D.O.I.T., L.L.C. v. Bd. of Wright Dunbar Technology Academy

2011 Ohio 4538

• Court: Ohio Court of Appeals
• Decided: September 9, 2011
• Docket: 23250
• Status: Published

Opinion

[Cite as D.O.I.T., L.L.C. v. Bd. of Wright Dunbar Technology Academy, 2011-Ohio-4538.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

D.O.I.T., LLC, et al. : : Appellate Case No. 23250 Plaintiff-Appellant : : Trial Court Case No. 05-CV-5695 v. :

: BOARD OF WRIGHT DUNBAR : (Civil Appeal from TECHNOLOGY ACADEMY (WDTA), : (Co mmon Pleas Court) et al. :

: Defendant-Appellees : : ...........

OPINION

Rendered on the 9th day of September, 2011.

.........

MICHAEL D. MANUEL, 1180 Infirmary Road, Dayton, Ohio 45418 Plaintiff-Appellant, pro se

GREGORY M. GANTT, Atty. Reg. #0064414, 137 North Main Street, Suite 500, Dayton, Ohio 45402 Attorney for Defendant-Appellee

HALL, J. 2

{¶ 1} Michael Manuel appeals pro se from the trial court’s entry of final judgment

against him on a complaint asserting various causes of action against his former employer,

Wright Dunbar Technology Academy (WDTA), and others.

{¶ 2} The record reflects that Manuel and another plaintiff, D.O.I.T., LLC, filed the

complaint following the termination of Manuel’s employment with WDTA. The matter

proceeded to trial before a magistrate. Following the trial, “the parties agreed to submit

documents in support of the testimony given and stipulated to the submission of the

documents.” (Magistrate’s decision, Doc. #82 at 2). The magistrate also set a deadline for

submission of post-trial briefs. At Manuel’s request, the magistrate later extended the deadline.

Three days after the new deadline expired, Manuel moved for summary judgment. (Id.). The

appellees responded by moving to strike the summary judgment filing and moving to dismiss

the action for failure to prosecute. (Doc. # 77).

{¶ 3} The magistrate sustained the appellees’ motion to strike, noting that the summary

judgment motion had been filed after the bench trial and without leave of court. The magistrate

also sustained the motion to dismiss, noting that Manuel had not complied with post-trial

procedures. The magistrate ordered dismissal pursuant to Civ.R. 41(B)(1).1 (Doc. #82 at 2-4).

Manuel filed no objections to the magistrate’s decision, which the trial court adopted. (Doc.

#83). This appeal followed.

{¶ 4} In two assignments of error, Manuel contends his trial counsel provided

constitutionally ineffective assistance by failing to meet court deadlines and by failing to act in

1 Civ.R. 41(B)(3) provides that “[a] dismissal under division (B) of this rule * * * operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies.” Here neither the magistrate nor the trial court specified that the dismissal was other than upon the merits. 3

a timely manner. In support, he relies on Strickland v. Washington (1984), 466 U.S. 668, 104

S.Ct. 2052, 80 L.E.2d 674, as well as the Sixth and Fourteenth Amendments. Based on

counsel’s performance, Manuel asks us to reverse the trial court’s judgment and remand the

cause “to continue trial and recover his damages[.]”

{¶ 5} Upon review, we find Manuel’s argument to be without merit. “‘A complaint of

ineffective assistance of counsel is not a proper ground on which to reverse the judgment of a

lower court in a civil case that does not result in incarceration * * * when the attorney was

employed by a civil litigant.’” Wolford v. Wolford, 184 Ohio App.3d 363, 2009-Ohio-5459,

¶32, quoting Phillis v. Phillis, 164 Ohio App.3d 364, 2005-Ohio-6200, ¶53; see, also, Novello v.

Novello, Noble App. No. 10 NO 378, 2011-Ohio-2973, ¶23 (“The Sixth Amendment

guarantees a defendant effective counsel in criminal prosecutions. There is no such guarantee in

civil actions.”). Because Manuel had no constitutional right to effective assistance of counsel

from the attorney he hired in this civil case, he cannot obtain reversal based on any

ineffectiveness. His two assignments of error are overruled.

{¶ 6} The judgment of the Montgomery County Common Pleas Court is affirmed.

..............

FAIN and FROELICH, JJ., concur.

Copies mailed to:

Michael D. Manuel Gregory M. Gantt Hon. Steven K. Dankof (for Hon. A.J. Wagner)