Smith v. Summerville

• Court: Ohio Court of Appeals
• Writing for the Court: ROBB, J.
• Citation: Smith v. Summerville, 2015 Ohio 4153, CASE NO. 15 MA 10 (Ohio App. Sep 29, 2015)
• Decision Date: 29 September 2015
• Docket Number: CASE NO. 15 MA 10
• Parties: WILLIAM R. SMITH, III, PLAINTIFF-APPELLANT, v. STEVE W. SUMMERVILLE, et al., DEFENDANTS-APPELLEES.

2015 Ohio 4153

WILLIAM R. SMITH, III, PLAINTIFF-APPELLANT, v. STEVE W. SUMMERVILLE, et al., DEFENDANTS-APPELLEES.

CASE NO. 15 MA 10

STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT

September 29, 2015

OPINION

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 13CV1595

JUDGMENT: Reversed and Remanded in part, and Affirmed in part.

APPEARANCES:

For Plaintiff-Appellant:

Atty. Cherie H. Howard

P.O. Box 357

Youngstown, Ohio 44501

For Defendants-Appellees:

Atty. James S. Gentile

42 N. Phelps St.

Youngstown, Ohio 44503

JUDGES:

Hon. Carol Ann Robb

Hon. Gene Donofrio

Hon. Cheryl L. Waite

ROBB, J.

{¶1} Plaintiff-Appellant William R. Smith, III appeals the decision of Mahoning County Common Pleas Court ordering attorney fees in the sum of $962.50 and dismissing his amended complaint, with prejudice, for failing to prosecute. Multiple issues are raised in this appeal. First, did the trial court err when it dismissed the lawsuit with prejudice. Second, did the trial court err when it failed to grant default judgment in his favor. Third, upon the trial court's finding that Appellees were entitled to sanctions, was the award unreasonable and excessive.

{¶2} For the reasons expressed below, the trial court's decision is reversed in part, remanded in part, and affirmed in part. The trial court's decision to dismiss the complaint, with prejudice, is reversed and remanded. Accordingly, the trial court's decision regarding sanctions and attorney fees is reversed. However, the trial court's decision to deny Appellant's request for default judgment is affirmed.

Statement of Facts

{¶3} In October 2011, Appellant purchased a 1999 Chevy Silverado K 150 truck from Anthony Kostoglou, doing business as Auto Plaza. Allegedly on September 14, 2012, Appellant took the truck to Faith Automotive to get an estimate for brake repairs. Appellant was informed the next day that the cost to repair the brakes would be $1,000.00. He declined to have Faith Automotive perform the service because he believed it was too expensive. The owners of Faith Automotive would not release the vehicle to Appellant until storage fees were paid. As of October 2, 2012, the storage fees were allegedly $2,025.00. The vehicle, which allegedly had a fair market value of $6,200.00 as of September 15, 2012, is still being held by the owners of Faith Automotive.

Statement of the Case

{¶4} Due to the above described actions, Appellant filed a complaint against Steve Faith, doing business as Faith Automotive, Selina Faith, doing business as Faith Automotive ("the Faiths"), and Anthony Kostoglou, doing business as Auto Plaza.¹ 6/12/13 Complaint. Appellant asserted that the Faiths violated the consumersales practice act because he was not given a written estimate, there was no sign informing him of his right to a written estimate, he was not advised that if he did not authorize completion of the repairs there would be a storage fee, and they knew that the estimate for the repairs was substantially in excess of similar services. 6/12/13 Complaint. He also alleged the Faiths committed the tort of conversion when they refused to return his vehicle to him until he paid the storage fees. 6/12/13 Complaint.

{¶5} The complaint was served by certified mail. Steve Summerville signed the return receipt for the summons and complaint directed to Selina Faith. Selina Summerville signed the return receipt for the complaint directed to Steve Faith.

{¶6} Appellees filed an answer in which they asserted as a defense they were improperly named as Steve Faith and Selina Faith; they are Steve and Selina Summerville. 7/11/13 Answer. Appellees asked for the complaint to be dismissed.

{¶7} Four days later, Appellant moved for leave to file an amended complaint. 7/15/13 Motion. The following day the trial court granted the motion. 7/16/13 J.E. The amended complaint was filed on July 16, 2013 and correctly named Appellees as the owners of Faith Automotive. The amended complaint is almost identical to the original complaint; the only substantive changes are the names Steve Faith and Selina Faith were changed to Steve Summerville and Selina Summerville.

{¶8} The amended complaint was not served by certified mail. Rather, it was mailed to Appellees' attorney through regular mail. 7/16/13 Amended Complaint, Certificate of Service.

{¶9} The same day the amended complaint was filed, Appellant filed a request for production of documents. Three months later, Appellees moved for an extension of time to respond to that request. 10/18/13 Motion. Appellees filed a notice of compliance with the request on November 7, 2013.

{¶10} On November 13, 2013, Appellant moved for default judgment claiming that Appellees had not answered or otherwise pled to Appellant's amended complaint.

{¶11} Appellees filed a motion in response asserting that no amended answer was due because the original complaint misidentified Appellees and although an amended complaint was filed on July 16, 2013 and it correctly named the parties, itwas not served on Appellees. 12/2/13 Motion. Thus, Appellees asserted that the trial court had not obtained personal jurisdiction over them. In the motion, it was further asserted that Appellant's counsel was aware of this fact, but still filed the motion for default judgment. Appellee's counsel asserted that Appellant's counsel's actions were a violation of Civ.R. 11 and asked for sanctions and attorney fees.

{¶12} Appellant filed a reply and asserted that the amended complaint relates back to the original complaint and that counsel was not required to serve Appellees by certified mail. Counsel asserted that it was permissible to serve the amended complaint on Appellee's counsel by regular mail. 12/10/13 Reply.

{¶13} After consideration of these motions, the magistrate issued its decision. 1/15/14 Decision. The magistrate found the amended complaint was required to be personally served on Appellees; the mere mailing to counsel for Appellees was insufficient; and the court did not have personal jurisdiction over Appellees. The motion for default judgment was overruled, as well as the motion for sanctions and attorney fees. 1/15/14 Decision.

{¶14} Both Appellant and Appellees filed objections to the magistrate's decision. 1/21/14 Plaintiff's Objections; 1/29/14 Defendants reply to objections and objections.

{¶15} After considering the objections, the trial court sustained the magistrate's decision overruling the motion for default judgment. However, as to sanctions and attorney fees, the trial court reversed the magistrate's decision. It held that sanctions and attorney fees were merited. Therefore, the court directed the magistrate to hold a hearing on appropriate sanctions and the assessment of attorney fees. 4/8/14 J.E.

{¶16} Appellant appealed that decision; however, the appeal was appropriately dismissed for lack of a final appealable order. 4/9/14 Notice of Appeal; 14MA38 5/16/14 J.E.

{¶17} On July 17, 2014, Appellees moved to dismiss the action for failing to perfect service within one year of the filing of the complaint. On July 23, 2014 Appellant filed a response to the motion to dismiss. Appellant reiterated that he wasnot required to personally serve the amended complaint upon Appellees and that the court should reconsider its denial of the default motion.

{¶18} An evidentiary hearing to determine the appropriate sanctions and attorney fees was held on July 23, 2014. At this hearing, the parties also addressed the motion to dismiss and the response. Appellant argued that the trial court's determination that sanctions and attorney fees should be awarded to Appellees was incorrect. Appellees' counsel set forth that he expended 5.5 hours of work in response to the default judgment and objections and that he charged $175.00 per hour. He asked for $962.50 in attorney fees.

{¶19} On October 22, 2014, the Magistrate issued its decision finding sanctions and attorney fees were warranted as the law of the case. The magistrate found that 5.5 hours of work was reasonably expended and that the hourly rate of $175.00 was also reasonable. Thus, $962.50 was awarded as reasonable attorney fees. The magistrate also granted the request to dismiss the complaint because Appellees were not properly served. The magistrate stated that dismissal of the amended complaint operated with prejudice and as an adjudication upon the merits pursuant to Civ.R. 41(B)(1).

{¶20} Appellant objected to that decision. 11/5/14 Objections. Appellees filed a response to the objections. 12/26/14 Response.

{¶21} After reviewing the filings, the trial court adopted the magistrate's decision. 1/9/15 J.E. Appellant timely appealed that decision. The trial court stayed execution of judgment pending appeal. 1/20/15 J.E.

First Assignment of Error

"The trial court committed prejudicial error by dismissing plaintiff-appellant's lawsuit with prejudice."

{¶22} The trial court granted the motion to dismiss, and accordingly, dismissed the complaint on the basis of Civ.R. 41(B)(1), which states:

(B) Involuntary dismissal: effect thereof

(1) Failure to prosecute. Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motionof a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim.

Civ.R. 41(B)(1).

{¶23} The decision to dismiss a case pursuant to Civ.R. 41(B)(1) is reviewed for an abuse of discretion. Snyder v. Belmont Natl. Bank, 7th Dist. No. 09 BE 9, 2010-Ohio-1089, ¶ 14, citing Jones v. Hartranft, 78 Ohio St.3d 368, 371, 1997-Ohio-203, 678 N.E.2d 530. See also Ocran v. Richlak, 8th Dist. No. 99856, 2013-Ohio-4603, ¶ 12 (dismissal based on Civ.R. 41(B)(1) is reviewed under a "heightened" abuse of discretion standard); Lykes v. Akron Dept. of Pub. Serv., 8 N.E.3d 422, 2014-Ohio-578, ¶ 17 (same). An abuse of discretion is more than an error of law or judgment, "it implies that the court's attitude is...