JAMES W. HALL Appellant
JAMES R. SILVER Appellee
FROM JUDGMENT ENTERED IN THE AKRON MUNICIIPAL COURT COUNTY OF
SUMMIT, OHIO CASE No. 17 CV 01750
J. CHERRY, Attorney at Law, for Appellant.
R. SILVER, pro se, Appellee.
DECISION AND JOURNAL ENTRY
S. CALLAHAN JUDGE.
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
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.
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.
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.
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.
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.
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
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
Mr. Hall timely appealed the trial court's judgment entry
granting the motion to vacate and asserts four assignments of
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).
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.
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. ...