Court of Appeals of Ohio, Eighth District, Cuyahoga
from the Shaker Heights Municipal Court Case No. 17 TRC 00061
Squire Co., L.L.C., and Percy Squire, for appellants U.S.
Specialty Insurance Corporation and Surety Corp. of America.
Randolph Keller, Shaker Heights Chief Prosecutor,
for Shaker Heights Municipal Court.
JOURNAL ENTRY AND OPINION
LASTER MAYS, J.:
1} Defendants-appellants, U.S. Specialty Insurance
Corporation and Surety Corp. of America
("Specialty"), appeal the trial court's denial
of Specialty's motion to vacate the bond forfeiture
judgment and relief from liability by the Shaker Heights
Municipal Court. We affirm the trial court's judgment.
Background and Facts
2} On March 29, 2017, in the underlying case, Tyree
A. Allen ("Allen") was charged with operating a
vehicle under the influence of alcohol ("OVI") and
slow speed under the corresponding municipal ordinances by
the city of University Heights. Also, on that date, Specialty
posted a $10, 000 surety bond.
3} On September 13, 2017, the slow speed charge was
dismissed, and Allen pleaded guilty to OVI. On October 5,
2017, Allen was ordered to obtain an alcohol and drug
assessment. On December 7, 2017, the trial court issued a
journal entry setting the sentencing hearing for December 27,
2017. Allen failed to appear at the hearing. On January 5,
2018, the trial court issued an order documenting the
December 27, 2017 failure to appear. The order also states
that the $10, 000 bond was forfeited and a show cause hearing
regarding the forfeiture was set for March 28, 2018. The
order further included the issuance of a contempt-of-court
warrant with a $7, 500 bond pursuant to R.C. 2705.02.
4} The warrant was not issued until January 31,
2018. Also, on January 31, 2018, 26 days after Allen's
failure to appear for sentencing was journalized, the bond
forfeiture show cause hearing notification containing a
hearing date of March 28, 2018, was mailed to Allen,
Specialty, and Deed Carroll ("Carroll") who was
listed as the bonding agency and as Specialty's attorney
in fact. Specialty, Carroll, and Allen failed to appear for
the bond forfeiture hearing on March 28, 2018. On March 29,
2018, the trial court issued a $10, 000 bond forfeiture
judgment against Specialty and Carroll for failure to produce
Allen. On April 11, 2018, the invoice and notice of bond
forfeiture judgment was entered requiring payment of the
judgment by June 29, 2018.
5} On April 19, 2018, Carroll, through counsel and
as agent and representative of Specialty, filed a motion to
vacate the bond judgment and requested relief from liability.
The motion advised that Allen failed to appear at the
sentencing hearing on January 5, 2018, because he was
incarcerated in the Cuyahoga County Jail. Carroll included a
letter of incarceration issued by the Cuyahoga County Sheriff
on April 16, 2018, that stated Allen "was incarcerated
in the Cuyahoga County Jail from: [December 13, 2017] thru
[January 19, 2018], TOT Halfway H./Harbor Light." Letter
of incarceration (Apr. 16, 2018). A copy of the Cleveland
Police Department's case information form documenting
Allen's arrest, and the court's sentencing entry for
Allen's plea to attempted drug possession on December 26,
2017, was also provided.
6} A summary entry denying the motion was issued by
the Shaker Heights Municipal Court on April 20, 2018. On May
9, 2018, the instant appeal was filed. On May 29, 2018,
Specialty filed a separate motion under Civ.R. 60(B)
requesting relief from the March 29, 2018 and April 11, 2018
judgments on the ground that Specialty was not provided
timely notification of the forfeiture pursuant to R.C.
2937.36. On May 30, 2018, this court granted Specialty's
request to remand the appeal to the trial court to allow the
court to rule on the pending motion to vacate the judgment.
7} On June 25, 2018, the trial court denied
Specialty's motion to vacate. The trial court pointed out
that Allen, Specialty, and Carroll failed to request
continuances and failed to appear at the March 28, 2018
hearing. In addition, the court noted that, based on the
documentation provided, Allen was not incarcerated on March
8} While the amended notice of appeal in this case
challenges the legality of the forfeiture judgment and the
motion to vacate that judgment under Civ.R. 60(B),
Specialty's sole assignment of error in this case states:
The trial court erred when it denied appellant's motion
to vacate for the reason that R.C. 2937.36 bars forfeiture if
the surety is not given notice within fifteen days following
a defendant's failure to appear.
Standard of Review
9} We apply an abuse of discretion standard to our
review of the trial court's denial of a Civ.R. 60(B)
motion to vacate a judgment. Bank of New York v.
Elliot, 8th Dist. Cuyahoga Nos. 97506 and 98179,
2012-Ohio-5285, ¶ 25, citing Benesch, Friedlander,
Coplan & Aronoff, L.L.P. v. Software, Inc., 8th
Dist. Cuyahoga No. 91708, 2009-Ohio-1617, ¶ 13.
"'The term 'abuse of discretion' implies
that the court's attitude was unreasonable, arbitrary, or
unconscionable.'" Id., quoting
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
10} Civ.R. 60(B) states,
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 ...