[Cite as Maxim Ents., Inc. v. Haley, 2018-Ohio-72.]


STATE OF OHIO                     )                     IN THE COURT OF APPEALS
                                  )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

MAXIM ENTERPRISES, INC.
                                                        C.A. No.     28126
        Plaintiff

        v.
                                                        APPEAL FROM JUDGMENT
STEPHEN T. HALEY, et al.                                ENTERED IN THE
                                                        COURT OF COMMON PLEAS
        Defendants                                      COUNTY OF SUMMIT, OHIO
                                                        CASE No.   CV 2008 07 5093
        and

STEPHEN T. HALEY

        Appellant

        v.

STEPHEN A. MAXIM, et al.

        Third-Party Defendants

        and

BAC FIELD SERVICES CORPORATION

        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: January 10, 2018



        CARR, Judge.

        {¶1}     Appellant Stephen Haley appeals, pro se, from the judgment of the Summit

County Court of Common Pleas.              This Court reverses and remands the matter for further

proceedings.
                                        2


                                        I.

{¶2}   This Court has previously summarized the history of this case in a prior appeal:

Countrywide Field Services (“Countrywide”) provided real property inspections
and maintenance services to mortgage servicers. Countrywide contracted with
Maxim Enterprises, Inc. (“Maxim”) to provide these services on properties
located in Ohio. Maxim subcontracted this work to several subcontractors. The
subcontractors claimed to have provided services to the properties, but denied
having received payment from Maxim. Mr. Haley entered into agreements with
the subcontractors, wherein the subcontractors assigned their accounts receivable
and claims to Mr. Haley. Mr. Haley claimed that he contacted Maxim for
payment and that Maxim responded that it had not provided payment to the
subcontractors because Countrywide had not provided payment to Maxim.

In 2008, Maxim filed a complaint against several parties, including Mr. Haley,
wherein Maxim alleged that Mr. Haley engaged in tortious interference with a
business relationship and civil conspiracy. Thereafter, Mr. Haley filed a third-
party complaint against several parties, including Countrywide. This initial third-
party complaint was dismissed in 2009. Later that year, Mr. Haley again filed a
third-party complaint against several parties, including “Bank of America fka
Countrywide Field Services Corporation,” (“Bank of America”). Bank of
America failed to answer the third-party complaint, and Mr. Haley moved for
default judgment, which the trial court granted in 2010.

On April 16, 2010, Mr. Haley filed a praecipe for a writ of execution against Bank
of America dba Merrill Lynch. On April 28, 2010, “BAC Field Services
Corporation” (“BAC”) filed a motion to stay execution of judgment. In its
motion, BAC argued, in part, that it was also known as “Bank of America Field
Services,” but it was “improperly named in the third party complaint * * * as
‘Bank of America f/k/a Countrywide Field Services Corporation[.]’” BAC
requested the court to stay the proceedings to enforce the judgment pending the
disposition of a motion brought pursuant to Civ.R. 60. BAC then filed its Civ.R.
60(B) motion, in which it again argued, in part, that it was incorrectly named in
the third-party complaint as “Bank of America fka Countrywide Field Services
Corporation[.]” BAC maintained that “Bank of America” was a non-entity, and
that Bank of America Corporation was its parent company and was never known
as “Countrywide Field Services Corporation.”

The trial court granted BAC’s motion in an order dated June 18, 2010.
[Subsequently, BAC filed an answer to the third party complaint and cross claims
against Maxim.] Mr. Haley then attempted to appeal from the June 18, 2010
order, and we dismissed his appeal for lack of a final appealable order. See
Maxim Ents., Inc. v. Haley, 9th Dist. Summit No. 25459, 2011-Ohio-6734.
[While the appeal was pending, BAC filed a motion for judgment on the
pleadings, which it renewed following the dismissal of the appeal.] Thereafter,
the trial court issued another order granting BAC’s motion to vacate the default
                                                  3


          judgment, and including language that there was “no just reason for delay”
          pursuant to Civ.R. 54(B).

Maxim Ents., Inc. v. Haley, 9th Dist. Summit No. 26348, 2013-Ohio-3348, ¶ 2-5.

          {¶3}   Mr. Haley appealed arguing “that the trial court erred in granting BAC’s motion

to vacate judgment against ‘Bank of America fka Countrywide Field Services Corporation.’” Id.

at ¶ 6.

          In its order granting BAC’s motion to vacate the judgment, the trial court ruled as
          follows: “The [c]ourt is satisfied that [Mr.] Haley’s default judgment is against a
          non-entity, to wit: Bank of America fka Countrywide Field Services. BAC Field
          Services Corporation has now appeared in the instant litigation and appears
          prepared to defend itself against [Mr.] Haley’s claims. The Court finds in the
          interest of justice that the March 17, 2010 default judgment against Bank of
          America fka Countrywide Field Services shall be vacated and held for naught.”

Id. at ¶ 7.

          {¶4}   In resolving the appeal, we stated that, “[d]espite BAC’s primary reliance on

Civ.R. 60(B) in its motion, it d[id] not appear from the trial court’s judgment that the court

applied the three GTE prongs in vacating the default judgment. Instead, it appear[ed] that the

trial court vacated the judgment because it was issued against a ‘non-entity.’” Id. at ¶ 15. We

noted that “[t]he authority to vacate a void judgment is not derived from Civ.R. 60(B) but rather

constitutes an inherent power possessed by Ohio Courts.” (Internal quotations and citations

omitted.) Id.

          {¶5}   “Therefore, on one hand, because the trial court held that ‘BAC’ had now

‘appeared’ and was prepared to defend itself against Mr. Haley’s claims,” it appeared that the

trial court accepted BAC’s filings as constituting filings of the named party. Id. at ¶ 16. We

concluded that, if that was in fact the intent of the trial court, “then BAC would have been

required to meet all three prongs of the GTE test for the trial court to vacate the judgment

pursuant to Civ.R. 60(B).” Id.
                                                 4


        {¶6}   “On the other hand, it appear[ed] that the trial court vacated [the] judgment based

only upon its finding that Bank of America was a non-entity, in accordance with the trial court’s

inherent authority to vacate a void judgment.” Id. at ¶ 17. However, if that was the trial court’s

intent, we failed to see “how BAC could have ‘appeared’ in the instant action without having

filed a motion to intervene in accordance with Civ.R. 24, which it did not.” Id. Accordingly,

“[b]ecause we [could not] determine the basis that the trial court utilized in vacating [the] default

judgment, we remand[ed] the cause, with an instruction that the trial court clarify its reasoning.”

Id. at ¶ 18.

        {¶7}   Upon remand, Mr. Haley filed a motion to reinstate the default judgment and a

motion to strike all motions and pleadings filed by BAC as it failed to move to intervene

pursuant to Civ.R. 24. Following reassignment to a different judge, the trial court requested

supplemental briefing. After additional briefing, the trial court concluded that Mr. Haley’s

“judgment was issued against a non-entity” and therefore “ordered that [the] March 17, 2010

default judgment against Bank of America * * * is void and * * * vacated.” Mr. Haley appealed,

and this Court dismissed the appeal in light of the absence of Civ.R. 54(B) language. Maxim

Ents. v. Haley, 9th Dist. Summit No. 28030 (Feb. 2, 2016). Thereafter, the trial court reissued its

previous entry and included Civ.R. 54(B) language.

        {¶8}   Mr. Haley has appealed, raising three assignments of error, which will be

addressed out of sequence to facilitate our review.

                                                 II.

                                ASSIGNMENT OF ERROR III

        THE TRIAL COURT COMMITTED REVERS[I]BLE ERROR WHEN IT
        ALLOWED BAC FIELD SERVICES CORPORATION (“BACFSC”) TO
        APPEAR AND FILE PLEADINGS AND MOTIONS, TO INCLUDE A
        MOTION TO VACATE THE JUDGMENT AGAINST “BANK OF AMERICA”
                                                5


         WHEN BACFSC HAD NOT PROPERLY INTERVENED IN THE LAWSUIT
         AS REQUIRED BY [CIV.R.] 24(A)(2) * * * CAUSING BACFSC’S MOTION
         TO VACATE JUDGMENT AGAINST “BANK OF AMERICA” TO NOT BE
         PROPERLY BEFORE THE COURT.

         {¶9}    Mr. Haley asserts in his third assignment of error that the trial court erred in

vacating the default judgment as BAC, a non-party, failed to file a motion to intervene in the

lawsuit. Accordingly, he argues that BAC’s filings in the trial court should be stricken. We

agree.

         {¶10} As noted above, Mr. Haley named Bank of America as a third-party defendant in

his re-filed third-party complaint. There appears to be no dispute that BAC was not named as a

party to this action. The record also discloses that BAC did not ever move to intervene in the

action. Nonetheless, BAC filed several documents in the trial court, including the motion for

relief from default judgment pursuant to Civ.R. 60(B) and the supplemental briefs. It is also

clear from the record that, in vacating the default judgment, the trial court relied on information

supplied by BAC in its filings.

         {¶11} BAC argues that, because the trial court found the default judgment void and

vacated it pursuant to its inherent authority, and not based upon Civ.R. 60(B), it was not

necessary for BAC to move to intervene, or if it was, any failure by it to do so was harmless.

BAC also appears to argue that the trial court could have construed its filings as a motion to

intervene. We are not persuaded by BAC’s argument or the cases it has cited, which are not

controlling and/or are distinguishable.

         {¶12} We do not dispute that courts have the inherent power to vacate void judgments;

we said as much in the prior appeal. See Maxim Ents., Inc., 2013-Ohio-3348, at ¶ 15, quoting

Thomas v. Fick, 9th Dist. Summit No. 19595, 2000 WL 727531, * 2 (June 7, 2000) (“The

authority to vacate a void judgment is not derived from Civ.R. 60(B) but rather constitutes an
                                                   6


inherent power possessed by Ohio Courts.”). However, the issue before this Court is whether the

filings that the trial court relied on in determining the default judgment was void were properly

before the trial court in the first place. This Court stated in the prior appeal that if the trial court

was vacating the default judgment pursuant to its inherent authority to vacate a void judgment,

we failed to see “how BAC could have ‘appeared’ in the instant action without having filed a

motion to intervene in accordance with Civ.R. 24, which it did not.” Maxim Ents., Inc., 2013-

Ohio-3348, at ¶ 17. Inherent within that statement was the notion that BAC, if it was a non-

party, could not have inserted itself into the litigation absent filing a motion to intervene.

Further, BAC has pointed to no authority on point stating that a motion to intervene is

unnecessary under the facts of this case.

       {¶13} Moreover, there is also nothing in the record to suggest that the trial court

construed BAC’s motion for relief for judgment, or its supplement, as a motion to intervene, or

that it should have so construed BAC’s motion.

       {¶14} “Civ.R. 24 provides for both intervention as of right and permissive intervention.

Civ.R. 24(A), (B). Irrespective of the basis upon which a party seeks to intervene, the party must

comply with the procedural requirements set forth in Civ.R. 24(C)[.]” (Internal quotations

omitted.) Sutton v. Sutton, 9th Dist. Summit No. 28393, 2017-Ohio-5559, ¶ 7, quoting Univ. of

Akron v. Nemer, 9th Dist. Summit No. 24494, 2009-Ohio-2681, ¶ 6. Civ.R. 24(C) provides:

       A person desiring to intervene shall serve a motion to intervene upon the parties
       as provided in Civ.R. 5. The motion and any supporting memorandum shall state
       the grounds for intervention and shall be accompanied by a pleading, as defined in
       Civ.R. 7(A), setting forth the claim or defense for which intervention is sought.
       The same procedure shall be followed when a statute of this state gives a right to
       intervene.
                                                  7


       {¶15} “Civ.R. 7(A) defines a pleading as ‘a complaint and an answer’ and further

specifies that no other pleading will be permitted. It is well settled that a party’s failure to file a

pleading in compliance with Civ.R. 24(C) is fatal to a motion to intervene.” Sutton at ¶ 8.

       {¶16} While BAC subsequently filed an answer after the trial court vacated the default

judgment, it did not attach a pleading to its motion for relief from default judgment or its

supplemental filing, nor did the documents discuss intervention or the standard for granting

intervention. See id.; see also State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio

St.3d 501, 503 (1998) (listing factors to consider when determining whether a motion to

intervene is timely). Further, the trial court’s judgment entry does not discuss intervention.

Based on the foregoing, we cannot conclude that the trial court considered BAC’s filing as a

motion to intervene, or that it should have so construed the filings.

       {¶17} As BAC did not even move to intervene in the action, let alone successfully

intervene, its filings were not properly before the trial court. See Maxim Ents., Inc., 2013-Ohio-

3348, at ¶ 17. Further, the trial court erred in relying on those filings in vacating the default

judgment. BAC’s filings are stricken from the record and the judgment of the trial court

vacating the default judgment is reversed.

       {¶18} Mr. Haley’s third assignment of error is sustained.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED REVERS[I]BLE ERROR WHEN IT HELD
       THAT THE TRADENAME “BANK OF AMERICA,” OWNED AND USED
       SOLELY BY BANK OF AMERICA CORP., AND BANK OF AMERICA, N.A.,
       IS A NON-ENTITY, WHICH RESULTED FROM THE TRIAL COURT
       FAILING TO APPLY [R.C.] 1329.10(C) WHICH PERMITS AN ACTION TO
       BE COMMENCED AGAINST THE USER OF A TRADENAME IN OHIO.
                                                8


                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERS[I]BLE ERROR WHEN IT HELD
       THAT APPELLANT STEPHEN HALEY (“HALEY”) HAD NAMED THE
       WRONG THIRD-PARTY DEFENDANT WHEN HALEY NAMED “BANK OF
       AMERICA” AS THE DEFENDANT INSTEAD OF BAC FIELD SERVICES
       CORPORATION (“BACFSC”), AN ERROR WHICH RESULTED FROM THE
       TRIAL COURT’S FAILURE TO APPLY [R.C.] 1701.82(A)(4) WHICH
       PERMITS “BANK OF AMERICA” TO BE NAMED IN PLACE OF
       “COUNTRYWIDE FIELD SERVICES CORP” AS A RESULT OF “BANK OF
       AMERICA’S”   COMPLETE      ACQUISITION  OF  COUNTRYWIDE
       FINANCIAL CORP ON JULY 1, 2008.

       {¶19} Mr. Haley argues in his first assignment of error that the trial court erred in

concluding he had sued a non-entity in his third-party complaint.       Mr. Haley argues in his

second assignment of error that the trial court erred in determining that he had named the wrong

entity in his third-party complaint.

       {¶20} Based upon this Court’s disposition of Mr. Haley’s third assignment of error, we

conclude that these two assignments of error are not properly before us at this time and will not

be addressed.

                                               III.

       {¶21} Mr. Haley’s third assignment of error is sustained and we decline to address his

first and second assignments of error. The judgment of the Summit County Court of Common

Pleas is reversed and the matter is remanded for proceedings consistent with this opinion.

                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.
                                                 9


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT



HENSAL, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

STEPHEN T. HALEY, pro se, Appellant.

BROOKE TURNER BAUTISTA, Attorney at Law, for Appellee.
