Opinion
No. 106092
04-12-2018
WILLIAM A. BREWER PLAINTIFF-APPELLEE v. NICOLE M. BREWER, ET AL. DEFENDANTS-APPELLANTS
ATTORNEY FOR APPELLANTS Edward J. Stoll P.O. Box 45293 Cleveland, Ohio 44145 FOR APPELLEE William Austin Brewer, pro se 5494 Haviland Drive Brook Park, Ohio 44142
JOURNAL ENTRY AND OPINION JUDGMENT: REVERSED AND REMANDED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-13-818843 BEFORE: S. Gallagher, J., E.A. Gallagher, A.J., and Blackmon, J.
ATTORNEY FOR APPELLANTS
Edward J. Stoll
P.O. Box 45293
Cleveland, Ohio 44145
FOR APPELLEE
William Austin Brewer, pro se
5494 Haviland Drive
Brook Park, Ohio 44142 SEAN C. GALLAGHER, J.:
{¶1} Defendant-appellant, Nicole M. Brewer, appeals the decision of the trial court that denied her motion to show cause and for attorney fees or alternatively to enforce agreed judgment and attorney fees. Upon review, we reverse the decision of the trial court and remand the matter for an evidentiary hearing.
{¶2} On December 13, 2013, plaintiff-appellee, William A. Brewer, filed a complaint for money judgment, specific performance, and equitable relief against his mother, Marie J. Brewer ("Ms. Brewer," now deceased), his sister, Michelle M. Innocenzi, and his niece, Nicole M. Brewer (collectively "the defendants"). The claims asserted in the complaint related to the transfer of property located at 6349 Sylvia Drive, Brook Park, Ohio.
{¶3} After proceeding with the matter, an agreed judgment entry was filed on November 19, 2014. The court found that the "transfer of The Property by Ms. Brewer to Nicole Brewer was a fraudulent transfer as to creditors[,]" that "Ms. Brewer breached her * * * agreement to repay [William] Brewer the $80,000 in consideration of his agreement to pay off the mortgage[,]" and that "Ms. Brewer has been unjustly enriched in the amount of $12,000 by the improvements [William] Brewer had done to The Property in 2009." The court awarded judgment "in favor of Plaintiff William A. Brewer and against the Defendant Marie J. Brewer in the amount of [$92,000.00] and costs."
{¶4} The court ordered the transfer of the property back to Ms. Brewer and allowed the defendants to continue to live in the property as specified in the agreed judgment entry. Relative to this appeal, the court ordered the following to occur upon the death of Ms. Brewer, as paraphrased from the agreed judgment entry:
1. The defendants were to vacate the property 90 days following Ms. Brewer's death, for immediate delivery of the property to William Brewer's attorney.
2. During their occupancy, the defendants were to continue to be responsible for the payment of all expenses associated with the property and performing any maintenance and repairs needed, and they were to maintain insurance on the property.
3. Within 90 days of Ms. Brewer's death, William Brewer was required to list the property for sale with a licensed realtor at the price recommended by the realtor, and he agreed not to purchase the property for himself when the property was listed for sale.
4. The net proceeds from the sale were to be divided with William Brewer receiving 70 percent of the net proceeds and Nicole Brewer receiving 30 percent of the net proceeds. The parties agreed that "regardless of the sales price, Nicole Brewer will receive a minimum of $27,000 of the net proceeds from the sale of The Property," with deductions to be made for certain outstanding amounts.
{¶5} The court retained jurisdiction to enforce compliance with the terms of the agreed judgment entry.
{¶6} Ms. Brewer died on February 15, 2015. On January 14, 2016, defendant-appellant Nicole M. Brewer filed a motion to show cause and for attorney fees or alternatively to enforce agreed judgment and attorney fees. She asserted that William Brewer had not complied with the terms of the agreed judgment entry in regard to the sale of the property and expressed her belief that William Brewer was attempting to evade the court's order to pay her at least $27,000. She submitted supporting documents to show that William Brewer had been offering the property for sale "By Owner," rather than by a licensed realtor, and that he transferred the property on November 14, 2015, by quit-claim deed and without receiving any consideration, to WAB Rental Properties, L.L.C., which appeared to be wholly owned by William Brewer. Nicole Brewer maintained that William Brewer had no intention of causing the property to be sold in the near term and, instead, might be trying to rent out the property. She requested an immediate hearing, or alternatively, an order compelling the sale of the property in compliance with the agreed judgment entry.
{¶7} William Brewer filed a response in which he denied the allegations in the motion to show cause. He argued that the defendants had failed to comply with the agreed judgment entry by failing to pay costs associated with the property and failed to adequately maintain the property and perform necessary repairs, which caused him "to expend significant funds to bring all outstanding bills current to avoid any judgment liens and/or subsequent foreclosure. He further alleged that he was "required to make numerous repairs and renovations caused by defendants' either negligence or willful conduct[.]" William Brewer sought an award of all fees incurred in seeking to enforce the orders of the court; he moved for an order requiring defendants to show cause; he requested that the court deny Nicole Brewer's motion; and he requested an oral hearing.
{¶8} Although the docket indicates that two hearings were held, on February 23, 2016, and April 20, 2016, a formal evidentiary hearing was never held before the judge. Rather, appellant states that the parties met with the judge's staff and that the judge neither participated in nor conducted any proceeding on the record. The docket entry for April 20, 2016, reflected that the "motion to enforce remains pending." On July 2, 2017, Nicole Brewer attempted to file a supplemental brief, which noted the motion remained pending. That brief was stricken because leave of court was not sought or obtained. On July 6, 2017, the trial court denied the motion to enforce without opinion and without having conducted any evidentiary hearing.
{¶9} Nicole Brewer timely filed this appeal. In her appellate brief, she states that before the trial judge denied her motion to show cause, the property was sold to unrelated parties for the sum of $118,000, but that she has not been paid any amounts by William Brewer.
{¶10} Appellant's first and second assignments of error challenge the trial court's failure to hold a full hearing on her motion to show cause and for attorney fees or on her alternative motion to enforce agreed judgment and attorney fees. Under her third assignment of error, appellant claims that the trial court erred by denying her motion to enforce. Because all of her assignments of error are related, we address them together.
{¶11} Here, the trial court retained jurisdiction to enforce the agreed judgment entry. Appellant argues that she presented sufficient evidence to support her motion and that the trial court's failure to hold a full hearing amounted to prejudicial error. The trial court did not conduct any evidentiary hearing and did not rule on the pending motion for over a year. By that point, it is represented that the property had been sold by appellee's wholly owned limited liability company. Appellant appropriately points to the Ohio Code of Judicial Conduct.
{¶12} Jud.Cond.R. 2.5 states that "a judge shall perform judicial and administrative duties competently and diligently * * *." (Emphasis added.) Comment 4 to that rule provides that "[i]n disposing of matters promptly and efficiently, a judge must demonstrate due regard for the rights of parties to be heard and to have issues resolved without unnecessary cost or delay." (Emphasis added.) Jud.Cond.R. 2.5, Comment [4]. In addition, Jud.Cond.R. 2.6(A) provides that "[a] judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law." (Emphasis sic.) Comment 1 to that rule provides that "[t]he right to be heard is an essential component of a fair and impartial system of justice. Substantive rights of litigants can be protected only if procedures protecting the right to be heard are observed." Jud.Cond.R. 2.6, Comment [1].
{¶13} We recognize that a hearing is not always required under the law. However, in this instance the trial court retained jurisdiction to enforce the agreed judgment entry, both parties requested an oral hearing, and the parties were entitled to an opportunity to be heard and to present evidence in the matter. Further, because no evidentiary hearing was conducted, we do not have an adequate record to conduct a meaningful review.
{¶14} Under the circumstances of this case, we find the trial court abused its discretion by failing to hold an evidentiary hearing. We reverse the decision of the trial court and remand the matter for an immediate evidentiary hearing. We note that William Brewer filed an appellee brief that was stricken. The original documents attached to that brief remain in the file and shall be made available for the evidentiary hearing.
{¶15} Judgment reversed; cause remanded for an evidentiary hearing.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas 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. SEAN C. GALLAGHER, JUDGE EILEEN A. GALLAGHER, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR