Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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
J. BOYLE, J.
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
Procedural History and Facts
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.
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.
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
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.
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.
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
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.
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
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
Id. at ¶ 19-21.
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 ...