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Martin v. Wills

Court of Appeals of Ohio, Seventh District, Mahoning

December 27, 2017

JEANNE MARTIN PLAINTIFF-APPELLEE
v.
WILLIAM WILLS DEFENDANT-APPELLANT

         Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 15 CV 2842.

          For Plaintiff-Appellee: Atty. Anthony J. Farris, Atty. Douglas J. Neuman Ancillary Administrator of the Estate of Jeanne Martin, Deceased.

          For Defendant-Appellant: Atty. Harry J. DePietro The DePietro Law Office LLC.

          JUDGES: Hon. Cheryl L. Waite, Hon. Mary DeGenaro, Hon. Carol Ann Robb.

          OPINION

          WAITE, J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         ASSIGNMENT OF ERROR NO. 1

         THE 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.

         {¶6} 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."

         {¶7} 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, ...


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