Akron v. Heller

2013 Ohio 5228

• Court: Ohio Court of Appeals
• Decided: November 27, 2013
• Docket: 26969
• Status: Published

Opinion

[Cite as Akron v. Heller, 2013-Ohio-5228.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

CITY OF AKRON C.A. No. 26969

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE TERRY HELLER AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellee CASE No. 12 CV 04211

DECISION AND JOURNAL ENTRY

Dated: November 27, 2013

WHITMORE, Judge.

{¶1} Appellant, the City of Akron (“the City”), appeals the judgment of the Akron

Municipal Court, granting Appellee, Terry Heller’s, motion for relief from judgment. This Court

reverses.

I

{¶2} On May 8, 2012, the City filed a complaint against Heller for $11,877.29. The

complaint alleged that Heller had damaged one of the City’s utility poles by striking it while

operating a car. After service by certified mail failed, the City filed a praecipe requesting service

by a bailiff at Heller’s residence. The bailiff filed a receipt, indicating that service occurred at

Heller’s residence on August 21, 2012. Heller never filed an answer to the complaint and, on

October 16, 2012, the City filed a motion for default judgment. The court granted the motion the

following day. 2

{¶3} On March 22, 2013, the City filed a notice to the clerk of courts to issue a

financial responsibility report to the registrar of motor vehicles, so as to suspend Heller’s license

for non-payment of the judgment against him. On May 20, 2013, Heller filed a “motion for

removal of judgment [and] release of suspension on [driver’s license].” In his motion, Heller

wrote:

The driver of vehicle wasn’t the owner (self). The vehicle was taken w/out my permission. Please see case #11TRD06647 for dismissal of this case due to mistaken identity.

Heller attached to his motion a copy of the docket from Traffic Case No. 11TRD06647,

indicating a dismissal of the charges of failure to control and driving with an expired driver’s

license. The trial court construed Heller’s motion as a motion for relief from judgment and

granted it on May 23, 2013, three days after Heller filed his motion.

{¶4} The City now appeals from the trial court’s judgment and raises three assignments

of error for our review. For ease of analysis, we rearrange and consolidate several of the

assignments of error.

II

Assignment of Error Number Three

THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING APPELLEE’S MOTION WITHOUT GIVING APPELLANT AN OPPORTUNITY TO RESPOND TO APPELLEE’S MOTION FOR RELIEF FROM JUDGMENT.

{¶5} In its third assignment of error, the City argues that the trial court abused its

discretion by granting Heller’s motion for relief from judgment before the City had an

opportunity to respond to the motion. We agree.

{¶6} Civ.R. 6 sets forth the general notice provision that applies to written motions.

That rule provides that “[a] written motion, other than one which may be heard ex parte, and 3

notice of the hearing thereof shall be served not later than seven days before the time fixed for

the hearing, unless a different period is fixed by these rules or by order of the court.” Civ.R.

6(C).1 Civ.R. 6(D) gives a party three additional days to respond if a motion is served by mail.

“Underlying [Civ.R. 6] is the premise that the party opposing the motion must have sufficient

notice and opportunity to respond to avoid undue prejudice.” Portage Broom & Brush Co. v.

Zipper, 9th Dist. Summit No. 16409, 1994 WL 440441, *1 (Aug. 17, 1994). “[I]f a trial court

disregards the response time created by the Ohio Rules of Civil Procedure, that court has

committed reversible error.” Gibson-Myers & Assoc., Inc. v. Pearce, 9th Dist. Summit No.

19358, 1999 WL 980562, *4 (Oct. 27, 1999). Accord White v. Aztec Catalyst Co., 9th Dist.

Lorain No. 00CA007589, 2000 WL 1636023, *2-3 (Nov. 1, 2000).

{¶7} The trial court granted Heller’s motion for relief from judgment three days after it

was filed. The court did not set the matter for a hearing, notify the City that it would decide the

motion without a hearing, or afford the City time to respond to the motion. Because Heller’s

motion indicated that he served the City by mail, the City had ten days to respond to it. See

Civ.R. 6(D). “Although the court may not have run afoul of Civ.R. 6[(C)] if it had first notified

the parties by order of its intention to set a shorter response period, the court did not do so.”

Capital One Bank v. Jarvis, 9th Dist. Summit No. 26302, 2012-Ohio-2606, ¶ 7. The court

granted Heller’s motion without giving the City notice and before the expiration of the ten-day

time period allotted for a response by the Rules of Civil Procedure. “The record reflects that [the

City] did not have a meaningful opportunity to respond to [Heller’s] motion, and the court

disregarded the response period set forth in Civ.R. 6[(C)] when it granted the motion. Therefore,

1 Former Civ.R. 6(D) reads identically. 4

the trial court committed reversible error.” Id. at ¶ 7. The City’s third assignment of error is

sustained.

Assignment of Error Number One

THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING APPELLEE’S MOTION FOR RELIEF FROM JUDGMENT WHERE APPELLEE FAILED TO DEMONSTRATE HIS ENTITLEMENT TO RELIEF UNDER CIV.R. 60(B)[(1)-(5)].

Assignment of Error Number Two

THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING APPELLEE’S MOTION FOR RELIEF FROM JUDGMENT WHERE APPELLEE FAILED TO DEMONSTRATE THAT THE MOTION WAS TIMELY FILED PURSUANT TO CIV.R. 60(B).

{¶8} In its first and second assignments of error, the City argues that the trial court

abused its discretion by granting Heller’s motion because it was untimely and failed to satisfy the

requirements of Civ.R. 60(B). Based on our resolution of the City’s third assignment of error,

however, the City’s first and second assignments of error are not yet ripe for our review.

Accordingly, we decline to address them at this time. See Equable Ascent Fin. v. Ybarra, 9th

Dist. Lorain No. 12CA010190, 2013-Ohio-4282, ¶ 10.

III

{¶9} The City’s third assignment of error is sustained. We decline to address the

City’s first and second assignments of error, as they are not yet ripe for our review. The

judgment of the Akron Municipal Court is reversed, and the cause is remanded for further

proceedings consistent with the foregoing opinion.

Judgment reversed, and cause remanded. 5

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

BETH WHITMORE FOR THE COURT

CARR, P. J. HENSAL, J. CONCUR.

APPEARANCES:

CHERI B. CUNNINGHAM, Director of Law, and SHELLEY A. GOODRICH and JANET M. CIOTOLA, Assistant Directors of Law, for Appellant.

TERRY HELLER, pro se, Appellee.