[Cite as Hudson & Keyse L.L.C. v. Sherrills,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

HUDSON & KEYSE LLC, :

Plaintiff-Appellee, : No. 110366 v. :

DENISE L. SHERRILLS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 20, 2022

Civil Appeal from the Lakewood Municipal Court Case No. 2009-CVF-02022

Appearances:

Denise Sherrills, pro se.

FRANK D. CELEBREZZE, JR., P.J.:

Appellant Denise Sherrills (“appellant”) appeals the judgment of the

Lakewood Municipal Court reviving the dormant judgment of appellee Hudson &

Keyse LLC (“Hudson & Keyse”). After a thorough review of the applicable law and

facts, we affirm the judgment of the trial court. I. Factual and Procedural History

Hudson & Keyse originally filed suit against appellant in 2009,

seeking collection of a debt that it claimed had been assigned to it by Huntington

National Bank. Certified mail service was issued, which was unclaimed. Service was

later made on appellant via ordinary mail.

After appellant failed to answer, Hudson & Keyse moved for default

judgment, which was granted in the amount of $3,386.24, plus 5 percent interest.

Hudson & Keyse did not execute upon the judgment, and after five

years, it was rendered dormant. On December 15, 2020, Hudson & Keyse filed a

motion for revivor of dormant judgment. Appellant was served with the motion and

filed her opposition thereto.

The trial court held an evidentiary hearing on the motion for revivor.

Appellant and counsel for Hudson & Keyse both appeared in court. In its entry

following the hearing, the court noted,

Although an attorney appeared for the plaintiff, the attorney was not counsel of record and did not comply with the requirements of Civil Rule 3 to file a notice of limited appearance. The case was heard and submitted.

Subsequent to the hearing and after the defendant departed the court, the attorney for the plaintiff came back to the court and filed a notice of limited appearance and brief in opposition to the defendant’s objections. The affect [sic] of the attorney’s action was to attempt to do indirectly that which he could not do directly due to the failure to comply with the Ohio Rules of Civil Procedure and file the required notice of limited appearance. Moreover, the brief filed by the attorney was done after the hearing was concluded and without leave of court, all of which is an attempt to prevail on the motion without notice to the defendant. In the interest of justice, the court scheduled an additional hearing on

the motion. Appellee’s counsel then filed a proper notice of limited appearance.

Appellant, in turn, filed an objection/answer. Following the scheduled hearing, the

court noted as follows:

This case was called for a hearing on the defendant’s objections to the plaintiff’s motion to revive a dormant judgment. A prior hearing was continued due to procedural issues and the case was continued for hearing to March 4, 2021 at 9:30 a.m. The defendant and counsel for the plaintiff were present in court and given the notice of the March 4, 2021 hearing.

The case was called with only counsel for the plaintiff present in court. The court waited a reasonable period of time in case the defendant might appear, but after that time expired and no notice by the defendant, the case proceeded. After the conclusion of the case and counsel for the plaintiff left, the defendant appeared for the hearing. The defendant filed objections to the motion for revivor and submitted her objections to the clerk for filing. The record shows that the defendant did not provide a copy of her objections to the plaintiff.

The court ultimately granted the motion to revive judgment, noting

that appellant’s objections to revivor included a collateral attack on the underlying

judgment that it could not consider. The court overruled appellant’s objections and

declared the judgment entered December 8, 2009, revived and in full force and

effect for execution.

Appellant then filed the instant appeal, raising the following three

paraphrased assignments of error for our review:

1. The trial court erred and abused its discretion in determining Hudson & Keyse, LLC, properly notified appellant in 2009, by certified mail at her address in Euclid, OH. The court further erred by allowing Hudson & Keyse to be awarded money that appellant was unaware that she owed. Appellant was not permitted to have her day in court to defend against the action because she was never served at her address and regular mail was sent to an address in Lakewood, Ohio.

2. The trial court erred and abused its discretion in permitting an attorney who was not counsel for Hudson & Keyse LLC to attend the hearing and present filings in the case.

3. The trial court erred and abused its discretion in allowing the additional attorney to represent Hudson & Keyse, LLC, which no longer exists, and by not continuing the hearing when she was ten minutes late.

II. Law and Analysis

Appellant’s first assignment of error attempts to attack the judgment

by alleging that she was not properly served with the complaint. In her opposition

to the motion for revivor, appellant argued that it was beyond the ten years provided

for a dormant judgment, and thus the trial court erred in reviving the judgment.

R.C. 2325.15 provides that when a judgment is dormant, it may be

revived. R.C. 2325.18 requires that an action to revive a judgment be brought within

ten years from the time the judgment became dormant. In the instant matter, the

court noted that the judgment became dormant when it was not executed on for five

years after the judgment was entered.

A motion for revivor of a dormant judgment should be granted in the

amount the judge finds still due and unsatisfied unless sufficient cause is shown to

the contrary. Worldwide Asset Purchasing, L.L.C. v. Shuster, 8th Dist. Cuyahoga

No. 107431,

, citing Columbus Check Cashers v. Cary,

,

,

(10th Dist.). A trial court holds a

hearing on the motion for revivor, not a trial. “‘Seeking to revive a judgment does not involve the creation of a new action, but merely the institution of a special

proceeding within the original action.’” Id. at ¶ 19, quoting Bartol v. Eckert,

, 45, 33 N.E.294 (1893).

In her appellate brief, appellant appears to have abandoned her

argument about the timing of revivor and instead contends that the statute of

limitations had run on the debt Hudson & Keyes was seeking to collect, although she

does not provide any specific arguments regarding this proposition. App.R. 12

outlines the parameters of the appellate court’s exercise of its reviewing powers and

provides that a court of appeals is not required to consider errors that were not

assigned and argued. Hungler v. Cincinnati,

,

(1986). “[E]rrors not specifically pointed out in the record and separately

argued by brief may be disregarded.” State v. Hill, 8th Dist. Cuyahoga No. 70930,

, 12 (July 10, 1997), citing C. Miller Chevrolet v.

Willoughby Hills,

,

(1974).

We find that appellant’s brief did not present any argument or

authority in support of her statute-of-limitations argument, and we decline to craft

an argument for her.

However, even if appellant had fully addressed this argument, we

note that appellant did not raise the issue of the statute of limitations with regard to

the collection of the debt in the trial court and has only raised it on appeal. “[A]

party cannot raise new arguments and legal issues for the first time on appeal, and

that failure to raise an issue before the trial court waives that issue for appellate purposes.” Miller v. Cardinal Care Mgt., 8th Dist. Cuyahoga No. 107730, 2019-

Ohio-2826, ¶ 23, citing Cleveland Town Ctr., L.L.C. v. Fin. Exchange Co. of Ohio,

Inc.,

,

, ¶ 28 (8th Dist.); Kalish v. Trans World

Airlines, Inc.,

,

(1977) (appellate courts “will

not consider a question not presented, considered, or decided by a lower court”).

Thus, we will not consider this argument for the first time on appeal.

Appellant’s first assignment of error also raises issues with service of

the original complaint and appellant’s claimed lack of knowledge of the case. “A

challenge to the validity of the judgment cannot be asserted in a revivor proceeding.”

Huntington Natl. Bank v. Haas,

,

, ¶ 17 (5th Dist.),

citing Thompson v. Bayer, 5th Dist. Fairfield No. 2011-CA-00007,

.

As noted by the trial court, an objection to a motion to revive a dormant judgment

is limited to the issue of the revivor, not the underlying merits of the judgment. In

other words, objections to a motion for revivor may not be used to collaterally attack

the validity of the judgment or raise any defense that existed prior to the entry of

judgment. Heselden Plumbing Co. v. Justice, 10th Dist. Franklin No. 85AP-733,

(Mar. 13, 1986). “Ohio courts have held that, in order

to bar the revivor of a judgment, the debtor must show ‘the judgment has been paid,

settled or barred by the statute of limitations.’” (Emphasis sic.) Dillon v. Four Dev.

Co., 6th Dist. Lucas No. L-04-1384,

, quoting Heselden at 7.

Consequently, any issues related to service and the validity of the

judgment cannot be considered with regard to the motion for revivor. Such issues are properly presented to the trial court in a motion for relief from judgment. The

trial court did not err in granting the motion for revivor, and appellant’s first

assignment of error is overruled.

In her second assignment of error, appellant contends that the trial

court erred by allowing the attorney for Hudson & Keyse to continue to be on the

case when he was not proper counsel. Appellant appears to be referring to the fact

that an attorney who was not counsel of record appeared at the first scheduled

hearing on the motion for revivor. The court noted that counsel for Hudson & Keyse

appeared, but he was not counsel of record and had not complied with Civ.R. 3 with

regard to filing a notice of limited appearance.

The attorney subsequently attempted to file the proper notice, but the

court noted that it was after the hearing and filed without leave of court. In the

interest of justice, the court scheduled an additional evidentiary hearing on the

motion for revivor. In the intervening time, it appears that the attorney filed the

appropriate notice of appearance, and counsel for Hudson & Keyse properly

appeared at the additional hearing. Thus, we cannot find that the court erred, and

appellant’s second assignment of error is overruled.

Appellant’s third assignment of error essentially argues that a

judgment should not have been awarded in favor of Hudson & Keyse when it no

longer exists and that the court improperly held the hearing without her even though

she was only ten minutes late. Appellant does not provide any arguments in support

of this assignment of error and, again, it is not our obligation to craft arguments for her. However, as noted above, any issues regarding the validity of the award in favor

of Hudson & Keyse would not be appropriately considered in a motion for revivor.

Moreover, the court explained that it waited a reasonable period of

time for appellant, but she did not appear in time for the hearing. We have

previously noted that a pro se litigant is presumed to have knowledge of the law and

of correct legal procedure and is held to the same standards as all other litigants.

Kilroy v. B.H. Lakeshore Co.,

,

(8th

Dist. 1996). Nevertheless, we further acknowledge that “[u]nder the Due Process

Clause of the Fourteenth Amendment to the United States Constitution and Article

I, Section 16, of the Ohio Constitution, parties are entitled to reasonable notice of

judicial proceedings and a reasonable opportunity to be heard.” Hartman v.

Hartman, 8th Dist. Cuyahoga No. 107251,

, citing Ohio Valley

Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn.,

,

(1986).

In the instant matter, appellant was provided reasonable notice of the

hearing because she was present in the court when it was rescheduled. In addition,

the court stated that it waited a reasonable time for appellant to appear at the

rescheduled hearing. Thus, we find that the trial court did not err in holding the

hearing without appellant, and appellant’s third assignment of error is overruled.

III. Conclusion

The trial court did not err in granting the motion to revive dormant

judgment. The arguments raised by appellant in her objection were appropriate for a motion for relief from judgment but could not be considered with regard to a

motion for revivor. All of appellant’s assignments of error are overruled, and the

judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and EMANUELLA D. GROVES, J., CONCUR