Davis v. Barton
| Decision Date | 22 June 2021 |
| Docket Number | 20 MA 0064 |
| Parties | LAWRENCE DANIEL DAVIS, Plaintiff-Appellant, v. DANIEL P. BARTON/SHELLY BARTON, Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Civil Appeal from the Struthers Municipal Court of Mahoning County Ohio Case No. CVF 1600469
Atty Anthony Meranto, for Plaintiff-Appellant and
Atty James Gentile, DeGenova & Yarwood, Ltd., for Defendants-Appellees.
BEFORE: Carol Ann Robb, Gene Donofrio, David A. D'Apolito, Judges.
OPINION AND JUDGMENT ENTRY
{¶1} Plaintiff-Appellant Lawrence Daniel Davis appeals the May 4, 2020 judgment of the Struthers Municipal Court, which denied his motion for findings of fact and conclusions of law on a dismissal judgment and his motion to vacate the dismissal judgment. The March 11, 2020 dismissal was granted on the motion of Defendant-Appellees Daniel and Shelly Barton.
{¶2} Appellant claims the trial court erred in denying his motion for findings of facts and conclusions of law. However, Civ.R. 52 was inapplicable as no questions of facts were "tried by the court" and the rule specifically says it does not apply to a ruling on a motion filed under Civ.R. 12. Appellant also contends the trial court erred in denying his motion for relief from the dismissal judgment without a hearing. However, Appellant's motion lacked operative facts alleging a meritorious claim or defense and failed to name or provide operative facts in support of one of the grounds for relief in Civ.R. 60(B). Accordingly, the trial court's May 4, 2020 judgment is affirmed.
{¶3} Appellant further argues the trial court erred in granting the motion to dismiss. Because Appellant's notice of appeal did not designate the March 11, 2020 dismissal judgment entry in violation of App.R. 3(D), the assignment of error relating to the March 11, 2020 judgment is dismissed.
{¶4} On October 26, 2016, Appellant filed a complaint against Appellees for breach of contract and unjust enrichment. He alleged he furnished material or performed labor, between April 4, 2014 and February 18, 2015, at Appellees' property in Poland, Ohio "in pursuance of a certain contract with Defendants, the owners, part owners, lessees, original contractors, subcontractors, or other persons, as the case may be." The complaint said the agreement entitled Appellant to $23, 867 and he was still owed $8, 263.
{¶5} Rather than attach a contract, invoice, or account to the complaint, Appellant attached a March 18, 2015 email he received from the bank's mortgage loan vice president. The email referenced Appellant's invoice to FJP Contracting LLC in the amount of $23, 867 and dated January 1, 2014. The bank officer said he received the invoice from Frank Popovich on February 20, 2015 for Appellees' home construction at their Poland address. The email said the bank would inspect the property and seek payment authorization in the next week.
{¶6} Appellees' answer denied they had a contract with Appellant and denied any money remained due from them for the project mentioned in the complaint. The allegations under the breach of contract and unjust enrichment claims were likewise denied. The answer claimed Appellant failed to state a claim and raised the defense of accord and satisfaction.
{¶7} On January 4, 2017, the judge recused himself from the case. Nothing occurred of record on the case for nearly three years.
{¶8} On September 17, 2019, a notice was issued by the clerk of the municipal court under a local rule, asking Appellant to advise the court of the case status within 30 days or suffer dismissal under Civ.R. 41(B)(1). A week later, the clerk scheduled a pretrial. On October 17, 2019, the court issued an entry stating a pretrial was held and discovery was complete. A bench trial was scheduled for January 2020 but later reset for March 12, 2020.
{¶9} On February 7, 2020, Appellees filed a "Motion to Dismiss" under Civ.R. 19, asking the court to order Appellant to join Popovich Custom Builders Inc. (the contractor) in the action or to find the absent party indispensable and dismiss the action. The motion said Appellees solely contracted with the contractor, who ceased doing business during the course of construction and apparently failed to pay Appellant after the draw from Appellees' construction loan paid the contractor for the excavation work. Appellees quoted from Civ.R. 19(A), which discusses "Persons to Be Joined if Feasible." For instance, "A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties * * *." They also pointed out they were at risk of incurring double obligations in the contractor's absence.
{¶10} Appellant did not respond to the motion. On March 4, 2020, Appellant filed a motion to continue the March 12 trial date, stating he would be at a convention. On March 11, 2020, the court denied the motion to continue the trial.
{¶11} In another March 11, 2020 judgment entry, the trial court dismissed the case. The court said Appellees' February 7, 2020 motion to dismiss was granted for good cause and for the reasons set forth in the motion.
{¶12} On April 13, 2020, Appellant filed a motion for findings of fact and conclusions of law, citing Civ.R. 52. On the same day, Appellant filed a motion to vacate the judgment under Civ.R. 60(B), stating: "Plaintiff was not afforded a hearing on Defendants' Motion to dismiss, made pursuant to Ohio Civ.R. 19, which Plaintiff deemed meritless."
{¶13} On April 20, 2020, Appellees filed a memorandum in opposition to the motions. They asserted that Appellant was not entitled to findings of fact and conclusions of law under Civ.R. 52, which only applies "[w]hen questions of fact are tried by the court without a jury" and there was no trial.
{¶14} In opposing the motion to vacate, Appellees pointed out that Appellant failed to explain the lack of response to their motion to dismiss but merely said he deemed the motion to dismiss under Civ.R. 19 meritless. Appellees noted a party should not ignore a motion if it is considered meritless, pointing out Appellant had 14 days to respond to their motion to dismiss and the court waited over a month before ruling. They said Appellant could have requested an extension of time to respond to the motion or for leave to amend the complaint to add the indispensable party. Appellees theorized Appellant did not wish to sue his business partner and was essentially attempting to force Appellees to pay for the work twice.
{¶15} Appellees argued that Appellant failed to demonstrate entitlement to relief under one of the grounds in Civ.R. 60(B)(1) through (5) and did not even disclose which ground for relief he was claiming. Noting Appellant had the burden to allege a meritorious claim or defense if relief was granted, Appellees pointed out Appellant's motion to vacate did not explain why he believed their Civ.R. 19 argument lacked merit. Appellees said the court was not required to hold a hearing on their motion under Civ.R. 19, especially where Appellant did not respond, and the court was not required to hold a hearing on Appellant's Civ.R. 60(B) motion due to the insufficiency of the motion.
{¶16} On May 4, 2020, the trial court denied the motion for findings of fact and conclusions law because no hearing was conducted. In the same judgment entry, the court denied the motion to vacate, noting Appellant did not cite a valid reason to set aside the judgment.
{¶17} On June 3, 2020, Appellant filed a timely notice of appeal. The notice of appeal designated only the May 4, 2020 judgment as the order being appealed.
{¶18} On June 24, 2020, Appellees filed a motion to dismiss the appeal claiming Appellant should have appealed the March 11 2020 judgment dismissing the case, rather than file an inapplicable Civ.R. 52 motion for findings of fact and conclusions of law and an unsupported motion to vacate. Appellees were concerned Appellant was attempting to use the appeal of the Civ.R. 60(B) denial as a substitute for an appeal of the dismissal judgment. The motion disclosed their concern arose because of a statement Appellant made under an inapplicable question on the praecipe. Where a partial transcript is ordered, the praecipe form asks what assignments of error will be presented on appeal. Although there was no transcript, Appellant answered this question by mentioning the Civ.R. 19 motion and the motion for findings and conclusions, without mentioning the denial of the Civ.R. 60(B) motion.[1]
{¶19} Appellees said Appellant was barred from raising whether the trial court erred in dismissing the case because he failed to appeal the March 11, 2020 judgment.[2] Appellees also argued the time for appealing the March 11, 2020 order had passed. However, there was the Supreme Court's pandemic tolling order to consider. See Ohio Supreme Court, 3/27/2020 Administrative Actions, 2020-Ohio-1166 .
{¶20} Appellant never responded to Appellees' motion to dismiss the appeal, even though he had until 10 days after the pandemic tolling order expired to do so. See id.; App.R. 15(A). He also did not amend the notice of appeal to add a designation of the March 11, 2020 judgment within 30 days after the pandemic tolling expired or seek leave to amend it thereafter. See App.R. 3(F).
{¶21} On September 30, 2020, this court denied Appellees' motion to dismiss the appeal. We agreed a motion to vacate is not a substitute for an appeal of the judgment sought to be vacated. However, we pointed out the March 11, 2020 judgment was not the only final appealable order: the May 4, 2020 denial of Civ.R. 60(B) relief "is itself a...
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