Construction professionals at work

Dodging procedural limitations and deadlines, filing a lien can at times feel like a game of minesweeper. One misstep, and the whole thing goes caput. Courts can be sticklers on even the most seemingly unimportant details, and lien claims fall for dumb mistakes all of the time. For these reasons it’s surprising, but not unheard of, to see a claim rise from the grave after years of inaction. Due to a unique set of circumstances, a claim in Ohio has done just that.

The Facts

Top of the Hill is a Ohio construction business wholly owned by Mark A. Hill. Hill was contracted to do work for the Moultrie family on their residential property. In December of 2007, Hill filed a lien on the property as a result of nonpayment. The lien was in the amount of $4,700. The Moultrie’s then provided a cash deposit to the court as security in the amount of the lien, clearing the title to their property. They were required to provide notice of the cash deposit to Hill, and the Moultrie’s attached proof of service and copy of Notice To Lienholder To Commence Suit.

When Hill failed to file suit within 60 days of the above service, his claim became null and void. The trial court granted the Moultrie’s motion to release the security for the lien.

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The Case

Years later, in 2013, Hill sought to foreclose the lien. Much to his surprise, Hill discovered that the lien had been released in 2008 following the aforementioned motion. He had never received notice of the motion. In response, Hill filed a motion, pro se, to vacate and set aside the judgment that released the cash to the property owners.

Ultimately, the trial court denied Hill’s motion on two grounds. The first, that Hill was not authorized to initiate legal proceedings on behalf of Top of the Hill. Because corporations may only appear in court through an attorney, the court found that Hill’s filing was improper. Secondly, the court found that the entry approving application to release the cash deposit was not a judgment and thus was unappealable.

The Appeal

Hill appealed the judgment, stating that he was not properly served. In doing so he introduced a letter reportedly sent by Moultrie’s legal counsel in December of 2007. The letter was sent by counsel to Hill’s correct address, serving as proof that the Moultrie’s were aware of the correct address of the lienholder, but failed to serve him at that address. Apparently text notices haven’t reached this area of Ohio Lien Law yet.

The appellate court proved much friendlier than the trial court.

First Assignment of Error: I can appear in court!

In Hill’s first assignment of error, he argued that the trial court erred in deciding the Appellant was a non-party practicing law unlicensed. Hill is, of course, not an attorney, but he argued that because his business is a sole proprietorship, he was able to appear in court on behalf of the business.

The Court agreed.

The State of Ohio has defined a “sole proprietorship” as an individual doing business under a fictitious name while remaining a single person, still wholly reliable for all of his obligations. Because there is no evidence that Top of the Hill should be treated as a corporation rather than as a sole proprietorship, the trial court erred in determining that Hill could not represent the interests of Top of the Hill in court. Hill did not engage in the unauthorized practice of law.

Second Assignment of Error: Releasing cash was a final judgment!

The trial court found that because the release of cash was not a final judgment, it could not be appealed. Under Ohio law, a judgment that leaves unresolved issues or that requires further action may not be appealed. But one that disposes of an entire case or a distinct part of the case does constitute a final order, thus making it appealable.

The Court found that when the trial court released the cash, it also discharged the Moultrie’s from liability to the appellant for the cash deposited. Hill no longer had any claim to the cash, though the underlying debt was not discharged. Discharging the liability attached to the cash deposit serves as a judgment and is thus appealable.

Third Assignment of Error: The trial court acted against the weight of the evidence.

While the court and Hill were on a roll together, the buck stopped here.

The trial court did not reach the merits of this case. On the trial level, it was dismissed on procedural grounds. When a case is dismissed on procedural grounds, and those decisions on procedure are overturned on appeal, the appropriate remedy is to remand the proceedings to the trial court, continuing proceedings from the point of the error. The Court thus had to remand the case, and the trial court will now come to a determination based on the merits.

What have we learned?

On a macro level, we have learned that Ohio courts can be sympathetic to lienholders at times, which is a nice change of pace. Liens are regularly dismissed for procedural reasons, but the appellate court here at least gave Hill the opportunity to have his case heard. We’ve also learned that courts look down on playing games with service requirements. It appears that the Moultrie’s may have intentionally served Hill at the wrong address to escape liability, and the appellate court refused to let that stand.

While the appellate court did reinforce the rights of pro se litigants in lien claims, we can also gather that going it alone is dangerous business. Hill nearly lost his claim through little fault of his own. If he had Levelset looking out for his interests, he could avoided years of litigation.

Ohio Court Revives Lien Years Later
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Ohio Court Revives Lien Years Later
Lien claims are not often afforded flexibility in procedural matters. Here, an appellate court in Ohio brought an improperly dismissed claim back to life.
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