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City of University Heights v. Allen

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 18, 2019

CITY OF UNIVERSITY HEIGHTS, Plaintiff,
v.
TYREE ALLEN, Defendant. [Appeal by U.S. Specialty Insurance Corporation and Surety Corp. of America]

          Appeal from the Shaker Heights Municipal Court Case No. 17 TRC 00061

          Percy Squire Co., L.L.C., and Percy Squire, for appellants U.S. Specialty Insurance Corporation and Surety Corp. of America.

          C. Randolph Keller, Shaker Heights Chief Prosecutor, for Shaker Heights Municipal Court.

          JOURNAL ENTRY AND OPINION

          ANITA 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.

         I. 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.[1]

         {¶ 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.[2] 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 28, 2018.

         II. Discussion

         {¶ 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.

         A. 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).[3]

         B. Analysis

         {¶ 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 ...

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