Smith v. AsbellSmith v. Asbell
- Reporters:
- Before:
- Abele, Harsha
Lead Opinion
DECISION AND JUDGMENT ENTRY
{¶ 1} Darryl Smith, an inmate at the Mansfield Correctional Institution, appeals the Scioto County Court of Common Pleas decision to vacate a default judgment granted in his favor and judgment dismissing his lawsuit pursuant to
I.
{¶ 2} On March 21, 2002, Smith filed a complaint in the Scioto County Court of Common Pleas against Melody Asbell, Myrtle Skaggs, Phillip Young, Scott Young, and Robin Tiffany.2 All defendants received service of process, except Scott Young. The defendants failed to appear before the trial court or to respond to Smith‘s complaint. As a result, the trial court granted Smith a default judgment on August 21, 2002.
{¶ 3} In his complaint, Smith averred that he lived with Melody from April 1991 until November 15, 1991when he was incarcerated for a parole violation. At the time of his incarceration, Smith averred that he asked Melody to deliver his personal property to his son in Cleveland, Ohio. According to the complaint, communications between Smith and Melody ceased in 1992.
{¶ 4} In 2000, Smith and Patrick Skaggs were both inmates at the Southern Ohio Correctional Facility in Lucasville, Ohio. Patrick is Melody‘s brother and Myrtle‘s son. Smith‘s complaint alleged that Patrick informed him in 2000 that the appellees sold Smith‘s personal property and retained the profits. According to the complaint, the defendant‘s burned the items they could not sell. Smith sought $11,061.25 in actual damages and $25,000 in punitive damages.
{¶ 5} Smith attached an affidavit signed by Patrick to his complaint. In this affidavit, Patrick attested that, in 1999, Melody and Myrtle informed him that they, along with Scott, Phillip, and Robin, sold and destroyed Smith‘s property. Patrick did not state when the sale and destruction of Smith‘s property occurred. Patrick also attested that in 2000, he informed Smith of the destruction and liquidation of his property and that Smith appeared genuinely shocked to learn that Melody did not deliver his personal property to his son in accordance with his instructions at the time of his incarceration. Finally, Patrick‘s affidavit stated that Melody sent him letters, wherein she threatened Patrick and Smith.
{¶ 6} On the basis of the averments in the complaint and Patrick‘s affidavit, Smith claimed that he timely filed his complaint, and that he was entitled to relief. According to Smith, the statute of limitations for his cause of action is two years, but the two years did not begin to run until Patrick informed Smith of the damage.
{¶ 7} On April 16, 2002, Patrick filed a new, unnotarized affidavit, which he intended to supercede his original affidavit. In his new affidavit, Patrick explicitly recanted his original affidavit. He stated that Smith forced him to sign the original affidavit. Patrick also claimed that Smith routinely threatened and coerced inmates through his “knowledge of the legal process of the courts [and] the laws * * *.” According to Patrick, Smith “* * * has a habit of submitting injunctions, friend of the courts testimonials [and] other legal papers that are intended to cause the inmates trouble * * *.” He also stated that Smith threatened to have Patrick‘s original sentence reinstated if he did not aid Smith by signing the affidavit. Patrick requested that the trial court maintain his new affidavit in secrecy for fear of reprisal from Smith.
{¶ 8} Melody and Myrtle first appeared before the trial court on October 23, 2002, when they filed a motion for relief from the default judgment pursuant to
{¶ 9} In their
{¶ 10} In their
{¶ 11} Robin and Phillip first appeared before the trial court through counsel on September 2, 2002. At that time, they requested, and the court granted, a continuance. Robin and Phillip then filed a motion to vacate the default judgment on October 28, 2002. On July 28, 2003, Robin and Phillip filed a motion to dismiss.
{¶ 12} In their motion to vacate, Robin and Phillip claimed that the trial court should grant relief from the judgment on the basis that Smith engaged in fraud and misconduct in drafting his complaint and in submitting a false and coerced affidavit to the court. Robin and Phillip also argued that they enjoyed two meritorious defenses. First, Robin and Phillip submitted affidavits claiming that they never “* * * destroyed, sold, liquidated, kept, [gave] away or profited from the sale of any of [Smith‘s] property * * *.” Second, they argued that the statute of limitations expired before Smith filed his complaint.
{¶ 13} In support of their claimed defenses, Robin and Phillip submitted a letter from Smith to Patrick. In the letter, Smith wrote that he needed Patrick‘s affidavit to “* * * beat the * * * statute of limitations” and promised Patrick a financial reward for his affidavit. Robin and Phillip also referred to language in Smith‘s complaint that appeared to contradict his claim that he only learned of the damage to his personal property in 2000. For example, the complaint stated: “shortly after my re-imprisonment I ordered/instructed Melody Asbell to turn over all of my property and valuables * * * to my son * * * in Cleveland, Ohio. Defendant Asbell refused and kept my property without my consent.” Robin and Phillip argued that this statement proved Smith was aware that Melody failed to deliver his property per his instructions in either late 1991 or 1992, thus directly refuting his assertion that he only learned of the damage in 2000.
{¶ 14} In their motion to dismiss, Robin and Phillip, like Melody and Myrtle, argued that the trial court should dismiss the case because Smith brought it after the statute of limitations had expired. They argued that Smith incorrectly assumed a two-year statute of limitations when he actually benefited from a four-year period. They asserted that Smith‘s complaint, while not explicitly naming his cause of action, most likely involved an action for conversion of personal property. Robin and Phillip claim that, under
{¶ 15} The trial court granted both motions to vacate the default judgment on July 16, 2003, based upon the trial court‘s belief that Smith perpetrated a fraud upon the court. On the same day, the trial court granted Melody and Myrtle‘s motion to dismiss Smith‘s complaint, finding that Smith filed it after the statute of limitations expired. Finally, on September 12, 2003, the court granted Robin and Phillip‘s motion to dismiss on the same basis.
{¶ 16} Smith appeals, asserting the following assignments of error: “I. The trial court erred by granting defendants’ Rule 60(B) Motions for relief from a default judgment contrary to state law and controlling precedent authorities of law. II. The trial court erred by granting the defendants’ Rule 12(B) Motion to Dismiss by relying on inadmissible evidence contrary to controlling precedent authorities. III. The trial court erred by relying on inadmissible evidence of plaintiff‘s prior crimes, plea agreements and criminal convictions to grant defendants’ Rule 60(B) and Rule 12(B) Motions which is contrary to state evidence laws and controlling precedent authorities of law. IV. The trial court erred by relying on the defendant‘s perjury and false affidavits to grant defendants’ Rule 60(B) and Rule 12(B) Motions contrary to state laws, and controlling precedent authorities of law, and contrary to the
II.
{¶ 17} Because his first, third, and fourth assignments of error regarding the trial court‘s decision to grant the motions to vacate the default judgment are interrelated, we address them together. Smith contends that the trial court erred in granting the motions by considering: (1) the defendants’ meritorious defenses, (2) inadmissible evidence of Smith‘s prior convictions, and (3) Robin and Phillip‘s perjured and false affidavits. Smith also asserts that
A.
{¶ 18} A trial court‘s ruling on a motion to vacate a judgment is within the sound discretion of the trial court and will not be overturned absent a showing of an abuse of that discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. An abuse of discretion signifies more than an error of law or judgment; it implies an attitude that is unreasonable, arbitrary or unconscionable. State ex rel. Hillyer v. Tuscarawas Cty. Bd. of Commrs. (1994), 70 Ohio St.3d 94, 97; State ex rel. McMaster v. School Employees Retirement System (1994), 69 Ohio St.3d 130, 133; Rock v. Cabral (1993), 67 Ohio St.3d 108, 112; Steiner v. Custer (1940), 137 Ohio St. 448, paragraph two of the syllabus. “When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court.” In re Jane Doe I (1991), 57 Ohio St.3d 135, 137-138.
{¶ 19}
{¶ 20} The Ohio Supreme Court has held that for a party to prevail under
{¶ 21} Here, the trial court found that Smith perpetrated a fraud on the court through his complaint with the attached affidavit signed by Patrick. Moreover, the trial court implicitly found that appellees had a meritorious defense and timely filed for relief as required by
{¶ 22} Both
{¶ 23} Furthermore, appellees also timely filed for relief as required under
{¶ 24} Smith erroneously argues that the trial court erred by considering appellees’ meritorious defenses in granting their
{¶ 25} Smith also incorrectly argues that
B.
{¶ 26} Smith also contends that the trial court erred in vacating the default judgment because it relied on inadmissible evidence in the form of the letter written by Smith to Patrick. Smith asserts that the letter contains details of Smith‘s prior violent crimes, criminal convictions, and plea bargains. According to Smith, the letter is inadmissible pursuant to
{¶ 27} Smith filed a motion to suppress the letter, but the trial court failed to rule on it. When a court fails to rule on a motion, we presume that the court denied it. Tate v. Adena Regional Med. Ctr., Ross App. No. 03CA2699, 2003-Ohio-7402, ¶ 16, citing Carver v. Map Corp. (Sept. 18, 2001), Scioto App. No. 01CA2757; In re Lewis (Apr. 30, 1997), Athens App. Nos. 96CA1760 and 96CA1763.
{¶ 28}
{¶ 29}
{¶ 30} Smith further argues that the statement, even if admissible under
{¶ 31} Smith also errs in his argument that the statement of his prior criminal conviction violates
{¶ 32} In his final argument that the letter was inadmissible, Smith contends that
C.
{¶ 33} Finally, Smith argues that the trial court erred in granting the motions to vacate by relying on Robin and Phillip‘s affidavits. Smith claims that the affidavits were false and perjured. The basis for his claim is that both Robin and Phillip attest in their affidavits that they are neither the relatives of, nor friends with, Melody and Myrtle. As proof that such statements are false and perjured, Smith provides a court document detailing Melody‘s adoption of a child. The natural parents of that child are Scott Young and Melody‘s daughter. Scott Young is Phillip‘s son and Robin‘s brother. Smith argues that because Phillip and Melody share a common grandchild that Robin, Phillip, Melody, and Myrtle are relatives and, therefore, the affidavits contained perjured and false statements.
{¶ 34} As stated previously, a trial court‘s decision to grant a
{¶ 35} We find that the trial court did not abuse its discretion in finding the motions to vacate were timely filed, contained meritorious defenses, and showed fraud on the court. We also find that the trial court did not abuse its discretion in denying Smith‘s motion to suppress or by considering Robin and Phillip‘s affidavits. Accordingly, we overrule Smith‘s first, third, and fourth assignments of error as they pertain to the
III.
{¶ 36} We now address Smith‘s second and fourth assignments of error as they pertain to the trial court‘s granting the
{¶ 37} This court‘s review of a trial court‘s decision to dismiss a case pursuant to
{¶ 38}
{¶ 39} The Ohio Supreme Court has held that “[i]n order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (
{¶ 40} Here, disagreement exists as to which statute of limitation applies. In his complaint, Smith claimed a two-year statutory period, while the
{¶ 41} In general, a statute of limitations is triggered at the time a wrongful act occurs. Harris v. Liston (1999), 86 Ohio St.3d 203, 205. However, a statute of limitations may be tolled until either actual or constructive discovery of the wrong.
{¶ 42} In this case, the trial court found that Smith filed his complaint after the statute of limitations expired and, therefore, dismissed the case. For the trial court to properly order dismissal, it must have found beyond doubt that Smith‘s complaint alleged no set of facts that, if proven true, would entitle him to recovery. See O‘Brien, supra, at paragraph two of the syllabus. We find that the trial court properly dismissed the case because Smith‘s complaint showed that he had knowledge of the conversion in approximately 1992 and, thus, the statute of limitations expired in approximately 1996.
{¶ 43} Robin and Phillip‘s motion relied on language in Smith‘s complaint which casts doubt on the date Smith had knowledge of his damages, and Melody and Myrtle‘s motion generally stated that Smith had such knowledge by at least 1992. In his complaint, Smith states: “Upon plaintiff‘s re-imprisonment, he instructed defendant Asbell to turn over his said property to his son in Cleveland, Ohio. Defendant Asbell refused and retained all said property and ended all contact with plaintiff in 1992.” This statement proves that Asbell refused Smith‘s request in 1992, immediately after his re-imprisonment, and that Smith knew of the refusal and resulting conversion. This statement is reiterated in Smith‘s affidavit supporting his complaint. Because the complaint shows that Smith had knowledge of the conversion in approximately 1992, the trial court properly dismissed the complaint.
{¶ 44} Moreover, the Ohio Supreme Court has ruled that a party has the requisite constructive notice to trigger the statute of limitations if he “`* * * has knowledge of such facts as would lead a fair and prudent man, using ordinary care and thoughtfulness, to make further inquiry * * *.‘” Hambleton, at 181, quoting Schofield v. Cleveland Trust Co. (1948), 149 Ohio St. 133, 142. A party with such knowledge “is chargeable with knowledge which by ordinary diligence he would have acquired.‘” Hambleton at 181. Smith alleges in his complaint that he requested that Asbell deliver his property to his son and that Asbell refused and terminated all contact with him in 1992. Asbell‘s refusal and termination of contact constituted “facts [that] would lead a fair and prudent man * * * to make further inquiry.” Id. Had Smith inquired about the status of his possessions from his son or his son‘s mother, an act considered ordinary diligence, he would have learned of the alleged conversion. Even though Smith was imprisoned during the relevant statutory period, such an inquiry constitutes ordinary diligence as he could communicate outside the prison through letters and, possibly, telephone calls. Therefore, by 1992, Smith had the requisite constructive notice to trigger the statute of limitations, thus barring any lawsuit initiated after 1996.
{¶ 45} We note that Robin and Phillip‘s motion to dismiss included evidence outside the complaint for the court to consider. One basis of their motion was that the letter from Smith to Patrick proved that the statute of limitations had run prior to Smith filing his complaint. A
{¶ 46} Finally, Smith also argues that the trial court erred in granting the
{¶ 47} In conclusion, we find that the trial court properly dismissed the case because the allegations in the complaint concede that the statute of limitations had already expired at the time the complaint was filed. Because the Smith‘s allegations in the complaint show that the statutory period had expired, the trial court‘s error for considering evidence outside the complaint is harmless. Accordingly, Smith‘s second and fourth assignments of error are without merit.
IV.
{¶ 48} We overrule Smith‘s first, third, and fourth assignments of error as they relate to
JUDGMENT AFFIRMED.
Dissenting Opinion
{¶ 49} While I concur with Part II of the majority opinion regarding the default judgment, I respectfully dissent with Part III, regarding the dismissal judgment, because the complaint sets forth facts, which if proven true, entitle Smith to recovery. For a trial court to dismiss a case pursuant to
{¶ 50} The trial court found that the statute of limitations had already expired at the time Smith filed the complaint and dismissed the case. Appellees provided two bases for this finding: (1) the statute of limitations began to run when Smith had knowledge of the wrongdoer‘s identity and (2) the complaint contains language proving that Smith had knowledge of the conversion in 1991 or 1992. The first basis is simply an illogical argument. If Smith was not aware of the conversion of his personal property, it simply does not matter that he knew the names of the wrongdoers prior to his discovery of the conversion. Without knowledge of the conversion, Smith did not have knowledge of a cause of action and, therefore, could not file suit. Moreover, the Ohio Supreme Court has ruled that, pursuant to
{¶ 51} With respect to the second basis, Smith‘s complaint does contain language that can be interpreted to contradict his claim that he filed within the statute of limitations period. However, the complaint also explicitly states: “over 8 years later plaintiff was transferred back to the Southern Ohio Correctional Facility (S.O.C.F) * * *. Plaintiff came into contact with ASBELL‘s natural brother PATRICK SKAGGS * * *. Patrick Skaggs then informed plaintiff that Asbell and Myrtle Skaggs (his mother) had recently visited him * * * and that they informed him that Defendants had liquidated, sold off, destroyed, and gave away all of plaintiff‘s said property. Plaintiff only became aware of this as of June 2000.” Attached to the complaint is an affidavit signed by Patrick Skaggs attesting to the same.
{¶ 52} The complaint expressly states that Smith only became aware of the conversion in June 2000. Only one sentence in the complaint even tends to contradict these averments, thus making the trial court‘s judgment erroneous. The complaint contains two express averments that Smith was not aware of the conversion until June 2000 and one signed affidavit from a witness attesting to the same.
{¶ 53} The trial court was obligated to construe all reasonable inferences in favor of Smith. The reasonable inference from the one sentence tending to contradict the statute of limitations claim is that it was the result of poor drafting and Smith intended it to merely claim that Asbell converted his property despite his instructions to her. Given the entire tenor of the complaint, along with the explicit averments regarding the statute of limitations, it is unreasonable to infer that one sentence negates Smith‘s express averments to the contrary.
{¶ 54} Moreover, Robin and Phillip‘s motion included evidence outside the complaint. The trial court was obligated to either convert the motion into a motion for summary judgment or deny it for containing such evidence. Because the trial court failed to do either, its judgment is erroneous and should be reversed. I do not find this error harmless because it is impossible to determine from the trial court‘s judgment entry what evidence and information it used to arrive at its opinion and the evidence attached to the motion was extraordinarily pertinent to whether the statute of limitations had expired. In fact, without the outside evidence, the trial court could not reasonably conclude that the statute had tolled.
{¶ 55} For the foregoing reasons, I respectfully dissent.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs herein be taxed to the appellant.
The Court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this Entry.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Onl