[Cite as Lopresti v. O'Brien, 2017-Ohio-5637.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
ANTOINETTE LOPRESTI, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-G-0084
- vs - :
KELLY O’BRIEN, :
Defendant-Third Party :
Plaintiff-Appellant,
:
-vs-
:
REMAX TRADITIONS, et al.,
:
Third Party Defendants.
Civil Appeal from the Geauga County Court of Common Pleas.
Case No. 2015 M 000555.
Judgment: Affirmed.
J. Jaredd Flynn and Daniel T. Cronin, Thrasher, Dinsmore & Dolan, 100 Seventh
Avenue, Suite 150, Chardon, OH 44024-1079 (For Plaintiff-Appellee).
David V. Patton, 33595 Bainbridge Road, Suite 200A, Solon, OH 44139-2981 (For
Defendant-Third Party Plaintiff-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Kelly O’Brien, appeals the June 27, 2016 order of the Geauga
County Court of Common Pleas, denying her Civ.R. 60(B) motion for relief from
judgment from the trial court’s February 23, 2016 judgment. For the following reasons,
the decision of the Geauga County Court of Common Pleas is affirmed.
{¶2} This case stems from a purchase agreement entered into by appellant and
appellee, Antoinette Lopresti, on July 6, 2014. Appellant was to purchase the real
property located at 14726 Clydesdale Trail, Novelty, Ohio 44072 from appellee.
Appellant was permitted to rent the property while attempting to secure financing for the
purchase, from August 1, 2014, until title to the property was to be transferred on
February 27, 2015.
{¶3} Title to the property was not transferred on the agreed date, and appellant
did not vacate the property after written notice was mailed to her on April 24, 2015. On
May 11, 2015, appellee filed a complaint in the Chardon Municipal Court for forcible
entry and detainer, requesting judgment against appellant for restitution of the premises
and damages.
{¶4} On June 17, 2015, appellant filed an answer, counterclaim, and a third-
party complaint against appellee’s realtor, Dwight Milko, and Western Reserve Realty
L.L.C., dba Re/Max Traditions. On motion and because appellant’s counterclaim and
third-party complaint were each in excess of the municipal court’s jurisdictional limit, the
case was transferred to the Geauga County Court of Common Pleas on July 7, 2015.
{¶5} Appellant and appellee entered into a settlement agreement on August 30,
2015. The agreement was not implemented as intended. The parties filed cross
motions to enforce the settlement agreement, and a hearing on the motions was
scheduled for November 19, 2015. Notice of the hearing was sent to appellant’s
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counsel on September 22, 2015, and was also posted to the court’s publicly available
docket.
{¶6} Appellant’s counsel filed a motion to continue the November 19, 2015
hearing pending withdrawal, requesting the court permit appellant time to retain new
counsel. Appellant’s counsel filed a motion to withdraw on November 13, 2015, and
sent a copy of the motion to appellant by e-mail with return receipt requested. In his
motion to withdraw, counsel indicated appellant had moved out of state and counsel
had not been provided with the mailing address for her new residence, but counsel had
appellant’s e-mail address.
{¶7} The trial court granted the motion to withdraw and the motion to continue
the November 19, 2015 hearing in a stipulated order filed November 25, 2015. The
court rescheduled the hearing to February 19, 2016. A notice of the hearing had been
posted to the court’s publicly available docket and sent to appellant’s counsel on
November 17, 2015, when appellant was still represented by counsel. A copy of the
stipulated order, which reflects the February 19, 2016 hearing date, was also sent to
appellant at the e-mail address provided by counsel in the motion to withdraw. The trial
court ordered appellant to provide the court with an updated address within 14 days
from the date of the order. Appellant notified the court of her new North Carolina
address on November 30, 2015, at the advice of her counsel.
{¶8} Appellant failed to appear at the February 19, 2016 hearing. The court
entered judgment on February 23, 2016, finding appellee complied with the terms of the
settlement agreement but that appellant failed to comply with certain terms. The trial
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court awarded certain sums of money to appellee based on appellant’s failure to comply
with the terms of the agreement.
{¶9} On March 24, 2016, appellant, through newly retained counsel, filed a
notice of appeal from the February 23, 2016 judgment of the Geauga County Court of
Common Pleas. Appellee filed a motion to dismiss on April 19, 2016. On May 23,
2016, this court, in Lopresti v. O’Brien, 11th Dist. Geauga No. 2016-G-0065, 2016-Ohio-
3124, dismissed the appeal for lack of a final, appealable order; the February 23, 2016
judgment did not contain Civ.R. 54(B) language, and appellant’s third-party claims were
still pending.
{¶10} In the meantime, on April 28, 2016, while her initial appeal was pending,
appellant, through counsel, filed a Civ.R. 60(B) motion asking the trial court to vacate its
February 23, 2016 judgment under Civ.R. 60(B)(1) and (5), because the trial court failed
to properly notify her of the February 19, 2016 hearing in violation of her due process
rights.
{¶11} On May 2, 2016, appellant filed a Civ.R. 41(A) notice of dismissal with
prejudice of the remaining third-party claims against third-party defendants. At that
point, the order of February 23, 2016 became final. Appellant could have, but did not,
file a direct appeal of this order within 30 days of May 2, 2016.
{¶12} On May 3, 2016, appellee filed a motion to strike appellant’s motion for
relief from judgment, arguing the trial court lacked jurisdiction to rule on the matter while
appellant’s initial appeal was pending. The trial court denied appellee’s motion to strike
and held appellant’s Civ.R. 60(B) motion in abeyance until after her appeal was
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resolved, which occurred with the filing of this court’s memorandum opinion on May 23,
2016.
{¶13} Appellee filed a brief in opposition to appellant’s Civ.R. 60(B) motion on
June 16, 2016. Appellee argued due process notice of a hearing is satisfied by a
docket entry; notice was provided to appellant’s attorney; and appellant failed to meet
her burden of establishing a meritorious claim or defense.
{¶14} On June 27, 2016, the trial court denied appellant’s Civ.R. 60(B) motion.
The court found notice of the hearing was available on the court’s public docket, notice
was sent to appellant’s counsel, and appellant failed to appear at the hearing.
{¶15} On July 27, 2016, appellant filed a timely notice of appeal from the trial
court’s June 27, 2016 judgment entry. Appellant’s sole assignment of error on appeal
states:
{¶16} “The trial court erred as a matter of law when it failed to properly notify the
defendant-appellant of the February 19, 2016 hearing in violation of her due process
rights.”
{¶17} Appellant argues she is entitled to relief under Civ.R. 60(B)(1) and (5),
which provide that the trial court may relieve a party from a final judgment for “(1)
mistake, inadvertence, surprise or excusable neglect * * * or (5) any other reason
justifying relief from the judgment.”
{¶18} The Ohio Supreme Court has set forth a three-prong test a movant must
meet to prevail on a Civ.R. 60(B) motion. First, the motion must be filed within a
reasonable time after the judgment or order was entered. Second, the party must be
entitled to relief based on one of the reasons set forth in Civ.R. 60(B)(1)-(5). Third, the
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party must establish it has a meritorious defense or claim to present in the event relief is
granted. GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 (1976),
paragraph two of the syllabus. A party must satisfy each prong of the GTE Test to be
entitled to relief; if one prong is not satisfied, the entire motion must be overruled. Rose
Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20 (1988) (citation omitted).
{¶19} The decision of whether to grant relief under Civ.R. 60(B) is entrusted to
the sound discretion of the trial court. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987)
(citations omitted). Accordingly, we review the decision of the trial court for an abuse of
discretion. Id. An abuse of discretion is the trial court’s “‘failure to exercise sound,
reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-
54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).
{¶20} Appellant argues she is entitled to relief from the February 23, 2016
judgment under Civ.R. 60(B)(1) and (5) because the trial court failed to properly notify
her of the February 19, 2016 hearing in violation of her due process rights. She
maintains the November 25, 2015 stipulated order indicates it was served on her via e-
mail, but service was not effective because she did not receive the e-mail. Appellant
asserts the trial court did not mail notice to her new address after she provided it to the
trial court on November 30, 2015.
{¶21} Appellant fails, in both her Civ.R. 60(B) motion and her appellate brief, to
demonstrate the existence of a meritorious claim or defense if relief from the trial court’s
February 23, 2016 judgment was granted. Appellant also makes no reference to the
three-prong GTE test a movant must meet to prevail on a Civ.R. 60(B) motion, and her
argument focuses only on her contention that the trial court failed to properly serve her
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with a notice of the hearing. In her Civ.R. 60(B) motion she states, “this court’s attempt
to serve [appellant] with notice of the February 19, 2016 hearing was (i) ineffective, (ii)
unauthorized, and (iii) violated her due process rights. These reasons satisfy the Civ.R.
60(B) standard for relief from judgment.” The affidavit in support of her motion
incorporates a print-out of her e-mail inbox and a copy of the notification she sent the
trial court of her updated address. In the affidavit, appellant alleges she did not receive
a copy of the trial court’s November 25, 2015 stipulated order until after the February
19, 2016 hearing date, and she provided her updated address only at the advice of her
then-counsel. Appellant’s argument and the facts presented in support of her motion
fail to demonstrate in any way that she had a meritorious claim or defense if relief was
granted. Because appellant failed to satisfy the GTE test by failing to set forth a
meritorious claim or defense, the trial court could have denied her Civ.R. 60(B) motion
for this reason alone.
{¶22} With regard to service of the notice, both the Ohio and United States
Constitutions guarantee each party to an action “‘a reasonable opportunity to be heard
after a reasonable notice of such hearing.’” Ohio Valley Radiology Assocs., Inc. v. Ohio
Valley Hosp. Assn., 28 Ohio St.3d 118, 125 (1986), quoting State ex rel. Allstate Ins.
Co. v. Bowen, 130 Ohio St. 347 (1936), paragraph five of the syllabus.
{¶23} “Civ.R. 5 requires that ‘every order required by its terms to be served’ and
‘every written notice,’ among other papers filed after the original complaint, be served
‘upon each of the parties.’” Stewart v. Strader, 2d Dist. Clark No. 2008 CA 116, 2009-
Ohio-6598, ¶16. Additionally, “[w]hen service is required under Civ.R. 5, service is
generally made upon the attorney of record.” Id., citing Civ.R. 5(B).
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{¶24} Civ.R. 5(A) does not require service of trial court orders unless the order is
“required by its terms to be served.” Ohio Valley, supra, at 124. “Ohio courts have
traditionally held that while some notice of a trial date is required to satisfy due process,
an entry of the date of trial on the court’s docket constitutes reasonable, constructive
notice of that fact. Id. “[T]he entry of the trial date upon the trial court’s docket is
sufficient to satisfy the requirements of due process because a party is responsible for
keeping track of the status of her case.” Nalbach v. Cacioppo, 11th Dist. Trumbull No.
2001-T-0062, 2002 WL 32704, *5 (Jan. 11, 2002).
{¶25} The publicly available docket of the Geauga County Court of Common
Pleas reflects an entry on the docket was made November 16, 2015, which states that a
case was scheduled for a hearing on “motion to enforce settlement agreement and for
attorney’s fees for breach of settlement agreement” on February 19, 2016. A docket
entry made November 17, 2015, includes an image of the hearing notice sent to
appellant’s counsel, and a docket entry made November 25, 2015, contains an image of
the stipulated order filed the same day, which states the date of the hearing on the
motion to enforce settlement agreement as February 19, 2016. Appellant had more
than three months notice of the February 19, 2016 hearing on the court’s publicly
available docket.
{¶26} In addition to posting the hearing date on the court’s publicly available
docket, the court also sent notice of the hearing to appellant’s counsel. Appellant was
represented by counsel until the trial court’s stipulated order of November 25, 2015,
when counsel’s motion for withdrawal was granted. Prior to the motion for withdrawal
being granted, the trial court, on November 17, 2015, mailed appellant’s counsel a copy
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of the notice for the February 19, 2016 hearing. The trial court satisfied the
requirements of due process.
{¶27} The trial court did not abuse its discretion when it overruled the Civ.R.
60(B) motion.
{¶28} Appellant’s sole assignment of error is without merit.
{¶29} For the foregoing reasons, the June 27, 2016 judgment of the Geauga
County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, P.J., concurs,
COLLEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
____________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶30} The majority finds the trial court did not abuse its discretion in overruling
appellant’s Civ.R. 60(B) motion for relief from judgment. For the reasons stated, I
disagree.
{¶31} “‘A motion for relief from judgment under Civ.R. 60(B) is addressed to the
sound discretion of the trial court, and that court’s ruling will not be disturbed on appeal
absent a showing of abuse of discretion.’” Swaney v. Swaney, 11th Dist. Trumbull No.
2014-T-0084, 2015-Ohio-2456, ¶6, quoting Griffey v. Rajan, 33 Ohio St.3d 75, 77
(1987). Regarding this standard, the term “abuse of discretion” is one of art, connoting
judgment exercised by a court which neither comports with reason, nor the record.
State v. Ferranto, 112 Ohio St. 667, 676–678 (1925). An abuse of discretion may be
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found when the trial court “applies the wrong legal standard, misapplies the correct legal
standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176
Ohio App.3d 401, 2008-Ohio-1720, ¶15 (8th Dist.)
{¶32} “In order to prevail on a motion for relief from judgment pursuant to Civ.R.
60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement
to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3)
timeliness of the motion.” Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20 (1988),
citing GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976),
paragraph two of the syllabus.
{¶33} Civ.R. 60(B) states in part:
{¶34} “On motion and upon such terms as are just, the court may relieve a party
or his legal representative from a final judgment, order or proceeding for the following
reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time to move for a
new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment
has been satisfied, released or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (5) any other reason justifying relief from the
judgment. The motion shall be made within a reasonable time, and for reasons (1), (2)
and (3) not more than one year after the judgment, order or proceeding was entered or
taken.”
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{¶35} When this case began, appellant lived in Ohio and was represented by
counsel. In early-November 2015, she moved to North Carolina and continued to be
represented by counsel. The record reflects that both parties entered into a formal
settlement agreement and filed cross-motions to enforce the agreement.
{¶36} On November 25, 2015, the trial court issued a stipulated order scheduling
the hearing on the cross-motions for February 19, 2016, ordered appellant to provide
her new North Carolina address, and granted appellant’s counsel’s motion to withdraw.
The stipulated order reveals appellant was served with a copy via email to
mrskobrien@gmail.com. However, appellant averred in her affidavit that she never
received that email.
{¶37} On November 30, 2015, appellant notified the trial court of her new North
Carolina address solely on the advice of her former counsel. Appellant did not provide
the update due to the stipulated order because she did not receive the order with the
information and was unaware that the order even existed at that time.
{¶38} Although the trial court failed to notify appellant of the time and place of
the hearing, it nevertheless held a hearing on the cross-motions on February 19, 2016.
Following the hearing, the court entered judgment in favor of appellee. Appellant, now
acting pro se, received a copy of the trial court’s February 23, 2016 order and decision
at her North Carolina address.
{¶39} Appellant timely filed a Civ.R. 60(B) motion for relief from judgment which
was denied. Based on the facts presented, it is this writer’s position that the motion
should have been granted and that the trial court erred in failing to properly notify
appellant of the February 19, 2016 hearing in violation of her due process rights.
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{¶40} Civ.R. 5, “Service and filing of pleadings and other papers subsequent to
the original complaint,” states in part:
{¶41} “(B) Service: how made
{¶42} “* * *
{¶43} “(2) Service in general. A document is served under this rule by:
{¶44} “* * *
{¶45} “(f) sending it by electronic means to a facsimile number or e-mail address
provided in accordance with Civ.R. 11 by the attorney or party to be served, in which
event service is complete upon transmission, but is not effective if the serving party
learns that it did not reach the person served.”
{¶46} Pursuant to Civ.R. 5(B)(2)(f), the serving parties here were appellee and
the trial court and the person served was appellant. Regarding the type of case at
issue, email notification was improper and unauthorized. And, as stated, appellant
never received a copy of the stipulated order to her gmail address. Thus, the attempted
service was ineffective under the rule.
{¶47} Appellant was deprived of notice and, as a result, an opportunity to be
heard at the February 19, 2016 hearing. As such, her fundamental due process rights
were violated. See Fourteenth Amendment, United States Constitution; Article I,
Section 16, Ohio Constitution. In addition, procedural fairness was not met in this case.
See nasje.org/procedural-fairness (procedural fairness is explained as whether people
experiencing the justice system perceive the procedures used and the interpersonal
treatment they received as fair – and includes four key components – (1) understanding;
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(2) voice; (3) respect; and (4) neutrality); see also courtinnovation.org (research of Tom
Tyler, PhD, Professor, Yale University, and leading advocate of procedural justice).
{¶48} The foregoing reasons satisfy the Civ.R. 60(B)(1) and (5) standards for
relief from judgment, and the trial court erred as a matter of law in denying appellant’s
motion.
{¶49} I respectfully dissent.
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