[Cite as Mainor v. Jones, 2010-Ohio-4001.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 93539
VELINA MAINOR, ET AL.
PLAINTIFFS-APPELLEES
vs.
THOMAS JONES, JR.
DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-574767
BEFORE:
Sweeney, J., Rocco, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: August 26, 2010 FOR APPELLANT
Thomas Jones, Jr., Pro se 2982 East 59th Street Cleveland, Ohio 44127
ATTORNEYS FOR APPELLEES Jack Malicki Law Office of Jack Malicki, L.L.C. 230 Third Street Second Floor Elyria, Ohio 44035 G. Michael Goins 2962 Morley Road Cleveland Hts., Ohio 44122 Frank Leonetti, III Reminer & Reminger Co., L.P.A. 1400 Midland Building 101 Prospect Avenue Cleveland, Ohio 44115-1093 Gary Cooke 27801 Euclid Avenue Suite 640 Euclid, Ohio 44132
JAMES J. SWEENEY, J.:
{¶ 1} Plaintiff-appellee, Velina Mainor (“Mainor”), commenced this action in
the Court of Common Pleas in October 2005 and advanced various claims under Ohio’s Consumer Sales Practices Act (“CSPA”) against several defendants, including defendant-appellant, Thomas Jones, Jr., dba Jones Construction Co. (“Jones”). Mainor maintained that Jones and others were liable to her for
deceptive, unconscionable, and unfair acts and practices related to the performance and non-performance of certain contracts for home construction work. Jones is appealing pro se from the trial court’s orders that (1) entered default judgment on Mainor’s claims against him for failing to appear at a hearing; (2) dismissed his counter-claim for failure to prosecute; and (3) denied his motion for relief from judgment. For the reasons that follow, we find that the trial court should have granted Jones’s motion for relief from judgment and, therefore, reverse and remand for further proceedings.
{¶ 2} The protracted nature of these proceedings includes numerous
amendments to the complaint, the addition of several defendants, and multiple stays due to bankruptcy petitions. This litigation that began in 2005 was not finalized in the trial court until August 28, 2009. Although all claims against all parties were disposed of by trial court order and Mainor’s notice of voluntary dismissal, only Jones has appealed from the judgment against him, which is in excess of $300,000. The resolution of this appeal accordingly pertains only to the claims and judgment against Jones.
{¶ 3} The record reflects that Jones represented himself pro se, with his
first appearance occurring with the filing of a motion to dismiss on December 16, 2005. Upon denial of that motion, Jones filed his answer and counterclaim,
again, this was done pro se. On September 25, 2006, an attorney (“Goins”) filed a motion seeking an extension of time to respond to Mainor’s first amended complaint on behalf of Jones and another defendant, Henry Kinney. On March
15, 2007, the trial court’s entry reflects that Goins failed to appear at a March 13, 2007 case management conference; however, a subsequent entry indicates that “counsel for all parties” appeared at a December 12, 2007 case management conference. For the second time, this matter was removed from the trial court’s docket due to a bankruptcy stay and was not reinstated until June 23, 2008.
{¶ 4} On July 1, 2008, Mainor filed her second amended complaint. Soon
after, on July 23, 2008, Jones filed a notice of change of address, indicating that he represented himself pro se, albeit purportedly along with Attorney Goins. Jones requested to be notified of all proceedings. In addition to all counsel of
record, Jones served Goins with a copy of this notice concerning his pro se representation. Although, on July 31, 2008, Goins filed an answer to the second amended complaint on behalf of Jones, Kinney, and a third defendant, Hartford Insurance Co., he made no further appearances nor did he file anything on behalf of Jones after that point.
{¶ 5} The trial court’s notice concerning the scheduling of another case
management conference for August 28, 2008 was returned for failure of service on Goins. Although it is noted that “address changed and postcard re-mailed in ordinary envelope to new address,” we note that the new address noted by the court was not exactly correct. 1 conference. R. 89. Goins did not appear at the scheduled
The postcard was mailed to 2963 Morley and the filings by Goins reflect the address as being 2962 Morley Road.
1
{¶ 6} Mainor filed her third amended complaint on December 1, 2008. An
entry issued in April 2009 reflects that a conference was held on March 13, 2009, among the trial court, Mainor’s counsel, and counsel for Liberty Mutual. The entry further set forth dates and directed the following:
{¶ 7} “The pretrial is continued until 4/22/2009 * * * counsel and parties
who are pro se (defendants Duckworth and Fuller) must appear. appear may result in judgment for the opposing party.
Failure to
[Goins], counsel for
Jones, Kinney, and Hartford, [were] contacted following the telephone conference. He was advised that the dates have been changed, and is hereby ordered to update his mailing address with the clerk of courts.” R. 109.
{¶ 8} An entry dated April 27, 2009, indicated that all parties failed to
appear at the April 22, 2009 pretrial except Liberty Mutual. Citing its previous order, the trial court granted judgment in favor of Mainor on her claims against all non-appearing defendants, including Jones. On May 28, 2009, the trial court awarded damages to Mainor on her claims for breach of contract and violations of the CSPA. Jones was found jointly and severally liable with Fuller and
Duckworth to Mainor in an amount totaling $362,242.96, with interest at the statutory rate from the date of judgment, plus costs of the action. Additionally, Jones’s counterclaim was dismissed for failure to prosecute. Mainor was
awarded further damages against Jones, Fuller, and Duckworth, jointly and severally, in an additional amount totaling $286,312.06, with statutory interest
from date of judgment, plus costs.2 Finally, judgment was entered for Mainor in the amount of $15,000 for the contractor’s bond issued by Hartford to Jones.
{¶ 9} Jones appealed this ruling and filed a motion for relief from
judgment, which the trial court denied and which Jones also challenges in this appeal. Jones represents himself pro se before this Court.
{¶ 10} To summarize Jones’s position on appeal, 3 he maintains the trial
court erred by entering the above substantial monetary judgments against him as a consequence for failing to appear at a hearing of which he was not personally notified. Alternatively, and for the same reason, Jones asserts that the trial court erred by denying his motion for relief from judgment. Having thoroughly
reviewed the record and considering the questionable status of Jones’s legal representation throughout these proceedings, we find merit to Jones’s contention that he should have been granted relief from judgment and provided an opportunity to defend the claims against him. Pivotal to our decision are the facts that Jones specifically requested to be notified of the proceedings upon his declaration of pro se representation and that after filing that notice, Goins essentially ceased any active participation in defending this case.
{¶ 11} W e can appreciate the trial court’s action, especially in light of the
four plus years the matter spent on and off of its docket. Further, Jones’s notice of his pro se representation is not exactly clear and easily overlooked in the
2 3
This award was described as “a limitation on defendant Kinney’s liability.” See appendix for assignments of error.
extensive docket.
Goins’s repeated failures to attend court dates without
requesting leave to withdraw in the wake of Jones’s notice of pro se representation only serves to compound the confusion.
{¶ 12} W hile Mainor is correct that notice of the hearing was technically
proper upon service to Goins under Civ.R. 5(B),4 the resultant default judgments against Jones under the factual posture of this case is unjust. To that end,
Jones’s Civ.R. 60(B) motion fairly articulated that his absence from the April 22, 2009 pretrial, which resulted in these substantial judgments being entered against him, constituted a reason for relief pursuant to Civ.R. 60(B)(5), if not under Civ.R. 60(B)(1) for mistake, inadvertence, surprise, or excusable neglect. See Maddox v. Ward, Cuyahoga App. No. 87090, 2006-Ohio-4099; see, also, Bozo v. Clair (Mar. 29, 1979), Cuyahoga App. No. 38615.
{¶ 13} Civ.R. 60(B) provides in relevant part: {¶ 14} “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
Civ.R. 5(B) provides in part: “[w]henever under these rules service is required or permitted to be made upon a party who is represented by an attorney of record in the proceedings, the service shall be made upon the attorney unless service upon the party is ordered by the court.” Jones initially represented himself pro se in this litigation and although Goins filed pleadings on Jones’s behalf, his appearance for Jones throughout the proceedings was at best sporadic.
4
{¶ 15} To prevail on his motion under Civ.R. 60(B), the movant must
demonstrate that: (1) the moving party has a meritorious defense or claim to present if relief is granted; (2) the moving party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and, (3) the motion for relief is made within a reasonable time. GTE Automatic Electric v. ARC Industries
(1976), 47 Ohio St.2d 146, 351 N.E.2d 113, syllabus at paragraph two; Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 1996-Ohio-430, 665 N.E.2d 1102.
{¶ 16} Jones satisfied the first requirement of a meritorious defense by filing
an answer that contained affirmative defenses or facts sufficient to support the claim of a valid defense. Newark Orthopedics, Inc. v. Brock (1994), 92 Ohio App.3d 117, 122, 634 N.E.2d 278; Bozo, supra. It is not necessary for Jones to have proved he would ultimately prevail on the defense. Id.
{¶ 17} “[O]nce a party has answered or appeared a default judgment is
improper. See Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hospital Assoc. (1986), 28 Ohio St.3d 118, 502 N.E.2d 599. * * * [D]ismissals for procedural irregularities are not highly favored and dismissal for nonappearance at a pre-trial conference should be used sparingly and only in extreme situations. Willis v. RCA Corp. (1983), 12 Ohio App.3d 1, 465 N.E.2d 924.” Untch v. N. Valley Contrs, Stark App. No. 2008-CA-00237, 2009-Ohio-3271.
{¶ 18} Jones’s motion for relief from judgment satisfied the second element
pursuant to Civ.R. 60(B)(5), if not Civ.R. 60(B)(1) as explained previously. Finally, Jones’s motion for relief from judgment was timely.
{¶ 19} For all the foregoing reasons, we sustain Jones’s appeal to the
extent we find that the trial court should have granted his motion for relief from judgment; any remaining assignments of error are overruled as moot. The
judgments are vacated as to Jones only and the matter is remanded for further proceedings. Judgment reversed and remanded. It is ordered that appellant recover from appellees his costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE KENNETH A. ROCCO, P.J., and PATRICIA A. BLACKMON, J., CONCUR Appendix
{¶ 20} “I.
The trial court erred and executed behavior indicating a
departure of fair and impartial treatment of the parties and/or was otherwise an abuse of discretion.
{¶ 21} “II.
The
trial
court
erred
in
finding
against
the
defendant/appellant Jones’ motion for relief from judgment.
{¶ 22} “III.
The trial court erred dismissing defendant/appellant’s
claims with prejudice.
{¶ 23} “IV. The trial court erred in denying defendant/appellant’s
motions for relief from judgment without an opportunity for a hearing.”
