[Cite as James v. Top of the Hill Renovations, 2016-Ohio-1190.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Alonzo James, : 

 Plaintiff-Appellee, : 

 No. 15AP-888 

v. : (C.P.C. No. 08MS-01-188)

Top of the Hill Renovations, : (ACCELERATED CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on March 22, 2016 

 

On brief: Mark. A. Hill, pro se. 

 

APPEAL from the Franklin County Court of Common Pleas 

SADLER, J. 

{¶ 1} Defendant-appellant, Top of the Hill Renovations ("Top of the Hill"), 

appeals from a judgment of the Franklin County Court of Common Pleas denying a 

motion to vacate and set aside a 2008 judgment in favor of plaintiff-appellee, Alonzo 

James. For the reasons that follow, we reverse. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} The record in this case shows that Top of the Hill is a business wholly owned 

by Mark A. Hill. According to the affidavit of mechanics' lien recorded on or about 

December 7, 2007, Top of the Hill, by and through its "owner," Mark A. Hill, contracted 

with Herman Moultrie, De'lona Moultrie, and appellee, Alonzo James, to perform work at 

a residence located at 1508 Orson Drive, Columbus, Ohio. According to the affidavit of 

mechanics' lien, appellee and the Moultries owned the residence in question.1 The total 

 

1 The Moultries have not been made parties to this appeal. 
No. 15AP-888 2 

amount of the claim secured by the lien is $4,700. The address of the lienholder, as set 

forth in the affidavit, is 1717 Cordell Avenue, Columbus, Ohio.

{¶ 3} On January 30, 2008, appellee filed an application, pursuant to R.C. 

1311.11(C)(1), for approval of a cash deposit as security of the amount of the claim secured 

by the lien. On that same day, the trial court issued an entry approving appellee's 

application. On April 8, 2008, appellee filed an "application for release of cash deposit." 

The stated grounds for the motion were as follows:

Applicant certifies that a Notice To Commence Suit was 

served upon Lienholder by James A. Karnes, Sheriff of 

Franklin County, Ohio, by regular mail on February 6, 2008, 

following return of certified mail sent January 31, 2008. 

Attached hereto is proof of service and copy of Notice To 

Lienholder to Commence Suit. The Lienholder failed to 

commence suit within 60 days of service as required by R.C. 

1311.11 and the lien is null and void. 

{¶ 4} On April 8, 2008, the trial court granted appellee's motion and released the 

cash deposit to appellee. On July 17, 2015, more than seven years after the trial court 

released the cash deposit to appellee, Hill filed a motion on behalf of Top of the Hill to 

vacate and set aside the April 8, 2008 judgment. The motion alleges that in 2013, Top of 

the Hill filed suit against James and the Moultries in case No. 13CV-12-13306, seeking to 

foreclose on the lien. In the course of that litigation, Top of the Hill learned that the trial 

court had released the lien in 2008. The stated grounds for the motion to vacate and set 

aside the 2008 judgment are the lack of personal jurisdiction and failure of statutory 

notice.

{¶ 5} On August 28, 2015, the trial court denied the motion for the following 

reasons: (1) Hill, as a non-attorney, was not authorized to initiate legal proceedings on 

behalf of Top of the Hill, and (2) the April 8, 2008 entry approving appellee's application 

to release the cash deposit is not a judgment.

{¶ 6} On September 23, 2015, appellant filed a notice of appeal to this court and 

an App.R. 9(C) statement of the evidence. On December 21, 2015, appellant filed a 

motion, pursuant to Evid.R. 201, asking this court to take judicial notice of a copy of a 

December 7, 2007 letter reportedly sent by the Moultrie's legal counsel to Hill at 1289 

Linwood Avenue in Columbus. Appellant submits that the letter is proof that appellee 
No. 15AP-888 3 

knew the correct service address for the lienholder but did not serve the lienholder at that 

address.

II. ASSIGNMENTS OF ERROR 

{¶ 7} Appellant sets forth the following assignments of error: 

[1.] The trial court abused it's [sic] discretion, erring to the 

prejudice of Appellant, in deciding that Appellant is a nonparty practicing law unlicensed. 

[2.] The trial court abused it's [sic] discretion, and issued an 

Order contrary to law, in ruling that it's [sic] Entry is not a 

judgment entry. 

[3.] The trial court's order denying Appellant's motion to 

vacate is against the manifest weight of the evidence. 

III. Standard of Review 

{¶ 8} "[A] party seeking relief from judgment under Civ.R. 60(B) 'must 

demonstrate that: (1) the party has a meritorious defense or claim to present if relief is 

granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 

60(B)(1) through (5); and (3) the motion is made within a reasonable time.' " PHH Mtge. 

Corp. v. Santiago, 10th Dist. No. 11AP-562, 2012-Ohio-942, ¶ 11, quoting GTE Automatic 

Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the 

syllabus. A movant must establish all three of these requirements to obtain relief from 

judgment. Bank of Am., N.A. v. Pasqualone, 10th Dist. No. 13AP-87, 2013-Ohio-5795, 

¶ 14, citing Flagstar Bank, FSB v. Hairston, 10th Dist. No. 12AP-679, 2013-Ohio-1151, ¶ 7. 

We review trial court decisions on Civ.R. 60(B) motions pursuant to an abuse-ofdiscretion standard of review. Id., citing Hairston at ¶ 6. We will not reverse the trial 

court's decision absent a finding that the trial court acted arbitrarily, unconscionably, or 

unreasonably. Id.

{¶ 9} A common law motion to vacate is utilized to set aside a judgment rendered 

by a court that has not acquired personal jurisdiction over the defendant. Freedom Mtge. 

Corp. v. Groom, 10th Dist. No. 08AP-761, 2009-Ohio-4482, ¶ 19. A trial court's decision 

to deny a motion to vacate judgment is reviewed on appeal for an abuse of discretion 

whether that motion is made pursuant to Civ.R. 60(B) or under the common law. Id. See
No. 15AP-888 4 

also Spotsylvania Mall Co. v. Nobahar, 7th Dist. No. 11 MA 82, 2013-Ohio-1280, ¶ 14, 

citing GTE Automatic Elec. at 150. 

IV. LEGAL ANALYSIS 

A. First Assignment of Error 

{¶ 10} In the first assignment of error, appellant argues that the trial court erred 

when it determined that appellant, as a non-attorney, had engaged in the unauthorized 

practice of law by filing a motion for relief from judgment on behalf of appellant. We 

agree. 

{¶ 11} Under Ohio law, a corporation can maintain litigation or appear in court 

only through an attorney admitted to the practice of law and may not do so through an 

officer of the corporation or some other appointed agent. Disciplinary Counsel v. Givens, 

106 Ohio St.3d 144, 2005-Ohio-4104. The trial court determined that because Top of the 

Hill is a corporation and Hill is not an attorney, Hill engaged in the unauthorized practice 

of law when he filed the July 17, 2015 motion on behalf of Top of the Hill. The record, 

however, does not support the trial court's determination that Top of the Hill is a 

corporation. 

{¶ 12} A "corporation" is defined generally as "[a]n entity (usu[ally] a business) 

having authority under law to act as a single person distinct from the shareholders who 

own it and having rights to issue stock and exist indefinitely." Black's Law Dictionary 341 

(7th Ed.2009). Conversely, the Supreme Court of Ohio has defined a "sole 

proprietorship" as an individual doing business under a fictitious name while remaining 

"one person, personally liable for all his obligations." Patterson v. V & M Auto Body, 63 

Ohio St.3d 573 (1992). 

{¶ 13} In the affidavit of mechanics' lien and throughout this litigation, Hill has 

identified himself as "owner" of Top of the Hill. Hill has never referred to himself by any 

title or designation that would suggest that he is an officer, agent, employee, or 

shareholder of a corporation known as Top of the Hill. Additionally, in referring to Top of 

the Hill, neither party has included a corporate designation or any other designation 

identifying Top of the Hill as a legal entity separate and apart from its owner. 

{¶ 14} On this record, we find that the trial court erred when it determined that 

Top of the Hill is a corporation having a separate legal identity from its owner, Hill. As a 
No. 15AP-888 5 

consequence, the trial court erred when it determined that Hill had engaged in the 

unauthorized practice of law when he filed the July 17, 2015 motion. Accordingly, 

appellant's first assignment of error is sustained. 

B. Second Assignment of Error 

{¶ 15} In the second assignment of error, appellant argues that the trial court erred 

when it determined that the April 8, 2008 entry was not a judgment from which appellant 

could seek relief. We agree. 

{¶ 16} Civ.R. 54(A) defines a "[j]udgment" as "a decree and any order from which 

an appeal lies as provided in section 2505.02 of the Revised Code." R.C. 2505.02(B) 

provides: 

An order is a final order that may be reviewed, affirmed, 

modified, or reversed, with or without retrial, when it is one of 

the following: 

(1) An order that affects a substantial right in an action that in 

effect determines the action and prevents a judgment; 

(2) An order that affects a substantial right made in a special 

proceeding or upon a summary application in an action after 

judgment; 

(3) An order that vacates or sets aside a judgment or grants a 

new trial. 

{¶ 17} " ' "The entire concept of 'final orders' is based upon the rationale that the 

court making an order which is not final is thereby retaining jurisdiction for further 

proceedings. A final order, therefore, is one disposing of the whole case or some separate 

and distinct branch thereof." ' " Browder v. Shea, 10th Dist. No. 04AP-1217, 2005-Ohio4782, ¶ 10, quoting Noble v. Colwell, 44 Ohio St.3d 92, 94 (1989), quoting Lantsberry v. 

Tilley Lamp Co., 27 Ohio St.2d 303, 306 (1971). Conversely, " ' "[a] judgment that leaves 

issues unresolved and contemplates that further action must be taken is not a final 

appealable order." ' " Id., quoting State ex rel. Keith v. McMonagle, 103 Ohio St.3d 430, 

2004-Ohio-5580, ¶ 4, quoting Bell v. Horton, 142 Ohio App.3d 694, 696 (4th Dist.2001). 

{¶ 18} The mechanics' lien provisions at issue in this case are found in R.C. 1311.11. 

R.C. 1311.11(C) provides, in relevant part, as follows: 
No. 15AP-888 6 

(1) Before or after suit has been commenced upon a lien, and 

whether or not a notice to commence suit has been served, a 

* * * cash deposit, * * * may be provided in double the amount 

of the claim secured by the lien * * *. 

An application shall be made to the court of common pleas for 

approval of a * * * cash deposit, * * * and notice of a hearing 

on the application shall be given to the lienholder or his agent. 

* * * 

(3) As of the date of the entry of approval, the security of the 

* * * cash deposit * * * shall be substituted for the security of 

the lien, and the lien is void and the property wholly 

discharged from the lien. 

A * * * cash deposit * * * is released, upon failure of the 

lienholder to commence suit within the time allowed pursuant 

to division (B) of this section. 

{¶ 19} R.C. 1311.11(B)(3) provides, in relevant part, as follows: 

If the lienholder fails to commence suit upon the lien within 

sixty days after completion of service upon him of the notice 

to commence suit, * * * the lien is void and the property 

wholly discharged from the lien. When a lien is void by reason 

of failure to commence suit within sixty days after service of 

the notice to commence suit, the claim upon which the lien 

was founded is not prejudiced by the failure, except for the 

loss of the lien as security for the claim. 

{¶ 20} Based on the statutory provisions, we find that the trial court's April 8, 2015 

entry releasing the cash bond deposited by appellee as security of the amount of the claim 

previously secured by the lien is a "judgment" for purposes of Civ.R. 54 and R.C. 2305.02. 

Though the entry in question does not prevent the lienholder from obtaining a judgment 

in a subsequent action on the contract, the entry discharged appellee from any liability to 

appellant for the cash deposited as security for the amount of the claim previously secured 

by the lien. Such an entry is a "judgment" from which an appeal may lie. In re 

Mechanics' Lien of Whitta, 7 Ohio App.3d 153 (3d Dist.1982). See also Mid-Ohio 

Mechanical v. Eisenmann Corp., 5th Dist. No. 07 CA 000035, 2009-Ohio-5804 (trial 

court issued a judgment when it accepted a cash deposit substituting the deposit for the 
No. 15AP-888 7 

lien and terminating the action on the lien automatically). Accordingly, we sustain 

appellant's second assignment of error. 

C. Third Assignment of Error 

{¶ 21} In his third assignment of error, appellant alleges that the judgment of the 

trial court is against the manifest weight of the evidence. More particularly, appellant 

alleges that the record does not show that appellee complied with the notice requirements 

of R.C. 1311.11 with regard to the application for a cash deposit and the notice to 

commence suit. 

{¶ 22} Because the trial court erroneously concluded that the April 8, 2008 entry 

was not a judgment and that Hill had engaged in the unauthorized practice of law by filing 

the motion on behalf of Top of the Hill, the trial court never reached the merits of 

appellant's motion. As a general rule, "where a judgment of a trial court is reversed 

because of a prejudicial error in the course of the proceedings, the appropriate remedy is 

to reverse the judgment and remand the proceedings to be resumed at the point where the 

error occurred." Cohen v. Univ. of Dayton, 164 Ohio App.3d 29, 2005-Ohio-5780, ¶ 30 

(2d Dist.). Accordingly, we will not reach the merits of appellant's motion for the first 

time in this appeal. Rather, we will reverse the trial court's judgment and remand the 

case to the trial court for a determination of the merits of appellant's motion. 

{¶ 23} For the foregoing reasons, appellant's third assignment of error is rendered 

moot. 

V. CONCLUSION 

{¶ 24} Having sustained appellant's first and second assignments of error and 

having rendered appellant's third assignment of error moot, we reverse the judgment of 

the Franklin County Court of Common Pleas and remand this case for a determination of 

the merits of appellant's motion. Furthermore, given our remand of this case to the trial 

court for further proceedings, appellant's motion for judicial notice is moot. 

Judgment reversed and cause remanded; 

motion for judicial notice moot.

TYACK and BROWN, JJ., concur. 

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