[Cite as Dublin v. Beatley, 2016-Ohio-5606.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



CITY OF DUBLIN                                 :     JUDGES:
                                               :     Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                     :     Hon. William B. Hoffman, J.
                                               :     Hon. John W. Wise, J.
-vs-                                           :
                                               :
JACK K. BEATLEY, ET AL.                        :     Case No. 16 CAE 04 0021
                                               :
        Defendants-Appellants                  :     OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 15 CVH 09 0598




JUDGMENT:                                            Reversed




DATE OF JUDGMENT:                                    August 24, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

PHILIP K. HARTMANN                                   KEVIN E. HUMPHREYS
YAZAN S. ASHRAWI                                     332 West 6th Avenue
10 West Broad Street                                 Colubus, OH 43201
Suite 2300
Columbus, OH 43215
Delaware County, Case No. 16 CAE 04 0021                                                 2


Farmer, P.J.

       {¶1}    On September 9, 2015, appellee, city of Dublin, filed a complaint against

appellant, Jack Beatley, seeking to appropriate a portion of his property. On October

21, 2015, appellant filed a Civ.R. 12(B)(1) motion to dismiss, claiming appellee failed to

comply with the notice requirements of R.C. 163.04 and 163.041. Appellee filed a

memorandum in opposition on November 4, 2015. Due to a glitch in the electronic

filing, certain exhibits attached to the memorandum to establish futile efforts to serve

notice were not included in the filing. By judgment entry filed December 21, 2015, the

trial court granted the motion, finding it did not have jurisdiction to hear the matter, as

appellee failed to provide proper notice to appellant.

       {¶2}    On January 8, 2016, appellee filed a Civ.R. 60(B) motion from relief from

judgment, claiming mistake and excusable neglect regarding the missing exhibits

(affidavits of Dublin police officers). By judgment entry filed April 19, 2016, the trial

court granted the motion, finding appellee could establish constructive service and met

all the requirements for relief. The trial court denied appellant's motion to dismiss, and

gave appellee leave to amend its complaint to comply with R.C. 163.05.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶4}    "THE   TRIAL    COURT      COMMITTED       AN   ERROR      OF    LAW    BY

MISAPPLYING       CIV.R.   60(B) RELIEF TO THE            CIV.R.12 (B)(1) DISMISSAL

RENDERED ON DECEMBER 21, 2015."
Delaware County, Case No. 16 CAE 04 0021                                3


                                      II

     {¶5}   "THE TRIAL COURT COMMITTED AN ERROR OF LAW IN ITS

CONCLUSION THAT CONSTRUCTIVE SERVICE FOR PURPOSES OF THE

JURISDICTIONAL PRIORITY RULE, CAN BE EXTENDED TO OPERATE AS A

SUBSTITUTE METHOD OF SERVICE REQUIRED BY THE APPROPRIATION

PROVISIONS OF R.C. 163.01, ET SEQ."

                                      III

     {¶6}   "THE TRIAL COURT COMMITTED AN ERROR OF LAW BY ALLOWING

CIV.R. 60(B) TO BE USED AS A MECHANISM TO REARGUE ISSUES THAT HAD

ALREADY BEEN BRIEFED AND DECIDED BY THE JUDGMENT ENTRY SOUGHT

TO BE VACATED."

                                      IV

     {¶7}   "THE   TRIAL   COURT   COMMITTED   AN   ERROR   OF   LAW   BY

MISAPPLYING CIV.R. 60(B) RELIEF THROUGH ITS DETERMINATION OF AN

ULTIMATE ISSUE IN THE CASE – THE DEFENSE OF LACK OF SERVICE OF

NOTICES AS REQUIRED BY R.C. 163.04, AND R.C. 163.041."

                                      V

     {¶8}   "THE TRIAL COURT COMMITTED AN ERROR OF LAW BY FAILING TO

HOLD A HEARING BEFORE GRANTING CIV.R. 60(B) RELIEF."

                                      VI

     {¶9}   "THE TRIAL COURT COMMITTED AN ERROR OF LAW WHEN IT

GRANTED LEAVE TO THE PLAINTIFF TO AMEND THE COMPLAINT WHEN ITS

EXERCISE OF JURISDICTION WAS LACKING."
Delaware County, Case No. 16 CAE 04 0021                                                    4


                                          I, II, III, IV

       {¶10} Appellant claims the trial court erred in granting appellee's Civ.R. 60(B)

motion for relief from judgment, claiming the trial court misapplied the rule to the Civ.R.

12(B)(1) dismissal, and erred in finding constructive service abrogated the necessity to

follow R.C. 163.01, et seq. Appellant also claims the Civ.R. 60(B) motion was merely a

re-argument of the motion to dismiss, and the trial court erred in determining the

ultimate issue. We agree in part.

       {¶11} A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's

sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75 (1987). In order to find an abuse

of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217 (1983).           Appellee based its Civ.R. 60(B) motion on

"mistake, inadvertence, surprise or excusable neglect" and "any other reason justifying

relief from the judgment." Civ.R. 60(B)(1) and (5). In GTE Automatic Electric Inc. v.

ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus, the

Supreme Court of Ohio held the following:



              To prevail on a motion brought under Civ.R. 60(B), the movant

       must demonstrate that: (1) the party has a meritorious defense or claim to

       present if relief is granted; (2) the party is entitled to relief under one of the

       grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made

       within a reasonable time, and, where the grounds of relief are Civ.R.
Delaware County, Case No. 16 CAE 04 0021                                                  5


       60(B)(1), (2) or (3), not more than one year after the judgment, order or

       proceeding was entered or taken.



       {¶12} From the face of the Civ.R. 60(B) motion, it is clear the affidavits of the

Dublin police officers on the issue of service of notice were omitted from appellee's

November 4, 2015 memorandum in opposition to appellant's motion to dismiss. There

was a clear assertion of claims of mistake (clerical error) and excusable neglect.

       {¶13} In its December 21, 2015 judgment entry granting the motion to dismiss,

the trial court referenced the missing affidavits as follows:



              Lastly, Plaintiff submits that it has met the requirements of R.C.

       163.04 and 163.041 because the law does not require it to engage in futile

       efforts.   Plaintiff contends that Defendant has purposely evaded the

       certified mail and personal delivery service attempts by Plaintiff. Although

       Plaintiff refers to Exhibits E, F, and G – attempts to achieve certified mail

       service and personal service by Dublin police officers – these exhibits are

       not attached to Plaintiff' memorandum in opposition filed with the Court.

       Plaintiff has failed to establish that any effort on its part to serve Defendant

       with the required notice would be futile.



       {¶14} Attached to appellee's January 8, 2016 motion for relief from judgment is

the affidavit of Janet Pettibone, a legal secretary, who averred the following in part:
Delaware County, Case No. 16 CAE 04 0021                                               6


              4. As part of my assistance with the above-captioned matter, I

       electronically filed the City of Dublin's Memorandum in Opposition of

       Defendant Jack K. Beatley's Motion to Dismiss and Plaintiff City of

       Dublin's Request for Hearing on November 4, 2015.

              5. The filing was originally rejected twice and I was advised that the

       file was either "corrupt or damaged."       I spoke with Angela Wheeler,

       Deputy Clerk, about this issue and she advised that the file may be too

       large due to the fact that some exhibits were in color.

              6. I re-scanned the color exhibits in black and white and proceeded

       to file the memorandum in opposition along with exhibits through the

       Delaware County Court of Common Pleas electronic filing system.

              7. I checked the Court's online docket to confirm that the

       memorandum in opposition was filed. The memorandum in opposition

       appeared on the Court's docket and was stamped on the first page as

       having been E-Filed on November 4, 2015, at 4:02 p.m.

              8. I did not receive another further notification from Delaware

       County regarding any issues with the City's filing.



       {¶15} Appellee presented sufficient operable facts of mistake and excusable

neglect in its motion for relief from judgment. Appellee's claims were based upon an

error in the electronic filing system that was unknown to appellee until the judgment

entry of dismissal. We therefore conclude the trial court did not abuse its discretion in

revisiting the motion to dismiss via the Civ.R. 60(B) motion.
Delaware County, Case No. 16 CAE 04 0021                                                7


      {¶16} However, in our analysis of appellee's assertion of a meritorious defense,

we find, as a matter of law, the trial court erred in finding constructive service to be

sufficient despite the statutory requirements of R.C. 163.04(A). Jurisdictional issues,

unlike mistake and excusable neglect, involve questions of law which we review de

novo. John Roberts Management Co. v. Obetz, 188 Ohio App.3d 362, 2010-Ohio-3382

(10th Dist.). The appropriation of property is a special statutory proceeding governed by

R.C. 163.01, et seq.

      {¶17} In its April 19, 2016 judgment entry granting the motion for relief from

judgment, the trial court specifically expanded the jurisdictional requirement of R.C.

163.04:



             ***I conclude that in an appropriation case, a party must provide

      evidence that an opposing party has been evading service and that the

      opposing party has notice of the intended appropriation action in order to

      request that the court find that the opposing party has been constructively

      served.

             Here, I believe that the Defendant has been evading service and

      that the Plaintiff should not be required to make further attempts to serve

      the Defendant. The Plaintiff attempted to serve the Defendant through

      certified mail and personally. Service by publication under Civ.R. 4.4 is

      not available to the Plaintiff in this case. At this stage of the litigation, I

      believe that the Defendant has notice not only of the Plaintiff's intent to

      move forward with the appropriation, but also the specifics of the Plaintiff's
Delaware County, Case No. 16 CAE 04 0021                                                  8


       offer and plan. Although this court has held that strict compliance with

       statutory service requirements is necessary, other avenues must be

       available to the Plaintiff if the Defendant is intentionally avoiding service. I

       am willing to extend the appellate court's logic in B-Dry [Systems, Inc. v.

       Kronenthal, 2nd Dist. Montgomery Nos. 17130 and 17619, 1999 WL

       961248 (June 30, 1999)] to this situation, and believe that the Plaintiff has

       shown that the Defendant has received proper notice of the city's intent to

       appropriate as required by R.C. 163.04.



       {¶18} The detailed language of the notice form was codified in R.C. 163.041.

The legislative intent is clear and specific as to what the notice shall be and how the

notice shall be given.

       {¶19} R.C. 163.04 governs notice. Subsection (A) states the following:



              At least thirty days before filing a petition pursuant to section

       163.05 of the Revised Code, an agency shall provide notice to the owner

       of the agency's intent to acquire the property.          The notice shall be

       substantially in the form set forth in section 163.041 of the Revised Code.

       The notice shall be delivered personally on, or by certified mail to, the

       owner of the property or the owner's designated representative.

       (Emphasis added.)
Delaware County, Case No. 16 CAE 04 0021                                                9


       {¶20} R.C. 163.041 states: "Before initiating an appropriation action, an agency

shall provide notice to each property owner as required by division (A) of section 163.04

of the Revised Code." (Emphasis added.)

       {¶21} R.C. 163.05 governs petition for appropriation and states in part: "An

agency that has met the requirements of sections 163.04 and 163.041 of the Revised

Code, may commence proceedings in a proper court by filing a petition for appropriation

of each parcel or contiguous parcels in a single common ownership, or interest or right

therein."

       {¶22} It is appellee's position that appellant purposefully avoided service of

notice under R.C. 163.04(A) and therefore it was permitted to utilize service under

Civ.R. 4.1.   Although we acknowledge appellee's frustration concerning a property

owner who is evasive or absent, we find the provisions of Civ.R. 1(C) specifically rejects

appellee's position:



              (C) Exceptions. These rules, to the extent that they would by their

       nature be clearly inapplicable, shall not apply to procedure (1) upon

       appeal to review any judgment, order or ruling, (2) in the appropriation of

       property, (3) in forcible entry and detainer, (4) in small claims matters

       under Chapter 1925 of the Revised Code, (5) in uniform reciprocal support

       actions, (6) in the commitment of the mentally ill, (7) in adoption

       proceedings under Chapter 3107 of the Revised Code, (8) in all other

       special statutory proceedings; provided, that where any statute provides

       for procedure by a general or specific reference to all the statutes
Delaware County, Case No. 16 CAE 04 0021                                             10


       governing procedure in civil actions such procedure shall be in

       accordance with these rules.



       {¶23} Upon review, we find the trial court erred in granting the Civ.R. 60(B)

motion from relief from judgment. The decision on the motion to dismiss is reinstated.

       {¶24} Assignment of Error I is denied. Assignments of Error II, III, and IV are

granted. Assignments of Error V and VI are moot.

       {¶25} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby reversed, and the trial court's December 21, 2015 judgment entry granting

appellant's motion to dismiss is reinstated.

By Farmer, P.J.

Hoffman, J. and

Wise, J. concur.




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