WILLIAM K. SHERIDAN, ET AL Plaintiffs-Appellees -vs- DAVID A. DOBOS, ET AL Defendants-Appellants
Case No. 15 CAE 09 0075
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 24, 2016
2016-Ohio-3155
Hon. Sheila G. Farmer, P.J.; Hon. W. Scott Gwin, J.; Hon John W. Wise, J.
CHARACTER OF PROCEEDING: Civil appeal from the Delaware County Court of Common Pleas, Case No. 11 CVC 07 0812. JUDGMENT: Affirmed.
For Plaintiffs-Appellees
DAVID ISON
10 Village Point Drive
Box 1108
Powell, OH 43065
For Defendants-Appellants
CLIFFORD ARNEBECK, JR.
1021 East Broad Street
Columbus, OH 43205
Gwin, J.
{¶1} Appellant appeals the August 31, 2015 judgment entry of the Delaware County Court of Common Pleas denying his motion for relief from judgment.
Facts & Procedural History
{¶2} On July 8, 2011, appellee William Sheridan filed a complaint against appellant David Dobos for fraud, promissory estoppel, conversion, breach of contract, unjust enrichment, concealment of assets, invasion of privacy, and fraudulent transfer. The complaint arose from Dobos’ purchase of Sheridan‘s business. Appellant filed an answer on August 9, 2011. On September 24, 2012, Attorney Berkemer filed a motion to withdraw as counsel for appellant, in anticipation of appellant‘s filing of bankruptcy and being listed as a creditor in appellant‘s bankruptcy. The trial court denied Berkemer‘s motion on October 26, 2012. A bench trial was scheduled for October 30, 2012.
{¶3} On October 26, 2012, the parties filed stipulations prior to a bench trial. The parties stipulated that Sheridan entered into a stock purchase agreement with Dobos on December 29, 2006 with a promissory note of $250,000. The parties further stipulated the note was not paid, Sheridan is entitled to judgment on the note against appellant, and thus Dobos owes $249,657.23 as of October 31, 2012, plus interest at eight (8) percent. The parties also stipulated they entered into a lease for 8311 Green Meadows Drive in Lewis Center, Ohio, and appellee was entitled to a judgment against appellant on the lease of $83,015.63, plus interest at eight (8) percent.
{¶4} On October 29, 2012, the day before the bench trial, appellant filed a suggestion of bankruptcy and the trial court stayed the case. On September 16, 2013, the bankruptcy court issued an order granting relief from stay to resume the state court
{¶5} On the day before the bench trial, appellant filed a motion to continue. The trial court denied the motion. Appellant filed a second motion to continue on the day of the bench trial, which the trial court also denied. Appellant did not appear for the bench trial, which the trial court conducted on December 3, 2013. Appellee filed proposed findings of fact and conclusions of law on December 17, 2013 and served a copy on appellant. Appellant did not object or respond to the proposed findings of fact and conclusions of law.
{¶6} The trial court issued a judgment entry on March 26, 2014. The trial court found the parties previously stipulated that appellee is entitled to a judgment against appellant on the note and lease in the amount of $329,672.86, plus interest. The trial
{¶7} On October 3, 2014, the Bankruptcy Court found the state court judgment as issued by the trial court on March 26, 2014 was non-dischargeable in appellant‘s bankruptcy case.
{¶8} Appellant filed a motion for relief from judgment on March 26, 2015 pursuant to
{¶9} Attached to the motion was an affidavit by appellant, stating he had severe depression and emotional distress. He did not contact the attorney in the case (Berkemer), did not respond to Berkemer‘s motion to withdraw, did not attend the trial, and did not respond to appellee‘s proposed findings of fact and conclusions of law because he felt stressed, hopeless, helpless, and depressed. To support this contention,
{¶10} In each evaluation, the examining psychologist addressed whether appellant‘s mental health affected his ability to participate in the bankruptcy litigation.
{¶11} Dr. Peter Barach (“Barach“) interviewed appellant to determine whether he was suffering from a mental disorder in the summer of 2013. Barach concluded that, in the summer of 2013, appellant did not suffer from dissociative disorder, but did meet the diagnostic criteria for adjustment disorder with mixed anxiety and chronic depressed mood. Dr. George Serednesky (“Serednesky“) interviewed appellant in order to opine as to why appellant failed to engage in his defense in his bankruptcy case in June, July, and August of 2013. Serednesky stated appellant was suffering a psychiatric disorder during the three-month period in question, adjustment disorder with mixed disturbance of emotions and conduct.
{¶12} In addition to the bankruptcy action, the third psychologist, Daniel Davis (“Davis“), also considered whether appellant‘s mental health played a role in his failure to respond to the complaint in a 2012 Franklin County Court of Common Pleas action in October of 2012. Davis interviewed appellant on December 12, 2013 regarding his behavior. Davis concluded appellant was most likely best diagnosed with an unspecified mood disorder and unspecified anxiety disorder.
{¶13} Appellee filed a memorandum contra to appellant‘s motion on April 9, 2015. Appellant filed a reply on April 13, 2015. The trial court issued a judgment entry on August 31, 2015 denying appellant‘s motion for relief from judgment. The trial court found the motion was not timely filed. Further, appellant‘s arguments are those which should have
{¶14} Appellant appeals the August 31, 2015 judgment entry of the Delaware County Court of Common Pleas and assigns the following as error:
{¶15} “I. THE TRIAL COURT BELOW ABUSED ITS DISCRETION AND ERRED TO THE PREJUDICE OF THE DEFENDANTS-APPELLANTS BY DENYING THEIR
Standard of Review
{¶16}
Civil Rule 60(B)(5)
{¶17} To prevail on a motion brought under
{¶18} Appellant based his
{¶19} Appellant first argues he is entitled to relief from judgment because the trial court permitted appellant‘s counsel to withdraw prior to the trial without granting appellant a continuance to obtain new counsel. Initially, we note a
{¶20} In this case, appellant appeared at the October 10, 2013 hearing on his counsel‘s motion to withdraw. Appellant did not object to the motion to withdraw or to the trial date. Appellant was given from October 14, 2013 to December 3, 2013 to obtain counsel and, in an October 14, 2013 judgment entry, the trial court informed appellant if he did not obtain counsel by December 3rd, it would not continue the trial date. Appellant filed two pro se motions to continue regarding obtaining new counsel, which the trial court denied. The October 14, 2013 judgment entry and the trial court‘s denial of appellant‘s pro se motions to continue were issues cognizable on direct appeal from the March 26, 2014 judgment entry. Since appellant had the opportunity, but failed, to pursue a direct appeal on this issue, the application of
{¶21} Additionally, appellant, who did not object to Berkemer‘s motion to withdraw, had from October 14, 2013 to December 3, 2013 to obtain counsel to represent him in the instant case. Appellant waited until the day before the trial to file his motion to continue to obtain new counsel. Appellant had sufficient opportunity prior to trial to obtain new counsel and chose not to do at an earlier time. Unique Realty Consultants v. Lowe, 5th Dist. Licking No. 00-CA-61, 2001 WL 99445 (Jan. 31, 2001). We find the trial court‘s denial of a motion to continue after giving appellant fifty days to obtain new counsel is not an “extraordinary” and “unusual circumstance” sufficient to invoke
{¶23} Further, Ohio courts have no found no abuse of discretion in the denial of a motion for relief from judgment when the moving party cannot show a “debilitating emotional or psychological illness such that the person seeking relief [evinces] an utter incapacity to act with respect to the litigation.” Poulos v. State Auto Mut. Ins. Co., 1st Dist. Hamilton No. C-020226, 2003-Ohio-2899; Dietrich v. Dobos, 10th Dist. Franklin No. 15AP-2, 2015-Ohio-4866. “In other words, for a person‘s neglectful conduct to qualify as excusable, the mental disorder at issue must have rendered the party unable to participate in the litigation.” Dietrich v. Dobos, 10th Dist. Franklin No. 15AP-2, 2015-Ohio-4866.
{¶25} In the balance of his argument, appellant argues the trial court erred in finding his defenses should have been raised on appeal and contends he had meritorious defenses to the fraud claim. Appellant had a full and fair opportunity to raise these defenses in the pleadings, at the bench trial, and respond to or submit his own proposed findings of fact and conclusions of law. However, appellant failed to appear at the bench
{¶26} Based upon the facts and circumstances of the case, we find the trial court did not abuse its discretion in not finding an extraordinary or unusual circumstance to warrant the application of
By Gwin, J.,
Farmer, P.J., and
Wise, J., concur