Calhoun, Kademenos, Childress Co., L.P.A. v. Shepherd

2011 Ohio 496

• Court: Ohio Court of Appeals
• Decided: January 20, 2011
• Docket: 2010 CA 0084
• Status: Published

Opinion

[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. W. SCOTT GWIN