Logan Co., Inc. v. Cities of Am., Inc.

678 N.E.2d 613, 112 Ohio App. 3d 276, 1996 WL 648831

• Court: Ohio Court of Appeals
• Decided: July 1, 1996
• Docket: No. 95-T-5329.
• Status: Published

Opinions

Ford, Presiding Judge.

Appellant, Cities of America, Inc., appeals from a judgment of the Trumbull County Eastern Area District Court in favor of appellee, Logan & Company, Inc.

The instant case concerns a debt which arose from an unpaid invoice for clothing and coffee mugs printed by appellee for appellant. The parties entered into an agreement that called for a fifty-percent deposit with the balance due on completion of the goods. A small claims complaint seeking judgment for $1,442 was filed on February 23, 1995, naming James P. Logan, d.b.a. Logan & Company, as plaintiff and Donald Harriott, d.b.a. Cities of America, as defendant. In the answer, appellant denied owing any money to appellee and also presented the affirmative defense of accord and satisfaction.

On March 13, 1995, the trial court granted appellant’s motion to transfer the case to the regular docket pursuant to R.C. 1925.10. 1 The pretrial hearing was conducted on June 12,1995. Appellant filed a motion for continuance of the trial, scheduled for July 31, 1995, based on a schedule conflict of appellant’s counsel. The motion was overruled, and appellant’s counsel submitted a written argument to the trial court in lieu of an appearance. On July 31, 1995, the matter proceeded to bench trial. Appellant failed to appear at trial. The trial court granted judgment for appellee in the amount of $942.82 plus costs and interest and entered a temporary restraining order on appellant’s property.

Appellant filed a timely appeal and raises the following assignments of error:

“1. The trial court erred as a matter of law in granting judgment to [appellee] against [appellant].

“2. The trial court erred in granting a temporary restraining order with respect to the funds and assets of [appellant].”

As a preliminary matter, we note that appellant failed to submit citations to support its arguments and failed to point to the location of the alleged errors in the record, a prohibited practice under App.R. 16(A)(7). Pursuant to App.R. 12(A)(2), this court is under no obligation to review the matter any further. However, in the interests of justice, we will address appellant’s arguments. 2

In the first assignment, appellant initially contends that the trial court erred in granting judgment to appellee when the party that initiated the suit was James P. Logan, an individual, and not the entity known as Logan & Company, Inc. Appellant argues that since there was no order showing a substitution of parties, the trial court was without power to grant judgment in the company name.

A review of the record reveals that the complaint specified “James P. Logan d.b.a. Logan & Company” as the plaintiff. The small claims information sheet listed “Logan & Co.” and “James P. Logan” as plaintiffs. We note that appellant’s motion to transfer the case to the regular docket lists “James P. Logan d.b.a. Logan & Company” as plaintiff. This language indicates appellant’s awareness of plaintiffs identity. Appellee submits that the computer system at the Trumbull County Eastern Area District Court does not print the “d.b.a.” designations. It is our view that the truncated plaintiff designation on the various court documents, including the judgment entry, did not serve to change the parties involved in the instant case. No substitution of parties occurred.

Appellant’s contention goes to appellee’s capacity to sue. Under Civ.R. 9(A), if the defendant contests the capacity of the plaintiff to sue, that defense must be made by specific negative averment, including the supporting particulars which are peculiarly within the defendant’s knowledge. Appellant’s answer contained a general denial of the debt and a defense of accord and satisfaction, but did not include any allegation concerning appellee’s capacity to sue. In addition, appellant’s written argument submitted to the trial court for the purpose of the trial on July 31, 1995, recited the same defenses as had been stated in the answer. Since appellant failed to raise the capacity issue before the trial court, appellant waived the alleged error and is now precluded from raising it on appeal. Valentour v. Alexander (1994), 96 Ohio App.3d 718, 721, 645 N.E.2d 1292, 1293-1294; Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 43, 70 O.O.2d 123, 124, 322 N.E.2d 629, 630-631. Further, we fail to see how the judgment entered in the company’s name results in any prejudice or manifest injustice to appellant. We conclude that the trial court properly granted judgment in the name of Logan & Company. Appellant’s first argument is without merit.

In the second argument, appellant asserts that an officer of a corporation cannot represent that corporation in a legal proceeding. “Ohio courts, including this court, have consistently held that, outside of small claims court * * * [R.C. 1925.17], an individual, including a corporate officer, who is not an attorney may not appear in court or maintain litigation in propria persona on behalf of a corporation.” Kruck v. Agile Equip. Distrib., Inc. (Mar. 8, 1996), Lake App. No. 95-L-109, unreported, 1996 WL 200587.

A review of the record reveals that Logan is president of Logan & Company, Inc., and is apparently the owner as well. Appellant failed to provide this court with a transcript, or a narrative or an agreed statement, under either App.R. 9(C) or (D). “It is fundamental that appellant bears the burden of demonstrating error by reference to the record of the proceedings below, and it is appellant’s duty to provide the reviewing court with an adequate transcript. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197 [15 O.O.3d 218, 400 N.E.2d 384]. In the absence of an adequate record, we must presume the regularity of the proceedings below.” Schialdone v. Schialdone (Dec. 16, 1994), Trumbull App. No. 93-T-5007, unreported, at 6, 1994 WL 721621.

Without the benefit of a transcript or suitable alternative, we cannot determine whether Logan engaged in any acts of advocacy beyond being a witness at the hearing on July 12. Because appellant cannot demonstrate error, we presume the regularity of the proceedings in the trial court. Appellant’s first assignment is without merit.

In the second assignment, appellant argues that the trial court improperly granted a temporary restraining order when no motion had been filed that satisfied the conditions of Civ.R. 65(A). A review of the record reveals that the trial court granted a preliminary restraining order, and not a temporary restraining order. The record does not contain a copy of a motion for a preliminary or temporary restraining order. The verbiage concerning the preliminary restraining order is contained in the trial court’s order, which was responsive to the motion advanced on behalf of appellee for an examination of the judgment debtor. Again, we do not have a transcript or appropriate statement before us to indicate whether the trial court entered the preliminary restraining order upon appellee’s oral motion, which would have constituted an act of advocacy. Thus, we cannot conclude that the court erred by granting the preliminary restraining order. Because appellant cannot demonstrate the alleged error in the record, we presume the regularity of the proceedings in the trial court. Accordingly, appellant’s second assignment of error is without merit.

Appellant’s assignments of error are without merit. The judgment of the trial court is affirmed.

Judgment affirmed.

Joseph E. Mahoney, J., concurs. Christley, J., dissents.

1 . Appellee did not file a motion in opposition.

2 . In addition, appellee submitted arguments in support of the trial court’s decision which are, in substance, cross-assignments of error under App.R. 4(B). However, appellee failed to comply with the requirements under that rule. Accordingly, we will not address appellee’s defectively styled cross-assignments of error.