STAFFORD & STAFFORD CO., L.P.A. v. ROBERT J. STEELE, M.D.
No. 99554
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 19, 2013
2013-Ohio-4042
BEFORE: Rocco, J., Boyle, P.J., and E.A. Gallagher, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-552432
JUDGMENT: DISMISSED
Joseph B. Rose, III
Law Office of Joseph B. Rose
75 Public Square
Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Elliott S. Barrat
33255 Bainbridge Road
Cleveland, Ohio 44139
Gregory J. Moore
Stafford Law Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, Ohio 44114
{¶1} Defendant-appellant Robert J. Steele, M.D., appeals from two trial court orders, i.e., one that denied his
{¶2} Steele presents two assignments of error. He argues that the trial court abused its discretion in denying his
{¶3} Because Steele‘s notice of appeal in this case was untimely from the order that denied his
{¶4} A review of the facts serves to explain this court‘s decision. According to the
{¶6} On May 2, 2012, nearly seven years later, Steele filed a motion for relief from the default judgment. Steele asserted that: (1) he had never been properly served, therefore, he received notice of neither the action nor the default judgment hearing; (2) he had paid his legal fees to Stafford & Stafford “in full“; and (3) he was “first made aware” of the case “on or about April 16, 2012 by way of a Notice of Court Proceeding to Collect Debt” that was “sent” to him by Stafford & Stafford. Steele supported his motion with his affidavit.
{¶7} Stafford & Stafford filed a brief in opposition. Although the record reflects that the trial court set the matter for an oral hearing to be held on August 21, 2012, the record contains no indication that the hearing went forward.
{¶8} On December 31, 2012, the trial court issued an order that denied Steele‘s
{¶9} On January 7, 2013, Steele filed a motion requesting the trial court to issue findings of fact and conclusions of law with respect to the foregoing order.
{¶10} On January 25, 2013, the trial court denied Steele‘s motion for findings of
{¶11} On February 21, 2013, Steele filed his notice of appeal in this court, stating his appeal was from the orders of December 31, 2012 and January 25, 2013.
{¶12} Steele presents the following two assignments of error.
I. The trial court erred in denying Defendant‘s motion for relief from judgment pursuant to Civ.R. 60(B).
II. The trial court erred in denying Defendant‘s motion for findings of fact and conclusions of law pursuant to Civ.R. 52.
{¶13} Steele argues that neither of the trial court‘s orders was appropriate. This court, however, lacks jurisdiction to consider his arguments.
{¶14}
(A) Time for appeal.
A party shall file the notice of appeal required by
App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period inRule 58(B) of the Ohio Rules of Civil Procedure .(B) Exceptions.
The following are exceptions to the appeal time period in division (A) of this rule:
* * *
(2) Civil or juvenile post-judgment motion.
In a civil case * * * , if a party files any of the following, if timely and appropriate:
* * *
(d) a request for findings of fact and conclusions of law under
Civ.R. 52 ,
* * *
then the time for filing a notice of appeal from the judgment or final order in question begins to run as to all parties when the trial court enters an order resolving the last of these post-judgment filings.
{¶15} Pursuant to the foregoing rule and
When questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise before the entry of judgment pursuant to Civ.R. 58, or not later than seven days after the party filing the request has been given notice of the court‘s announcement of its decision, whichever is later, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.
***
Findings of fact and conclusions of law required by this rule and by
Rule 41(B)(2) are unnecessary upon all other motions including those pursuant toRule 12 ,Rule 55 andRule 56 . (Emphasis added.)
{¶16} The question thus becomes whether, in this case, a
Civ.R. 52 does not mandate findings on all motions. The rule is self-limiting in its application: for example, the rule expressly exempts motions pursuant to Rules12 ,55 , and56 . It also exempts all other motions, that is, all motions except for those filed underRule 41(B)(2) and those that meet the circumstances specified in the first section of the rule. (Emphasis added.)
{¶17} This court went on to state in Clemens, at ¶ 16:
The opening language of [
Civ.R. 52 ], referencing questions of fact determined without a jury, implies that the rule controls situations in which a jury determination would otherwise be applicable.
{¶18} This court has never held that
A person filing a motion for relief from judgment under Civil Rule 60(B) * * * has the burden of proving that he is entitled [either] to the relief requested or to a hearing on the motion. It is discretionary with the trial court whether the motion will be granted and in the absence of a clear showing of abuse of discretion the decision of the trial court will not be disturbed on appeal. (Emphasis added.)
{¶19} As an advisory aside, Adomeit stated at 103-105:
The Rules of Civil Procedure do not require the trial court to set forth its reasons for either granting or denying the motion, but it is good practice if a trial court would make findings of fact and conclusions of law and set forth its reasons for either granting or denying motions for relief from judgment. In this manner, if an appeal is taken from the trial court‘s ruling on the motion, a reviewing court will have before it all the factual material submitted by the parties and the trial court‘s decision and its reasons. A reviewing court will then be able to objectively determine if a trial court abused its discretion in either granting or denying the motion for relief from judgment. (Emphasis added.)
{¶20} Based on the foregoing, this court does not permit an appellant to make an “end run” around
There is a disagreement among courts as to whether
Civ.R. 52 applies toCiv.R. 60(B) proceedings. ”Civ.R. 52 confers a right, is mandatory, and is not a matter withinthe trial court‘s discretion in any situation where questions of fact are tried by the court without intervention of a jury.” First National Bank v. Netherton, Pike App. No. 04CA731, 2004 Ohio 7284, ¶10 * * * . However,
Civ.R. 52 provides that findings of fact and conclusions of law are “unnecessary upon all other motions, including those pertaining toRule 12 ,Rule 55 andRule 56 .” Some courts have interpreted the language, “unnecessary upon all other motions” to mean thatCiv.R. 52 is not applicable toCiv.R. 60(B) motions. First National Bank, supra at ¶11 citing Blankenship v. Honda/Isuzu (Mar. 27, 1987), Portage App. No. 1669, 1987 Ohio App. LEXIS 6358; see, also, In the Matter of the Adoption of Beekman (Sept. 11, 1991), Scioto App. No. 90CA1883.This Court held in Muirloch Realty, Inc. v. Ashpole (Aug. 25, 1995), Delaware App. No. 94 CA-E-04-010, 1995 Ohio App. LEXIS 4221, that “[t]here is no requirement that the trial court issue findings of fact and conclusions of law or otherwise explain its reasons for its disposition of a
Civ.R. 60(B) motion. SeeCiv.R. 52 and Neubauer v. Kender (1986), 32 Ohio App.3d 49, 513 N.E.2d 1359.” * * * See [also,] Briggs v. Deters (June 25, 1997), Hamilton App. No. C-961068, 1997 Ohio App. LEXIS 2724 (concluding that the “unnecessary upon all other motions” includesCiv.R. 60(B) motions) * * * .* * *
* * * In this case, the trial court * * * “did not * * * ” hold an evidentiary hearing to resolve the motion * * *.
{¶21} Respectfully, this court finds the decision in First Natl. Bank v. Netherton, 4th Dist. Pike No. 04CA731, 2004-Ohio-7284, to be unpersuasive on the issue of whether
{¶22} Other appellate districts have agreed with this court‘s approach. See, e.g., CitiMortgage, Inc. v. Dudek, 9th Dist. Summit No. 25806, 2012-Ohio-899, ¶ 10 discretionary appeal not allowed, Citimortgage, Inc. v. Dudek, 132 Ohio St. 3d 1463,2012-Ohio-3054, 969 N.E.2d 1231 (no error in trial court‘s denial of a
{¶23} This court declines to find that it is “appropriate” for a jury to determine whether a party is entitled to relief from a final judgment, especially when it has held that a motion for relief from judgment, itself, cannot be used as a substitute for a timely appeal. Bosco v. Euclid, 38 Ohio App. 2d 40, 311 N.E.2d 870 (8th Dist.1974). To paraphrase Clemens v. Detail at Retail, Inc., 8th Dist. Nos. 85681 and 86252, 2006-Ohio-695, at ¶ 17, because this court finds no persuasive authority for extending
{¶24} Based upon the foregoing analysis, the trial court‘s order that denied Steele‘s
{¶25} This appeal, therefore, was not filed according to the time limitations contained in
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
_________________________________
KENNETH A. ROCCO, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
MARY J. BOYLE, P.J., DISSENTS
(SEE ATTACHED OPINION)
{¶26} I respectfully dissent.
{¶27} The issue in this case is whether
{¶28} Unlike the majority, it is my view that First Natl. Bank v. Netherton, 4th Dist. Pike No. 04CA731, 2004-Ohio-7284, is persuasive. In Netherton, the court held that “when a trial court must resolve disputed factual issues to reach a decision on a
{¶29} After reviewing the record in this case, it is my view that because the trial court had to resolve disputed factual issues to reach a decision on Steele‘s
{¶30} Thus, I disagree that this court should dismiss Steele‘s appeal.