Huntington Natl. Bank v. Moore

2011 Ohio 5610

• Court: Ohio Court of Appeals
• Decided: October 31, 2011
• Docket: 2011 CA 00047
• Status: Published

Opinion

[Cite as Huntington Natl. Bank v. Moore, 2011-Ohio-5610.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

HUNTINGTON NATIONAL BANK, JUDGES: Hon. William B. Hoffman, P. J. Appellee, Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. v. Case No. 2011 CA 00047 CYNTHIA MOORE et al.,

Appellants. OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2009 CV 04953

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: October 31, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

DAVID M. GAUNTNER CYNTHIA KAY MOORE FELTY & LEMBRIGHT PRO SE 1500 West 3rd Street, Suite 400 730 Denshire Drive NW Cleveland, Ohio 44113 Canal Fulton, Ohio 44614 Stark County, Case No. 2011 CA 00047 2

Wise, J.

{¶ 1} Appellant Cynthia Kay Moore appeals from the February 8, 2011,

Judgment Entry entered in the Stark County Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE

{¶ 2} This case arose out of a foreclosure action. The relevant facts are as

follows:

{¶ 3} On or about December 29, 2009, Plaintiff-Appellee filed a Complaint in

Foreclosure against Defendant-Appellee Cynthia Moore related to a certain Note and

Mortgage executed by Northup on or about May 24, 2006. Plaintiff-Appellee then

obtained leave from the trial court to file an Amended Complaint, which it did on

February 2, 2010. After service was complete, Plaintiff-Appellee filed its Motion for

Default Judgment against Defendant-Appellant Moore on March 15, 2010, which was

granted by the court on March 16. 2010. An Order of Sale was issued to the Stark

County Sheriff on April 2, 2010 with Sheriff's Sale being set for June 14, 2010.

{¶ 4} On June 14, 2010, Defendant-Appellant Moore filed a Notice of

Bankruptcy and Suggestion of Stay.

{¶ 5} On November 18, 2010, after Defendant-Appellant Moore received a

Chapter 7 bankruptcy discharge and her bankruptcy case was terminated, Plaintiff-

Appellee filed a Notice of Intent to Proceed, and a new Order of Sale was issued on

November 22, 2010. Notice of Sheriff’s Sale set for January 24, 2011, was filed on

December 30, 2010. Stark County, Case No. 2011 CA 00047 3

{¶ 6} On January 21, 2011, Defendant-Appellant Moore filed with the court a

Motion to Sequester Genuine Original Fixed Rate Note as well as a document titled

Affidavit of Negative Averment, Opportunity to Cure and Counterclaim.

{¶ 7} Sheriff's Sale was held on January 24, 2011, and the property was sold.

{¶ 8} Plaintiff-Appellee filed a Motion to strike these pleadings on January 27,

2011.

{¶ 9} On February 4, 2011, Defendant-Appellant Moore filed a Motion for Court

to Order Plaintiff to Surrender Defendant's Genuine Original Wet Ink Note.

{¶ 10} By Judgment Entry filed February 8, 2011, the trial court denied

Defendant-Appellant Moore's Motion to Sequester and all other pending related

motions.

{¶ 11} On March 3, 2011, Confirmation of Sale was entered by the Court.

{¶ 12} Defendant-Appellant Moore now appeals from the trial court’s Judgment

Entry of February 8, 2011.

Appellate Rules

{¶ 13} Upon review of the filings in this matter, we find Appellant's brief not

to be in compliance with the Appellate Rules.

{¶ 14} Ohio Rule of Appellate Procedure 16 requires:

{¶ 15} “The appellant shall include in its brief, under the headings and in the

order indicated, all of the following:

{¶ 16} “(1) A table of contents, with page references.

{¶ 17} “(2) A table of cases alphabetically arranged, statutes, and other

authorities cited, with references to the pages of the brief where cited. Stark County, Case No. 2011 CA 00047 4

{¶ 18} “(3) A statement of the assignments of error presented for review, with

reference to the place in the record where each error is reflected.

{¶ 19} “(4) A statement of the issues presented for review, with references to the

assignments of error to which each issue relates.

{¶ 20} “(5) A statement of the case briefly describing the nature of the case, the

course of proceedings, and the disposition in the court below.

{¶ 21} “(6) A statement of facts relevant to the assignments of error presented for

review, with appropriate references to the record in accordance with division (D) of this

rule.

{¶ 22} “(7) An 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. The argument may be preceded by a summary.

{¶ 23} “(8) A conclusion briefly stating the precise relief sought.”

{¶ 24} Ohio Appellate Rule 12 reads:

{¶ 25} “(A) Determination

{¶ 26} “ * * *

{¶ 27} “(2) The 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).”

{¶ 28} Compliance with the above-stated rule is mandatory. Also, an appellate

court may rely upon App.R. 12(A) in overruling or disregarding an assignment of error Stark County, Case No. 2011 CA 00047 5

because of “the lack of briefing” on the assignment of error. Henry v. Gastaldo, 5th Dist.

No. 2005-AP-03-0022, 2005-Ohio-4109, citing Hawley v. Ritley (1988), 35 Ohio St.3d

157, 159, 519 N.E.2d 390, 392-393; State v. Watson (1998) 126 Ohio App.3d, 316, 710

N.E.2d 340, discretionary appeal disallowed in (1998), 82 Ohio St.3d 1413, 694 N.E.2d

75.

{¶ 29} The document filed herein purporting to represent Appellant's brief does

not comply in any substantial fashion whatsoever with the Ohio Rules of Appellate

Procedure and the Local Rules of the Fifth Appellate Judicial District.

{¶ 30} Appellant's brief fails to set forth any separate assignments of error,

instead it contains approximately twenty-eight (28) pages of disjointed, incoherent

statements. The brief disjunctively enumerates facts and allegations with no attempt to

relate the arguments to the individual errors assigned. Appellant further fails to set forth

any coherent rationale in support of her arguments, nor does she cite to those parts of

the record relating to the arguments.

{¶ 31} This Court will not assume the role of advocate for Appellants in

attempting to organize and prosecute the arguments on appeal. Recently, this Court

observed in Musleve v. Musleve 5th Dist. No. 2007CA00314, 2008-Ohio-3961:

{¶ 32} “It is not a function of this Court to construct a foundation for claims;

failure to comply with the rules governing practice in the appellate court is a tactic which

is ordinarily fatal.”

{¶ 33} Appellants' failure to comply with Ohio Appellate Rule 16 is tantamount to

failing to file a brief in this matter. “Errors not specifically pointed out in the record and

separately argued by brief may be disregarded.” Id. Stark County, Case No. 2011 CA 00047 6

{¶ 34} For the reasons stated in the foregoing opinion, the appeal of the

judgment of the Court of Common Pleas, Stark County, Ohio, is dismissed for want of

prosecution.

By: Wise, J.

Hoffman, P. J., and Delaney, J., concur.

___________________________________

JUDGES Stark County, Case No. 2011 CA 00047 7

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

HUNTINGTON NATIONAL BANK, : : Appellee, : : v. : JUDGMENT ENTRY : CYNTHIA MOORE et al., : : Appellants. : Case No. 2011 CA 00047

For the reasons stated in our accompanying Memorandum-Opinion, the appeal

of the judgment of the Court of Common Pleas of Stark County, Ohio, is dismissed for

want of prosecution.

Costs assessed to Appellants.

JUDGES