionally argue that they were not told their attorneys would not appear for trial, were not provided a copy of the court‘s judgment, and learned of the judgment more than a month later. The Stamps, therefore, contend that their failure to appear did not constitute a total disregard for the
{¶ 20}
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.
{¶ 21} A motion brought under
{¶ 22} We review decisions on
{¶ 23} In the case before us, the trial court concluded that the combined actions of the Stamps and their attorneys exhibited disregard for the judicial system and Kossoudji‘s rights. The court, therefore, concluded that the neglect was not excusable. In this regard, the court stressed that both the Stamps and their attorneys had notice of the time and place of trial, but no one appeared. In addition, no motion to continue the trial was filed.
{¶ 24} We agree with the trial court in connection with this particular ground for relief. In GTE, the Supreme Court of Ohio specifically adopted the general rule that “the neglect of a party‘s attorney will be imputed to the party for the purposes of
There is certainly no merit to the contention that dismissal of petitioner‘s claim because of his counsel‘s unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer[-]agent and is considered to have ” ‘notice of all facts, notice of which can be charged upon the attorney.’ ”
Id. at 152, quoting Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), which in turn quotes Smith v. Ayer, 101 U.S. 320, 326, 25 L.Ed. 955 (1879).
{¶ 25} Consistent with GTE, we have noted that “an attorney‘s neglect, including failure to attend a hearing, constituted inexcusable neglect and did not justify granting the client relief from judgment under
{¶ 26} In the case before us, the Stamps were represented by counsel during the proceedings, and counsel had notice of the trial date several months before trial. During the evidentiary hearing, Rick Stamps testified that he was aware of the trial date, but was instructed not to appear. However, the Stamps’ counsel did not file a request to continue the trial date. Notably, co-counsel had entered an appearance on behalf of the Stamps
{¶ 27} In Smith, we commented that “an attorney‘s abandonment of a client may constitute an extraordinary circumstance justifying relief under
{¶ 28} This is not the only situation in which relief can be granted for an attorney‘s actions under
{¶ 29} Unfortunately, the Stamps sought relief in the trial court only under
{¶ 30} We do think the circumstances of this case present a difficult situation, and if the Stamps had properly presented an argument under
{¶ 31} Accordingly, the First Assignment of Error is overruled.
III. Satisfaction of Judgment
{¶ 32} The Stamps’ Second Assignment of Error states that:
The Trial Court Erred in Denying Defendants-Appellants’ Motion to Set Aside Judgment Because the Judgment Has Already Been Satisfied.
{¶ 33} Under this assignment of error, the Stamps contend that the trial court erred in failing to set the judgment aside under
{¶ 34}
{¶ 35} In connection with this assignment of error, the Stamps rely on the part of
{¶ 36} We have indicated that the basis for relief
{¶ 37} The case on which Sandler relied for this proposition is Wurzelbacher v. Kroeger, 40 Ohio St.2d 90, 320 N.E.2d 666 (1974). Sandler at 13. Wurzelbacher involved only the part of
{¶ 38} In the case before us, the trial court ordered the Stamps to quit-claim their interest in the property, and also awarded Kossoudji $133,929.44, plus statutory interest from February 25, 2015, as damages. In this regard, Kossoudji responds that she brought a complaint for money damages, asking for acceleration of all amounts under the land contract (alleged at that time to be $118,145.43 — a sum that included $13,884 in monthly payments unpaid to that date, taxes that were owed for 2011-2013, and a balloon payment of $101,521). Kossoudji also points out that she asked for an amount in excess of $25,000 for demolition of a structure on the property and environmental harm suffered by the property — therefore, implying that the judgment was intended to cover both types of damages and has not been satisfied.
{¶ 39} The judgment entry the magistrate initially filed does not specify which part of the judgment might be attributable to past-due amounts for payments and taxes, and which part might have been attributable to damages caused by demolition of the structure and alleged environmental harm. However, at trial, Kossoudji presented an exhibit indicating that her damages were as follows: $22,332.92 for unpaid payments and late fees from July 2013 through December 2014; $10,095.31 for unpaid real estate taxes; and $101,501.21 for the balloon payment due on January 1, 2015. The total amount
{¶ 40} In responding to the Stamps’ assignment of error, Kossoudji further argues that while the appropriate measure for relief of breach of a land contract is return of the property, termination of the contract is not an exclusive remedy under
{¶ 41} According to Kossoudji, the Stamps’ argument about satisfaction of the judgment ignores the fact that Kossoudji‘s complaint requested damages for environmental damages and destruction of the property. Again, Kossoudji‘s argument is that she was entitled to more damages than simply terminating the contract and obtaining the property. As we observed, however, the damages that Kossoudji lists in Plaintiff‘s Trial Ex. 4 say nothing about the fair rental value of the property or about deterioration or destruction.
{¶ 43} However,
{¶ 44} From the evidence presented at the hearing, the land contract between the Stamps and Kossoudji appears to have involved commercial property, not a residential dwelling. Rick Stamps indicated that he used the property for recycling asphalt shingles. One building on the property was leaning and uninhabitable, and was never used. This was the building that was demolished. The property also contained a Quonset metal building used for storing tools and as part of the Stamps’ business.
{¶ 45} Where
Where there has been a breach of the contract by the vendee‘s
failure to make the payments specified in the contract, the vendor may bring an action against the vendee for the payments due, recover judgment therefor, levy upon the land and sell the same to satisfy such judgment, thereby extinguishing the equity of the vendee in such land. The vendor may also treat the transaction as giving to him a lien upon the premises in the nature of an equitable mortgage, and he may bring an action to foreclose the same and obtain an order requiring the vendee to pay the balance due by a certain time, and, in default thereof, have the premises sold to satisfy the claim of vendor for the balance due on the contract. Where the vendee is in possession and a substantial part of the purchase price has been paid, this is the equitable and fair procedure to adopt.
Where the contract * * * provides for a forfeiture, which the vendor may declare, he may declare such forfeiture and bring an action at law in ejectment to recover the possession of the premises, but in such case the vendee may by answer set up facts, if they exists [sic], which will justify a court of equity in relieving him against the consequences of the forfeiture.
Johnson at 140, quoting Woloveck v. Schueler, 19 Ohio App. 210, 218-219 (9th Dist.1922).
{¶ 46} In Johnson, the contract allowed the vendor to declare a forfeiture or to accelerate the debt and foreclose on the property. Id. at 141. This is similar to the provision in the land installment contract between the Stamps and Kossoudji. Specifically, their contract stated that upon various defaults of the purchaser, including failure to pay installments or taxes, or to insure the property:
Seller shall have the option to declare all of the remaining installments and amounts provided for herein immediately due and payable. In such event, the Seller may utilize any legal or equitable remedy to proceed against the Purchaser, including, without limitation, foreclosure of the Purchaser‘s interest, forfeiture or any other remedy set forth in
Chapter 5313 of the Ohio Revised Code .
Plaintiff‘s Trial Ex. 2 (Land Contract), p. 5.
{¶ 47} Although the contract refers to
{¶ 48} In Smith v. Jewett, 5th Dist. Richland No. 04 CA 96, 2005-Ohio-3982, the vendor of commercial real estate that was purchased through a land installment contract brought an action for real estate forfeiture and damages. In that situation, the trial court held that the land should be forfeited and that the vendor should retain the payments that had previously been made as stipulated damages. Id. at ¶ 3-4. Quoting Johnson, the court observed that ” ‘[f]orfeiture clauses contained in land installment contracts are enforceable in Ohio, so long as the resulting benefit to the vendor is not “extravagantly unreasonable or manifestly disproportionate to the actual damages sustained” by the vendor.’ ” Id. at ¶ 19, quoting Johnson at 140, which in turn quotes
{¶ 49} In Johnson, the court stressed that “other remedies are favored and forfeiture clauses are rarely strictly enforced by modern Ohio courts.” Johnson at 140. Even in Smith, the court only ordered forfeiture of the land and retention of the payments made, not the total contract price plus forfeiture.
{¶ 50} In the case before us, the trial court awarded $133,929.44 in damages, and also ordered the property re-conveyed to Kossoudji, who sold the property to a third party on May 18, 2015, three days after the trial court‘s judgment was entered. See Affidavit of Shirley Kossoudji, attached as Ex. A to Plaintiff‘s Memorandum Contra to Defendant‘s Motion to Set Aside Judgment under
{¶ 51} The sale was an event that occurred post-judgment, and would have fallen within the purview of
{¶ 52} Furthermore, even if we agreed with Kossoudji that
{¶ 53} The contract in the case before us was in effect for more than three years prior to default, and by that time, the Stamps had paid $48,595.38. (This included 42 monthly payments of $849, plus taxes, and a $5,000 down payment.) See Plaintiff‘s Trial Ex. 4, pp. 1-2. Assuming for the sake of argument that the total amount due under the contract, including the down payment, monthly payments, property taxes, and the balloon payment was $182,524.82 (the total of all payments and amounts due shown on Trial Ex. 4), the Stamps had paid approximately 26.62% of the total amount. Id. Contrary to
{¶ 54} Even if we assume that the 20% amount had not been satisfied, in situations where a contract has existed for less than five years, the vendor “may bring an action for forfeiture of the vendee‘s rights in the land installment contract and for restitution of his property under
{¶ 55} We noted in Flora that
{¶ 56} In this situation, ”
{¶ 57} Needless to say,
{¶ 58} In Entingh v. Howard, 2d Dist. Montgomery No. 13407, 1992 WL 379305 (Dec. 22, 1992), we concluded that the vendor would be limited to the return of the property and the remedies as limited by
{¶ 59} We first agreed with the vendors-appellants that their complaint had not been specifically filed under
{¶ 60} In this regard, we noted that
{¶ 61} This was so even though the vendor had sought money damages for breach of the land contract and had specifically not asked the court for forfeiture or foreclosure under
{¶ 62} In the case before us, Kossoudji filed a complaint for money damages, and initially was granted damages by the magistrate of $133,929.44. However, the
{¶ 63} We noted in Zumbrink v. Hercules, 2d Dist. Darke No. 1392, 1996 WL 339947 (June 21, 1996), that a vendee of a land contract stands as an equitable owner of the property until he or she ” ‘has performed all his [or her] obligations under the contract and has attained legal title to the property * * *.’ ” Id. at *7, quoting Blue Ash Bldg. & Loan Co. v. Hahn, 20 Ohio App.3d 21, 24, 484 N.E.2d 186 (1st Dist.1984). In addition, we stressed that the vendee‘s interest equals the amount of the purchase that has been paid, and the vendee has ” ‘an equitable lien or estate in the land in the amount paid on the purchase price.’ ” Id., quoting Wayne Bldg. & Loan Co. of Wooster v. Yarborough, 11 Ohio St.2d 195, 199, 228 N.E.2d 841 (1967). (Other citation omitted.)
{¶ 64} The point of this discussion is that if the property were commercial rather than residential, Kossoudji would have had the remedy of bringing an action against the Stamps for the payments due, and after recovering judgment, she could have levied against the land and sold it to satisfy the judgment. In that event, Kossoudji could have obtained a deficiency judgment against the Stamps if the sales price did not equal the price of the land contract. Alternatively, Kossoudji could have brought a foreclosure action and could have obtained an order requiring the Stamps to pay the balance due on the contract by a certain date. Upon a default in that regard, the premises could have
{¶ 65} If the property were residential,
{¶ 66} In none of the above instances would Kossoudji have been allowed to recover the full amount of the contract price, as well as unpaid taxes, plus being given the property back to sell to a third party without accounting for the sales price — in essence, to recoup a double recovery against the vendee. As a result, we conclude that the trial court erred in overruling the Stamps’ motion for relief from judgment. Under applicable
{¶ 67} As was noted, the trial court did not discuss this argument when it overruled the motion for relief from judgment. As a general rule, “if the trial court fails to mention
IV. Conclusion
{¶ 68} The Stamps’ First Assignment of Error having been overruled, and the Second Assignment of Error having been sustained, the judgment of the trial court is reversed, and this cause is remanded for further proceedings. On remand, the trial court is to determine the actual monetary loss sustained by Plaintiff, taking into account the amounts attributable to loss of use of the property and the subsequent sales price of the subject property, plus any other relevant considerations supported by the evidence presented at trial.
DONOVAN, P.J. and FROELICH, J., concur.
Matthew C. Sorg
F. Harrison Green
Hon. Timothy N. O‘Connell