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IN THE SUPREME COURT OF OHIO

STATE OF OHIO, EX REL.STEPHEN T. HALEY

Relator-Appellant,

-vs-

JANE M. DAVIS, JUDGE,

Respondent-Appellee.

Case No.

On Appeal from Original ActionWrit of Prohibition and Procedendo,in the Summit County Court ofAppeals, Ninth Appellate District

Court of AppealsCase No. 27248

NOTICE OF APPEAL OF APPELLANT STEPHEN T. HALEY

STEPHEN T. HALEYc/o Joshua Caleb & Associates3867 Medina Road - Ste 320Akron, Ohio 44333Telephone: (330) 732-5574Fax: (330) 319-6537stephen@j o shuacaleb. orgRelator-Appellant, pro se

SHERRI BEVAN WALSHProsecuting Attorney

COLLEEN SIMSReg. No. 0069790Assistant Prosecuting Attorney53 University Avenue - 6tfi FloorAkron, Ohio 44308(330) 643-8138 Telephone(330) 643-8277 Fax

^sc(rj ^rcasecutor.surnmitoh.net

Councel for IZespondent Appellee

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NOTICE OF APPEAL OF APPELLANT STEPHEN T. HALEY

Relator-Appellant, Stephen T. Haley hereby gives notice of appeal to the Supreme

Court of Ohio from the judgment of the Summit County Court of Appeals, Ninth

Appellate District, entered in Court of Appeals case No. 27248 on November 13, 2014,

dismissing his Writ of Prohibition and Procedendo, whicll was filed as an original action.

This is an appeal from a decision of a court of appeals in a case that originated in

the court of appeals and that invokes the appellatejurisdictioo of the Supreme Court and is

brought pursuant to S.Ct.Prac.R. 5.01(A)(3).

Respectfully submitted,

Stephen . Haleyc/o Josh Cale & Associates3867 Nledina Road - Ste 320Akron, Ohio 44333Telephone: (330) 732-5574Fax: (330) 319-6537stephen@joshuacaleb.orgRelcr.tor Appellant, pro se

Certificate of Service

I certify that a copy of this Notice of Appeal was sent by email, pursuant to S.Ct.Prac.R.3.11 (B)(1) to counsel for Appellee, Colleen Sims' whose email address is:simsc(&,Drosecutox.sunrngitoh,n^^t and also by ordinary U.S. mail to: 53 UniversityAvenue - 6th Floor, Akron, Ohio 44308 on December 9...2AH*,4

Stephen T. ^ aleyRelator App , 9ro se

!'Sir l f r . .n °i

TATE OF OHIO ^IN THE COURT OF APPEALS)ss: 13 NINTH JUDICIAL DISTRICT

OUNTY OF SUMMIT

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STATE OF OHIO EX REL. S'I EP)4-^N t C.A. No. 27248T. HALEY

Relator

V.

JANE M. DAVIS, JUDGE

Respondent

JOURNAL ENTRY

Stephen T. Haley is a plaintiff in an action pending in the Summit County Court

of Common Pleas before Respondent Judge Jane M. Davis. Mr. Haley obtained a

default judgment in the underlying action. The purported party against which default

was entered moved to vacate that judgment, asserting that it was improperly nained in

e complaint. The trial court, through an order entered by Judge Stormer, Judge

avis's pred.ecessor in office, granted the motion to vacate. Mr. Haley appealed and

is Court reversed the judgment and remanded with instructions for the trial court to

arify its reasoning.

On remand, the trial court held a hearing and ordered Mr. Haley to present

Jitional information to the court. Mr. Haley responded to the trial court's orders and

then filed this original action. He has asked this Court to prohibit the trial court from

vacating the judgment other than by Civ.R. 60(B), to prohibit the trial court from

)wing a non-party to participate in the case without filing a motion to intervene

Journal Entry, C.A. No. 27248Page 2 of I I

t to Civ.R. 24, and to grant a writ of procedendo to order the trial court to

to judgment as this Court ordered in its remand. Judge Davis has moved to

iss and Mr: Haley has moved for summary judgment. Because appeal is an.

uate remedy to challenge the grant of a motion to vacate and allowing a non-party

appear, and because the trial eaurt has not unreasonably delayed proceeding to

this Court grants Judge Davis's motion to dismiss and dismisses this action.

. Haley has also moved for sanctions pursuant to Civ.R. 11 and R.C. 2323.51, and

udge Davis has.responded to the motion. The motion for sanctions is denied.6

Factual Backgt•ound

As outlined in Mr. Haley's coinplaint, this Court explained the history of the

ing case in its decision on Mr. Haley's direct appeal:

{¶2} Countrywide Field Services ("Countrywide") provided realproperty inspections and maintenance services to mortgage servicers.Countrywide contracted with Maxim Enterprises, Inc. ("Maxim") toprovide these services on properties located in Ohio. Maximsubcontracted this work to several subcontractors. The subcontractorsclaimed to have provided services to the properties, but denied havingreceived payinent from Maxim. Mr. Haley entered into agreements withthe subcontractors, wherein the subcontractors assigned their accountsreceivable and claims to Mr. Haley. Mr. Haley claimed that he contactedMaxim for payment and that Maxim responded that it had not providedpayment to the subcontractors because Countrywide had not provided.payment to Maxim.

4¶3} In 2008, Maxim filed a complaint against several parties,including Mr. Haley, wherein Maxim alleged that Mr. Haley engaged intortious interference with a business relationship and civil conspiracy.Thereafter, Mr. Haley filed a third-party coinplaint against several parties,including Countrywide. This initial third-party complaint was dismissedin 2009. Later that year, Mr. Haley again filed a third-party complaintagainst several parties, including "Bank of America fka CountrywideField Services Corporation," ("Bank of America"). Bank of America

Jounial Entry, C.A. No. 27248Page 3 of 11

failed to answer the third-party complaint, and Mr. Haley moved fordefault judgment, which the trial court granted in 2010.

{4[4} On April 16, 2010, N1r. Haley filed a praecipe for a writ ofexecution against Bank of America dba Merrill Lynch. On April 28, 2010,"BAC Field Services Corporation" ("BAC") filed a motion to stayexecution of judgment. In its motion, BAC argued, in part, that it was alsoknown as "Bank of America Field Services," but it was "improperlynamed in the third party complaint * * * as `Bank of America f/k/aCountrywide Field Services Corporation[.j'" BAC requested the court tostay the proceedings to enforce the judgment pending the disposition of amotion 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 nained inthe third-party complaint as "Bank of America tka Countrywide FieldServices Corporation[.]" BAC maintained that "Bank of America" was anon-entity, and that Bank of America Corporation was its parent companyand was never known as "Countrywide Field Services Corporation."

{¶5} The trial court granted BAC's motion ***.

Ents., Inc. v. Haley, 9th Dist. Suminit No. 26348, 2013-Ohio-3348.

This Court then reviewed the trial court's order granting the motion to vacate.

is Court recognized that BAC filed a Civ.R. 60(B) motion to vacate, which can only

e filed by a party to the action, but that the record did not demonstrate that BAC was a

arty. This Court also noted that the trial court's order was inconsistent because it

gnized that BAC had now appeared in the action and could defend itself, but the

did not also apply the test for determining whether to grant relief under Civ.R.

0(B). It also appeared that the trial court may have exercised its inherent authority to

:e a void judgment. Maxim Ents. at ¶ 16-17. Because this Court could not

mine on what basis the trial court vacated its prior judgment, this Court remanded

cause to the trial court with an instruction that the trial court clarify its reasoning.

According to the complaint, after this Court remanded the case to the trial court,

r. Haley inoved to reinstate the default judgment against Bank of America. Judge

Journal Entry, C.A. No. 27248Page 4 of 11

avis, who had recently been appointed to replace Judge Stormer, scheduled a status

e for late October 2013. As a result of that conference, the trial court ordered

". Haley to provide additional information to the trial court. About a month later, the

ial court entered another order directing Mr. Haley to file the additional information or

case would be dismissed. Mr. Haley then filed the requested information. In mid-

ebruary 2014, when the trial court had still not, complied with this Court's remand

order, Mr. Haley filed this original action.

Writ of Prohibition

Mr. Haley has set forth two claims for a writ of prohibition. First, he asks this

to prohibit Judge Davis from granting relief outside Civ.R. 60(B). Second, he

this Court to prohibit Judge Davis from allowing non-party BAC Field Services

oration from appearing when it has failed to intervene in accordance with Civ.R.

For this Court to issue a writ of prohibition, Mr. Haley must establish that: (1)

Judge Davis is about to exercise judicial power, (2) the exercise of that power is

by law, and (3) the denial of the writ will result in injury for which n4 .

adequate remedy exists. State ex rel Jones v. Garfield Hts. 1Ulun. Court, 77 Ohio

,St. 3d 447, 448 (1997). "[T]he purpose of a writ of prohibition is to restrain inferior

and tribunals from exceeding their jurisdiction." State ex rel. Jones v. Suster, 84

^io St.3d 70, 73 (1998). "[A] writ of prohibition `tests and detennines "solely and

_ly" the subject matter jurisdiction' of the lower court." (citations omitted) Id.

lless the trial court unaznbiguously lacks jurisdiction to proceed, a court having

Journal Entry, C.A. No. 27248Page 5 of 11

jurisdiction of the subject matter has the authority to determine its own

^urisdiction to hear a cause, and the party challenging the court's jurisdiction has an

remedy through an appeal. Brooks v. Gaul, 89 Ohio St.3d 202, 203 (2000).

Mr. Haley cannot prevail on the facts he has alleged in his complaint. He has not

ged that Judge Davis or the Summit County Court of Common Pleas lacks subject

jurisdiction over this case. Instead, the prohibition claim seeks to prevent Judge

vis from exercising jurisdiction in a manner Mr. Haley believes is improper.

Mr. Haley's first claim is that the trial court may not exercise jurisdiction to .

a final judgment except under. Civ.R. 60(B). In our previous decision, we

idered this issue and recognized tliat there are two options for a trial court to vacate

judgment - Civ.R. 60(B) and the trial court's inherent authority to vacate a void

^udgment. Because the trial court has inherent authority to vacate a void judgment, Mr.

's claim does not pertain to the trial court's subject matter jurisdiction, thus, as to

is claim, Mr. Haley cannot prevail.

Mr. Haley's second claim is that _ Judge Davis cannot permit a non-party to

.ppear when it has not complied with Civ.R. 24. That rule perinits a non-party to ask

trial court to allow it to intervene to participate in an action. This Court has

gnized that a trial court commits error when it considers a non-party's Civ.R. 60(B)

Appellant argues that the Civ.R. 60(B) motion was not properly before thetrial court because Appellee did not have standing to file the Civ.R. 60(B)motion as he was not a party at that time. Indeed, it is normally error toentertain such a motion filed by a non-party. See Nicholas v. State FarmIns.,llth Dist. No. 99-T-0030 (June 9, 2000).

Jotu-nal Entry, C.A. No. 27248Page 6 of 11

Farm Mut. Ins. Co. v. Young, 9th Dist. No. 22944, 2006-Ohio-3812, T 12. If

Davis were to improperly consider a Civ.R. 60(B) motion, it would be error, not

improper exercise of jurisdiction. that could be remedied by prohibition. Because

udge Davis and the Summit County Court of Common Pleas have jurisdiction over the

before it, and. Judge Davis's consideration of a Civ.R. 60(B) motion by a non-party

ould constitute error, Mr. Haley is not entitled to the writ of prohibition on this basis.

Because Mr. Haley has failed to set forth facts to support his claims, this Court

6

dismiss his coinplaint as it relates to the writ of prohibition.

Writ of Procedendo

Mr. Haley, has also sought a writ of procedendo. He has asserted that Judge

ivis has refused to coinply with this Court's July 31, 2013 mandate. He has pointed to

requirement of Sup.R. 40 that a court should rule 6n a motion within 120 days as

for his argument that the trial court has delayed in complying with this Court's

To be entitled to a writ of procedendo, Mx. Haley must establish a clear legal

to require Judge Davis to proceed, a clear legal duty on the part of Judge Davis to

ed, and a lack of an adequate remedy in the ordinary course of law. State ex rel.

iiey v. Pai^rott, Judge, 77 Ohio St. 3d 64, 65 (1996). Extraordinary relief in

is appropriate when a court has either refused to render a judgment or has

ily delayed proceeding to judgment. IViley at 65. Mr. Haley has not alleged

I iin his complaint that the trial court has refused to render judgment, so we will not

Journal Entry, C.A. No. 27248Page7of11

ider that prong. NZr. Haley has alleged that Judge Davis has delayed in entering

^udgment, however, he has not set forth facts alleging that Judge Davis has

arily delayed in entering judgment. A writ of procedendo would be

if a trial court itnjustifiahly delayed following the mandate of a court of

State ex rel. Crandall, Pheils & IVisniewski v. DeCessna, 73 Ohio St.3d 180,

1 185 (1995.) (finding a two-year delay in following the mandate justified granting the

rit of procedendo).

Mr. Haley has described the issue before the trial court as "uncomplicated." The,

rocedural history of the case suggests otherwise. For example, Mr. Haley attached to

coinplaint a copy of the 26-page trial court docket spanning five years of litigation

over 400 docket items. According to Mr. Haley's conlplaint, this Court ordered the

court to address two issues on remand: (1) whether Bank of America Field

ces had properly appeared, and (2) whether the case had been commenced and

tained in the proper nain.e of BAC. This Court's decision directed the trial court to

ify its reasoning to support its decision. Maxim at ¶ 18.

According to the docket Mr. Haley attached to his complaint, this Court's

ision was filed in the trial court in early August 2013. Less than two months later,

Haley moved to reinstate his default judginent. A week later, Judge Davis

scheduled the matter for a status conference. Several motions and responses were filed

in advance of the, conference. Shortly after the status conference, Judge Davis entered

an arder directing Mr. Haley to provide additional information to the trial court within

114 days. When he had not cornplied one month later, Judge Davis extended the

Journal Entry, G.A. No. 27248Page8of11

for him to file the infQr-mation and notified him that the case would be

issed if he did not comply. Mr. Haley filed the requested information in early

er 2013.

There are few civil cases that discuss a delay following a remand from a court of

ppeals. In DeCessna, 73 Ohio St.3d at 185, the Ohio Supreme Court granted a petition

writ of procedendo because, by the time relators filed their procedendo action,

two years had passed and the trial court had still not complied with the mandate.

Because of the lack of cases involving a remand, we look to other cases

volving a trial court judge's delay in ruling on a pending motion. The Ohio Supreme

has recognized that some delay is understandable, but it is an unnecessary delay

warrants the grant of a writ of procedendo. State ex rel. Rodak v. Betleski, 104

hio St.3d 345, 2004-Ohio-6567, 1,1 16. In Rodak, several motions had been pending for

than four years, and the Supreme Court concluded that Rodak had established an

.nnecessary delay. rd: at ¶ 15. A judge cannot simply fail to make a decision. See,

g., State ex Nel. Brown v. Luebbers, 137 Ohio St.3d 542, 2013-Ohio-5062, ^ 14.

An unnecessary delay in ruling on a motion in an uncoznplicated case would

the grant of a writ of procedendo. State ex rel. Culgan v. Collier, 135 Ohio St.3d

36, 2013-Ohio-1762, ¶ 13. The Culgan Court recognized that there are factors that

may dictate that a trial court take more time to rule on a motion." Id. at ^( 12. The non-

ve list of factors include the complexity of the case, the need for further

y, and other pending motions. Id.

JournaI Entry, C.A. No. 27248Page 9 of 11

As outlined in Mr. Haley's complaint, this is not a case where the trial court

has simply failed to make a decision. The issue before the trial court, as outlined

Mr. Haley's c'omplaint, is complicated. This Caurt's mandate directed the trial court

provide additional reasons in support of its decision. This task was made more

t becau.se, as explained in the complaint, Judge Davis is the successor to the

udge who wrote the original order. A review of the complaint and attachments

demonstrates that Judge Davis had no prior familiarity with the case and she was

equired to explain the reasons that supported the decision appealed, a decision she dida

write.

The facts in the complaint show that Judge Davis held a hearing and scheduled

for the filing of documents and information. She extended the deadline for filing

itional information when Mr. Haley had not responded as ordered. According to the

ket attached to the complaint, at the time he filed this action, about six months had

sed since the underlying case was remanded to the trial court, and almost a month of

delay was attributable to Mr. Haley's failure to timely file the infonnation ordered

Judge Davis. Only two months passed between Mr. Haley's filing of the reqia.ested

cuments and his filing of this action.

Mr. Haley's cornplaint does not set forth facts that, if taken as true, demonstrate

t Judge Davis has unjustifiably delayed following this Court's mandate. His

complaint shows that Judge Davis has taken steps to follow this Court's direction in a

d case. Accordingly, this Court must dismiss his complaint as it relates to the

it of procedendo.

Journal Entry, C.A. No. 27248Page 10 of 11

Motion for Sanctions

Ivlr. Haley has also moved for sanctions pursuant to Civ.R. 11 and R.C. 2323.51.

has alleged that Judge Davis and her attorney have filed pleadings that served to

, were not warranted under existing law, and include factual assertions not

ted by the evidence

Civ.R. 11 states that the attorney's signature "constitutes a certificate by the

ttorney or party that the attomey or party has read the document; that to the best of the

qorney's or party's knowledge, information, and belief there is good ground to support

and that it is not interposed for delay." Civ.R. 11 specifically requires that the

ous conduct be willful. Giusti v. Felten, 9th Dist. Nos. 26611, 26695, 2014-Ohio-

U 15, 22.

Conduct is "frivolous" within the meaning of R.C. 2323.51 when:

(i) It obviously serves merely to harass or maliciously injure another partyto the civil action or appeal or is for another iinproper purpose, including,but not limited to, causing unnecessary delay or a needless increase in thecost of litigation[;](ii) It is not warranted under existing law, cannot be supported by a goodfaith argument for an extension, inodification, or reversal of existing law,or cannot be supported by a good faith. argument for the establishment ofnew law[;](iii) The conduct consists of allegations or other factual contentions thathave no evideiitiary support or, if specifically so identified, are not likelyto have evidentiary suppoi-t after a reasonable opportunity for furtherinvestigation or discovery[;] [or](iv) The conduct consists of denials or factual contentions that are notwarranted by the evidence or, if specifically so identified, are notreasonablybased on a lack of infonnation or belief.

"R.C. 2323.51 does not purport to punish a party for failing on a claim. Rather, it

addresses conduct that serves to harass or maliciously injure the opposing party in a

CJournal Entry, C.A. No. 27248

Page 11 of 11

ivil action or is unwarranted under existing law and for which no good-faith argument

or extension, modification, or reversal of existing law may be maintained." (Citation

omitted) Harold l'ollock Co., L.P.A. v. Bishop, 9th Dist. No. 12CA010233, 2014-Ohio-

13 2, T 19.

This Court has discretion as to whether to grant Mr. Haley's motion for sanctions

discretion to determine whether there is need to hold a hearing before we deny a

on for sanctions.

tJpon review of Mr. Haley's motion, Judge Davis's response, and Mr. Haley's

eply, this Court concludes that there is no basis for the imposition of sanctions and the

notion is denied.

Conclusion

Because Mr. Haley is not entitled to a writ of prohibition or writ of procedendo,

fudge Davis's motion to dismiss is granted and this case is dismissed. Mr. Haley's

on for sanctions is denied.

Costs are taxed to Mr. Haley. The clerk of courts is hereby directed to serve upon

parties not in default notice of this judgment and its date of entry upon the journal.

Civ.R. 58(B).

ore, J.itmore. J.

Judge