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Milligan v. Morell

Court of Appeals of Ohio, Seventh District

June 20, 2013

HAROLD L. MILLIGAN, JR. PLAINTIFF-APPELLEE
v.
TINA MORELL, AUDITOR CITY OF STRUTHERS DEFENDANT-APPELLANT

Civil Appeal from the Struthers Municipal Court of Mahoning County, Ohio Case No. CVI 1100192

For Plaintiff-Appellee: Harold L. Milligan, Jr., Pro se

For Defendant-Appellant: Atty. Carlo A. Ciccone Suite

JUDGES: Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro

OPINION

WAITE, J.

{¶1} Appellant Tina Morell, Auditor of the City of Struthers ("Auditor), appeals the ruling of the Campbell Municipal Court in a small claims action. Appellee Harold L. Milligan, Jr. (former fire chief of Struthers) filed the pro se action to recover an underpayment in his final paycheck after he had retired on June 23, 2011. Appellee had worked as the fire chief for 31 years.

{¶2} Appellee filed a small claims action in Struthers Municipal Court on July 21, 2011, to collect the unpaid portion of his salary from 2011. It was transferred to Campbell Municipal Court on August 4, 2011. A bench trial was held on September 13, 2011. Both parties acted pro se at the trial court level, but on appeal, Auditor is represented by counsel. There is no transcript of the bench trial in the record but numerous documents filed at trial are part of the record. The trial court awarded Appellee a portion of the judgment he sought: $1, 223.29 plus interest of 4% from the date of judgment, plus costs, in an entry dated September 30, 2011. This timely appeal followed.

{¶3} Auditor argues that Appellee was overpaid $595.58 from 1980 through 2004, and that this explains the underpayment in his final paycheck. A review of the pertinent law reveals that Auditor's argument is not persuasive and is not supported by the record. Based on information in the record submitted by both parties, Appellee was actually underpaid by the city in the amount of $2, 401.46. Thus, while we hereby affirm the underlying judgment granted to Appellee, we must modify the trial court's judgment and enter judgment for Appellee for $2, 401.46, as well as 4% interest on the judgment as of the date of the trial court's judgment entry, which was September 30, 2011, plus court costs.

ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN RULING FOR THE PLAINTIFF AND AWARDING SAID PLAINTIFF ANY FORM OF REMUNERATION PAYABLE BY THE CITY OF STRUTHERS.

{¶4} Auditor argues on appeal that the decision of the trial court is against the manifest weight of the evidence. Auditor claims that the judgment entry should be changed to reflect operation of the city salary ordinances and that the amount withheld from Appellee's final pay was due to an alleged overpayment of $595 made to Appellee from 1980 to 2004. "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Constr Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), at syllabus.

{¶5} We are mindful of the oft cited principle that "rules of procedure are relaxed in small claims court." Sammartino v. Eiselstein, 7th Dist. No. 08 MA 211, 2009-Ohio-2641, ¶10. Small claims court is an informal forum designed to resolve disputes expeditiously and with minimal cost to the parties. Melcher v. Ryan, 7th Dist. No. 05 BE 40, 2006-Ohio-4609, ¶9. Pro se participation is expected and encouraged, and the court may assist pro se parties to some extent if the opportunity arises. Cleveland Bar Association v. Pearlman, 106 Ohio St.3d 136, 2005-Ohio-4107, 832 N.E.2d 1193, ¶15. We failed to notify Appellee of his right to file a cross appeal in this matter pursuant to App.R. 4(B)(1), and he has not attempted to file a cross-assignment of error. Nevertheless, he respectfully argued that he, like Auditor, believes the amount of the trial court's judgment is incorrect and requests that we correct this payment on appeal. Appellee's stance, however, is that the trial court's judgment understates what Appellee was owed by the city. Because Auditor has directly challenged the monetary amount of the judgment and urges us to apply the correct law, the city salary ordinances, and proper payroll accounting to determine whether the judgment in this matter is erroneous, we conclude that it is within our jurisdiction to modify the amount of judgment to reflect the law and facts presented, even though the trial court's underlying decision to grant judgment to Appellee appears to be correct and must be affirmed.

{¶6} The parties have essentially stipulated that Appellee's base annual salary for 2011 was $51, 418, as stated in Struthers City Ordinance 08-035. The parties agree that Appellee worked full time in 2010 and 2011. The parties agree that Appellee retired on June 23, 2011. The record reflects and the parties further agree that Appellee was owed $24, 511.38 in the calendar year 2011 for 174 days of work. Appellee was paid on an accrual basis, divided into 14-day periods, with each paycheck issued 10 days after the end of the pay period. The parties agree that Appellee's base pay for each two-week pay period in 2011 was $1, 977.67. According to these stipulated facts (all of which appear to be undisputed and on which Auditor relies in her brief on appeal), this record reveals that Appellee was underpaid in the total amount of $2, 401.46 in his final two paychecks in 2011. He was underpaid by $1, 198.33 for the pay period covering June 1 to June 14, 2011. He was not paid any salary at all, as far as we can tell from this record, for the last nine working days before his retirement, from June 15 through June 23, 2011. Based on the undisputed annual salary amount, Appellee was owed another $1, 203.13 for this final pay period. Thus, the starting point for any review as to how much Appellee was owed, according to the facts as presented by both parties, is $2, 401.46.

{¶7} The record contains a payroll audit, prepared by Auditor in 2006, that contains a note that Appellee may have possibly been overpaid $595 over the course of his employment, but states that "due to the length of employment, complexity and unavailable of [sic] information, the amounts given here are based on available information and may need ...


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