Skeens v. Gambill

2024 Ohio 176, 233 N.E.3d 1251

• Court: Ohio Court of Appeals
• Decided: January 19, 2024
• Docket: 2023-CA-24
• Status: Published

Opinion

[Cite as Skeens v. Gambill, 2024-Ohio-176.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

BILLIE SKEENS : : Appellee : C.A. No. 2023-CA-24 : v. : Trial Court Case No. 2023 CVIT 00461 : DARLA GAMBILL : (Civil Appeal from Municipal Court) : Appellant : :

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OPINION

Rendered on January 19, 2024

JEREMY M. TOMB, Attorney for Appellant

BILLIE SKEENS, Pro Se Appellee

.............

LEWIS, J.

{¶ 1} Defendant-Appellant Darla Gambill appeals from a judgment of the Small

Claims Division of the Miami County Municipal Court awarding Plaintiff-Appellee Billie

Skeens $850 plus interest and costs. For the following reasons, we will affirm the -2-

judgment of the trial court.

I. Facts and Course of Proceedings

{¶ 2} On March 17, 2023, Skeens filed a complaint seeking $850 from Gambill plus

interest and costs. Under the section entitled “STATEMENT OF CLAIM,” Skeens stated:

I purchased land from Mrs. Gambill. July 2021 she decided not to

sell. Stated she would reimburse for site, soil, new address when I

provided receipts. I provided those around 7/21/21 via text, again via

regular mail 12/12/21 and my lawyer sent two notices. No payment has

been made and she refuses to reimburse as she agreed in writing. 8/29/22

she stated in texts she put it in a bank account she has for my child.

{¶ 3} On April 26, 2023, a trial was conducted by Acting Judge James D. Utrecht.

Skeens and Gambill testified. Skeens explained that Gambill is the grandmother of one

of Skeens’ children. Skeens entered into an agreement with Gambill and Gambill’s

husband to purchase land from them in return for a payment of $50,000. Skeens paid

them $50,000. According to Skeens, after Gambill’s son passed away, there was a

family disagreement. Gambill and Gambill’s husband decided that they did not want

Skeens to build a house near them. Although they returned the original money that

Skeens paid them for the land, Skeens had incurred costs related to soil testing and site

preparation, as well as costs incurred to create an address for the empty field. Skeens

testified that Gambill agreed to reimburse these costs if Skeens provided Gambill with the

receipts for those costs. Skeens introduced text messages between her and Gambill -3-

regarding Gambill’s agreement to reimburse those costs. Skeens further testified that

she sent the requested information to Gambill at least three times but Gambill never

reimbursed the costs.

{¶ 4} Gambill also testified about the agreement to sell land to Skeens and the

agreement to reimburse costs incurred by Skeens. She explained:

There was some issues raised from (inaudible) where we confronted

Mrs. Skeens about it. My husband proceeded to ask her if she thought

being on that land, the five (5) acres she was purchasing from us, would be

too close for our granddaughter to be with us. She stated yes. He gave

her back the money and that’s when he said we will repay you the money

that you spent out and I told her I wanted all of the paper: there’s a soil test

that comes back after you pay the three hundred fifty (350) to Deaton Soils,

they will send you the report. I have not seen that report. She never, she

just gave me the, or the receipt, she never give me the reports. That’s what

I was asking for.

Trial Tr. 13. Gambill also testified that Skeens told her in December 2021 that Skeens

“had gotten rid of the paperwork.” Id. at 14.

{¶ 5} At the close of the trial, the trial court orally granted judgment in favor of

Skeens. On April 27, 2023, the trial court issued a written judgment entry in favor of

Skeens in the amount of $850, plus court costs and interest from the date of judgment at

the rate of 3% per annum. The entry was signed by “Acting Judge James D. Utrecht.”

The bottom of the judgment entry stated that the judgment would be mailed to Billie -4-

Skeens and Jeremy M. Tomb, attorney for Gambill.

{¶ 6} On May 17, 2023, Gambill filed a “Motion for Leave to File Objections Out of

Time.” According to the memorandum in support of the motion, “Counsel for Defendant

did not receive a copy of the Entry via mail. It was not until Counsel for Defendant

searched the Miami County Municipal Court docket and found the Entry.” Gambill

attached an affidavit of Attorney Tomb to the motion for leave, which stated he had not

received a copy of the judgment entry via regular mail. Gambill requested an order from

the trial court “granting Defendant relief to file her Objections out of time.” The trial court

granted Gambill’s motion for leave.

{¶ 7} On June 16, 2023, Gambill filed objections to the April 27, 2023 judgment

entry. According to the objections, “Plaintiff’s claims are barred by want of consideration

or failure of consideration, or both. Receipts, in and of their own, provided no benefit to

Defendant. Plaintiff breached the verbal agreement between the Parties and is entitled

to no damages on her claim.” Further, Gambill contended that “Plaintiff’s claim is barred

for failure of conditions precedent. In short, Plaintiff failed to perform her contractual

duties, relieving Defendant of her obligation to pay Plaintiff.”

{¶ 8} On July 18, 2023, Acting Judge Utrecht issued an order overruling Gambill’s

objections to the April 27, 2023 judgment entry. The order stated, in part: “The Court

finds that the undersigned decided this case and granted final judgment as Acting Judge

on April 27, 2023. Therefore, the filing of the Objections to a Magistrate’s Order were

not proper. An appeal to the Second District would have been the proper avenue for the

Defendant, but that time has expired. Accordingly, the Objections are overruled[.]” -5-

{¶ 9} On July 20, 2023, Gambill filed a motion for reconsideration of her objections.

The trial court overruled the motion for reconsideration on August 3, 2023. Attached to

the August 3, 2023 decision was a file-stamped copy of an April 26, 2023 entry appointing

James D. Utrecht acting judge. Gambill then filed an August 11, 2023 notice of appeal.

II. Gambill Timely Filed Her Notice of Appeal

{¶ 10} Gambill’s first assignment of error states:

The Trial Court’s service of an Order on a represented party and not

their attorney does not comply with Civil Rules 5 and 58.

{¶ 11} Gambill did not file her notice of appeal challenging the trial court’s April 27,

2023 judgment until August 11, 2023, which was well outside the 30 days in which an

appellant must file a notice of appeal. App.R. 4. However, Gambill points out that the

April 27, 2023 decision was served upon her but not her attorney of record. “Thus, the

time for objecting to the Magistrate’s Opinion and for filing of the appeal did not and has

not run because the clerk of court’s [sic] has never served the entry upon Jeremy M.

Tomb in contravention of Civil Rules 58(B) and 5(B).” Appellant’s Brief, p. 6. As a

result, Gambill “respectfully requests this Court to overturn the April 27, 2023 Magistrate’s

Decision.” Id.

{¶ 12} In order to resolve this assignment of error, we must analyze the interplay

between Civ.R. 58(B) and App.R. 4 and 5. Civ.R. 58(B) provides:

When the court signs a judgment, the court shall endorse thereon a

direction to the clerk to serve upon all parties not in default for failure to -6-

appear notice of the judgment and its date of entry upon the journal. Within

three days of entering the judgment upon the journal, the clerk shall serve

the parties in a manner prescribed by Civ.R. 5(B) and note the service in

the appearance docket. Upon serving the notice and notation of the

service in the appearance docket, the service is complete. The failure of

the clerk to serve notice does not affect the validity of the judgment or the

running of the time for appeal except as provided in App.R. 4(A).

{¶ 13} App.R. 4(A)(1) provides that “[s]ubject to the provisions of App.R. 4(A)(3), a

party who wishes to appeal from an order that is final upon its entry shall file the notice of

appeal required by App.R. 3 within 30 days of that entry.” App.R. 4(A)(3) then provides

that “[i]n a civil case, if the clerk has not completed service of notice of the judgment within

the three-day period prescribed in Civ.R. 58(B), the 30-day periods referenced in App.R.

4(A)(1) and 4(A)(2) begin to run on the date when the clerk actually completes service.”

Further, Civ.R. 5(B)(1) provides, in part: “Whenever a party is not represented by an

attorney, service under this rule shall be made upon the party. If a party is represented

by an attorney, service under this rule shall be made on the attorney unless the court

orders service on the party.”

{¶ 14} Thus, “ ‘the thirty-day time limit for filing the notice of appeal does not begin

to run until the later of (1) entry of the judgment or order appealed if the notice mandated

by Civ.R. 58(B) is served within three days of the entry of the judgment; or (2) service of

the notice of judgment and its date of entry if service is not made on the party within the

three-day period in Civ.R. 58(B).’ ” In re A.A., 8th Dist. Cuyahoga No. 85002, 2005-Ohio- -7-

2618, ¶ 12, quoting Whitehall ex rel. Fennessy v. Bambi Motel, Inc., 131 Ohio App.3d

734, 741, 723 N.E.2d 633 (10th Dist.1998). “In civil cases, where the trial court never

instructed the clerk to send notices to the parties and where no notices were sent in

compliance with Civ.R. 58(B), the appeal, even if it is filed past the 30 day deadline, is

deemed timely under App.R. 4(A).” State v. Smith, 7th Dist. Jefferson No. 05 JE 49,

2006-Ohio-4614, ¶ 26, citing Bambi Motel at 741.

{¶ 15} The record before us reflects that the trial court included in its judgment

entry a notation at the bottom of the entry that Skeens and Attorney Tomb would be

copied on the judgment entry. However, the Miami County Municipal Court’s docket and

journal entries state that the April 27, 2023 judgment was served on Billie Skeens and

Darla Gambill. There is no notation that the judgment was served on Gambill’s attorney.

Further, Gambill submitted to the trial court an affidavit of her attorney stating that he was

not served with a copy of the April 27, 2023 judgment.

{¶ 16} We conclude that the 30-day time for filing the notice of appeal from the

April 27, 2023 judgment did not begin to run due to the clerk of courts’ failure to mail the

judgment to Gambill’s attorney. See Swander Ditch Landowners’ Assn. v. Joint Bd. of

Huron and Seneca Cty. Commrs., 51 Ohio St.3d 131, 134, 554 N.E.2d 1324 (1990).

Therefore, Gambill’s August 11, 2023 notice of appeal was timely filed, and we will

consider the merits of Gambill’s next two assignments of error. However, we will not

grant the specific relief requested in Gambill’s first assignment of error “to overturn the

April 27, 2023 Magistrate’s Decision” based solely on the clerk’s failure to serve Gambill’s

attorney. Rather, this failure simply extended the time in which she could file a notice of -8-

appeal from that judgment.

{¶ 17} The first assignment of error is overruled.

III. The Trial Was Held Before an Acting Judge, Not a Magistrate

{¶ 18} Gambill’s second assignment of error states:

A small claims hearing assigned to the Magistrate is handled by the

Magistrate pursuant to Civil Rule 53.

{¶ 19} Gambill contends “that the Magistrate’s decision of April 26, 2023 has not

become a final appealable order because a judge of the Court has not independently

reviewed the decision, adopted or modified the decision, and entered a judgment that

determines all the claims. Defendant filed an appeal because that was the only way to

address the actions of the magistrate and trial court.” Appellant’s Brief, p. 9.

{¶ 20} The April 27, 2023 judgment entry was signed by “ACTING JUDGE JAMES

D. UTRECHT.” The record contains an April 26, 2023 “Journal Entry Appointing Acting

Judge” that states:

It appearing to the Court that Judge Gary A. Nasal will be tentatively

be [sic] out of the office on Wednesday, April 26, 2023 and is therefore

unavailable;

IT IS HEREBY THE ORDER OF THE COURT that James D. Utrecht,

an attorney whom is licensed to practice law in the State of Ohio, and

meeting the statutory requirements of an Acting Judge is therefore

appointed Acting Judge of the Miami County Municipal Court effective for -9-

the date of April 26, 2023.

{¶ 21} Further, the record contains an April 26, 2023 filing entitled “IN RE: OATH

OF OFFICE FOR ACTING JUDGE.” That filing was signed by James D. Utrecht and by

Miami County Municipal Court Judge Gary A. Nasal, who certified that Utrecht had

personally appeared before him and took the oath of office. The filing was time-stamped

at 8:00 a.m. on April 26, 2023. Apparently, Utrecht was appointed acting judge pursuant

to R.C. 1901.121, which provides for the appointment of an acting judge when a municipal

judge is temporarily absent.

{¶ 22} Despite the evidence in the record that Utrecht was an acting judge rather

than a magistrate at the time of the April 26, 2023 trial, Gambill contends that Utrecht was

acting as a magistrate rather than an acting judge at the time of the trial. In support of

her position, Gambill explains that the transcript from the April 26, 2023 trial referred to

Utrecht as a magistrate judge rather than an acting judge and the April 27, 2023 docket

entry referred to a “Magistrate’s Decision & Entry.” According to Gambill, “[n]either

Defendant nor Defense counsel was aware James D. Utrecht possessed any capacity

other than a magistrate on April 26, 2023.” Appellant’s Brief, p. 9. Gambill then argues

that “Defendant has no ability to object to James D. Utrecht being anything other than a

magistrate.” Id.

{¶ 23} We are not persuaded by Gambill’s argument. As Gambill notes, a trial

court speaks through its journal entries. There is no journal entry in the record before us

appointing James D. Utrecht as a magistrate or assigning the trial of the matter to a

magistrate. But there is a journal entry in the record appointing Utrecht as an acting -10-

judge in Miami County Municipal Court on the morning of April 26, 2023, the date of the

trial. Further, the April 27, 2023 judgment entry at issue in this appeal was signed by

“ACTING JUDGE JAMES D. UTRECHT.”

{¶ 24} On the record before us, we must conclude that Utrecht was an acting

judge, not a magistrate, during the April 26, 2023 trial. Therefore, Gambill had no right

under Civ.R. 53 to file objections to the April 27, 2023 judgment entry, and the trial court

did not err in refusing to rule on the merits of Gambill’s objections.

{¶ 25} The second assignment of error is overruled.

IV. The Trial Court’s Judgment Is Not Against the Manifest Weight of the Evidence

{¶ 26} Gambill’s third assignment of error states:

The Magistrate’s decision in favor of the Plaintiff is contrary to the

law of Ohio and against the Manifest Weight of the evidence.

{¶ 27} In her final assignment of error, Gambill contends that there was no valid

contract to enforce, because Skeens provided no consideration to Gambill in return for

the promise to reimburse costs incurred by Skeens. According to Gambill, “Plaintiff had

incurred the costs for which she was seeking reimbursement before her voluntary release

of the contract to purchase the land from the Defendant. It was only after the release of

the contract that Defendant offered to pay for the Plaintiff’s incurred cost provided Plaintiff

deliver all the documents generated by the services that Plaintiff hired.” Appellant’s

Brief, p. 13. Further, Gambill argues that there was a failure of a condition precedent -11-

precluding performance by Gambill, because she “made her promise to pay the funds

requested by Plaintiff dependent upon Plaintiff providing the soil test results, documents,

and receipts. Plaintiff admitted that was the agreement. The parties also agreed the

Plaintiff only provided the receipts and “did not provide any of the documents that were

previously created and reflected in the receipts.” Id.

{¶ 28} When evaluating whether a judgment is against the manifest weight of the

evidence in a civil case, we review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses, and determine whether the

court “clearly lost its way and created such a manifest miscarriage of justice that the

[judgment] must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). “Judgments supported by some competent, credible

evidence going to all the essential elements of the case will not be reversed by a reviewing

court as being against the manifest weight of the evidence.” C.E. Morris Co. v. Foley

Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

{¶ 29} Skeens testified that she entered into an agreement with Gambill and

Gambill’s husband to purchase land from them in return for a payment of $50,000. It is

undisputed that Skeens paid them $50,000. According to Skeens, after Gambill’s son

passed away, there was a family disagreement. As a result, Gambill and Gambill’s

husband decided that they did not want Skeens to build a house near them. Although

they returned the original money that Skeens paid them for the land, Skeens had incurred

additional costs related to soil testing and site preparation, as well as costs incurred to -12-

create an address for the empty field. Further, Skeens testified that Gambill agreed to

reimburse the additional incurred costs if she provided Gambill with the receipts for those

costs. Finally, Skeens testified that she sent the requested information to Gambill at

least three times but Gambill never reimbursed the costs.

{¶ 30} Gambill disagreed with Skeens’ version of events. In particular, Gambill

characterized the decision to not sell the property to Skeens as more of a mutual decision

of both parties rather than a unilateral decision by the Gambills. Also, Gambill testified

that her promise to pay Skeens for the additional, incurred costs was contingent on

Skeens providing “all of the paper.” While Gambill conceded that Skeens provided her

with receipts of the incurred costs, Gambill wanted additional paperwork relating to the

results of the soil test that was performed.

{¶ 31} Skeens’ testimony supported the trial court’s judgment. For example,

Skeens’ testimony supported a finding that Gambill and Gambill’s husband had breached

a contract to sell land to Skeens. As a result of that breach, Skeens was entitled to

reliance damages to recover any expenses she had reasonably incurred in anticipation

of the sale. See White v. Nemastil, 29 Ohio App.3d 1, 6, 503 N.E.2d 189 (8th Dist.1985).

Further, Skeens’ testimony supported the conclusion that Gambill had agreed to

reimburse the incurred costs if Skeens provided documentation related to those incurred

costs. Skeens testified that she provided that documentation.

{¶ 32} While Gambill disputes Skeens’ version of events, the existence of

conflicting evidence and testimony does not make a trial court's judgment against the

manifest weight of the evidence. Instead, as a court of review, we give every reasonable -13-

presumption in favor of the judgment and the findings of fact made by the trial court.

Karches v. Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350 (1988). “[I]f the evidence

is susceptible of more than one construction, we must give it that interpretation which is

consistent with the verdict and judgment, most favorable to sustaining the trial court's

verdict and judgment.” Id. The evaluation of evidence and assessment of credibility are

primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraph one of the syllabus.

{¶ 33} Based on the record before us, we cannot conclude that the trial court’s

decision to believe Skeens’ version of events over Gambill’s version was against the

manifest weight of the evidence or that the trial court clearly lost its way and created such

a manifest miscarriage of justice that the judgment must be reversed and a new trial

ordered.

{¶ 34} The third assignment of error is overruled.

V. Conclusion

{¶ 35} Having overruled all the assignments of error, the judgment of the trial court

will be affirmed.

EPLEY, P.J., and TUCKER, J., concur.