Stone Creek Fin., Inc. v. Thompson

2013 Ohio 2975

• Court: Ohio Court of Appeals
• Decided: July 8, 2013
• Docket: 2012 CA 00205
• Status: Published

Opinion

[Cite as Stone Creek Fin., Inc. v. Thompson, 2013-Ohio-2975.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STONE CREEK FINANCIAL, INC. JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2012 CA 00205 CHARLES THOMPSON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Canton Municipal Court, Case No. 2007 CVF 9840

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: July 8, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MATTHEW G. BURG TIMOTHY J. JEFFRIES WELTMAN, WEINBERG & REIS 437 Market Avenue North 323 West Lakeside Avenue, Suite 200 Canton, Ohio 44702 Cleveland, Ohio 44113 Stark County, Case No. 2012 CA 00205 2

Wise, J.

{¶1} Appellant Charles Thompson appeals the decision of the Canton

Municipal Court, Stark County, which granted a motion to reconsider a prior decision

vacating an attachment of appellant’s bank account initiated by Appellee Stone Creek

Financial, Inc. The relevant facts leading to this appeal are as follows.

{¶2} In February 2008, Huntington National Bank obtained a default judgment

against Appellant Charles Thompson in the amount of $4,473.24. In March 2008,

Huntington filed a garnishment against appellant’s bank account, resulting in a partial

sum being applied to the aforesaid judgment.

{¶3} In October 2011, appellee was substituted for Huntington as the party-

plaintiff. On April 23, 2012, appellee filed for an attachment of appellant’s account at

FirstMerit Bank. At appellant’s request, the matter proceeded to a hearing before a

magistrate on May 2, 2012. On May 3, 2012, the magistrate determined that the

attachment should be vacated pursuant to the time limits of R.C. 2329.08. The trial court

approved and adopted the decision of the magistrate, and no appeal was taken.

{¶4} On September 7, 2012, appellee again filed for an attachment of

appellant’s account at FirstMerit Bank. The matter likewise proceeded to a hearing

before a magistrate on September 19, 2012. Via a “report of the magistrate” filed

September 19, 2012, the magistrate determined that the attachment should be vacated

on the basis of res judicata. No objections were filed. The trial court “approved and

confirmed” the decision of the magistrate on September 20, 2012. Once again, no

appeal was taken. Stark County, Case No. 2012 CA 00205 3

{¶5} On October 17, 2012, appellee filed a motion to reconsider the aforesaid

judgment entry of September 20, 2012. The trial court granted the motion to reconsider

on October 22, 2012.

{¶6} On November 8, 2012, appellant filed a notice of appeal. He herein raises

the following two Assignments of Error:

{¶7} “I. THE TRIAL COURT WAS IN ERROR IN GRANTING THE

PLAINTIFF’S MOTION AS A MOTION FOR RECONSIDERATION IS NOT PROVIDED

FOR UNDER THE CIVIL RULES, AND IS A NULLITY.

{¶8} “II. THE FINDING THAT THE MAY 2, 2012 REPORT OF THE REFEREE

WAS INCORRECT [AND] WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

I., II.

{¶9} In his First and Second Assignments of Error, appellant challenges the

trial court’s granting of appellee’s motion to reconsider. However, on June 13, 2013,

appellant and appellee filed a joint motion to dismiss the present appeal. See App.R.

28. As an appellate court, we are not required to issue an advisory or merely academic

ruling. See, e.g., In re Merryman/Wilson Children, Stark App.Nos. 2004 CA 00056 and

2004 CA 00071, 2004-Ohio-3174, ¶ 59, citing State v. Bistricky (1990), 66 Ohio App.3d

395, 584 N.E.2d 75.1

{¶10} We therefore will not reach the merits of appellant's Assignments of Error.

1 Ordinarily, we would not issue a dismissal decision of this nature in a memorandum opinion. See App.R. 12(A). However, in this instance the written request to dismiss was not filed until approximately three weeks after the oral argument heard by this Court on May 21, 2013. Stark County, Case No. 2012 CA 00205 4

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

of the Canton Municipal Court, Stark County, Ohio, is hereby dismissed.

By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.

___________________________________

JUDGES JWW/d 0617 Stark County, Case No. 2012 CA 00205 5

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

STONE CREEK FINANCIAL, INC. : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : CHARLES THOMPSON : : Defendant-Appellant : Case No. 2012 CA 00205

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

of the judgment of the Canton Municipal Court, Stark County, Ohio, is dismissed.

Costs assessed to appellant.

JUDGES