[Cite as Blythewood Farms, Ltd. v. Drown, 2014-Ohio-2742.]


                                      COURT OF APPEALS
                                  COSHOCTON COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

BLYTHEWOOD FARMS, LTD                                    JUDGES:
                                                         Hon. William B. Hoffman, P.J.
Plaintiff-Appellee                                       Hon. W. Scott Gwin, J.
                                                         Hon. Craig R. Baldwin, J.
-vs-
                                                         Case No. 2013CA00025
WILLIAM T. DROWN, ET AL.

Defendants/Third-Party                                   OPINION
Plaintiffs/Appellants


KRIS McCOMBS AND
SHELLY MCCOMBS

Third-Party Defendants




CHARACTER OF PROCEEDING:                             Appeal from the Coshocton Municipal
                                                     Court, Case No. CVI1300205


JUDGMENT:                                            Reversed and Remanded


DATE OF JUDGMENT ENTRY:                              June 23, 2014


APPEARANCES:


For Plaintiff-Appellee                               For Defendants-Appellants


JAMES SKELTON                                        BRIAN W. BENBOW
309 Main Street                                      605 Market Street
Coshocton, Ohio 43812                                Zanesville, Ohio 43701
Coshocton County, Case No. 2013CA00025                                                       2

Hoffman, P.J.


       {¶1}    This matter stems from a small claims complaint seeking money damages

arising from an unpaid water bill at issue from a real estate sale and closing.

Defendants-Third Party Plaintiffs/Appellants William T. Drown, Fidelity Title & Closing

Services, LLC and Nina Richards (Appellants) handled the closing of the real estate

transfer as the closing and escrow agent for the real estate purchase. Attorney William

Todd Drown was the principal of Fidelity Title & Closing LLC1, which employs Nina

Richards.     Plaintiff-Appellee Blythewood Farms, Ltd. was the purchaser of the real

estate (Appellee). Third-Party Defendants Kris and Shelly McCombs were the sellers of

the real estate.

                      STATEMENT OF THE FACTS AND PROCEEDINGS

       {¶2}    As part of the closing process, Kris and Shelly McCombs signed

documents entitled Appointment of Escrow Agent/Conditions of Acceptance of Escrow

Closing Affidavit whereby they certified all utility bills, including water, were paid in full.

The Closing Affidavit reads, "All bill(s) for water and sewer issued prior to the date

hereof for water and sewer and services to the premises have been fully paid and/or will

be paid, including charges through date of final readings, if subsequent to the date of

this affidavit." Also, as part of the closing process, the McCombs signed a document

entitled Cooperation Agreement in which they pledged to provide any uncollected funds

at closing within 10 days of demand by Fidelity Title & Closing Services Agency, Inc.




1
 On June 12, 2013, Appellee dismissed Attorney Drown from the lawsuit as a result of
his personal bankruptcy.
Coshocton County, Case No. 2013CA00025                                                  3


      {¶3}   On or about May 16, 2013, after being advised of the outstanding water

bill, Appellants dispatched a letter to the McCombs' last known address demanding

payment for uncollected water bill. No response was received.

      {¶4}   The matter proceeded with the filing of the small claims complaint herein

in the Coshocton Municipal Court. A trial took place on September 17, 2013.2

      {¶5}   The trial court issued a decision on the merits in all matters on October 11,

2013, finding in favor of Appellee Blythewood Farms, Ltd. against Appellants for the

unpaid water bill in the amount of $556.22. The trial court further found in favor of

Appellants as to their third party complaint against Kris and Shelly McCombs for

$556.22.3

      {¶6}   Appellants Fidelity Title & Closing LLC and Nina Richards appeal,

assigning as error:

      {¶7}   "I. THE TRIAL COURT'S OCTOBER 11, 2013 JUDGMENT ENTRY IS

AGAINST THE WEIGHT OF THE EVIDENCE IN THAT THE TRIAL COURT TOOK NO

SWORN TESTIMONY AND FAILED TO CONDUCT ANY TRIAL PROCEDURE

WHATSOEVER IN VIOLATION OF PROCEDURAL DUE PROCESS.

      {¶8}   "II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

HOLDING      APPELLANT,      NINA    RICHARDS,      PERSONALLY        LIABLE     FOR    A

CORPORATE DEBT OF FIDELITY TITLE & CLOSING SERVICES LLC WHEN

APPELLANT WAS MERELY AN EMPLOYEE OF A LIMITED LIABILITY COMPANY.



2
  The transcript of the proceedings includes a title page indicating the trial occurred on
October 17, 2013. However, the record herein reflects the trial occurred on September
17, 2013 at 9:30 a.m.
3
  Third-Party Defendants Kris and Shelly McCombs did not timely appeal the decision of
the trial court.
Coshocton County, Case No. 2013CA00025                                                 4


       {¶9}    "III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

ENTERING       JUDGMENTS         AGAINST      APPELLANTS         BY    RELYING      UPON

COSHOCTON COUNTY ORDINANCES THAT ARE UNCONSTITUTIONAL AND IN

VIOLATION OF R.C. 6119.06 AND R.C. 743.04(A).

       {¶10} "IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

ENTERING JUDGMENTS AGIANST [SIC] APPELLANTS IN THAT THERE IS NO

BASIS FOR LIABILITY IN CONTRACT."

                                                I.

       {¶11} Upon our review of the entire record and a thorough review of the

transcript of the proceedings herein, we find the proceedings do not meet the

requirements of due process. While recognizing the unique nature of small claims

proceedings, the record herein does not demonstrate a sufficient modicum of due

process required under Ohio law. The record does not evidence the witnesses were

under oath, nor does the record indicate the identity or capacity of each witnesses

making a statement. Rather, the record indicates "Unidentified Speaker" throughout the

proceedings.    At times, the trial court admits to confusion, and throughout the

proceedings there is disorder in the colloquy conducted by the trial court. It seems

apparent the trial court attempted to convert the trial proceedings to a settlement

conference, allowing the parties two weeks to submit a dismissal of the proceedings.

Based upon the foregoing, we find the trial court's "trial" violated due process.

       {¶12} The first assignment of error is sustained.
Coshocton County, Case No. 2013CA00025                                               5


                                         II, III. and IV.

      {¶13} In light of our analysis and disposition of Appellant's first assignment of

error, we find Appellant's second, third and fourth assignments of error moot.

      {¶14} The October 11, 2013 Judgment Entry entered by the Coshocton

Municipal Court is reversed and the matter remanded to the trial court for further

proceedings in accordance with the law and this opinion.

By: Hoffman, P.J.

Gwin, J. and

Baldwin, J. concur
