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Hall v. Silver

Court of Appeals of Ohio, Ninth District, Summit

May 2, 2018

JAMES W. HALL Appellant
v.
JAMES R. SILVER Appellee

          APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 17 CV 01750

          ERIC J. CHERRY, Attorney at Law, for Appellant.

          JAMES R. SILVER, pro se, Appellee.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN JUDGE.

         {¶1} Appellant, James Hall, appeals from the judgment of the Akron Municipal Court vacating the default judgment against Appellee, James Silver. For the reasons set forth below, this Court affirms.

         I.

         {¶2} In the fall of 2009, Mr. Hall retained Mr. Silver to represent him in various legal matters, including the collection of a judgment lien. Mr. Hall paid Mr. Silver a retainer of $6, 300 for legal representation in the collection matter. In March 2017, Mr. Hall filed a small claims action for the return of $6, 000 as unearned legal fees against Mr. Silver in the collection matter.

         {¶3} Mr. Hall initially requested service of the summons and complaint by certified mail to Mr. Silver at 141 E. Main Street, Suite 201, Kent, Ohio 44240. This certified mail attempt was returned as "not deliverable as addressed[/]unable to forward" on March 22, 2017. (Emphasis deleted.)

         {¶4} Mr. Hall then requested service upon Mr. Silver by certified mail to 141 E. Main Street, Suite 201, Kent, Ohio 44240 and P.O. Box 1015, Kent, Ohio 44240. The certified mail to P.O. Box 1015 was returned unclaimed on April 11, 2017. Similarly, the certified mail to 141 E. Main Street, Suite 201 was returned unclaimed on April 17, 2017.

         {¶5} Upon Mr. Hall's request, service was issued to Mr. Silver by ordinary mail on May 2, 2017 to 141 E. Main Street, Suite 201, Kent, Ohio 44240 and P.O. Box 1015, Kent, Ohio 44240. The ordinary mail sent to P.O. Box 1015 was returned "not deliverable as addressed[/]unable to forward" on May 8, 2017. (Emphasis deleted.) However, the ordinary mail sent to 141 E. Main Street, Suite 201 was not returned.

         {¶6} Following a hearing, the magistrate recommended a judgment in favor of Mr. Hall in the amount of $6, 000, plus statutory interest. The trial judge adopted the magistrate's decision and entered judgment in favor of Mr. Hall.

         {¶7} Two weeks after the judgment, Mr. Silver filed a motion to vacate, along with an affidavit, asserting that "service was never perfected" upon him. Mr. Silver also moved for leave to file his answer and counterclaim instanter. Mr. Hall opposed both motions in writing, claiming he had proof as to why the judgment should not be vacated. The trial court held a hearing on the motion to vacate, after which it granted the motion.

         {¶8} Additionally, the trial court granted Mr. Silver's motion for leave to file an answer and counterclaim instanter. Because Mr. Silver's counterclaim exceeded the jurisdictional limits of the municipal court, the case was ordered to be transferred to the Summit County Common Pleas Court.

         {¶9} Mr. Hall timely appealed the trial court's judgment entry granting the motion to vacate and asserts four assignments of error.

         II.

         Assignments of Error

         {¶10} At the outset, this Court recognizes Mr. Hall's failure to comply with App.R. 16(A), App.R. 12(A)(2) and this Court's Loc.R. 7(B) and (F). The rules governing appellate procedure mandate that the appellant's brief must contain a statement of the assignments of error. App.R. 16(A)(3); Loc.R. 7(B)(3). The appellant must then separately argue each assignment of error, including supporting authority and citations to the record. App.R. 16(A)(7); Loc.R. 7(B)(7). "[A]n appellate court may disregard an assignment of error if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A)." (Internal quotation marks and citations omitted.) Ohio Edison Co. v. Williams, 9th Dist. Summit No. 23530, 2007-Ohio-5028, ¶ 10; see also App.R. 12(A)(2).

         {¶11} Mr. Hall listed four assignments of error at the beginning of his appellate brief. However, in the argument portion of Mr. Hall's appellate brief, he failed to identify and separately discuss each assignment of error. See App.R. 12(A)(2); App.R. 16(A)(7); Loc.R. 7(B)(7); Village of Boston Hts. v. Brewer, 9th Dist. Summit No. 28216, 2017-Ohio-7042, ¶ 5. Instead, Mr. Hall provided headings, some related and some unrelated to the assignments error, and proceeded to present intertwined arguments, some of which pertained and some of which did not pertain to the four assignments of error. Additionally, absent from Mr. Hall's appellate brief was any citation to the record. See App.R. 16(A)(7); Loc.R. 7(B)(6), (F); Brewer at ¶ 5.

         {¶12} Notwithstanding Mr. Hall's failure to comply with the forgoing appellate and local rule requirements, this Court will proceed to address his arguments that contain a heading related to a listed assignment of error at the beginning of his brief. The remainder of Mr. Hall's arguments not directly corresponding to an assignment of error will be disregarded. See App.R. ...


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