Sherrills v. Enersys Delaware, Inc.

2012 Ohio 5183

• Court: Ohio Court of Appeals
• Decided: November 8, 2012
• Docket: 98319
• Status: Published

Opinion

[Cite as Sherrills v. Enersys Delaware, Inc., 2012-Ohio-5183.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98319

DENISE SHERRILLS PLAINTIFF-APPELLANT

vs.

ENERSYS DELAWARE, INC. DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-771565

BEFORE: E. Gallagher, J., Sweeney, P.J., and Cooney, J.

RELEASED AND JOURNALIZED: November 8, 2012 FOR APPELLANT

Denise Sherrills, pro se 21149 North Street Euclid, Ohio 44117

ATTORNEYS FOR APPELLEE

Ellen Toth Charles F. Billington Ogletree Deakins Nash Smoak & Stewart, P.C. 127 Public Square Suite 4130 Cleveland, Ohio 44114 EILEEN A. GALLAGHER, J.:

{¶1} This cause came to be heard upon the accelerated calendar pursuant

to App.R. 11.1 and Loc.R. 11.1.

{¶2} In this accelerated appeal, Denise Sherrills appeals from the decision of the

trial court granting Enersys Delaware Incorporated’s (“Enersys”) motion for judgment on

the pleadings. Finding no merit to the instant appeal, we affirm the decision of the trial

court.

{¶3} App.R. 11.1(A) states in pertinent part:

The accelerated calendar is designed to provide a means to eliminate delay and unnecessary expense in effecting a just decision on appeal by the recognition that some cases do not require as extensive or time-consuming procedure as others.

{¶4} In filing the instant appeal, Sherills filed a docketing statement that

indicated the “appropriate designation for this case” was assignment to the accelerated

calendar. In spite of the foregoing, Sherrills has filed an appellate brief that frustrates

the intention of the accelerated calender. See Loc.App.R. 11.1(A)(2)(c). Specifically,

Sherrills’ brief is in excess of fifteen pages and contains the following five assignments of

error.

Assignment of Error I

The judgment of the trial court granting the appellee’s pleading and denying the appellant’s motion for summary judgment was an abuse of discretion.

Assignment of Error II The trial court erred in dismissing appellant’s complaint because plaintiff did not state a claim upon which relief may be granted.

Assignment of Error III

Trial court abused its discretion because defendants did not demonstrate to the trial court failure to answer was the result of excusable neglect, pursuant to Civ.R. 60(B)(1) & 6B2 [sic].

Assignment of Error IV

Trial court erred in granting defendant’s motion for leave to file to answer amended complaint.

Assignment of Error V

Trial court erred in denying appellant’s default judgment.

{¶5} This appeal will be determined as provided by App.R. 11.1(E) and

Loc.App.R.11.1.

{¶6} On October 28, 2011, Sherills obtained a judgment against an Enersys

employee and moved to garnish the employee’s wages through the Cleveland Municipal

Court. Sherrills forwarded the garnishment order to Enersys, which then sent funds

garnished from its employee’s wages to the Cleveland Municipal Court on December 27,

2011. Believing that Enersys was not complying with the garnishment order, Sherills

filed the instant complaint against Enersys on December 16, 2011. Sherrills filed

motions for default and summary judgment, and Enersys filed a motion for leave to file an

answer, instanter. The trial court denied Sherrills’ motions and granted Enersys leave to

file an answer. Enersys also filed a motion for judgment on the pleadings, which the

trial court granted on April 3, 2012. {¶7} Sherrills appeals, raising the five assignments of error contained in this

opinion.

{¶8} Sherrills’ first assignment of error, which challenges the trial court’s grant

of Enersys’ motion for judgment on the pleadings, is overruled. This court can glean

only one purported claim for relief from Sherrills’ amended complaint, that Enersys failed

to timely comply with the Cleveland Municipal Court’s garnishment order regarding its

employee. A review of the Cleveland Municipal Court docket reveals that the court

began receiving the garnished wages on December 27, 2011, which is within the time

constraints of R.C. 2716.041.

{¶9} Sherrills’ second assignment of error, which challenges the trial court’s

denial of her motion for summary judgment, is also overruled. Sherrills’ underlying

motion contained no references to “depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations of fact.”

Additionally, the Cleveland Municipal Court docket reveals that Enersys was depositing

the garnished wages with the court.

{¶10} Sherrills’ third and fourth assignments of error challenging the court’s

decision to grant Enersys’ motion for leave to file an answer, instanter, are overruled on

the authority of State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d

464, 650 N.E.2d 1343 (1995). It is apparent from the record that the court did not abuse

its discretion in granting Enersys’ motion.

{¶11} Sherrills’ fifth assignment of error, which challenged the trial court’s denial of her motion for default judgment is overruled on the authority of Pinchak v.

Prudhomme, 8th Dist. No. 94053, 2010-Ohio-3879. Because Enersys filed a motion for

leave to file an answer, instanter, which the trial court granted prior to ruling on the

motion for default judgment, the trial court did not abuse its discretion in denying

Sherrills’ motion.

{¶12} The judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and COLLEEN CONWAY COONEY, J., CONCUR