[Cite as Blythewood Farms, Ltd. v. Drown, 2014-Ohio-2742.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BLYTHEWOOD FARMS, LTD JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2013CA00025
WILLIAM T. DROWN, ET AL.
Defendants/Third-Party OPINION
Plaintiffs/Appellants
KRIS McCOMBS AND
SHELLY MCCOMBS
Third-Party Defendants
CHARACTER OF PROCEEDING: Appeal from the Coshocton Municipal
Court, Case No. CVI1300205
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 23, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
JAMES SKELTON BRIAN W. BENBOW
309 Main Street 605 Market Street
Coshocton, Ohio 43812 Zanesville, Ohio 43701
Coshocton County, Case No. 2013CA00025 2
Hoffman, P.J.
{¶1} This matter stems from a small claims complaint seeking money damages
arising from an unpaid water bill at issue from a real estate sale and closing.
Defendants-Third Party Plaintiffs/Appellants William T. Drown, Fidelity Title & Closing
Services, LLC and Nina Richards (Appellants) handled the closing of the real estate
transfer as the closing and escrow agent for the real estate purchase. Attorney William
Todd Drown was the principal of Fidelity Title & Closing LLC1, which employs Nina
Richards. Plaintiff-Appellee Blythewood Farms, Ltd. was the purchaser of the real
estate (Appellee). Third-Party Defendants Kris and Shelly McCombs were the sellers of
the real estate.
STATEMENT OF THE FACTS AND PROCEEDINGS
{¶2} As part of the closing process, Kris and Shelly McCombs signed
documents entitled Appointment of Escrow Agent/Conditions of Acceptance of Escrow
Closing Affidavit whereby they certified all utility bills, including water, were paid in full.
The Closing Affidavit reads, "All bill(s) for water and sewer issued prior to the date
hereof for water and sewer and services to the premises have been fully paid and/or will
be paid, including charges through date of final readings, if subsequent to the date of
this affidavit." Also, as part of the closing process, the McCombs signed a document
entitled Cooperation Agreement in which they pledged to provide any uncollected funds
at closing within 10 days of demand by Fidelity Title & Closing Services Agency, Inc.
1
On June 12, 2013, Appellee dismissed Attorney Drown from the lawsuit as a result of
his personal bankruptcy.
Coshocton County, Case No. 2013CA00025 3
{¶3} On or about May 16, 2013, after being advised of the outstanding water
bill, Appellants dispatched a letter to the McCombs' last known address demanding
payment for uncollected water bill. No response was received.
{¶4} The matter proceeded with the filing of the small claims complaint herein
in the Coshocton Municipal Court. A trial took place on September 17, 2013.2
{¶5} The trial court issued a decision on the merits in all matters on October 11,
2013, finding in favor of Appellee Blythewood Farms, Ltd. against Appellants for the
unpaid water bill in the amount of $556.22. The trial court further found in favor of
Appellants as to their third party complaint against Kris and Shelly McCombs for
$556.22.3
{¶6} Appellants Fidelity Title & Closing LLC and Nina Richards appeal,
assigning as error:
{¶7} "I. THE TRIAL COURT'S OCTOBER 11, 2013 JUDGMENT ENTRY IS
AGAINST THE WEIGHT OF THE EVIDENCE IN THAT THE TRIAL COURT TOOK NO
SWORN TESTIMONY AND FAILED TO CONDUCT ANY TRIAL PROCEDURE
WHATSOEVER IN VIOLATION OF PROCEDURAL DUE PROCESS.
{¶8} "II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
HOLDING APPELLANT, NINA RICHARDS, PERSONALLY LIABLE FOR A
CORPORATE DEBT OF FIDELITY TITLE & CLOSING SERVICES LLC WHEN
APPELLANT WAS MERELY AN EMPLOYEE OF A LIMITED LIABILITY COMPANY.
2
The transcript of the proceedings includes a title page indicating the trial occurred on
October 17, 2013. However, the record herein reflects the trial occurred on September
17, 2013 at 9:30 a.m.
3
Third-Party Defendants Kris and Shelly McCombs did not timely appeal the decision of
the trial court.
Coshocton County, Case No. 2013CA00025 4
{¶9} "III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
ENTERING JUDGMENTS AGAINST APPELLANTS BY RELYING UPON
COSHOCTON COUNTY ORDINANCES THAT ARE UNCONSTITUTIONAL AND IN
VIOLATION OF R.C. 6119.06 AND R.C. 743.04(A).
{¶10} "IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
ENTERING JUDGMENTS AGIANST [SIC] APPELLANTS IN THAT THERE IS NO
BASIS FOR LIABILITY IN CONTRACT."
I.
{¶11} Upon our review of the entire record and a thorough review of the
transcript of the proceedings herein, we find the proceedings do not meet the
requirements of due process. While recognizing the unique nature of small claims
proceedings, the record herein does not demonstrate a sufficient modicum of due
process required under Ohio law. The record does not evidence the witnesses were
under oath, nor does the record indicate the identity or capacity of each witnesses
making a statement. Rather, the record indicates "Unidentified Speaker" throughout the
proceedings. At times, the trial court admits to confusion, and throughout the
proceedings there is disorder in the colloquy conducted by the trial court. It seems
apparent the trial court attempted to convert the trial proceedings to a settlement
conference, allowing the parties two weeks to submit a dismissal of the proceedings.
Based upon the foregoing, we find the trial court's "trial" violated due process.
{¶12} The first assignment of error is sustained.
Coshocton County, Case No. 2013CA00025 5
II, III. and IV.
{¶13} In light of our analysis and disposition of Appellant's first assignment of
error, we find Appellant's second, third and fourth assignments of error moot.
{¶14} The October 11, 2013 Judgment Entry entered by the Coshocton
Municipal Court is reversed and the matter remanded to the trial court for further
proceedings in accordance with the law and this opinion.
By: Hoffman, P.J.
Gwin, J. and
Baldwin, J. concur