Calhoun, Kademenos, Childress Co., L.P.A. v. Shepherd , 2011 Ohio 496 ( 2011 )

[Cite as Calhoun, Kademenos, Childress Co., L.P.A. v. Shepherd, 2011-Ohio-496.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CALHOUN, KADEMENOS, & : JUDGES:
CHILDRESS CO., L.P.A. :
: Hon. Julie A. Edwards, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2010 CA 0084
RANDY SHEPHERD :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Case No. 2009 CV 1434
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: January 20, 2011
APPEARANCES:
For Appellant: For Appellee:
RANDY SHEPHERD, Pro Se LOUIS H. GILBERT
3558 Alvin Rd. 6 W. 3rd St., Suite 200
Shelby, OH 44875 P.O. Box 268
Mansfield, OH 44901-0268
[Cite as Calhoun, Kademenos, Childress Co., L.P.A. v. Shepherd, 2011-Ohio-496.]
Delaney, J.
{¶1} Defendant-Appellant, Randy Shepherd, appeals the June 2, 2010
judgment entry of the Richland County Court of Common Pleas, which found Appellant
was not entitled to judgment or damages on his counterclaims against Plaintiff-
Appellee, Calhoun, Kademenos & Childress, Co. LPA (“the Firm”).
STATEMENT OF THE FACTS AND CASE
{¶2} On November 1, 2006, the Firm filed a complaint with the Mansfield
Municipal Court, under Case No. 2006CHV03913, seeking payment for legal services
rendered on Appellant's behalf in the amount of $620. Appellant filed an Answer on
November 30, 2006. On the same day, Appellant filed a counterclaim. On January 8,
2007, the Firm filed a reply to the counterclaim. The certificate of service attached
thereto indicated a copy was sent to Appellant by regular U.S. Mail on January 5, 2007.
Appellant filed a motion to dismiss the reply, which the Firm opposed, claiming the reply
was “at most, four days late.” January 17, 2007 Memorandum in Opposition.
{¶3} Appellant filed a motion to amend his counterclaim, seeking damages in
excess of the municipal court's jurisdiction. Appellant requested the following in his
motion to amend his counterclaim:
{¶4} “1. The Defendant respectfully moves the court to amend his Counter
Claim to include all Senior Partners of the firm as advertised on the Firm’s Web Page. *
**
{¶5} “* * *
Richland County, Case No. 2010 CA 0084 3
{¶6} “4. Defendant’s 5 substantiates Defendants original claim of “bait and
switch tactics” better described in Ohio Revised Code. [sic] (ORC) 109:4-3-03 Bait
advertising/unavailability of goods. Definition B 1, B 4,a.
{¶7} “* * *
{¶8} “8. The defendant moves the court to find ‘all’ Senior partners guilty of
Telecommunications Fraud ORC 2913 A, B.
{¶9} “* * *
{¶10} “13. The defendant moves the court to award him from each senior
partner the original $49,000.00 of his original counterclaim.
{¶11} “14. Wherefore the Defendant demands monetary judgment against the
plaintiffs for $245,000.00 in damages.
{¶12} “* * *” (Appellant’s Motion for Amendment to Counterclaim Civ.Rule 15
a,b, Rule 26, Jan. 23, 2007).
{¶13} A status conference was held before a magistrate on January 29, 2007.
The parties were unable to reach a settlement and the magistrate set the matter for trial.
On February 12, 2007, Appellant filed a motion for default judgment. The magistrate
issued a report on April 5, 2007. Therein, the magistrate stated he was addressing
Appellant's motion for default judgment, the Firm's motion to strike and for leave to
respond to the counterclaim. The magistrate noted Civ.R. 12 sets forth a 28 day
response time for a counterclaim; therefore, the Firm was required to answer
Appellant's counterclaim on or before January 2, 2007. Although the Firm filed its reply
to Appellant's counterclaim on January 8, 2007, the magistrate determined, because the
matter had not yet been assigned for any hearings on the merits, neither party's position
Richland County, Case No. 2010 CA 0084 4
had changed and neither party had been damaged by the late filing. The magistrate
concluded Appellant was not entitled to default judgment because the Firm had filed a
reply. The magistrate also denied Appellant's motion to amend his counterclaim.
{¶14} Appellant objected to the Magistrate's Report. On May 3, 2007, the trial
court ordered the matter be transferred to the Richland County Court of Common Pleas,
finding the allegations contained in the counterclaim could exceed the monetary
jurisdiction of the court. The trial court subsequently stayed the transfer and ordered
the matter set for hearing before the magistrate on all open motions. Via Magistrate's
Report filed September 17, 2007, the magistrate again denied Appellant's motions for
default judgment and to amend his counterclaim. The magistrate determined there was
no reason for the trial court to transfer the case to the Richland County Court of
Common Pleas. Appellant again objected to the Magistrate's Report. The matter
proceeded to trial on August 20, 2008. Via Judgment Entry filed November 26, 2008,
the trial court approved and adopted the Magistrate's April 5, 2007, and September 17,
2007 reports as order of the court. The trial court granted directed verdict in favor of the
Firm on one of the claims in Appellant's counterclaim, and rendered judgment in the
Firm's favor on the remaining two claims. The trial court also granted judgment in favor
of Appellant on the Firm's claim for its unpaid legal bill in the amount of $620.
{¶15} Appellant appealed the trial court’s November 26, 2008 judgment entry to
this Court. In Calhoun, Kademenos, & Childress Co., L.P.A. v. Randy Shepherd,
Richland App. 08CA334, 2009-Ohio-3523 (“Shepherd I”), we reversed the judgment of
the trial court and remanded the matter for further proceedings. We found it was
improper for the trial court to consider the Firm’s reply to Appellant’s counterclaim
Richland County, Case No. 2010 CA 0084 5
because the reply was filed beyond the time limit in Civ.R. 12(A)(1) and prior leave of
court was not given for the untimely filing. We therefore found that the trial court erred
in denying Appellant’s motion for default judgment on his counterclaim. The matter was
remanded to the trial court with the following instructions: “we direct the trial court to
proceed to determine Appellant's Motion for Default Judgment in accordance with Civ.R.
55, this opinion and the law.” Id. at ¶24.
{¶16} Appellant also argued on appeal that the trial court erred in denying his
motion to amend his counterclaim to add additional parties and claims. We found the
trial court erred in denying the motion, therefore permitting Appellant to amend his
counterclaim to include a request for damages of an amount above the jurisdictional
limits on the municipal court.
{¶17} On September 30, 2009, the Mansfield Municipal Court transferred the
case to the Richland County Court of Common Pleas. The case, which included the
filings from the municipal court, was assigned by the Clerk of Courts the Common Pleas
Case No. 2009CV1434.
{¶18} After transfer to the Common Pleas court, the parties barraged the trial
court with numerous motions. On May 7, 2010, the trial court issued a lengthy judgment
entry resolving the multiple pending motions and to get to the matter of the case as
ordered by this Court in Shepherd I. We ordered that Appellant’s motion for default
judgment on his amended counterclaim be resolved pursuant to Civ.R. 55. The trial
court determined that pursuant to Civ.R. 55(A), the matter was to be set for a
evidentiary hearing in order for Appellant to provide evidence to support his
Richland County, Case No. 2010 CA 0084 6
counterclaims and to prove his damages against the Firm by clear and convincing
evidence.
{¶19} On May 26, 2010, the matter came on for evidentiary hearing. The trial
court issued its judgment entry on June 2, 2010 finding that Appellant was not entitled to
damages on the claims raised in his amended counterclaim based on the lack of
evidence presented at the hearing. The trial court dismissed any remaining claims and
included Civ.R. 54(B) language in its judgment stating the entry was a final, appealable
entry and there was no just cause for delay. It is from this decision Appellant now
appeals.
{¶20} Appellant has failed to comply with App.R. 16(A)(3) as his Brief does not
include “[a] statement of the assignments of error presented for review, with reference
to the place in the record where each error is reflected.” Appellant has simply provided
this Court with arguments captioned “Issues for Review.”
{¶21} Appellant appears to argue in Issues for Review 1, 2, 4, 6, and 7 that the
transfer of the case from the Mansfield Municipal Court to the Richland County Court of
Common Pleas was improper. We disagree.
{¶22} The record shows that it was Appellant who originally requested that the
matter be transferred. On March 30, 2007, Appellant filed a Motion to Transfer the case
from the Mansfield Municipal Court to the Richland County Court of Common Pleas.
Further, the amount of damages requested in Appellant’s amended counterclaim
exceeded the jurisdiction of the municipal court requiring the transfer of the case
pursuant to statute. R.C.1901.17 states, in relevant part: “A municipal court shall have
original jurisdiction only in those cases in which the amount claimed by any party * * *
Richland County, Case No. 2010 CA 0084 7
does not exceed fifteen thousand dollars [.]” R.C.1901.22(E) provides: “In any action in
a municipal court in which the amount claimed by any defendant in any statement of
counterclaim exceeds the jurisdictional amount, the judge shall certify the proceedings
in the case to the court of common pleas[.]” See also, Civ.R. 13(J).
{¶23} The issue that Appellant seems to be arguing is that the Richland County
Court of Common Pleas case is a new matter, separate and apart from the Mansfield
Municipal Court case; and because it is a new matter, it necessitates the Firm to file a
new complaint. As the trial court explained in its May 7, 2010 judgment entry, the
Richland County Court of Common Pleas Case No. 2009 CV 1434 is the same case as
the Mansfield Municipal Court Case No. 2006 CVH 3913. The Richland County Clerk of
Courts assigned the matter a new case number pursuant to Civ.R. 3(F)(4).
{¶24} We find no merit to Appellant’s first, second, fourth, sixth, and seventh
Issues for Review and overrule the same.
{¶25} In Appellant’s third Issue for Review, Appellant argues that the trial court
erred when it used Civ.R. 54(B) in the June 2, 2010 judgment entry to dismiss any
remaining claims or issues pending before the court. We disagree. To be final and
appealable an order must comply with both R.C. 2505.02 and Civ.R. 54(B), if
applicable.
{¶26} R.C. 2505.02 states in pertinent part:
{¶27} “(B) 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:
{¶28} “(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
Richland County, Case No. 2010 CA 0084 8
{¶29} “(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment.”
{¶30} “(3) An order that vacates or sets aside a judgment or grants a new trial;
{¶31} “(4) An order that grants or denies a provisional remedy and to which both
of the following apply:
{¶32} “(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the appealing party
with respect to the provisional remedy.
{¶33} “(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims, and
parties in the action.* * ”
{¶34} Civ. R. 54(B) provides: “When more than one claim for relief is presented
in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and
whether arising out of the same or separate transactions, or when multiple parties are
involved, the court may enter final judgment as to one or more, but fewer than all of the
claims or parties only upon an express determination that there is no just reason for
delay. In the absence of a determination that there is no just reason for delay, any
order or other form of decision, however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties, shall not terminate the
action as to any of the claims or parties, and the order or other form of decision is
subject to revision at any time before the entry of judgment adjudicating all the claims
and the rights and liabilities of all the parties.”
Richland County, Case No. 2010 CA 0084 9
{¶35} As determined by the trial court, the only matter pending before the trial
court was Appellant’s amended counterclaim and Appellant’s motion for default
judgment pursuant to this Court’s ruling in Shepherd I. The Firm’s original complaint for
unpaid legal bills had been heard by the Mansfield Municipal Court and the trial court
found that judgment was to be awarded in favor of Appellant. The Firm did not appeal
that decision. Upon remand under Shepherd I, the remaining claims pending before the
trial court were those contained in Appellant’s amended counterclaim. On May 7, 2010,
the trial court held an evidentiary hearing pursuant to Civ.R. 55 and determined that
Appellant was not entitled to judgment or damages on his amended counterclaim. The
June 2, 2010 judgment entry was a final decision, disposing of the sole matter pending
before the trial court and any other remaining claims in this protracted litigation. The
inclusion of the Civ.R. 54(B) language ensured the clear termination of the matter
before the trial court.
{¶36} Appellant’s third Issue for Review is overruled.
{¶37} In Appellant’s arguments under Issue for Review 5, Appellant argues the
trial court made “prefatory” statements not supported by law. Appellant makes no
identification of the “prefatory” statements in the record or judgment entry to support his
argument on appeal. App. R. 12(A)(2) states, “[t]he court may disregard an assignment
of error presented for review if the party raising it fails to identify in the record the error
on which the assignment of error is based or fails to argue the assignment separately in
the brief, as required under App. R. 16(A).”
{¶38} Although Appellant has proceeded pro se, he is nonetheless required to
follow the rules and regulations and this Court is not permitted to give unnecessary
Richland County, Case No. 2010 CA 0084 10
leeway to him because he does not have legal counsel. Lamp v. Lamp, Muskingum
App. No. CT2005-0045, 2006-Ohio-3135, ¶26. We hereby disregard Appellant’s fifth
Issue for Review pursuant to App.R. 12(A).
{¶39} Finally, Appellant states in his eighth Issue for Review that the trial court
erred in its application of Shepherd I in failing to award damages to Appellant. We
disagree.
{¶40} Appellant did not file a transcript of the May 26, 2010 hearing in
compliance with App. R. 9(B) and Appellant has not complied with App.R. 9(C) if a
transcript of the May 26, 2010 hearing was unavailable. Therefore, this Court is
required to presume regularity in the record. Knapp v. Edwards Laboratories (1980), 61
Ohio St. 2d 197, 400 N.E.2d 384.
{¶41} Appellant’s eighth Issue for Review is overruled.
{¶42} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Delaney, J.
Edwards, P.J. and
Gwin, J. concur.
HON. PATRICIA A. DELANEY
HON. JULIE A. EDWARDS
HON. W. SCOTT GWIN
[Cite as Calhoun, Kademenos, Childress Co., L.P.A. v. Shepherd, 2011-Ohio-496.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CALHOUN, KADEMENOS, :
CHILDRESS, HEIKLE LPA :
:
:
Plaintiff-Appellee :
: JUDGMENT ENTRY
-vs- :
:
RANDY SHEPHERD :
: Case No. 2010 CA 0084
:
Defendant-Appellant
For the reasons stated in our accompanying Opinion on file, the judgment of the
Richland County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. JULIE A. EDWARDS
HON. W. SCOTT GWIN