[Cite as Dubay v. Villas of Crystal Lake Homeowners Assn., 2012-Ohio-2779.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97964
PATRICK DUBAY, ET AL. PLAINTIFFS-APPELLANTS
vs.
VILLAS OF CRYSTAL LAKE HOMEOWNERS’ ASSOCIATION DEFENDANT-APPELLEE
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Berea Municipal Court Case No. 11 CVI 102114
BEFORE: Celebrezze, P.J., Jones, J., and Rocco, J.
RELEASED AND JOURNALIZED: June 21, 2012 FOR APPELLANTS
Patrick Dubay, pro se Karen Dubay, pro se 6757 Fry Road Middleburg Heights, Ohio 44130
ATTORNEYS FOR APPELLEE
Arthur E. Foth, Jr. Joseph F. Salzgeber Foth & Foth Co., L.P.A. 11221 Pearl Road Strongsville, Ohio 44136 FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellants, Patrick and Karen Dubay, bring the instant appeal from the
dismissal of appellee, the Village of Crystal Lake Homeowners’ Association (“Crystal
Lake”), as a party in the Dubays’ small claims suit for allegedly authorizing a tree service
to trespass on their property and cut down a tree. After a thorough review of the record,
we reverse the decision of the trial court dismissing Crystal Lake pursuant to Civ.R. 21.
I. Factual and Procedural History
{¶2} On May 26, 2010, Crystal Lake hired third-party defendant Old Oak Church,
doing business as Out-Of-The-Woods Ministries (“OTWM”), through its representative
David L. Butler, to remove some dead and dying trees in and around a wooded plot of
land situated next to the Dubays’ property. The Dubays alleged that employees of
OTWM, under the supervision of Butler, entered the Dubays’ property on May 28, 2010
and cut down an ash tree, destroying it and damaging several nearby trees.
{¶3} After attempts to settle the dispute were unsuccessful, the Dubays filed a
small claims court action against Crystal Lake in the Berea Municipal Court on August
30, 2010. The complaint alleged in part that Crystal Lake “improperly authorized Dave
Butler (who operates a tree service company) to enter our property and cut down a mature
ash tree.” The Dubays did not name OTWM or Butler as a defendant. They asked for
$3,000 in damages for the lost value of the tree, damages to their property, and for their
time. {¶4} The case was scheduled for hearing in small claims court, but was postponed
at Crystal Lake’s request. Crystal Lake then filed a motion to dismiss under Civ.R. 21 as
a misjoined party. It also filed a motion for leave to file a third-party complaint against
OTWM for contribution or indemnification. Crystal Lake’s motion to dismiss argued that
OTWM was an independent contractor, and Crystal Lake was not liable for the action of
the tree removal service. It attached an affidavit from Butler to its supplemental motion
to dismiss, filed December 12, 2010, where Butler averred that he was hired by Crystal
Lake as an independent contractor to remove trees. He also averred that any trespass
onto the Dubays’ property was his fault alone.
{¶5} The Dubays opposed the motion, arguing that Crystal Lake negligently hired
OTWM. The Dubays also alleged a second incident where OTWM re-entered their
property without permission at the direction of Crystal Lake to cut and remove the tree
OTWM had felled earlier. They alleged that “[Crystal Lake] is responsible for hiring
this contractor, and for directing him to return to our property to clean up the mess they
made.”
{¶6} On January 6, 2011, the magistrate granted Crystal Lake’s motion to dismiss
and entered “judgment for the defendant at the plaintiff’s costs.” The Dubays then filed
objections to the magistrate’s decision on January 12, 2011, which were overruled by the
trial judge on January 13, 2011. The trial court approved and affirmed the magistrate’s
decision. The Dubays then filed the instant appeal assigning one error with various
subparts: The trial court erred by making judgment to dismiss the case without any hearing. Although Plaintiff requested an opportunity to be heard, Plaintiff was not permitted such an opportunity and was therefore not permitted to present any evidence[.]
II. Law and Analysis
{¶7} The Dubays, proceeding pro se, attempt to litigate much of their claim never
reached by the court below. This appeal will be limited to the propriety of the dismissal
of Crystal Lake pursuant to Civ.R. 21 because that is the only issue properly before this
court.
A. Misjoinder under Civ.R. 21
{¶8} Initially, we note that the Ohio Rules of Civil Procedure apply to disputes in
small claims courts except where they conflict with rules governing small claims courts
set forth in R.C. 1925.01 et seq. R.C. 1925.16. This includes the use of Civ.R. 21 to
add or dismiss a party from a suit. Frantz v. United Property Mgt., 6th Dist. No.
S-85-10, 1985 WL 8200 (Oct. 18, 1985).
{¶9} The purpose of Civ.R. 21 is to permit the bringing in of a party who, through
inadvertence, mistake, or for some other reason, has not been made a party originally and
whose presence is necessary or desirable. Bill Gates Custom Towing, Inc. v. Branch
Motor Exp. Co., 1 Ohio App.3d 149, 440 N.E.2d 61 (10th Dist.1981). Where a party to
an action has been misjoined, that party “has no legal interest in the litigation.”
Kormanik v. Cooper, 195 Ohio App.3d 790, 2011-Ohio-5617, 961 N.E.2d 1187, ¶ 32
(10th Dist.), citing EnQuip Technologies Group, Inc. v. Tycon Technoglass, S.R.L., 2d
Dist. No. 2009 CA 47, 2010-Ohio-28, ¶ 33. For example, when a party is mistakenly included by error or when no claim or cause of action is raised against a party, the party
may be dismissed by its own motion or by the trial court’s own initiative. Id. However,
the rule makes abundantly clear that “[m]isjoinder of parties is not ground for dismissal of
an action.” Civ.R. 21.
{¶10} The rule also must be read in conjunction with the requirements for
permissive joinder, Civ.R. 20, to understand its application. 1970 Staff Notes, Civ.R. 21.
If the requirements for permissive joinder are not met for a given party, Civ.R. 21 may be
available to that party for dismissal from the suit. EnQuip Technologies at ¶ 33.
“‘Thus, Rule 21 applies when the claims asserted do not arise out of the same transaction
or occurrence and do not present some common question of law or fact. Misjoinder of
parties may also be declared when no relief is demanded from one or more of the parties
joined as defendants.’” Id., quoting Fink, Greenbaum, and Wilson, Guide to the Ohio
Rules of Civil Procedure, Paragraph 21:2 (2006).
{¶11} Here, the Dubays have asserted a claim against Crystal Lake. While that
claim is not set forth with absolute clarity in their small claims complaint, it is still a claim
against Crystal Lake for which relief is demanded. Importantly, Crystal Lake did not file a
motion to dismiss based on the failure to state a claim (Civ.R. 12(B)(6)), for a failure to
join a necessary party (Civ.R. 12(B)(7) referencing Civ.R. 19), or a motion for summary
judgment (Civ.R. 56(C)). Crystal Lake’s motion to dismiss reads like a motion for summary judgment rather than demonstrating that no cause of action is asserted against it
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[Cite as Dubay v. Villas of Crystal Lake Homeowners Assn., 2012-Ohio-2779.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97964
PATRICK DUBAY, ET AL. PLAINTIFFS-APPELLANTS
vs.
VILLAS OF CRYSTAL LAKE HOMEOWNERS’ ASSOCIATION DEFENDANT-APPELLEE
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Berea Municipal Court Case No. 11 CVI 102114
BEFORE: Celebrezze, P.J., Jones, J., and Rocco, J.
RELEASED AND JOURNALIZED: June 21, 2012 FOR APPELLANTS
Patrick Dubay, pro se Karen Dubay, pro se 6757 Fry Road Middleburg Heights, Ohio 44130
ATTORNEYS FOR APPELLEE
Arthur E. Foth, Jr. Joseph F. Salzgeber Foth & Foth Co., L.P.A. 11221 Pearl Road Strongsville, Ohio 44136 FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellants, Patrick and Karen Dubay, bring the instant appeal from the
dismissal of appellee, the Village of Crystal Lake Homeowners’ Association (“Crystal
Lake”), as a party in the Dubays’ small claims suit for allegedly authorizing a tree service
to trespass on their property and cut down a tree. After a thorough review of the record,
we reverse the decision of the trial court dismissing Crystal Lake pursuant to Civ.R. 21.
I. Factual and Procedural History
{¶2} On May 26, 2010, Crystal Lake hired third-party defendant Old Oak Church,
doing business as Out-Of-The-Woods Ministries (“OTWM”), through its representative
David L. Butler, to remove some dead and dying trees in and around a wooded plot of
land situated next to the Dubays’ property. The Dubays alleged that employees of
OTWM, under the supervision of Butler, entered the Dubays’ property on May 28, 2010
and cut down an ash tree, destroying it and damaging several nearby trees.
{¶3} After attempts to settle the dispute were unsuccessful, the Dubays filed a
small claims court action against Crystal Lake in the Berea Municipal Court on August
30, 2010. The complaint alleged in part that Crystal Lake “improperly authorized Dave
Butler (who operates a tree service company) to enter our property and cut down a mature
ash tree.” The Dubays did not name OTWM or Butler as a defendant. They asked for
$3,000 in damages for the lost value of the tree, damages to their property, and for their
time. {¶4} The case was scheduled for hearing in small claims court, but was postponed
at Crystal Lake’s request. Crystal Lake then filed a motion to dismiss under Civ.R. 21 as
a misjoined party. It also filed a motion for leave to file a third-party complaint against
OTWM for contribution or indemnification. Crystal Lake’s motion to dismiss argued that
OTWM was an independent contractor, and Crystal Lake was not liable for the action of
the tree removal service. It attached an affidavit from Butler to its supplemental motion
to dismiss, filed December 12, 2010, where Butler averred that he was hired by Crystal
Lake as an independent contractor to remove trees. He also averred that any trespass
onto the Dubays’ property was his fault alone.
{¶5} The Dubays opposed the motion, arguing that Crystal Lake negligently hired
OTWM. The Dubays also alleged a second incident where OTWM re-entered their
property without permission at the direction of Crystal Lake to cut and remove the tree
OTWM had felled earlier. They alleged that “[Crystal Lake] is responsible for hiring
this contractor, and for directing him to return to our property to clean up the mess they
made.”
{¶6} On January 6, 2011, the magistrate granted Crystal Lake’s motion to dismiss
and entered “judgment for the defendant at the plaintiff’s costs.” The Dubays then filed
objections to the magistrate’s decision on January 12, 2011, which were overruled by the
trial judge on January 13, 2011. The trial court approved and affirmed the magistrate’s
decision. The Dubays then filed the instant appeal assigning one error with various
subparts: The trial court erred by making judgment to dismiss the case without any hearing. Although Plaintiff requested an opportunity to be heard, Plaintiff was not permitted such an opportunity and was therefore not permitted to present any evidence[.]
II. Law and Analysis
{¶7} The Dubays, proceeding pro se, attempt to litigate much of their claim never
reached by the court below. This appeal will be limited to the propriety of the dismissal
of Crystal Lake pursuant to Civ.R. 21 because that is the only issue properly before this
court.
A. Misjoinder under Civ.R. 21
{¶8} Initially, we note that the Ohio Rules of Civil Procedure apply to disputes in
small claims courts except where they conflict with rules governing small claims courts
set forth in R.C. 1925.01 et seq. R.C. 1925.16. This includes the use of Civ.R. 21 to
add or dismiss a party from a suit. Frantz v. United Property Mgt., 6th Dist. No.
S-85-10, 1985 WL 8200 (Oct. 18, 1985).
{¶9} The purpose of Civ.R. 21 is to permit the bringing in of a party who, through
inadvertence, mistake, or for some other reason, has not been made a party originally and
whose presence is necessary or desirable. Bill Gates Custom Towing, Inc. v. Branch
Motor Exp. Co., 1 Ohio App.3d 149, 440 N.E.2d 61 (10th Dist.1981). Where a party to
an action has been misjoined, that party “has no legal interest in the litigation.”
Kormanik v. Cooper, 195 Ohio App.3d 790, 2011-Ohio-5617, 961 N.E.2d 1187, ¶ 32
(10th Dist.), citing EnQuip Technologies Group, Inc. v. Tycon Technoglass, S.R.L., 2d
Dist. No. 2009 CA 47, 2010-Ohio-28, ¶ 33. For example, when a party is mistakenly included by error or when no claim or cause of action is raised against a party, the party
may be dismissed by its own motion or by the trial court’s own initiative. Id. However,
the rule makes abundantly clear that “[m]isjoinder of parties is not ground for dismissal of
an action.” Civ.R. 21.
{¶10} The rule also must be read in conjunction with the requirements for
permissive joinder, Civ.R. 20, to understand its application. 1970 Staff Notes, Civ.R. 21.
If the requirements for permissive joinder are not met for a given party, Civ.R. 21 may be
available to that party for dismissal from the suit. EnQuip Technologies at ¶ 33.
“‘Thus, Rule 21 applies when the claims asserted do not arise out of the same transaction
or occurrence and do not present some common question of law or fact. Misjoinder of
parties may also be declared when no relief is demanded from one or more of the parties
joined as defendants.’” Id., quoting Fink, Greenbaum, and Wilson, Guide to the Ohio
Rules of Civil Procedure, Paragraph 21:2 (2006).
{¶11} Here, the Dubays have asserted a claim against Crystal Lake. While that
claim is not set forth with absolute clarity in their small claims complaint, it is still a claim
against Crystal Lake for which relief is demanded. Importantly, Crystal Lake did not file a
motion to dismiss based on the failure to state a claim (Civ.R. 12(B)(6)), for a failure to
join a necessary party (Civ.R. 12(B)(7) referencing Civ.R. 19), or a motion for summary
judgment (Civ.R. 56(C)). Crystal Lake’s motion to dismiss reads like a motion for summary judgment rather than demonstrating that no cause of action is asserted against it
in the complaint or that it was somehow mistakenly joined.1
{¶12} Review of a decision to dismiss a party pursuant to Civ.R. 21 is limited to an
abuse of the court’s discretion. Kormanik at ¶ 32. That is exactly what occurred here,
where Civ.R. 21 has no application because the Dubays asserted a claim against Crystal
Lake for negligently hiring OTWM and directing OTWM to trespass on the Dubays’
property a second time; and Crystal Lake indeed hired OTWM. Crystal Lake is a proper
party to this litigation. The trial court erred in dismissing Crystal Lake as a party and in
dismissing the small claims suit based on a rule that specifically does not allow for such
an action.
III. Conclusion
{¶13} The trial court’s decision to affirm the magistrate’s decision dismissing
Crystal Lake from the litigation as a misjoined party was an abuse of discretion. Crystal
Lake is a proper party, and Civ.R. 21 should not be used as a substitute for a motion to
dismiss for failure to state a claim under Civ.R. 12(B)(6) or a motion for summary
judgment under Civ.R. 56(C).
{¶14} This cause is reversed and remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellants recover of said appellee costs herein taxed.
There is no evidence in the record that the trial court treated Crystal Lake’s motion as one to 1
dismiss pursuant to Civ.R. 12(B)(6) or summary judgment, or notified the parties that it intended to do so. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Berea
Municipal Court 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.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
LARRY A. JONES, SR., J., and KENNETH A. ROCCO, J., CONCUR