The Never-Ending Case: Grimes v. Oviatt is One For The Ages

April 3, 2017

The Never-Ending Case: Still Not Over, Grimes v. Oviatt is One for the Ages

I have previously written about the nightmare of trying to collect on a judgment. A new case that was just decided by Ohio’s Eighth District Court of Appeals takes it to a whole new level. The Eighth District, which covers the Cleveland/Cuyahoga County area, just released its decision in Grimes v. Oviatt.

Grimes v. Oviatt is a 34-year saga that is still not over. Every case is a story, and many are fascinating. This one is interesting. Here is how it started:

{¶3} In June 1983, [Jeffrey] Grimes allegedly smashed a beer bottle into [John] Selwyn’s face. On June 21, 1985, Selwyn subsequently obtained a default judgment against Grimes in the amount of $50,000 in compensatory damages and $50,000 in punitive damages in Cuyahoga C.P. No. CV-84-082351. Thereafter, on September 19, 1985, Selwyn made a single attempt to execute on the judgment. 

{¶4} On March 30, 1987, Grimes filed a petition in bankruptcy court and obtained a stay of all the proceedings. Selwyn subsequently filed an adversary action contesting the discharge of the judgment. On August 17, 1987, the bankruptcy court declared the judgment nondischargeable. On October 29, 1987, Grimes was discharged from bankruptcy and the stay dissolved.

So four years after being hit in the face with a beer bottle, Selwyn had a judgment for $100,000 but had not collected a cent. It would be intriguing to know how Grimes and Selwyn knew each other, what led to the physical altercation that has kept them litigating against each other since before I was born, where it occurred, what ultimately came of both of their lives, etc. However, such facts are usually not relevant in the eyes of the law. They have not made up – that much is certain. Oh no, time did not heal this wound. In 2012, twenty-five whole years after Grimes’s bankruptcy, Selwyn tried again to collect. The decision does not explain what happened between 1987 and 2012, but Selwyn must have discovered that Grimes was employed. By this time, the judgment was worth over $383,000 with interest. Selwyn collected a few thousand dollars from Grimes, and more court proceedings ensued during the past five years:

{¶5} On June 4, 2012, Selwyn filed a motion to revive the June 1985 judgment in Cuyahoga C.P. No. CV-84-082351. On that same day, Selwyn’s counsel, Oviatt, forwarded an unsigned and nonfiled copy of the motion to revive to Grimes, who forwarded the documents to his attorney. Oviatt did not respond to Grimes’s attorney’s written or telephonic request for information.

{¶6} Three days later, on June 7, 2012, without service of the summons and motion by the clerk’s office, the trial court granted the motion to revive the judgment. On June 18, 2013, Selwyn transferred the revived judgment to the Cleveland Municipal Court and implemented garnishment proceedings of Grimes’s bank accounts, recovering approximately $3,000. 

{¶7} On July 5, 2013, Grimes filed a motion to vacate the trial court’s order reviving the judgment in Case No. CV-84-082351. After a hearing, the court denied Grimes’s motion. Subsequently, and ostensibly to effect service of the summons and motion by the clerk’s office, the administrative judge vacated the June 2012 order reviving the dormant judgment and directed Selwyn to refile the motion to revive the judgment. On January 16, 2014, Selwyn refiled the motion, Grimes was duly served, and the matter was again heard. 

{¶8} On March 24, 2014, the trial court granted Selwyn’s January 16, 2013 motion to revive and ordered that the judgment shall date back to June 7, 2012, resulting in a judgment with interest that amounted to $383,430. In rejecting Grimes’s claim that the motion to revive was untimely, the trial court expressly found that Selwyn’s adversary action in the bankruptcy court constituted an execution on the judgment and, therefore, the 21-year statute of limitations began to run from the date of the bankruptcy court’s order denying discharge of the judgment, namely, August 17, 1992. Utilizing the date the bankruptcy court declined to discharge the judgment and construing the bankruptcy court’s decision as an execution on that judgment, the trial court found Selwyn’s June 2012 motion to revive timely. 

{¶9} Grimes timely appealed the trial court’s decision but failed to post a supersedeas bond to stay execution of the judgment. While the appeal was pending, Selwyn pursued garnishment efforts and filed a foreclosure action against Grimes. 

{¶10} In November 2014, this court ultimately reversed the trial court’s decision to revive the dormant judgment, finding that the trial court erroneously applied the plain meaning of R.C. 2329.07(A)(1). See Grimes Appeal I, 8th Dist. Cuyahoga No. 101252, 2014-Ohio-5147.

Then, Grimes sued Selwyn and his attorney:

{¶13} Grimes commenced the underlying action in July 2015 against both Oviatt and Selwyn in Cuyahoga C.P. No. CV-15-848472, asserting claims for malicious prosecution, third-party legal malpractice, and intentional infliction of emotional distress. Grimes alleged that “Oviatt and Selwyn wrongly initiated the revival of the 1985 judgment knowing that the time had passed and that the judgment was worthless and there was no probable cause or reasonable basis for the motion to be filed.” He further alleged that Oviatt “willfully failed to give notice as required” under Civ.R. 4(F), that “Oviatt and Selwyn willfully harassed Grimes” and “pursued Grimes’ son for money he did not owe causing Grimes to be sued yet again,” and “forced Grimes to pay $12,290.00 in legal fees.” According to Grimes, defendants “improperly filed an untimely motion to revive a judgment and then once the motion was granted entered into a course of conduct designed to inflict the most pain on Grimes possible.”

{¶14} Oviatt moved to dismiss the action on behalf of himself as well as Selwyn, whom he represented, and moved to depose the three appellate judges who decided Grimes Appeal I. The trial court denied both motions. 

{¶15} Grimes moved to disqualify Oviatt from representing Selwyn, and the trial court ultimately granted that motion on October 21, 2015. 

{¶16} In December 2015, Grimes filed an amended complaint, reasserting claims for malicious civil prosecution, third party legal malpractice, intentional infliction of emotional distress, and adding a new claim for unjust enrichment. In support of his unjust enrichment claim, Grimes alleged that, through defendants’ misconduct, they “were unjustly enriched having seized money from bank accounts and paychecks” totaling almost $5,000. 

{¶17} Defendants moved to dismiss the amended complaint. Prior to the trial court ruling on defendants’ motion, Grimes voluntarily dismissed the case without prejudice on February 29, 2016. 

{¶18} On March 25, 2016, Oviatt moved for sanctions pursuant to Civ.R. 11 and R.C. 2323.51 and requested an oral hearing. The trial court subsequently denied the motion without a hearing. 

Oviatt appealed, and was successful in part. The case was remanded for the Trial Court to conduct a hearing on his Motion for Sanctions.

In addition to the collection saga, there are several lessons that can be gleaned from this case. First, a decision granting a motion to disqualify opposing counsel is apparently a final, appealable order under Ohio law:

{¶36} In his third assignment of error, Oviatt argues that the trial court erred by disqualifying him from representing his codefendant Selwyn. This court, however, does not have jurisdiction to review this claim because Oviatt failed to timely appeal from the final judgment issued on October 21, 2015. 

{¶37} A decision granting a motion to disqualify opposing counsel is a final, appealable order and one that “must be appealed immediately or its effect will be irreversible.” Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 10; see also Russell v. Mercy Hosp., 15 Ohio St.3d 37, 39, 472 N.E.2d 695 (1984) (“in the civil context, the grant of a motion to disqualify counsel * * * constitutes a final appealable order under R.C. 2505.02”). Oviatt filed his notice of appeal well beyond 30 days. We therefore lack jurisdiction to consider his claim and dismiss it. See App.R. 4(A). 

Second, interlocutory orders cannot be appealed if an entire case is voluntarily dismissed without prejudice:

{¶34} In his second and final assignments of error, Oviatt challenges the trial court’s denials of his motion to dismiss and motion to depose appellate judges. When an entire action is voluntarily dismissed without prejudice, however, any interlocutory orders made by the trial court are dissolved and are not appealable. Cleveland Indus. Square, Inc. v. Dzina, 8th Dist. Cuyahoga Nos. 85336, 85337, 85422, 85423, and 85441, 2006-Ohio-1095; see also Charles Gruenspan Co., L.P.A. v. Thompson, 8th Dist. Cuyahoga No. 77276, 2000 Ohio App. LEXIS 4783 (Oct. 12, 2000) (recognized a voluntary dismissal, without prejudice, dissolves all interlocutory orders). The orders that Oviatt challenges are interlocutory orders, and such orders therefore are nonappealable. First Sentry Bank v. Rose, 4th Dist. Gallia No. 13CA2, 2014-Ohio-594, ¶ 15; see also Littleton v. Holmes Siding Contr., 10th Dist. Franklin No. 13AP-138, 2013-Ohio-5602, ¶ 6 (denial of motion to dismiss is interlocutory); Miklovic v. Shira, 5th Dist. Knox No. 04-CA-27, 2005-Ohio-3252, ¶ 26 (“Discovery orders are generally interlocutory and, as such, are neither final nor appealable, especially those that deny discovery.”).

Alex J. Durst

Alex J. Durst is a civil trial attorney with over a decade of experience handling commercial and complex civil litigation matters on behalf of clients across a wide range of industries, with an emphasis on financial services litigation and high-dollar-value breach of contract claims.

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