Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court) Trial Court Case No.
RAYMOND FREDETTE, Plaintiff-Appellant, Pro Se.
BRADLEY D. ANDERSON, Attorney for Defendant-Appellee.
1} Raymond Fredette appeals pro se from the trial
court's May 9, 2017 judgment entry that (1) dismissed his
"objections" to a prior summary-judgment ruling
against him on his complaint and (2) entered summary judgment
in favor of the appellee on a remaining counterclaim.
2} Fredette advances two assignments of error
related to the summary-judgment ruling on his complaint. In
that ruling, the trial court found the law firm of Rion,
Rion, and Rion entitled to judgment as a matter of law on
Fredette's complaint seeking to recover $7, 500 in
allegedly unearned legal fees. (Doc. # 31). Although the
complaint was alleged as a breach of contract, the trial
court determined that it actually asserted a
legal-malpractice claim, which was time barred by a one-year
statute of limitation.
3} The trial court entered summary judgment against
Fredette on his complaint on February 27, 2017. (Doc. #31).
That ruling contained certification under Civ.R. 54(B) that
"there is no just cause for delay." (Id.
at 3). Over two months later, on May 9, 2017, the trial court
then separately entered summary judgment in favor of
defendant-appellee Rion, Rion, and Rion on a remaining
counterclaim seeking additional legal fees for work
post-dating and unrelated to the subject of Fredette's
complaint. (Doc. # 37). In that ruling, the trial court also
dismissed Fredette's "objections" to the prior
summary judgment ruling against him on his complaint.
Fredette appealed after the trial court's May 9, 2017
entry of summary judgment in favor of the law firm on its
counterclaim. (Notice of Appeal, Doc. #39). His arguments,
however, address only the trial court's prior entry of
judgment against him on his original complaint.
4} Because the February 27, 2017 ruling disposed of
Fredette's complaint and contained Civ.R. 54(B)
certification, it was a final order subject to immediate
appeal. Fredette's failure to appeal from the February
27, 2017 ruling normally would mean that his June 8, 2017
notice of appeal is untimely with respect to the issues he
raises. Davenport v. Big Brothers & Big Sisters of
Greater Miami Valley, Inc., 2d Dist. Montgomery No.
23659, 2010-Ohio-2503, ¶ 7, footnote 1. That rule does
not apply here, however, because the trial court neglected to
include a notation directing the clerk of courts to serve
each party, through counsel, with notice of its ruling and
its date of entry upon the journal. See Civ.R.
58(B). In turn, the record does not reflect that the clerk
served the parties or noted service in the appearance docket.
Id. Under these circumstances, the time for filing
an appeal is tolled. Davenport at ¶ 7, footnote
1. "This is true even when a party has actual notice of
the judgment at issue." Id.
5} Fredette's appeal suffers from another
defect, however, that precludes us from reaching the issues
he raises. Under App.R. 3(D), a notice of appeal "shall
designate the judgment, order, or part thereof appealed
from[.]" Fredette's June 8, 2017 notice of appeal
designates the trial court's May 9, 2017 entry of summary
judgment against him on the appellee's counterclaim as
the order from which he appeals. "[Assignments of error
must relate to the judgment that is the subject of the notice
of appeal." State v. Thompkins, 10th Dist.,
Franklin No. 07AP-74, 2007-Ohio-4315, ¶ 7. But
Fredette's two assignments of error address the trial
court's February 27, 2017 entry of summary judgment
against him on his complaint. We recognize that prior
interlocutory orders will merge into a final judgment and,
therefore, that an appeal from a final judgment includes all
prior interlocutory orders. USA Freight, LLC v. CBS
Outdoor Group, Inc., 2d Dist. Montgomery No. 26425,
2015-Ohio-1474, ¶ 15. Therefore, a notice of appeal need
not specifically identify each interlocutory order issued
prior to a final judgment. Id.
6} The problem here is that the trial court's
February 27, 2017 entry of summary judgment against Fredette
on his complaint was not an interlocutory order. It was a
final order by virtue of the Civ.R. 54(B) certification it
contained. As a final order of its own, it did not
"merge" into the trial court's subsequent final
order entering summary judgment against Fredette on the
appellee's counterclaim. Because Fredette has appealed
only from the trial court's May 9, 2017 final order
entering judgment against him on the counterclaim, we cannot
address his assignments of error. As explained above, those
assignments of error relate exclusively to the February 27,
2017 final order entering summary judgment on his complaint.
Given that Fredette has not appealed from the February 27,
2017 judgment, we are unable to reach the merits of his
7} Even if we were to be able to consider
appellant's arguments, we would still affirm the judgment
of the trial court. Both the appellant and the law firm filed
motions for summary judgment. Fredette's motion contains
a rendition of facts but it is not supported by an affidavit
or other evidentiary materials as required by Civ. R. 56(C).
The law firm's motion, against Fredette's complaint
and in favor of their counterclaim, is supported by the
affidavit of one of the attorneys from the firm, contains
various attachments of the various fee agreements between the
parties, an itemized statement of services, and complies with
the evidentiary requirements of Civ. R, 56(C).
8} Summary judgment is governed by Civ.R. 56.
Pursuant to Civ.R. 56(C), summary judgment is proper when (1)
there is no genuine issue as to any material fact, (2) the
moving party is entitled to judgment as a matter of law, and
(3) reasonable minds, after construing the evidence most
strongly in favor of the nonmoving party, can only conclude
adversely to that party. Zivich v. Mentor Soccer Club,
Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998).
The moving party carries the initial burden of affirmatively
demonstrating that no genuine issue of material fact remains
to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d
112, 115, 526 N.E.2d 798 (1988). To this end, the movant must
be able to point to evidentiary materials of the type listed
in Civ.R. 56(C) that a court is to consider in rendering
summary judgment. Dresher v. Burt, 75 Ohio St.3d
280, 292-293, 662 N.E.2d 264 (1996). Those materials include
"the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and
written stipulations of fact, if any, filed in the
action." Id. at 293; Civ.R. 56(C).
9} We recognize that Fredette is proceeding pro se
but we have repeatedly observed that "[L]itigants who
choose to proceed pro se are presumed to know the law and
correct procedure, and are held to the same standards as
other litigants." Yocum v. Means, 2d Dist.
Darke No. 1576, 2002-Ohio-3803.
10} Because the law firm's motion for summary
judgment is properly supported and Fredette's is not, the