Riley v. Whitehouse

2021 Ohio 3798

• Court: Ohio Court of Appeals
• Decided: October 22, 2021
• Docket: 21-CA-00005
• Status: Published

Opinion

[Cite as Riley v. Whitehouse, 2021-Ohio-3798.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

APRIL L. RILEY JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiff-Appellant Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 21-CA-00005 DARREN W. WHITEHOUSE

Defendant-Appellee OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Perry County Court of Common Pleas, Probate Division, Case No. 20201057-1

JUDGMENT: Appeal dismissed

DATE OF JUDGMENT ENTRY: October 22, 2021

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

APRIL L. RILEY JOSEPH A. FLAUTT 2988 W. Poplar Ridge Road, N.W. 111 North High Street Malta, Ohio 43758-9682 P.O. Box 569 New Lexington, Ohio 43764-0569 Perry County, Case No. 21-CA-00005 2

Hoffman, J. {¶1} Plaintiff-appellant April L. Riley appeals the summary judgment entered by

the Perry County Common Pleas Court, Probate Division, dismissing her complaint which

alleged Defendant-appellee Darren W. Whitehouse exerted undue influence on Steven

A. Embrey in the execution of Embrey’s Last Will and Testament.

STATEMENT OF THE CASE1

{¶2} Appellant filed the instant action pro se on October 5, 2020, alleging

Appellee exerted undue influence on Steven Embrey in the execution of Embrey’s will.

Appellee filed an answer, denying the allegations in the complaint. Appellee filed a motion

for summary judgment on January 7, 2021, accompanied by a supporting affidavit.

Appellant failed to respond to appellee’s motion for summary judgment. The Perry

County Common Pleas Court, Probate Division, entered summary judgment on March 9,

2021, dismissing Appellant’s complaint

{¶3} Appellant filed an appeal from the March 9, 2021, judgment of the trial court

dismissing her complaint. Her brief filed with this Court does not set forth any

assignments of error, instead raising two “questions” and a single “issue,” with no

discussion of the same.

{¶4} We begin by noting Appellant has failed to comply with App. R. 16, which

provides:

Brief of the Appellant. The appellant shall include in its brief, under

the headings and in the order indicated, all of the following:

1 A rendition of the facts is unnecessary to our resolution of this appeal. Perry County, Case No. 21-CA-00005 3

(1) A table of contents, with page references.

(2) A table of cases alphabetically arranged, statutes, and other

authorities cited, with references to the pages of the brief where cited.

(3) A statement of the assignments of error presented for review, with

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

(4) A statement of the issues presented for review, with references

to the assignments of error to which each issue relates.

(5) A statement of the case briefly describing the nature of the case,

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

(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.

(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.

(8) A conclusion briefly stating the precise relief sought.

{¶5} Appellant's brief does not satisfy the requirements of App. 16(A); therefore,

her brief is noncompliant. Compliance with the above-stated rule is mandatory. Zanesville

v. Robinson, 5th Dist. Muskingum App. No. 09-CA-39, 2010-Ohio-4843, ¶ 26. “It is not

the function of this court to construct a foundation for [an appellant's] claims; failure to Perry County, Case No. 21-CA-00005 4

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

fatal.” Musleve v. Musleve, 5th Dist. Stark App. No. 2007CA00314, 2008-Ohio-3961, ¶

21. Such deficiencies permit this court to dismiss Appellant's appeal. State v. Darby, 5th

Dist. Richland App. No. 2019 CA 0013, 2019-Ohio-2186, ¶¶ 21-24.

{¶6} Pursuant to App.R. 12(A)(2), we are not required to address issues which

are not argued separately as assignments of error, as required by App.R. 16(A). Kremer

v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (1996); Hawley v. Ritley, 35 Ohio St.3d

157, 159, 519 N.E.2d 390 (1988). We understand Appellant has filed this appeal pro se.

Nevertheless, “like members of the bar, pro se litigants are required to comply with rules

of practice and procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. Franklin No.

06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. Trumbull No. 2007-

T-0022, 2008-Ohio-2128, ¶ 11. Although “an appellate court will ordinarily indulge a pro

se litigant where there is some semblance of compliance with the appellate rules,” Oyler

v. Oyler, 5th Dist. Stark App. No. 2014CA00015, 2014-Ohio-3468, ¶¶ 18-19, we find

Appellant's noncompliance with the appellate rules is significant and her brief lacks any

cogent argument. “[F]airness and justice are best served when a court disposes of a case

on the merits”, however, we find this brief reflects a substantial disregard for the court

rules which cannot be cured. DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 193, 431

N.E.2d 644 (1982). We “may not construct legal arguments in support of an appellant's

appeal.” Whitehall v. Ruckman, 10th Dist. Franklin No. 07AP-445, 2007-Ohio-6780, ¶ 20,

quoting State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, ¶ 94 (10th

Dist.), appeal not allowed, 110 Ohio St.3d 1439, 2006-Ohio-3862, reconsideration denied,

111 Ohio St.3d 1418, 2006–Ohio–5083. Perry County, Case No. 21-CA-00005 5

{¶7} Because we find Appellant's brief in derogation of App.R. 16, we dismiss

her appeal for want of prosecution pursuant to App.R. 18(C) and Loc.App.R. 5(B).

{¶8} Appellant's appeal is dismissed.

By: Hoffman, J. Baldwin, P.J. and Wise, Earle, J. concur