White v. Stotts , 2010 Ohio 4827 ( 2010 )

[Cite as White v. Stotts, 2010-Ohio-4827.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
DARRELL WHITE,
PLAINTIFF-APPELLANT, CASE NO. 1-10-44
v.
KEVIN STOTTS, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court
Trial Court No. CV2010-0041
Judgment Affirmed
Date of Decision: October 4, 2010
APPEARANCES:
Darrell White, Appellant
Kevin Stotts, for Appellees
Case No. 1-10-44
ROGERS, J.
{¶1} Plaintiff-Appellant, Darrell White, appeals the judgment of the Court
of Common Pleas of Allen County granting summary judgment in favor of
Defendant-Appellees, Kevin Stotts, individually, Attorney Kevin Stotts Law Firm
[sic], Attorney Kevin Stotts Law Firm Partners [sic], and Attorney Kevin Stotts
Law Firm Title Company [sic], (hereinafter collectively referred to as “Stotts”),
and dismissing White’s complaint. In his appeal, White alleges that the trial court
erred in the discovery process, and erred by not compelling answers to his
motions; by not abiding by the civil rules; by refusing to recuse the trial judge; by
miscalculating the discovery dates; by failing to join necessary defendants; by
refusing to sanction Stotts for allegedly failing to abide by the civil rules; by ruling
on Stotts’ motion for summary judgment despite alleged improper service of the
motion; by failing to follow the law; by refusing to allow witnesses to testify; and,
by not freely allowing White to amend his complaint. Based upon the following,
we affirm the judgment of the trial court.
{¶2} In June 2009, White filed a “Complaint to Resolve Matter of
Contractual Dispute” against Stotts in the Court of Common Pleas of Franklin
County, Ohio. In his complaint, White argued that, in July 2007, he dismissed
Stotts, his attorney, for malpractice, “dereliction of duty,” “ineffectiveness of
counsel,” “fraud,” “co-conspiracy to fraudulent behavior,” “extortion,” “co-
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conspiracy to extortion,” “discrimination,” “co-conspiracy to discrimination,”
“unethical behavior,” “not in client best interest,” “misrepresentation,” and “more
to be determine at later date.” White further alleged that Stotts’ actions caused
him monetary, property, and reputation damage. Specifically, White claimed
damages for lost cash investments, lost cash value of property, loss of cash
extorted, loss of cash in several ventures, loss of profits from several ventures, loss
of interest, legal fees, and traveling expenses. The claimed damages were all in
conjunction with several real properties, a bar, a bus company, and a day care
center. White sought compensatory damages of $12 million and punitive damages
for “pain suffering, mentally and physically, financially and my reputation” for
$75 million. Shortly thereafter, White filed a motion for court-appointed counsel.
{¶3} In July 2009, Stotts filed a motion to dismiss White’s complaint on
the basis that the Court in Franklin County lacked jurisdiction over him, and that
White’s claim of alleged malpractice had lapsed under the statute of limitations
pursuant to R.C. 2305.11. Additionally, Stotts filed a motion to transfer the matter
to the Court of Common Pleas of Allen County. White then filed a “Motion for
Default Judgment” in the Court in Franklin County, asserting that Stotts had failed
to plead or otherwise defend against the complaint; a “Motion Not to Transfer,”
alleging that venue was appropriate in Franklin County; and, a “Motion Not to
Dismiss,” arguing that his claim was not barred by the statute of limitations
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because multiple events had tolled the statute of limitations period. The alleged
tolling events included that White had several fair housing organizations and the
Columbus Civil Rights Commission investigate his claims, and had the office of
disciplinary counsel investigate Stotts; that White sought advice from other
attorneys on the matter; that White continued to have an attorney-client
relationship with Stotts in August 2007; and, that White had been hospitalized in
July 2008, had been in a nursing home, had undergone physical therapy, had been
under the care of several veterans’ clinics, and had been arrested and confined.
White did not allege specific time periods for these events.
{¶4} In August 2009, White filed a request for admissions.
{¶5} In September 2009, the Court in Franklin County denied White’s
motion for court-appointed counsel and Stotts’ motion to transfer venue to Allen
County. Thereafter, Stotts filed an amended motion to transfer venue to Allen
County.
{¶6} In December 2009, White filed a “Motion Not to Dismiss a Pro Se
Litigant Complaint that have Facts and Merit Demand for Jury Trial,” a motion to
disqualify Judges Reed and Warren of Allen County on the basis of conflict of
interest, bias, and prejudice, a request for interrogatories and documents, a
“Motion to Amend to complaint Civil Conspiracy,” a “Motion of Mental Distress
Intentional Infliction and Deliberate Indifference,” and a “Motion of Fact on
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Tolling Time.” The “Motion of Fact on Tolling Time” stated that White initiated
an “Ohio Fair Plan” investigation in August 2007, which concluded in August
2008.
{¶7} In January 2010, White filed a “Motion for Default Judgment after
Defendant’s Non Compliance’s [sic] on case No. 09-CV06-8547.” Later that
month, the Court in Franklin County granted Stotts’ motion to transfer the case to
the Court of Common Pleas of Allen County. The Court in Allen County then
issued a pretrial scheduling order, requiring discovery to be completed by
September 30, 2010. Thereafter, White filed another request for interrogatories, a
request for production of documents, and also a “Motion of Objection of Conflict
of Interest of Judge.” In his motion, White argued that Judge Warren had a
conflict because he would be called as a witness to the case.
{¶8} In February 2010, White filed a motion for change of venue and a
“Motion for Judge Reed and Judge Warren to Recuse Themselves,” arguing that
Judges Reed and Warren had previously presided over his criminal trial, and,
consequently, would be partial, biased, and prejudiced against him in the current
civil case. Thereafter, the trial court overruled the motion. White filed a notice of
appeal from the trial court’s overruling of his motion for change of venue and
motion to recuse the trial judges. Thereafter, Stotts filed an answer to White’s
complaint, asserting that the complaint failed to state a claim upon which relief
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could be granted; that the claim was barred by the statute of limitations; that the
claims lacked consideration; and, that White failed to mitigate damages
{¶9} In March 2010, White filed a reply to Stotts’ answer, asserting that
he had stated material facts upon which relief could be granted; that his claim was
not barred by the statute of limitations because it was a contract dispute, or,
alternately, that time was tolled due to his hospitalization and the various ongoing
investigations; and, that he did not fail to mitigate damages. Additionally, this
Court sua sponte dismissed White’s February 2010 appeal on the basis that the
judgments were not final orders.
{¶10} In April 2010, White filed a “Motion for Joinder to Lawsuit Claim,”
moving the court to join “Kevin Stotts’ Malpractice Insurance Company,”
“Partner’s Insurance Company,” and “Title Company Insurance Company.”
{¶11} Shortly thereafter, Stotts filed a Motion for Summary Judgment,
arguing that, by White’s own admission, their attorney-client relationship
terminated in July 2007; that White did not file his complaint until June 2009; that
White’s pro se complaint essentially claimed legal malpractice; that the applicable
statute of limitations for legal malpractice was one year after the cause of action
accrued; and, that, consequently, White’s claims were barred by the statute of
limitations. Stotts attached to his motion an affidavit stating that, in June 2007, he
represented White regarding the purchase of two parcels of real estate; that, in July
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2007, White terminated his legal representation; and, that, since July 2007, he had
not represented White and had had no contact with him.
{¶12} White then filed a “Motion of Manifested Injustice on Behalf of
Hon. Judge Warren,” asserting that, during the pretrial, the trial court taxed him
$1,000 as an indigent litigant; that he was not permitted to address his pleadings;
the that trial court refused to compel Stotts to produce documents requested during
discovery; that the trial court acted as if it did not understand White’s assertions
and did not allow the subpoenaed witnesses to testify at the hearing; and, that he
was “cut off” from speaking. Additionally, White filed a “Motion for Leave to
Amend Date of Proximate Accrued Cause of Discovery of Damage Date on
Complaint,” to amend the date of alleged injury and damages from July 2007 to
April 27, 2009, and a “Motion for Summary Judgment” on the basis that Stotts
failed to answer interrogatories; that Stotts failed to produce requested documents;
and, that he had properly amended the date of alleged injury and damages to April
27, 2009, or, alternately, that the statute of limitations period was tolled. Further,
White filed an “Affidavit of Disqualification” against Judges Reed and Warren.
{¶13} In May 2010, the Supreme Court of Ohio denied White’s affidavit
seeking disqualification against Judges Reed and Warren from presiding in his
case. White filed a “Notice Plaintiff Did Not Receive Summary Judgment Filed
by Defendant on 4-21-10.” Several days later, White filed a “Plaintiff Response to
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a No Response Summary Judgment of Defendants,” asserting that the trial court
should deny Stotts’ motion for summary judgment.
{¶14} Later that month, the trial court denied White’s motion for summary
judgment, finding that White failed to set forth any grounds for a viable breach of
contract claim, and that White’s allegation that the statute of limitations period did
not accrue until April 27, 2009, was meritless. Additionally, the trial court granted
Stotts’ motion for summary judgment, finding that, by White’s own admission, the
attorney-client relationship terminated in July 2007; that, at the latest, the statute
of limitations began to run on July 31, 2007; that the statute of limitations expired
prior to White’s filing of his initial complaint on June 7, 2009; that White failed to
demonstrate any of the “tolling” exceptions to extend the time period under the
Revised Code; and, that, consequently, Stotts was entitled to judgment as a matter
of law. Accordingly, the trial court dismissed White’s complaint.
{¶15} It is from the trial court’s dismissal of his complaint that White
appeals, presenting the following pro se assignments of error for our review.
Assignment of Error No. I
THE COURT ERROED [SIC] IN DISCOVERY PROCESS
COMPELIZATION [SIC].
Assignment of Error No. II
THE COURT ERROED [SIC] IN NOT COMPELING [SIC]
ANSWERS TO MOTIONS.
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Assignment of Error No. III
THE COURT ERROED [SIC] IN NOT COMPELING [SIC]
CIVIL RULE 33 AND 34.
Assignment of Error No. IV
THE COURT ERROED [SIC] NOT RECUSING JUDGE.
Assignment of Error No. V
THE COURT ERROED [SIC] IN THE START AND END
DATE OF DISCOVERY OF INJURY.
Assignment of Error No. VI
THE COURT ERROED [SIC] IN NOT JOINING THE
PROPER DEFENDANTS.
Assignment of Error No. VII
THE COURT ERROED [SIC] IN NOT SANCTIONING
DEFENDANTS FOR NOT ABIDING BY CIVIL RULES.
Assignment of Error No. VIII
THE COURT ERROED [SIC] WHEN RULING ON
SUMMARY AFTER WAS NOTIFIED PLAINTIFF WAS NOT
SERVED A SUMMARY BY DEFENDANT FOR A PROPER
RESPONSE.
Assignment of Error No. IX
THE COURT ERROED [SIC] WHEN NOT GOING BY
FRAUD STATUES [SIC] AND CONTRACT IN WRITING
STATUES [SIC] AND OPPORTUNITY TO SAVE STATUES
[SIC].
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Assignment of Error No. X
THE COURT ERROED [SIC] NOT PERMITTING
SUBPOENA WITNESSES TO TESTIFY TO ESTABLISH
GENUINE MATERIAL FACTS.
Assignment of Error No. XI
THE COURT ERROED [SIC] NOT FREELY AMENDING
MOTIONS.
{¶16} Due to the nature of White’s arguments, we elect to address his
assignments of error in a different order than presented in his brief, and to address
his fifth and ninth, and first, second, third, and seventh assignments of error
together.
Standard of Review
{¶17} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.
Accordingly, a reviewing court will not reverse an otherwise correct judgment
merely because the lower court utilized different or erroneous reasons as the basis
for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr.
Co., 148 Ohio App.3d 596, 604-605, 2002-Ohio-3932, citing State ex rel. Cassels
v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92.
Summary judgment is appropriate when, looking at the evidence as a whole: (1)
there is no genuine issue as to any material fact; (2) reasonable minds can come to
but one conclusion and that conclusion is adverse to the party against whom the
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motion for summary judgment is made; and, therefore, (3) the moving party is
entitled to judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick
Chemical Corp., 73 Ohio St.3d 679, 686-687, 1995-Ohio-286. If any doubts exist,
the issue must be resolved in favor of the nonmoving party. Murphy v.
Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95.
{¶18} The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of
material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. In doing
so, the moving party is not required to produce any affirmative evidence, but must
identify those portions of the record which affirmatively support his argument. Id.
at 292. The nonmoving party must then rebut with specific facts showing the
existence of a genuine triable issue; he may not rest on the mere allegations or
denials of his pleadings. Id.; Civ.R. 56(E).
Assignment of Error No. IV
{¶19} We interpret White’s fourth assignment of error as arguing that the
trial judge erred in refusing to recuse himself from the case. Specifically, White
argues that the Supreme Court of Ohio ruled that Judge Warren should recuse
himself; that Judge Warren should have recused himself because White planned to
call him as a witness in the case; and, that Judge Warren was allegedly biased,
partial, and discriminated against him due to his race.
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{¶20} Initially, we note that White is mistaken regarding the ruling. The
Chief Justice of the Supreme Court of Ohio specifically denied White’s affidavit
seeking disqualification of Judge Warren from presiding in the case. Additionally,
this Court is without authority to review the denial of his motion for recusal, as
such matters lie exclusively within the jurisdiction of the Chief Justice of the
Supreme Court of Ohio. See Beer v. Griffith (1978), 54 Ohio St.2d 440, 441-42,
citing Section 5(C), Article IV, Ohio Constitution.
{¶21} Accordingly, we overrule White’s fourth assignment of error.
Assignment of Error Nos. V & IX
{¶22} We interpret White’s fifth assignment of error as arguing that the
trial court erred in refusing to toll the start date of the statute of limitations period
for malpractice actions. Specifically, White argues that he was under duress, on
medication, and incarcerated when he wrote his complaint, and that he was
mistaken in citing July 2007 as the month in which he discharged his attorney. It
appears that, alternately, White argues that his complaint was not for malpractice,
but was an action on a contract, invoking the fifteen-year statute of limitations set
forth in R.C. 2905.06, an action on fraud under R.C. 2305.09, invoking a four-year
statute of limitations, an action subject to the “opportunity sale,” invoking a five-
year statute of limitations as set forth in R.C. 1334.10, or that Stotts was not acting
as an attorney, but as an escrow agent, invoking a fifteen-year statute of
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limitations. We interpret White’s ninth assignment of error as making the same
argument: that the trial court’s decision to grant summary judgment was in
contravention of Ohio’s fraud statute and savings statute.
{¶23} We first address White’s alternate argument that his complaint did
not lie in malpractice, but in several different theories.
{¶24} Initially, we note that R.C. 2905.06, cited by White, is a repealed
statute governing sexual offenses. We presume that White intended to invoke his
argument regarding actions on contract under R.C. 2305.06, which provides that
actions upon contracts “shall be brought within fifteen years after the cause thereof
accrued.” The Supreme Court of Ohio has held that, “[t]he crucial consideration
in determining the applicable statute of limitations in a given action is the actual
nature or subject matter of the cause, rather than the form in which the complaint
is styled or pleaded. Hunter [v. Shenango Furnace Co. (1988)], 38 Ohio St.3d
[235] at 237 * * *. A party cannot transform one cause of action into another
through clever pleading or an alternate theory of law in order to avail itself of a
more satisfactory statute of limitations. Love v. Port Clinton (1988), 37 Ohio
St.3d 98, 100 * * *.” Callaway v. Nu-Cor Automotive Corp., 166 Ohio App.3d 56,
2006-Ohio-1343, ¶14.
{¶25} Consequently, courts have found that, even where a plaintiff’s
pleadings frame his arguments against an attorney not as malpractice, but as
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claims on theories such as breach of contract, misrepresentation, or promissory
estoppel, if the gravamen of the complaint is legal malpractice, the one-year
statute of limitations will apply. Leski v. Ricotta, 8th Dist. No. 83600, 2004-Ohio-
2860, ¶8. See, also, Muir v. Hadler Real Estate Management Co. (1982), 4 Ohio
App.3d 89, 90 (finding that “[a]n action against one’s attorney for damages
resulting from the manner in which the attorney represented the client constitutes
an action for malpractice within the meaning of R.C. 2305.11, regardless of
whether predicated upon contract or tort or whether for indemnification or for
direct damages”); Hibbett v. Cincinnati (1982), 4 Ohio App.3d 128, 131 (finding
that “[i]n Ohio the applicable statute of limitations is determined not from the
form of pleading or procedure, but from the gist of the complaint”).
{¶26} Here, White titled his claims to the trial court as malpractice,
“dereliction of duty,” “ineffectiveness of counsel,” “fraud,” “co-conspiracy to
fraudulent behavior,” “extortion,” “co-conspiracy to extortion,” “discrimination,”
“co-conspiracy to discrimination,” “unethical behavior,” “not in client best
interest,” and “misrepresentation.” Additionally, he phrased his arguments to this
Court on appeal as claims for breach of contract, fraud, “opportunity sale,” or
Stotts’ actions as an escrow agent. Despite White’s classification of his claims,
we find that the gravamen of his complaints lies in Stotts’ legal representation of
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him. Consequently, the applicable statute of limitations is one year as set forth in
R.C. 2305.11(A), governing malpractice claims.
{¶27} Next, we address White’s alternate argument that the trial court erred
in refusing to toll the start date of the one-year statute of limitations period.
{¶28} The Supreme Court of Ohio has held that the one-year statute of
limitations period set forth in R.C. 2305.11 begins to run “when there is a
cognizable event whereby the client discovers or should have discovered that his
injury was related to his attorney’s act or non-act and the client is put on notice of
a need to pursue his possible remedies against the attorney or when the attorney-
client relationship for that particular transaction or undertaking terminates,
whichever occurs later.” Zimmie v. Calfee, Halter & Griswold (1989), 43 Ohio
St.3d 54, syllabus, citing Omni-Food & Fashion, Inc. v. Smith (1988), 38 Ohio
St.3d 385.
{¶29} Regarding tolling of the applicable statute of limitations, R.C.
2305.16 governs tolling based on disabilities, and provides, in pertinent part:
Unless otherwise provided in sections 1302.98, 1304.35, and
2305.04 to 2305.14 of the Revised Code, if a person entitled to
bring any action mentioned in those sections, unless for penalty
or forfeiture, is * * *of unsound mind, the person may bring it
within the respective times limited by those sections, after the
disability is removed. * * *
{¶30} Additionally, “R.C. 2305.16 does not toll the statute of limitations
for people who are incarcerated, but applies to people who are minors or who are
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of unsound mind. R.C. 2305.15(B) works as a tolling statute for persons who wish
to sue an imprisoned person. However, the statute does not toll the statute of
limitations for inmates who wish to sue others.” Goins v. Attorney General, Ohio
Ct.Cl. 2002-02400-AD, 2003-Ohio-2177, ¶37. See, also, Gullatte v. Rion (2000),
145 Ohio App.3d 620, 627.
{¶31} Courts have also held that the filing of a legal malpractice claim, or
grievance, with a local bar association does not toll the statute of limitations for
filing a legal malpractice claim in a common pleas court. Lewis v. Roselle (1990),
63 Ohio App.3d 254, 255-56, citing R.C. 2305.11(A), Jacobs v. Shelly & Sands,
Inc. (1976), 51 Ohio App.2d 44.
{¶32} Here, White alleges that the tolling events included several fair
housing organizations’ and civil rights commissions’ investigations of his claims
beginning in August 2007, the office of disciplinary counsel’s investigation of
Stotts, his consulting with other attorneys on the matter, his hospitalization in July
2008, his time spent in a nursing home, his receipt of physical therapy, his receipt
of care by several veteran’s clinics, and his arrest and confinement. However,
none of the events alleged by White, even presumed to be true, tolls the statute of
limitations. He offers no legal support for his assertion that fair housing
organizations’ or civil rights commissions’ investigations of his claims tolls the
period. Further, as discussed above, no tolling event is recognized for disciplinary
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counsel’s investigation of an attorney, a plaintiffs’ consulting with other counsel
concerning his prior attorney’s possible malpractice, or because a plaintiff is
imprisoned. Additionally, although White asserts he was under “duress” and spent
time hospitalized and received care from a nursing home facility, physical
therapist, and a veteran’s clinic, he has not asserted or offered any evidence that he
was of an unsound mind during any of those time periods. See Scott v. Borelli
(1995), 106 Ohio App.3d 449, 455, quoting Fisher v. Ohio Univ. (1992), 63 Ohio
St.3d 484, 488 (finding that “a plaintiff who does no more than nebulously make
an assertion ‘of emotional distress does not create an issue of fact concerning
unsound mind’”).
{¶33} Consequently, we find that the trial court did not err in failing to toll
the one-year statute of limitations period.
{¶34} Accordingly, we overrule White’s fifth and ninth assignments of
error.
Assignments of Error Nos. I, II, III, and VII
{¶35} We interpret White’s first, second, and third assignments of error as
contentions that the trial court erred in refusing to compel Stotts to comply with
White’s discovery requests or to respond to his motions. Similarly, White’s
seventh assignment of error argues that the trial court erred in declining to
sanction Stotts for allegedly failing to abide by the Civil Rules of Procedure.
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{¶36} An appellate court reviews a trial court’s decision regarding
disposition of discovery issues for abuse of discretion. Portman v. Mabe, 3d Dist.
No. 15-07-12, 2008-Ohio-3508, ¶13, citing State ex rel. The V. Cos. v. Marshall,
81 Ohio St.3d 467, 469, 1998-Ohio-329. When applying the abuse of discretion
standard, a reviewing court may not simply substitute its judgment for that of the
trial court. Id. Additionally, even if the trial court’s refusal to compel compliance
with discovery requests was an abuse of discretion, we will not overturn that
decision unless the appellant can demonstrate that he was prejudiced. See Henry
Spack Service v. Pietrzak, 7th Dist. No. 04 CO 57, 2005-Ohio-6780, ¶12, citing
Ruvolo v. Homovich, 149 Ohio App.3d 701, 2002-Ohio-5852, ¶15.
{¶37} Here, the trial court’s April 2010 Pretrial Order reflects that the trial
court specifically mentioned that White indicated he had not been provided
discovery, and that Stotts replied that White’s requests were only intended to
harass. Thereafter, the trial court ordered that “[a]ny other motion practice is
stayed until ruling on summary judgment.” (Apr. 22, 2010 Pretrial Order, p. 1).
As this order reflects that pending motions were stayed pending decision on Stotts’
motion for summary judgment, we cannot find that the trial court abused its
discretion in refusing to compel Stotts to comply with White’s discovery requests.
{¶38} Further, even assuming for argument’s sake that the trial court
abused its discretion in failing to compel Stotts’ compliance with White’s
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discovery requests, we find that White has failed to demonstrate any prejudice.
White’s June 2009 complaint alleged that he dismissed Stotts in July 2007 for
malpractice, among other reasons. Further, White’s December 16, 2009 “Motion
on Fact on Tolling Time,” asserted that he initiated an investigation into the matter
by “Ohio Fair Plan” in August 2007. Stotts’ July 2009 affidavit in support of his
motion to dismiss stated that he “was retained by Plaintiff for one matter relating
to an attempted purchase of a house on or about August 24, 2007,” and his April
2010 motion for summary judgment was supported by his affidavit that, in June
2007, he represented White regarding the purchase of two parcels of real estate;
that, in July 2007, White terminated his legal representation; and, that, since July
2007, he had not represented White and had no contact with him. Although there
are some discrepancies in the record as to whether the cause of action accrued in
July or August 2007, this is not a material issue of fact, as, under either of those
dates, White’s June 2009 complaint was well past the one-year statute of
limitations, and this fact is not contradicted by any other evidence in the record.
See Zimmie, supra, Omni-Food & Fashion, supra (holding that the statute of
limitations begins to run upon the latter of the client’s discovery of the need to
pursue a possible remedy against his attorney or termination of the attorney-client
relationship).
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{¶39} Accordingly, we overrule White’s first, second, third, and seventh
assignments of error.
Assignment of Error No. VI
{¶40} In his sixth assignment of error, White argues that the trial court
erred in failing to join all necessary defendants.
{¶41} App.R. 16(A)(7) requires that an appellant’s brief contain “[a]n
argument containing the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in support of the
contentions, with citations to the authorities, statutes, and parts of the record on
which appellant relies.” Where an argument does not comply with App.R. 16, this
Court may decline to review it. See Brown v. Senor Gringo’s, Inc., 3d Dist. No. 4-
09-18, 2010-Ohio-985, ¶53.
{¶42} We note, initially, that White does not identify in his brief which
necessary parties the trial court erred in failing to join. However, we assume from
the wording of his “Motion for Joinder to Lawsuit Claim,” that he is referring to
“Kevin Stotts’ Malpractice Insurance Company,” “Partner’s Insurance Company,”
and “Title Company Insurance Company.” Even assuming that these are the
parties’ to which White refers, however, White sets forth no argument or citations
to authorities as to why these were necessary parties to the action. Further, we
cannot glean what his argument might be from his “Motion for Joinder to Lawsuit
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Claim,” as it also contains no argument or reason why the purported parties should
be joined as defendants. We find that White has not sufficiently set forth this
assignment of error for our review, as his brief lacks any reasons in support.
{¶43} Accordingly, we overrule White’s sixth assignment of error.
Assignment of Error No. VIII
{¶44} In his eighth assignment of error, White argues that the trial court
erred when it ruled on Stotts’ motion for summary judgment after being notified
that it had not apparently been served on White.
{¶45} “A presumption of proper service exists when the record reflects that
the Civil Rules pertaining to service of process have been followed. This
presumption may only be rebutted by producing sufficient evidence, such as an
affidavit, that the responding party never received service.” (Internal citations and
quotations omitted.) JP Morgan Chase Bank v. Ritchey, 11th Dist. No. 2006-L-
247, 2007-Ohio-4225, ¶40.
{¶46} Here, Stotts’ motion for summary judgment was accompanied by a
certificate of service indicating that the motion was served on White on April 21,
2010. Thus, the record reflects that the appropriate Civil Rules were followed.
Additionally, we find that the trial court did not err in apparently finding that
White failed to rebut the presumption of proper service, as he provided no
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evidence supporting his claim except for his own self-serving statements, which
were not in affidavit form.
{¶47} Consequently, we overrule White’s eighth assignment of error.
Assignment of Error No. X
{¶48} In his tenth assignment of error, White argues that the trial court
erred in refusing to permit any witnesses to testify at the pretrial hearing.
Specifically, White contends that the witnesses’ testimony would have established
that genuine issues of material fact existed.
{¶49} Initially, we note that the subpoenas appearing in the record to the
Columbus Civil Commission, Laurels of Toledo Nursery [sic] Home, Dayton
Regional Civil Commission, the Federal Reserve, Busy B Realty, the Veteran
Affairs Clinic, and Eric Jones, were all returned unserved due to insufficient time
for service, incomplete addresses, or because they were addressed to a vacant
building. Additionally, Fifth Third Bank filed a motion to quash the subpoena on
the basis that it was unreasonable, sought confidential records, and was intended to
harass.
{¶50} Further, White filed no transcript of the pretrial hearing. The duty to
provide a transcript for appellate review falls upon the appellant. Knapp v.
Edwards Laboratories (1980), 61 Ohio St.2d 197, 199; App.R. 16(A)(7). Where a
transcript is necessary to resolve the assigned errors, yet is not provided, the
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appellate court has nothing to pass upon and must presume validity of the trial
court’s proceedings. Knapp, supra. Here, this Court has no transcript to examine
what witnesses were or were not present, whether the trial court refused to permit
any witnesses to testify at the pretrial hearing, or why the trial court took these
actions. Consequently, we must presume that the trial court committed no error.
{¶51} Accordingly, we overrule White’s tenth assignment of error.
Assignment of Error No. XI
{¶52} We interpret White’s eleventh assignment of error as arguing that
the trial court erred in not allowing him to freely amend his motions.
{¶53} An appellate court reviews a trial court’s denial of a Civ.R. 15(A)
motion to amend under an abuse of discretion standard. United Studios of Am. v.
Laman, 5th Dist. No. 2007CA00277, 2008-Ohio-3497, ¶32.
{¶54} Civ.R. 15(A) governs amendments and provides, in pertinent part:
A party may amend his pleading once as a matter of course at
any time before a responsive pleading is served * * * [.]
Otherwise a party may amend his pleading only by leave of
court or by written consent of the adverse party. Leave of court
shall be freely given when justice so requires. * * *
{¶55} The record here reflects that White filed the complaint at issue in
June 2009, asserting that he terminated the attorney-client relationship in July
2007; that Stotts filed a motion for summary judgment on April 21, 2010; that the
trial court held the pretrial on April 22, 2010; and, that, on April 26, 2010, White
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filed a “Motion for Leave to Amend Date of Proximate Accrued Cause of
Discovery of Damage Date on Complaint” asserting that the cause of action
accrued in April 2009, instead of July 2007. White attached no affidavit or other
evidence to his motion for leave to amend the complaint. Therefore, White filed
his motion to amend ten months after filing his initial complaint, after the pretrial
had taken place, and after Stotts’ motion for summary judgment was already
pending and ripe for decision. Further, White’s motion to amend the date of
discovery in his complaint was a bare assertion of a legal conclusion, and was
unsupported by any evidence in the record, or even an affidavit. Finally, White
offered no explanation for his delay in amending his complaint.
{¶56} On these facts, we cannot find that the trial court abused its
discretion in denying White’s motion for leave to amend his complaint. See Natl.
City Mtge. v. Skipper, 9th Dist. No. 24772, 2009-Ohio-5940, ¶8 (finding that “an
attempt to amend a complaint following the filing of a motion for summary
judgment raises the spectre of prejudice. Therefore, plaintiffs should not be
permitted to sit by for this period and bolster up their pleadings in answer to a
motion for summary judgment”); Wallner v. Thorne, 9th Dist. No. 09CA0053-M,
2010-Ohio-2146 (finding that a trial court did not abuse its discretion in denying a
motion to amend where the parties gave no reason to justify the delay in moving to
amend their complaint, and appeared to serve only to delay the court’s ruling on
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the pending motion for summary judgment). See, also, Bachtel v. Jackson, 10th
Dist. No. 08AP-714, 2009-Ohio-1554, ¶27.
{¶57} Accordingly, we overrule White’s eleventh assignment of error.
{¶58} Having found no error prejudicial to appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jlr
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