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Schmitt v. Ward

Court of Appeals of Ohio, Ninth District, Summit

June 7, 2017

MELISSA M. SCHMITT Appellee
v.
SHAINE WARD Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2007-07-2217

          FRANK J. CIMINO, Attorney at Law, for Appellant.

          LESLIE S. GRASKE, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          JENNIFER HENSAL JUDGE.

         {¶1} Shaine Ward appeals an order of the Summit County Court of Common Pleas, Domestic Relations Division, that granted his motion for continuance with conditions. For the following reasons, this Court affirms.

         I.

         {¶2} Shaine Ward and Melissa Schmitt married in 2005 and divorced in 2012. The decree directed Mr. Ward to make all of the payments on a loan that the parties had co-signed. In June 2015, Ms. Schmitt moved for a receiver to take control of the property that secured the loan, alleging that Mr. Ward had not been making any payments on the loan. The trial court set a hearing on her motion, but later continued it because the action had been appealed. In April 2016, the court set a hearing for June 27, 2016, to discuss all of the issues pending before the court. Mr. Ward moved to continue the hearing because the appeal was still pending. The court next set a hearing for July 27, 2016, but Mr. Ward moved to continue it because he was going to be out of the country. Ms. Schmitt responded to his motion for continuance the next day. In her response, Ms. Schmitt noted that her motion for receiver had been pending for a year and alleged that Mr. Ward still had not been making payments on the loan. She, therefore, requested that the court order Mr. Ward to escrow the rental income he was receiving from the mortgaged property. The trial court subsequently granted Mr. Ward's motion for continuance on the condition that he deposit the rental proceeds from the mortgaged property into his attorney's IOLTA account, as Ms. Schmitt had requested. Mr. Ward has appealed the court's order, assigning two errors.

         II.

         ASSIGNMENT OF ERROR I

         THE COURT ERRED IN SIGNING THE JOURNAL ENTRY OF JULY 8, 2016 REGARDING THE DEPOSITING OF RENTAL MONIES FROM THE RANCH ROAD PROPERTIES INTO THE DEFENDANT-APPELLANT'S ATTORNEY'S IOLTA ACCOUNT WHEN NO NOTICE WAS PROVIDED TO OPPOSING COUNSEL AND A REASONABLE TIME TO RESPOND.

         {¶3} Mr. Ward argues that the trial court incorrectly ordered him to place the rental proceeds into escrow because Ms. Schmitt did not make a formal motion requesting such relief under Civil Rule 7(B) or serve him with such a motion. He alleges that it is possible that Ms. Schmitt made an ex parte motion when she was before the court on another matter the same day that the court entered its order, but argues that an ex parte order would have been improper as well. He further argues that he did not receive notice of the gathering that took place on the day the court entered its order.

         {¶4} Rule 7(B)(1) provides in relevant part that "[a]n application to the court for an order shall be by motion which, unless made during a hearing or a trial, shall be made in writing. A motion, whether written or oral, shall state with particularity the grounds therefor, and shall set forth the relief or order sought." In her response to Mr. Ward's motion, Ms. Schmitt "requested] that this Court schedule this matter for a hearing prior to the current (rescheduled) date or, in the alternative, that this Court order Shaine Ward to deposit all proceeds of rental from the Ranch Road properties with his attorney * * *."

         {¶5} "[T]he name given to a pleading or motion is not controlling. It is the substance and not the caption that determines [its] operative effect * * *." Lungard v. Bertram, 86 Ohio App. 392, 395 (1st Dist.1949). Although Ms. Schmitt did not caption her response as a motion, she requested specific relief and stated with particularity the grounds for her request. The trial court, therefore, did not err when it construed her response as a motion under Rule 7(B)(1). See Cooke v. United Dairy Farmers, Inc., 10th Dist. Franklin No. 05AP-1307, 2006-Ohio-4365, ¶ 28-29 (concluding that "Notice of Opinion" satisfied the requirements of Civ.R. 7(B)(1)).

         {¶6} Regarding whether Ms. Schmitt properly served her motion, her response contained a certificate of service, indicating that she sent a copy of it to Mr. Ward's attorney by electronic mail. Mr. Ward ...


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