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Grimes v. Oviatt

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 30, 2017

JEFFREY GRIMES PLAINTIFF-APPELLEE
v.
RICHARD A. OVIATT, ET AL. DEFENDANTS-APPELLANTS

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-848472

          FOR APPELLANTS Richard A. Oviatt, pro se. John J. Selwyn, pro se

          ATTORNEY FOR APPELLEE Thomas H. Terry

          BEFORE: Boyle, J., E.A. Gallagher, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, J.

         {¶1} Defendant-appellant, Richard Oviatt, an attorney licensed to practice law in the state of Ohio, appeals, pro se, several decisions of the trial court, including the court's denial of his motion for sanctions against plaintiff-appellee, Jeffrey Grimes. Finding some merit to the appeal, we affirm in part, reverse in part, and remand for further proceedings.

         A. Procedural History and Facts

         {¶2} Grimes and defendant John Selwyn, who was represented by Oviatt, have a long and arduous history, which this court has previously set forth in Selwyn v. Grimes, 8th Dist. Cuyahoga No. 101252, 2014-Ohio-5147 ("Grimes Appeal I "). We summarize the facts as follows.

         {¶3} In June 1983, Grimes allegedly smashed a beer bottle into Selwyn's face. On June 21, 1985, Selwyn subsequently obtained a default judgment against Grimes in the amount of $50, 000 in compensatory damages and $50, 000 in punitive damages in Cuyahoga C.P. No. CV-84-082351. Thereafter, on September 19, 1985, Selwyn made a single attempt to execute on the judgment.

         {¶4} On March 30, 1987, Grimes filed a petition in bankruptcy court and obtained a stay of all the proceedings. Selwyn subsequently filed an adversary action contesting the discharge of the judgment. On August 17, 1987, the bankruptcy court declared the judgment nondischargeable. On October 29, 1987, Grimes was discharged from bankruptcy and the stay dissolved.

         {¶5} On June 4, 2012, Selwyn filed a motion to revive the June 1985 judgment in Cuyahoga C.P. No. CV-84-082351. On that same day, Selwyn's counsel, Oviatt, forwarded an unsigned and nonfiled copy of the motion to revive to Grimes, who forwarded the documents to his attorney. Oviatt did not respond to Grimes's attorney's written or telephonic request for information.

         {¶6} Three days later, on June 7, 2012, without service of the summons and motion by the clerk's office, the trial court granted the motion to revive the judgment. On June 18, 2013, Selwyn transferred the revived judgment to the Cleveland Municipal Court and implemented garnishment proceedings of Grimes's bank accounts, recovering approximately $3, 000.

         {¶7} On July 5, 2013, Grimes filed a motion to vacate the trial court's order reviving the judgment in Case No. CV-84-082351. After a hearing, the court denied Grimes's motion. Subsequently, and ostensibly to effect service of the summons and motion by the clerk's office, the administrative judge vacated the June 2012 order reviving the dormant judgment and directed Selwyn to refile the motion to revive the judgment. On January 16, 2014, Selwyn refiled the motion, Grimes was duly served, and the matter was again heard.

         {¶8} On March 24, 2014, the trial court granted Selwyn's January 16, 2013 motion to revive and ordered that the judgment shall date back to June 7, 2012, resulting in a judgment with interest that amounted to $383, 430. In rejecting Grimes's claim that the motion to revive was untimely, the trial court expressly found that Selwyn's adversary action in the bankruptcy court constituted an execution on the judgment and, therefore, the 21-year statute of limitations began to run from the date of the bankruptcy court's order denying discharge of the judgment, namely, August 17, 1992. Utilizing the date the bankruptcy court declined to discharge the judgment and construing the bankruptcy court's decision as an execution on that judgment, the trial court found Selwyn's June 2012 motion to revive timely.

         {¶9} Grimes timely appealed the trial court's decision but failed to post a supersedeas bond to stay execution of the judgment. While the appeal was pending, Selwyn pursued garnishment efforts and filed a foreclosure action against Grimes.

         {¶10} In November 2014, this court ultimately reversed the trial court's decision to revive the dormant judgment, finding that the trial court erroneously applied the plain meaning of R.C. 2329.07(A)(1). See Grimes Appeal I, 8th Dist. Cuyahoga No. 101252, 2014-Ohio-5147. We explained as follows:

Under the plain meaning of R.C. 2329.07(A)(1), we find no way of construing the bankruptcy court's decision not to discharge the judgment as an execution. Of note, Selwyn's adversarial action in the bankruptcy court was not an attempt at execution on Grimes's property. The record reveals that Selwyn knew that Grimes was not collectable. At the hearing, counsel represented that Selwyn waited patiently until the death of Grimes's parents and the prospect that Grimes would receive an inheritance to initiate the action. Rather, the adversarial action was an attempt to prevent the discharge in the event that the bankruptcy court was inclined to discharge the judgment.
Further, in refusing to discharge the judgment, the bankruptcy court did not issue a new judgment, but merely indicated what debts would be discharged and what debts remained Grimes's responsibility. It is conceivable that the bankruptcy court would have declined to discharge the judgment without Selwyn filing an adversarial action. Consequently, we decline to construe the bankruptcy court's decision as an execution.
As such, pursuant [to] R.C. 2329.07(A)(1), the judgment went dormant on August 19, 1990, five years after Selwyn made the aforementioned single attempt at executing on the judgment. Pursuant to R.C. 2325.18, Selwyn had 21 years from August 19, 1990, to seek revival of the judgment. To be timely, Selwyn's motion to revive had to be filed prior to August 19, 2011. Because it was purportedly filed in June 2012, it was untimely, and the trial court erred in reviving the judgment.

Id. at ¶ 19-21.

         {¶11} This court further noted that when Selwyn refiled the motion in January 2014 to cure his earlier failure to comply with Civ.R. 4, he was outside the 21-year statute of limitation and, therefore, the trial ...


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