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Rose v. Cochran

Court of Appeals of Ohio, Second District

August 30, 2013

J.R. ROSE Plaintiff-Appellant
v.
WAYNE COCHRAN Defendant-Appellee

Civil Appeal from Common Pleas Trial Court Case No. 2012-CV-6391

J.R. ROSE, Inmate No. A577781, Plaintiff-Appellant-pro se

MICHAEL W. SANDNER, Atty. Reg. No. 0064107, Attorney for Defendant-Appellee

OPINION

WELBAUM, J.

(¶ 1} Plaintiff-Appellant, J.R. Rose, appeals pro se from a trial court decision dismissing his complaint, and from an order transferring venue from Ross County to Montgomery County. Rose argues his case was improperly transferred to Montgomery County because Defendant-Appellee, Wayne Cochran, waived the issue of improper venue by failing to timely raise it as required by Civ.R. 12(G). Cochran contends that we lack jurisdiction to review whether the venue transfer was an abuse of discretion, because the transfer was ordered by the Ross County Court of Common Pleas, which is outside our territorial jurisdiction.

(¶ 2} We conclude that this district is the proper forum for reviewing whether the decision to transfer venue to Montgomery County was an abuse of discretion. As the transferee trial court, Montgomery County obtained complete jurisdiction over the matter when the case was transferred, and the appellate district of the transferee trial court is the proper forum for reviewing issues related to venue transfer on appeal. We also conclude that the trial court in Ross County abused its discretion when it granted the venue transfer, because the transfer was not authorized under Civ.R. 12(G), 12(H), and Civ.R. 3(C)(1).

(¶ 3} Rose also argues that the trial court abused its discretion by not providing the remedy of Blue Sky Laws, allowing unjust enrichment, and allowing "unabated fraud." He further contends that the trial court "erred in dismissal of liability statute."

(¶ 4} We conclude that these arguments are not reviewable on appeal, because the arguments were either not raised before the trial court, or they fail to identify in the record the errors on which the assignments of error are based. Rose's arguments also do not set forth clear contentions or supportive reasoning. Under App.R. 12(A)(2) and 16(A)(7) we may disregard such arguments.

(¶ 5} Rose did not specifically set forth an argument relating to the trial court's dismissal of his case; however, we sua sponte notice that the dismissal was plain error. The trial court based the dismissal on a moot motion for reconsideration and a motion to dismiss that had been previously reversed by the Fourth District Court of Appeals. The trial court's error terminated Rose's case and created a manifest miscarriage of justice. Accordingly, we will reverse and remand the trial court's decision for further proceedings.

I. Facts and Course of Proceedings

(¶ 6} In April 2008, Appellant, J.R. Rose, was convicted and sentenced to 20 years in prison by the Butler County Court of Common Pleas, for the sale of unregistered securities, perjury, and forgery. Rose was an insurance agent in Ohio who fraudulently purchased annuities for his clients with forged signatures. As a result of his illegal acts, Rose's clients suffered financial loss. Appellee, Wayne Cochran, was one of Rose's clients.

(¶ 7} After Rose was convicted, Cochran wrote a letter to National Western Life Insurance Company (National) regarding Rose. Rose had fraudulently purchased an annuity from National using Cochran's funds. Cochran wrote National to inform it of Rose's illegal acts, and, given the circumstances, to request that National terminate his account without any fees or penalties.

(¶ 8} As a result of Cochran having sent the letter to National, Rose filed a pro se complaint against Cochran in the Ross County Court of Common Pleas on January 26, 2011. Rose alleged in the complaint that Cochran had committed insurance fraud, libel and slander, and fraud, and that he had received unjust enrichment. On February 28, 2011, Cochran filed a timely Civ.R.12(B)(6) motion to dismiss alleging that the complaint failed to state a claim upon which relief could be granted. Cochran's motion did not allege any other affirmative defenses. The motion included nine exhibits, which contained evidence not in the complaint.

(¶ 9} In April 2011, the Ross County Court of Common Pleas granted Cochran's motion to dismiss. The trial court stated the following in its judgment entry:

The court has had the opportunity to review the file, the pleadings, as well as the motions made in this matter, and any responses to said motions. Once again, the court parenthetically notes that pursuant to Civil Rule 12(D)(4) [sic] venue does not appear to be proper in Ross County. However, since no motion has been filed questioning venue, the court will not decide the matter. The court further finds that the defendant's motion to dismiss is well-taken and is therefore granted. Entry (Apr. 7, 2011), Ross County Court of Common Pleas, Docket No. 10, p. 1.

(¶ 10} Thereafter, Rose filed a motion for reconsideration requesting that the trial court reconsider its decision dismissing his complaint. He then appealed from the dismissal to the Fourth District Court of Appeals.

(¶ 11} In April 2012, the Fourth District reversed and remanded the trial court's decision dismissing Rose's complaint. See Rose v. Cochran, 4th Dist. Ross No. 11CA3243, 2012-Ohio-1729, ¶ 13. The Fourth District reversed the dismissal on grounds that the trial court considered additional evidence, beyond that contained in the complaint, without converting the motion to dismiss to a motion for summary judgment, which is required by Civ.R. 12(B). Id.

(¶ 12} The case was remanded back to the trial court, and on July 16, 2012, Cochran filed an answer to Rose's complaint asserting various affirmative defenses, including improper venue. Cochran thereafter submitted a motion to transfer venue. The motion is not shown on the docket, and is only mentioned in the trial court's entry and order dated July 19, 2012. Regardless, the trial court granted the motion and ordered the case to be transferred to Montgomery County. The judgment entry granting the venue transfer stated the following:

This matter came before the court on defendant's motion to transfer venue and plaintiffs reply to defendant's motion for change of venue filed July 27, 2012. After a review [sic] the file and of the pleadings, the court finds that virtually all of the allegations contained in plaintiffs complaint occurred in Montgomery County. The court further finds that other than the fact that the plaintiff is incarcerated in a prison in Ross County, he would have no ties to Ross County, and this matter would never have been filed here. The court therefore finds that this matter is not properly venued in Ross County, Ohio, and as such the court orders that this matter shall be transferred to Montgomery County Common Pleas Court. Entry (Aug. 29, 2012), Ross County Court of Common Pleas, Docket No. 25, p. 1.

(¶ 13} On September 5, 2012, the case was transferred to the Montgomery County Court of Common Pleas. Thereafter, the trial court in Montgomery County issued an order overruling Rose's motion for reconsideration that was filed on April 18, 2011, and dismissed the case.

(¶ 14} Rose appeals from the transfer of this case to Montgomery County, and from the ...


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