Am. Express Bank v. WallerAm. Express Bank v. Waller
Anne M. Smith and Derek W. Scranton, Zwicker & Associates, PC, 2300 Litton Lane, Suite 200, Hebron, KY 41048-0597 (For Plaintiff-Appellee).
James V. Loiacono and John S. Salem, Denman & Lerner Co., L.P.A., 8039 Broadmoor Road, #21, Mentor, OH 44060 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Keith Waller, appeals from the judgment of the Lake County Court of Common Pleas denying his motion for relief from judgment filed pursuant to
{¶2} On September 21, 2009, appellee, American Express Bank, FSB, filed a complaint against appellant alleging he was in default on a credit card account in the amount of $52,252.37. Appellee attached an account statement and a copy of the credit agreement to the complaint. Appellant filed an answer, denying the allegations.
{¶3} Appellee filed a motion for summary judgment, which was entered on the docket on March 1, 2010. Attached to the motion was an affidavit signed by the Custodian of Records of American Express attesting to, inter alia, appellant’s default. Appellee additionally attached a voluminous packet of bank statements and other similar materials relating to the underlying account that was incorporated into the affidavit by reference. Subsequently, on March 2, 2010, the trial court, apparently unaware that the motion was filed a day earlier, issued an entry ordering appellee to “file a motion for summary judgment with documentary evidence.” The order stated that if appellee failed to comply by March 10, 2010, the matter would be dismissed for want of prosecution. Appellee responded to the order by a pleading captioned “motion to withhold dismissal.” In the motion, appellee apprised the court that its motion for summary judgment had been sent to the court and served on appellant’s counsel on February 23, 2010. Although appellant was duly served with all motions, he did not respond to the “motion to withhold dismissal” and never filed a memorandum in opposition to appellee’s motion for summary judgment. The case proceeded and, on March 29, 2010, the trial court granted appellee’s motion for summary judgment.
{¶4} Appellant, via new counsel, filed a timely appeal of the trial court’s entry of summary judgment. Appellant was provided notice that his appellate brief was due on or before June 22, 2010. Appellant, however, failed to file a brief and, on June 30, 2010, this court dismissed the appeal for failure to prosecute.
{¶5} On February 23, 2011, appellant filed a motion for relief from the trial court’s March 29, 2010 entry of summary judgment pursuant to
{¶6} After considering the motion, the trial court denied appellant relief from judgment. In support, the trial court first observed that appellant was inappropriately using the motion to vacate as a substitute for an appeal. The court underscored that the alleged errors could have been corrected through a direct appeal, which was dismissed for failure to prosecute. Thus, these errors could not be used as a basis for a
{¶7} Appellant filed a timely appeal and has assigned the following two errors for this court’s consideration:
{¶8} “[1.] The trial court erred in denying defendant’s motion to vacate.
{¶9} “[2.] It was error for the trial court to not adhere to the court’s docket when considering defendant’s motion to vacate.”
{¶10} To prevail on a
{¶11} An appellate court reviews a judgment entered on a
{¶12} Appellant essentially restates the same arguments on appeal as those alleged in his motion for relief from judgment. In particular, he claims the trial court’s entry of summary judgment was premised upon the mistaken conclusion that he was responsible for the debt. He further asserts the trial court mistakenly proceeded to judgment without requiring appellee to follow its March 2, 2010 order. Further, by allegedly failing to enforce that order, appellant claims he was somehow prevented a meaningful opportunity to respond to oppose appellee’s motion. Finally, appellant asserts that, because he is purportedly not liable for the debt, it would be inequitable to enforce the entry against him. For the reasons discussed below, we do not agree.
{¶13} In its judgment, the trial court correctly observed that a motion filed pursuant to
{¶14} Due to his inaction, appellant was turned away at the front door of the appellate process; he cannot, however, after the opportunity for direct appellate review has passed, use
{¶15} Assuming, however, arguendo, appellant was not precluded from advancing his arguments pursuant to
{¶16} Furthermore, we see no mistake in the manner in which the trial court handled appellee’s filing of its motion for summary judgment. Although the trial court issued an order directing appellee to file a motion with supporting documentary evidence a day after the motion was actually filed, appellee, by a “motion to withhold dismissal,” notified the court and opposing counsel that it had already complied with the order. The court did not enter an additional order indicating the March 1, 2010 filing was insufficient nor did it dismiss appellee’s cause of action on March 10, 2010 for failure to prosecute. It is therefore reasonable to conclude appellee’s motion for summary judgment, filed on March 1, 2010, was sufficient to meet the requirements set forth in the court’s March 2, 2010 order. Appellee’s March 1, 2010 filing, therefore, rendered the court’s March 2, 2010 order moot.
{¶17} Appellant had an opportunity to respond to both the “motion to withhold dismissal” and the motion for summary judgment, but failed to do so. Given the circumstances of the case, we therefore hold that, even if
{¶18} Appellant’s assignments of error are without merit.
{¶19} For the reasons discussed in this appeal, the judgment of the Lake County Court of Common Pleas is hereby affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.