Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 15 CV 2842.
Plaintiff-Appellee: Atty. Anthony J. Farris, Atty. Douglas J.
Neuman Ancillary Administrator of the Estate of Jeanne
Defendant-Appellant: Atty. Harry J. DePietro The DePietro Law
JUDGES: Hon. Cheryl L. Waite, Hon. Mary DeGenaro, Hon. Carol
Appellant William Wills appeals from a judgment of the
Mahoning County Court of Common Pleas granting Appellee
Jeanne Martin's motion for summary judgment on
Appellant's counterclaims for nuisance, frivolous
litigation, vexatious conduct, intentional infliction of
emotional distress, invasion of privacy and defamation. The
trial court did not err in ruling on the motion for summary
judgment. This record reveals that Appellant raised no
material issue of fact and that Appellee was entitled to
judgment pursuant to law. Therefore, Appellant's
assignments of error are without merit and are overruled and
the judgment of the trial court is affirmed.
This case arises from a long, contentious relationship
between two neighbors who reside adjacent to one another on
the north side of Youngstown. The parties have a history
which includes multiple filings in small claims court,
numerous police calls to their properties and mutual
restraining orders. In this latest matter, Appellee filed a
pro se small claims complaint against Appellant on
August 6, 2015, alleging that Appellant's fence, which
had been removed after it was determined that it encroached
on Appellee's property, had interfered with
Appellee's ability to repair her sewer line and that
Appellant had engaged in acts of harassment against Appellee,
among other things.
In September of 2015, Appellant filed an answer and
counterclaim. Appellant's counterclaims involved
allegations of nuisance, frivolous litigation, vexatious
conduct, intentional infliction of emotional distress,
invasion of privacy and defamation. Appellant also requested
that the matter be transferred from Youngstown Municipal
Court to the Mahoning County Court of Common Pleas (2015 CV
2842). Appellee, now represented by counsel, amended her
complaint and the parties began discovery in the matter. The
trial court set a dispositive deadline of May 9, 2016.
Appellee filed a motion for summary judgment regarding
Appellant's counterclaims and mailed the time-stamped
copy to Appellant's counsel on the day the motion was
filed, May 6, 2016. Appellant claims he received the motion
on May 10. Appellant did not respond to the motion for
summary judgment. Instead, he filed a motion to strike the
summary judgment request, arguing that Appellee failed to
properly serve him with her motion.
In an entry dated June 3, 2016, the trial court denied
Appellant's motion to strike and granted Appellee summary
judgment, holding that service of the motion for summary
judgment was complete once it was mailed on May 6, 2016 and
that Appellant had failed to timely oppose the motion.
On June 13, 2016, Appellee filed a motion to amend the prayer
for relief in her action and asked to have the case
transferred back to the Youngstown Municipal Court. Appellant
sought to strike Appellee's motion to amend, but the
trial court granted Appellee's motion, allowing both
amendment of the complaint and transfer to Youngstown
Municipal Court. Appellant filed this appeal. After a hearing
before this Court, counsel for Appellee filed a notice of
suggestion of Appellee's death as well as a motion to
withdraw as counsel. We granted counsel's motion to
withdraw on August 23, 2017 and granted the parties thirty
days to substitute the proper party. A motion to substitute
pursuant to App.R. 29 was filed by Appellant on September 21,
2017, naming as Appellee Sheryl Bell, Administrator of the
Estate of Jeanne Martin.
OF ERROR NO. 1
COURT ERRED AS A MATTER OF LAW, AND ABUSED ITS DISCRETION TO
THE APPELLANT'S HARM WHEN IT FAILED TO STRIKE, AND
SUBSEQUENTLY GRANTED, THE APPELLEE'S SUMMARY JUDGMENT
MOTION AS IT HAD NOT BEEN SERVED AS PURSUANT TO THE
REQUIREMENTS OF CIV.R. 5(D) AND BORE A SHAM CERTIFICATE OF
SERVICE IN VIOLATION OF CIVIL RULES 5(B)(4) AND 11.
In Appellant's first assignment of error he contends the
trial court erred in granting Appellee summary judgment on
his counterclaims. He argues that Appellee's motion
seeking summary judgment should have been stricken, because
service was improper. The crux of Appellant's argument is
that Appellee's motion should not have been considered
because it was filed with the clerk before it was served on
Appellee and because he claims the certificate of service
attached to it was "a sham."
Appellee responds that the Civil Rules state that service is
complete on mailing. Since she mailed Appellant's counsel
a copy of her motion for summary judgment on May 6, ...