HOUSTON BYRD, JR. v. JAMIE L. AND CAROL R. FRUSH
Case No. 13-CA-10
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
August 23, 2013
2013-Ohio-3682
Hon. W. Scott Gwin, P.J.; Hon. Sheila G. Farmer, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court of Common Pleas, Case No. 12-CV-845. JUDGMENT: Affirmed.
For Plaintiff-Appellant
HOUSTON BYRD, JR. PRO SE
241 N. 10th Street
Newark, OH 43055
For Defendant-Appellee
SCOTT WILLIAMS
Hammond Sewards & Williams
556 East Town Street
Columbus, OH 43215
{¶1} Appellant appeals several judgment entries of the Licking County Common Pleas Court, including the January 30, 2013 judgment entry of the trial court dismissing appellant’s case pursuant to
Facts & Procedural History
{¶2} On July 14, 2010, appellant Houston Byrd, Jr. and appellee Carol Frush were involved in an automobile accident in a parking lot. Appellant filed a complaint against appellee and her husband Jamie Frush on June 19, 2012, alleging he suffered personal injury, property damage, and lost earnings as a result of the negligence of appellee and Mr. Frush arising from the automobile accident. Mr. Frush was not involved in the accident or present at the time the accident occurred.
{¶3} Mr. Frush filed a motion to dismiss pursuant to
{¶4} On August 13, 2012, appellant filed a motion for a polygraph or psycho-physiological detection of deception evaluation team. Appellant requested the trial court order appellee to submit to a polygraph test with regards to the automobile accident. The trial court denied appellant’s motion on August 15, 2012.
{¶5} On September 27, 2012, the trial court filed an order setting the case for pretrial conference on November 29, 2012. The order specified that counsel for the
{¶6} Appellee filed a motion to compel the discovery of interrogatories and requests for production of documents on October 11, 2012. The trial court issued an order on October 12, 2012, setting an oral hearing on the motion to compel on November 13, 2012. Appellant filed a written objection to the setting of this oral hearing on October 17, 2012 and, prior to the oral hearing, provided appellee with answers to her interrogatories. However, appellant failed to respond to appellee’s requests for production of documents. The trial court held a hearing an oral hearing on the motion to compel on November 13, 2012. Appellant failed to appear for the hearing. The trial court then granted appellee’s motion to compel.
{¶7} On November 29, 2012, the trial court held the pretrial scheduled by the September 27, 2012 order. Appellant did not appear for the pretrial. On December 3, 2012, the trial court issued a judgment entry finding that appellant failed to appear for the November 29, 2012 pretrial and scheduling another hearing for January 29, 2013 “for the express purpose of [appellant] appearing to show cause why he should not be held in contempt or his case should not be dismissed due to his failure to prosecute his case pursuant to Civil Rule 41.” Appellant failed to appear for the hearing on January 29, 2013. On January 30, 2013, the trial court entered a judgment entry finding appellant failed to appear for the January 29th hearing and dismissing his case pursuant to
{¶9} Appellant raises the following assignments of error on appeal:
{¶10} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THERE WASN’T CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE CIVIL COMPLAINT BEFORE IT.
{¶11} “II. THE PRESIDING JUDGE DID NOT INTERPRET THE LAW CORRECTLY.
{¶12} “III. THE TRIAL JUDGE IMPROPERLY PREVENTED APPELLANT FROM PRESENTING AND/OR CONSIDERING EVIDENCE BEFORE IT.
{¶13} “IV. THE TRIAL JUDGE ARBITRARILY AND SYSTEMATICALLY FAILED TO RENDER DECISIONS ON NUMEROUS MOTIONS BEFORE IT.
{¶14} “V. THE TRIAL JUDGE FAILED TO PERFORM THEIR DUTIES.
{¶15} “VI. THE TRIAL JUDGE WAS [NOT] IMPARTIAL.”
Pro Se Appellants
{¶16} We understand appellant has filed this appeal pro se. However, “like members of the bar, pro se litigants are required to comply with the rules of practice and procedure.” Hardy v. Belmont Correctional Inst., 10th Dist No. 06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶ 11. We also understand that “an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules.” State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶ 4 (internal quotations omitted).
I, II, III, IV
{¶18} Appellant makes numerous arguments throughout his brief that the trial court erred in granting or denying various motions, not ruling on all of his motions, not providing findings of fact and conclusions of law, and in ultimately dismissing appellant’s case pursuant to
Summary Judgment
{¶19} Appellant contends the trial court erred in denying his motion for summary judgment because there is no genuine issue of material fact regarding appellee’s liability. We disagree.
{¶20}
“Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed mostly strongly in the party‘s favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.”
{¶21} A trial court should not enter a summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist.1999).
{¶23} In this case, appellant filed his motion for summary judgment and argued there was no genuine issue of material fact that would make a trial necessary. Appellant did not submit any
{¶24} After appellee filed her memorandum in opposition to appellant’s motion for summary judgment, appellant filed a reply brief, attaching documents marked as exhibits. The exhibits consist of a diagram, photograph, and reports by traffic crash
{¶25} The only evidence appellant put forth in his motion for summary judgment was his allegation that appellee was driving illegally at the time of the accident. In her affidavit, appellee denied she was driving illegally at the time of the accident, stated appellant caused or contributed to the cause of the accident, and denied appellant was injured in the accident. The affidavit submitted by appellee creates genuine issues of material fact regarding liability and damages and thus the trial court did not err in denying appellant’s motion for summary judgment.
{¶26} We further find the trial court did not err in granting appellee’s motion to strike exhibits in appellant’s reply to summary judgment. For the first time in the summary judgment pleadings, appellant attempted to introduce a photograph, diagram, and reports of two accident reconstructionists in his reply brief. However, “
Motion for Polygraph or Psychophysiological Detection of Deception Evaluation
{¶28} Appellant argues the trial court erred in denying his request to order appellee to submit to a polygraph. We disagree. Under Ohio law, “polygraph examination results are inadmissible as evidence unless the prerequisities of State v. Souel * * * are met.” City of Zanesville v. Sheets, 38 Ohio App.3d 24, 525 N.E.2d 842 (5th Dist. 1987). One of the requirements in State v. Souel is that both parties stipulate to the admissibility of the results of the polygraph examination. 53 Ohio St.2d 123, 372 N.E.2d 1318 (1978). In this case, there is no written stipulation of appellee for the admission of any polygraph results. Thus, since the requirements of Souel have not
Findings of Facts and Conclusions of Law
{¶29} Appellant argues the trial court erred by not providing him with findings of fact and conclusions of law in its decisions on appellant’s numerous motions. Appellant contends
{¶30}
When questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise before entry of judgment pursuant to
Civ.R. 58 , or no later than seven days after the party filing the request has been given notice of the court’s announcement of its decision, whichever is later, in which case, the court shall state in writing the conclusions of fact found separate from the conclusions of law.* * *
Findings of fact and conclusions of law required by this rule and by
Rule 41(B)(2) are unnecessary upon all other motions including those pursuant toRule 12 ,Rule 55 , andRule 56 .
{¶31} Pursuant to
Civil Rule 41(B)
{¶32} Appellant contends the trial court abused its discretion in dismissing the case pursuant to
(B) Involuntary dismissal; effect thereof
(1) Failure to prosecute. Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff’s counsel, dismiss an action or claim.
{¶33} Our standard of reviewing a trial court’s decision to dismiss a complaint for failure to comply with a court order is the abuse of discretion standard. Jones v. Hartranft, 78 Ohio St.3d 368, 371, 678 N.E.2d 530 (1997). Abuse of discretion implies a court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). In applying the abuse of discretion standard we may not substitute our judgment for that of the trial court. Pons v. Ohio State Medical Board, 66 Ohio St.3d 619, 621, 641 N.E.2d 748 (1993).
{¶34} In Quonset Hut v. Ford Motor Company, 80 Ohio St.3d 46, 684 N.E.2d 319 (1997), the Ohio Supreme Court explained that for purposes of
{¶35} In this case, the record indicates appellant received proper notice of the possibility of dismissal and had a reasonable opportunity to defend against the dismissal.
{¶36} In a pretrial notice filed and sent to appellant on September 27, 2012 and in which the trial court set a pretrial for November 29, 2012, the trial court ordered “all unrepresented parties shall attend the pretrial conference personally.” After appellant failed to appear for the November 29th pretrial, the trial court issued a judgment entry on December 3, 2012 and stated as follows:
On the basis of failing to appear despite an order of the Court, this matter shall be scheduled for another hearing on January 29, 2013 at 1:30 p.m. for the express purpose of plaintiff appearing to show cause why he should not be held in contempt or his case should not be dismissed due to his failure to prosecute his case pursuant to Civil Rule 41. It is so ordered. The Clerk of Courts is hereby ORDERED to serve a copy of the Judgment Entry upon all parties or counsel.
{¶37} It is clear appellant received the December 3rd judgment entry because on December 7, 2012, appellant filed objections to the court’s December 3rd entry, questioning why he would be held in contempt and questioning why the court would potentially dismiss the action. Appellant filed another motion on January 18, 2013, prior to the January 29th hearing date, stating “claimant hereby states he will not attend a hearing where the process has been flawed * * *”. After appellant filed numerous
{¶38} The December 3rd judgment entry clearly and unambiguously ordered appellant to appear to “show cause why he should not be held in contempt or his case should not be dismissed due to his failure to prosecute his case pursuant to Civil Rule 41.” There is no evidence appellant was not served with entry and appellant’s subsequent filings demonstrate he did receive notice of the hearing. Thus, appellant was notified pursuant to
{¶39} We find the trial court did not abuse its discretion in dismissing the matter pursuant to
Outstanding Motions
{¶40} Appellant argues the trial court erred in failing to rule on all of his motions and in specifically failing to rule on all outstanding motions prior to the
{¶41} Accordingly, we overrule appellant’s first, second, third, and fourth assignments of error.
V, VI
{¶42} Appellant contends the trial court failed to perform its duties, was not impartial, and the trial court judge should have disqualified himself from the case. Appellant filed numerous motions throughout the case requesting the trial court judge recuse himself from the case and provided the trial court with copies of letters sent to the Chief Justice of the Supreme Court of Ohio by appellant requesting action on his behalf.
{¶43} The proper procedure in seeking recusal is to invoke
If a judge of the court of common pleas allegedly is interested in a proceeding pending before the court, allegedly is related to or has a bias or prejudice for or against a party to a proceeding pending before the court or a party’s counsel, or allegedly otherwise is disqualified to preside in a proceeding pending before the court, any party to the proceeding or the
party’s counsel may file an affidavit of disqualification with the clerk of the supreme court in accordance with division (B) of this section.
{¶44} It is well-established that, pursuant to
By Gwin, P.J.,
Farmer, J., and
Baldwin, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. CRAIG R. BALDWIN
WSG:clw 0819
HOUSTON BYRD, JR. v. JAMIE L. AND CAROL R. FRUSH
CASE NO. 13-CA-10
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
2013-Ohio-3682
For the reasons stated in our accompanying Memorandum-Opinion, the rulings of the Licking County Common Pleas Court, including the January 30, 2013 dismissal of appellant’s case, are affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. CRAIG R. BALDWIN