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Byrd v. Frush

Court of Appeals of Ohio, Fifth District

August 23, 2013

HOUSTON BYRD, JR. Plaintiff-Appellant
v.
JAMIE L. AND CAROL R. FRUSH, Defendants-Appellee

Civil appeal from the Licking County Court of Common Pleas, Case No. 12-CV-845

For Plaintiff-Appellant HOUSTON BYRD, JR. PRO SE

For Defendant-Appellee SCOTT WILLIAMS Hammond Sewards & Williams

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Craig R. Baldwin, J.

OPINION

Gwin, P.J.

(¶1} Appellant appeals several judgment entries of the Licking County Common Pleas Court, including the January 30, 2013 judgment entry of the trial court dismissing appellant's case pursuant to Civil Rule 41(B).

Facts & Procedural History

(¶2} On July 14, 2010, appellant Houston Byrd, Jr. and appellee Carol Frush were involved in an automobile accident in a parking lot. Appellant filed a complaint against appellee and her husband Jamie Frush on June 19, 2012, alleging he suffered personal injury, property damage, and lost earnings as a result of the negligence of appellee and Mr. Frush arising from the automobile accident. Mr. Frush was not involved in the accident or present at the time the accident occurred.

(¶3} Mr. Frush filed a motion to dismiss pursuant to Civil Rule 12(B)(6) on July 10, 2012. The trial court granted Mr. Frush's motion to dismiss on August 22, 2012. On July 24, 2012, appellant filed a motion for summary judgment. After numerous pleadings were filed regarding appellant's motion for summary judgment, the trial court denied appellant's motion for summary judgment on September 26, 2012.

(¶4} On August 13, 2012, appellant filed a motion for a polygraph or psycho-physiological detection of deception evaluation team. Appellant requested the trial court order appellee to submit to a polygraph test with regards to the automobile accident. The trial court denied appellant's motion on August 15, 2012.

(¶5} On September 27, 2012, the trial court filed an order setting the case for pretrial conference on November 29, 2012. The order specified that counsel for the parties were required to attend in person and that "all unrepresented parties shall attend the pretrial conference personally."

(¶6} Appellee filed a motion to compel the discovery of interrogatories and requests for production of documents on October 11, 2012. The trial court issued an order on October 12, 2012, setting an oral hearing on the motion to compel on November 13, 2012. Appellant filed a written objection to the setting of this oral hearing on October 17, 2012 and, prior to the oral hearing, provided appellee with answers to her interrogatories. However, appellant failed to respond to appellee's requests for production of documents. The trial court held a hearing an oral hearing on the motion to compel on November 13, 2012. Appellant failed to appear for the hearing. The trial court then granted appellee's motion to compel.

(¶7} On November 29, 2012, the trial court held the pretrial scheduled by the September 27, 2012 order. Appellant did not appear for the pretrial. On December 3, 2012, the trial court issued a judgment entry finding that appellant failed to appear for the November 29, 2012 pretrial and scheduling another hearing for January 29, 2013 "for the express purpose of [appellant] appearing to show cause why he should not be held in contempt or his case should not be dismissed due to his failure to prosecute his case pursuant to Civil Rule 41." Appellant failed to appear for the hearing on January 29, 2013. On January 30, 2013, the trial court entered a judgment entry finding appellant failed to appear for the January 29th hearing and dismissing his case pursuant to Civil Rule 41.

(¶8} Throughout the pendency of the case, appellant repeatedly requested the trial court judge recuse himself from the case. The trial court denied appellant's requests for recusal.

(¶9} Appellant raises the following assignments of error on appeal:

(¶10} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THERE WASNT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE CIVIL COMPLAINT BEFORE IT.

(¶11} "II. THE PRESIDING JUDGE DID NOT INTERPRET THE LAW CORRECTLY.

(¶12} "III. THE TRIAL JUDGE IMPROPERLY PREVENTED APPELLANT FROM PRESENTING AND/OR CONSIDERING EVIDENCE BEFORE IT.

(¶13} "IV. THE TRIAL JUDGE ARBITRARILY AND SYSTEMATICALLY FAILED TO RENDER DECISIONS ON NUMEROUS ...


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