Toledo v. Heron Arizona Fund 1, L.L.C.Toledo v. Heron Arizona Fund 1, L.L.C.
City of Toledo Appellee v. Heron Arizona Fund 1, LLC, et al. Defendants [Michael Irschick - Appellant]
DECISION AND JUDGMENT
Decided: April 19, 2024
Dale R. Emch, Law Director, Jeffrey B. Charles, and Tammy Lavalette, for appellee.
Joseph Sobecki, for appellant.
* * * * *
SULEK, P.J.
{¶ 1} Appellant, Michael Irschick, appeals the February 9, 2023 judgment of the Toledo Municipal Court granting default judgment in favor of appellee, city of Toledo, on its complaint for declaratory and injunctive relief. For the reasons set forth below, the trial court‘s judgment is affirmed.
I. Facts and Procedural History
{¶ 2} On September 30, 2022, the city filed a complaint in the Toledo Municipal Court‘s Housing Division for declaratory judgment, and preliminary and permanent injunctions naming, residential property owners and 29 unnamed (John and Jane Doe) tenants. The complaint alleged that the property owners were violating Toledo Municipal Code (“TMC“) zoning ordinance 1104.0107 by renting three single-family residences in RS zoned residential districts to more than three individuals not constituting “traditional and/or functional families” as defined under TMC 1104.1102. Irschick, along with Marticorena Rocio, who is not a party to this appeal, were the alleged owners of a single-family residence on Middlesex Drive, in Toledo, which they rented to “John Doe Residents 11-20.” Irschick and Rocio reside at the same address in El Dorado Hills, California.
{¶ 3} The complaint stated that the continued use of the properties in violation of the zoning ordinance was causing and would continue to cause “great or irreparable injury” to the city and that it is entitled to a preliminary or permanent injunction enjoining such use. The complaint further requested a declaration under
{¶ 4} After attempting certified mail service, on December 1, 2022, the city filed a motion to appoint a California process server. On December 15, 2022, the trial court granted the city‘s motion. On December 16, 2022, the city filed praecipes for service requesting that the court issue a summons to Irschick and Rocio at their California residence. The January 4, 2023 notice of service on Irschick and Rocio, reflected the December 28, 2022 personal service of the parties.
{¶ 6} On January 27 2023, the city filed a motion for default judgment against property owners Irschick, Rocio, and Heron Arizona Fund 1, LLC. As to Irschick, the city stated that in contravention of
further claimed that the residents of their houses are the “functional equivalent” of a family as all residents have access to all parts of the home and share equally in all household expenses. Counsel, though he had not appeared in the case, asked the city to hold the lawsuit in abeyance.
{¶ 7} The city‘s response included a request for individualized proof of the residents’ impairments before it would consider whether they be designated as a household. The city requested the aid of several additional documents in determining whether the residents are living as a household under the TMC. The city indicated it would not hold the lawsuit in abeyance but that it “would stipulate to an extension of time for your client(s) to answer the Complaint” and requested that the attorney contact the city.
{¶ 8} On February 7, 2023, the trial court filed its judgment entry granting the city‘s motion and permanently enjoining Irschick, Rocio, and Heron Arizona Fund 1, LLC,
from ever again renting property zoned RS in the City of Toledo to or by more than three individuals who do not constitute traditional and/or functional families as defined under the ordinances of the City of Toledo; and allowing for the monitoring and inspection of the aforementioned properties and all lease, rental, income, expense, occupancy and other records relating to the aforementioned properties for the purpose of ensuring Defendants’ full future compliance with any injunction so issued.
It is further declared that the current City of Toledo ordinance requiring no more than three unrelated people who do not constitute a household may rent a home in Toledo in an area designated for a single-family use be strictly enforced.
The entry was stamped as follows:
FINAL AND APPEALABLE ORDER
The Clerk is hereby directed to serve all parties notice of the judgment and its date of entry on the journal.
The entry was journalized on February 9, 2023. The trial court also filed an entry on the docket vacating a damages hearing.
{¶ 9} On February 14, 2023, Irschick‘s counsel (not affiliated with Oxford House, Inc.) entered an appearance and filed a
{¶ 10} The city opposed the motion arguing that Irschick failed to demonstrate entitlement to relief under
rests on the property owner. Next, citing
{¶ 11} On March 2, 2023, the city filed a notice of dismissal of all claims against the John and Jane Doe defendants.
{¶ 12} The trial court‘s March 8, 2023 judgment entry denied Irschick‘s motion for relief from judgment. Addressing both arguments, the trial court noted that the city filed a
“render[s] the parties as if no suit had been ever brought, but only with respect to the parties dismissed.” Denham v. City of New Carlisle, 86 Ohio St.3d 597, 1999-Ohio-128, 716 N.E.2d 184. This dismissal, coupled with the fact that John and Jane Doe (former) Defendants are not tenants
pursuant to
{¶ 13} The court further rejected the jurisdictional argument on the authority of
{¶ 14} On March 9, 2023, Irschick filed a motion for reconsideration. The next day, he filed a notice of appeal from the trial court‘s February 9, 2023 judgment granting the city‘s motion for default judgment and awarding injunctive relief. The trial court then held the ruling on the motion for reconsideration in abeyance.
II. Assignments of Error
{¶ 15} Irschick now raises the following four assignments of error:
- The trial court erred by granting a final judgment as to more than one but fewer than all defendants without an express determination that there was no just reason for delay.
- A default judgment could not be entered after Irschick appeared.
- The trial court erred by issuing an order before Irschick‘s reply.
- The trial court erred by granting a declaratory judgment before all parties
with a claim or interest were named defendants.
III. Analysis
A. Final and Appealable Order
{¶ 16} Irschick‘s first assignment of error argues that the trial court‘s February 9, 2023 judgment entry granting default judgment was not a final order because the John and Jane Doe defendants remained and the trial court failed to include the necessary
{¶ 17} Under
{¶ 18}
{¶ 19} Under
In the absence of a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or
parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
{¶ 20} On February 9, 2023, the date of the default judgment, the judgment entry was not final and appealable because claims were still pending against the John and Jane Doe defendants and the judgment lacked the necessary
{¶ 21} A voluntary dismissal “‘without prejudice leaves the parties as if no action had been brought at all.‘” Denham v. New Carlisle, 86 Ohio St.3d 594, 596, (1999), quoting DeVille Photography, Inc. v. Bowers, 169 Ohio St. 267, 272 (1959); see also C.H. v. O‘Malley, 2019-Ohio-4382, ¶ 18. In an action involving multiple defendants, “a
{¶ 22} Here, the February 9, 2023 default judgment became final and appealable on March 6, 2023, when the city voluntarily dismissed the unserved John and Jane Doe defendants. When, therefore, Irschick filed his March 10, 2023 notice of appeal, the February 9, 2023 default judgment was final and appealable as the city had dismissed the unserved, John and Jane Doe defendants. Thus, Irschick‘s March 10, 2023 appeal is properly before this court, and his first assignment of error is not well-taken.
B. Civ.R. 55
{¶ 23} In his second assignment of error, Irschick contends that pursuant to
{¶ 24} A trial court‘s ruling on a default judgment is reviewed for an abuse of discretion. Wells Fargo Bank, N.A. v. Bischoff, 2014-Ohio-967, ¶ 12 (6th Dist.), citing Tikaradze v. Kenwood Garden Apts., 2012-Ohio-3735, ¶ 6 (6th Dist.). An abuse of discretion is found where the trial court‘s decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 25}
appeared in the action when that party clearly expresses to the opposing party an intention to defend the suit.” Id.
{¶ 26} There are two flaws in Irschick‘s argument. First, he inserts “final and appealable” language into
{¶ 27} Second, he misinterprets the rule as preventing a default judgment from being entered either before or after the subject party appears. Ohio courts have consistently held that the rule protects only those parties appearing prior to the default “because a defendant who does not appear in an action admits the allegations in a complaint [and] is not protected by the notice and hearing requirements of
{¶ 28} In this case, the trial court granted the city‘s motion for default judgment five days before Irschick‘s attorney‘s appearance. In its motion for default judgment, the city properly disclosed, and attached, its correspondence with Oxford House‘s counsel and stated that in addition to serving the defendant with notice of the motion it sent a copy to the organization‘s counsel. Nothing in the record suggests counsel for Oxford
House represented or acted on behalf of Irschick. Accordingly, despite service of the complaint and notice of the default judgment motion Irschick failed to appear prior to default judgment being entered against him. Thus, he was not entitled to notice and a hearing under
C. The Civ.R. 60(B) Motion
{¶ 29} In Irschick‘s third assignment of error, he asserts that the trial court erred
{¶ 30} The city asserts that any arguments relating to the default judgment are not properly before this court because Irschick‘s notice of appeal included only the February 8, 2023 default judgment.
{¶ 31} Before reaching the merits of Irschick‘s assignment of error, it is necessary address the city‘s argument that the denial of the
{¶ 32}
Dist. Loc.App.R. 3(A). This court also requires the filing of a docketing statement. See
{¶ 33} Under
{¶ 34} Acknowledging the need for such discretion the Supreme Court of Ohio reasoned that “the law favors and protects the right of appeal and that a liberal construction of the rules is required in order to promote the objects of the Appellate Procedure Act and to assist the parties in obtaining justice.” Maritime Manufacturers, Inc. v. Hi-Skipper Marina, 70 Ohio St.2d 257, 258 (1982); see Wolf-Sabatino v. Sabatino, 2012-Ohio-6232, ¶ 25-26 (10th Dist.); Beal v. Allen, 2002-Ohio-4054, ¶ 41-43 (8th Dist.); Hosfelt v. Miller, 2000 WL 1741909, *3 (7th Dist. Nov. 22, 2000); Watkins v. Allstate Vehicle and Property Ins. Co., 2020-Ohio-3397, fn. 10. The Maritime court recognized that rules must be construed in light of the purpose to which they serve. Id. at 259. The court stated that the purpose of a notice of appeal is to “‘apprise the opposite
party of the taking of an appeal.‘” Id., quoting Capital Loan & Savings Co. v. Biery, 134 Ohio St. 333, 339 (1938).
{¶ 35} The court in Eckmeyer ex rel. Eckmeyer v. Kent City School Dist. Bd. of Edn., 2000 WL 1651308 (11th Dist. Nov. 3, 2000), addressed its jurisdiction to review two judgment entries that were not attached to the appellants’ notice of appeal. Relying on Maritime and Transamerica, the court held that “the mere fact a party fails to attach every challenged judgment entry entered by a court to his or her notice of appeal does not result in an appellate
{¶ 36} Similarly, in Horen v. Summit Homes, 2004-Ohio-2218 (6th Dist.), this court denied appellee‘s motion to dismiss appellants’ appeal of four judgment entries based upon their omission in the notice of appeal. Denying the motion, this court noted that appellants referred to the judgment entries on the docketing statement under the “probable issues for review” section thus, appellees had notice that appellants intended to appeal those orders. Id. at ¶ 19.
{¶ 37} Like Eckmeyer and Horen, in this case Irschick‘s notice of appeal stated that he was appealing the trial court‘s February 9, 2023 judgment entry which he
attached. However, included with his notice of appeal, Irschick‘s docketing statement lists issues stemming from the trial court‘s March 8, 2023 judgment denying Irschick‘s
- Whether the Entry of Default Judgment was a final appealable order before dismissal of the remaining defendants
- Whether the trial court erred by denying Irschick‘s Motion for Relief from Judgment
- Whether the persons living at the subject properties should have been made parties pursuant to
R.C 2721.12(A) - Whether the trial court erred by denying Irschick‘s Motion for Relief from Judgment before Irschick could file his reply
- Whether the trial Court should have granted Irschick‘s Motion for Reconsideration of the Order Denying his Motion for Relief from Judgment
- Conflict between
Civ.R 55(A) and Denham v. New Carlisle. 86 Ohio St.3d 594, 597, 716 N.E.2d 184 (1999)
{¶ 38} In the present matter the city does not dispute receiving notice of all potential issues on appeal and, thus, was apprised of and briefed the relevant issues. Because the purpose of the notice of appeal was accomplished and, mindful of the law favoring the right of appeal, the trial court‘s March 8, 2023 denial of Irschick‘s
{¶ 39} Irschick argues that the trial court erred by denying his
{¶ 40} As to the reply, Irschick has not demonstrated prejudice by the trial court‘s failure to await his reply brief. To be entitled to relief from judgment a party must demonstrate a meritorious claim or defense to present if the court grants relief. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, (1976), paragraph two of the syllabus. Whether the arguments relate to the dismissed defendants or the court‘s jurisdiction to grant injunctions, Irschick
E. Declaratory Judgment
{¶ 41} Related to his
{¶ 42} When a party seeks declaratory relief under
party to a declaratory-judgment action depends upon whether that nonparty has a legally protectable interest in rights that are the subject matter of the action.‘” Ma v. Cincinnati Children‘s Hosp. Med. Ctr., 2020-Ohio-1471, ¶ 36 (1st Dist.), quoting Rumpke Sanitary Landfill, Inc. v. State, 2010-Ohio-6037, ¶ 15. “[A] person‘s practical interest in the outcome of a legal dispute does not necessarily require his or her inclusion in a declaratory judgment action.” Karras v. Karras, 2017-Ohio-5829, ¶ 26 (2d Dist.), citing Potts v. Unglaciated Industries, Inc., 2016-Ohio-8559, ¶ 50 (7th Dist.). Whether one is a necessary party, however, turns on whether he or she has a legal interest that will be affected by the outcome of the declaratory judgment proceeding. Williamsburg Assn. v. Robert C. Verbon, Inc., 2001 WL 1517855, *3 (6th Dist. Nov. 30, 2001), citing Driscoll v. Austintown Assoc., 42 Ohio St.2d 263, 273 (1975).
{¶ 43} Irschick has presented no evidence that the John or Jane Doe defendants had any legal interest in the properties at issue. According to the city, and not disputed by Irschick, the John and Jane Doe residents had no written leases with the property owners. Because the unnamed defendants were not necessary parties to the action, Irschick‘s fourth assignment of error is not well-taken.
{¶ 44} In reaching this decision, the court takes no position on the substance or enforcement of the declaratory judgment as it was not specifically challenged on appeal.
IV. Conclusion
{¶ 45} On consideration whereof, the February 9, 2023 judgment of the Toledo Municipal Court, Housing Division, is affirmed. Pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Gene A. Zmuda, J. ____________________________
JUDGE
Myron C. Duhart, J. ____________________________
Charles E. Sulek, P.J. JUDGE
CONCUR. ____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.