Lewis v. J.E. Wiggins Co.Lewis v. J.E. Wiggins Co.
{¶ 2} On June 7, 2003, appellant and Sidney T. Lewis (collectively "plaintiffs") filed a complaint, naming as defendants J.E. Wiggins Co., Paul Lappert and Huntington. Plaintiffs' complaint alleged causes of action for negligence, "infliction of stress," breach of contract, unfair and deceptive trade practices, and a violation of
{¶ 3} On November 28, 2003, plaintiffs filed a motion for partial summary judgment against Huntington, as well as a motion to dismiss "all other claims except those pursuant to O.
{¶ 4} On December 15, 2003, Huntington filed a memorandum contra plaintiffs' motion for partial summary judgment. Attached to the memorandum was the affidavit of Steven Smith, Huntington's "Information Reporting Manager." In the affidavit, Smith averred that, on October 21, 2001, appellant redeemed approximately 196 E/EE bonds at one of Huntington's banking offices. Smith further averred that, because the original description on the bonds indicated that they belonged to Vacy O. Webb, Huntington "reported the interest as income earned by the estate of Mr. Webb, deceased, using Mr. Webb's Social Security number as provided on the bonds," and that such action was pursuant to Huntington's customary practice of reporting interest income based upon the original inscription of the bonds. Finally, Smith averred that appellant called Huntington on May 21, 2003, and requested a tax identification number change so that the interest from the bonds would be reported to the Internal Revenue Service ("IRS") as interest of "Vacy O. Webb Irrevocable Trust and not of Mr. Webb, deceased." According to Smith, "[w]ithin one business day, the Huntington completed this requested TIN change and issued correct 1099-INT forms." On December 29, 2003, plaintiffs filed a motion to strike the affidavit of Steven Smith.
{¶ 5} On January 26, 2004, the trial court filed a decision granting plaintiffs' motion to dismiss their "non-O.
{¶ 6} On March 19, 2004, Huntington filed a motion for summary judgment as to plaintiffs' remaining claim for relief under
{¶ 7} By decision filed April 23, 2004, the trial court granted Huntington's motion for summary judgment, denied plaintiff Lewis' motion to withdraw the motion to dismiss all claims, and denied appellant's motion to set aside the court's entry filed March 26, 2004. The decision of the trial court was journalized by judgment entry filed on May 20, 2004. Appellant filed a request for findings of fact and conclusions of law. By entry filed July 23, 2004, the trial court denied appellant's requested findings of fact and conclusions of law, as well as appellant's amended motion to set aside the April 6, 2004 entry.
{¶ 8} Appellant filed three separate notices of appeal, which this court consolidated (case Nos. 04AP-469, 04AP-544 and 04AP-668) for purposes of briefing and oral argument. On appeal, appellant has filed two pro se briefs. Appellant's first brief, filed on June 2, 2004 ("June 2, 2004 brief") in appeal Nos. 04AP-469 and 04AP-544, contains the following five assignments of error for review:
1. The trial court erred in its April 23, 2004 decision and entry finding counts two and three disposed of in the February 11, 2004 entry as a final appealable order when said order failed to contain the mandatory appealable language, "no just reason for delay" pursuant to Civil Rule 54(B).
2. The trial court erred in its May 20, 2004 decision and entry denying appellant's motion to withdraw their March 26, 2004 motion to dismiss claims finding counts two and three raised in said motion to be disposed of in the February 11, 2004 entry as a final appealable order when said order failed to contain the mandatory appealable language, "no just reason for delay" pursuant to Civil Rule 54(B).
3. The trial court erred in its February 11, 2004 decision and entry granting appellant's motion to dismiss all other claims without a[n] evidentiary hearing to determine whether or not the motion to dismiss was induced by appellees infliction of emotion[al] [di]stress, with appellees fraud upon the court, i.e. "confusion" and "unfair and deceptive trade practices" as inclusive in counts two and three raised in the complaint prior to the February 11, 2004 entry as no final appealable order was rendered to appeal the "unfair and deceptive trade practices" claims which contain the mandatory appealable language, "no just reason for delay" pursuant to Civil Rule 54(B) prior to May 20, 2004.
4. The trial court erred in its April 23, 2004 decision and entry when failing to rule on appellant's April 6, 2004 amended motion to set aside judgment entry of February 11, 2004 entry as a final appealable order, said order failed to contain the mandatory appealable language, "no just reason for delay" pursuant to Civil Rule 54(B) and infringed appellants "due process" right to file a timely appeal regarding the false affidavit of Steven Smith attached to the motion for summary judgment pursuant to the 14th Amendment of the U.S. Constitution, and the Ohio Constitution, Section 1, Article 16, while infringing appellants right to withdraw their November 28, 2003 motion to dismiss.
5. The trial court erred in its May 20, 2004 decision and entry when it amended the February 11, 2004 judgment entry to include the mandatory appealable language, "no just reason for delay" pursuant to Civil Rule 54(B), after the court failed to rule on appellant's April 6, 2004 amended motion to set aside judgment entry of February 11, 2004 entry as a final appealable order, said order failed to contain the mandatory appealable language, "no just reason for delay" pursuant to Civil Rule 54(B) and infringe appellants right to withdraw the November 28, 2003 motion to dismiss.
{¶ 9} Appellant also filed, on September 9, 2004, a document styled "perfected" brief (hereafter "perfected brief"), encompassing issues raised in appeal No. 04AP-668, and containing the following six assignments of error for review:
I. It is reversible error for the trial court to arbitrarily convert Appellant's involuntary motion to dismiss under
II. It is prejudicial and reversible error for the trial court to set forth its July 23, 2004, Judgment Entry and Decision of June 30, 2004 falsely implying or expressing that Appellant filed a "notice" of "voluntary dismissal" under
III. It is an infringement of the Ohio Constitution, SECTION 1; Article 16, and the United States Constitution,
IV. It is reversible error for the trial court to infringe the Ohio Constitution, SECTION 1; Article 16, and the United States Constitution,
V. It is reversible error for the trial court to ignore a "conflict of material facts" presented by Appellant in a Motion filed April 6, 2004, under
VI. It is reversible error by the Court to involuntarily dismiss Appellant's "equitable claims" regarding liability for "professional negligence" committed by Appellee, Huntington National Bank in commercial banking transactions when evidence of record in the form of a corrected I.R.S. tax form 1099 reveals a factual error occurred by Appellee, Huntington National Bank's admission that it created the corrected I.R.S. tax form 1099 as in the record. Based on a "presumable fact" under
{¶ 10} At the outset, we note that the assignments of error contained in appellant's June 2, 2004 brief are not separately argued, as required by
{¶ 11} The first, second and third assignments of error raised in appellant's perfected brief are interrelated and will be considered together. Under these assignments of error, appellant argues that the trial court erred in the manner in which it dealt with appellant's motion to dismiss all but one of her claims against Huntington.
{¶ 12} As noted under the facts, on November 28, 2003, plaintiffs filed a motion for partial summary judgment against Huntington, as well as a "motion to dismiss all other claims except those pursuant to O.
{¶ 13} On March 26, 2004, plaintiff Lewis filed a "motion to withdraw motion to dismiss all claims" pursuant to
{¶ 14} By decision filed April 23, 2004, the trial court denied plaintiffs' motion to withdraw their motion to dismiss their non-statutory claims, noting in part that "
{¶ 15} The arguments in appellant's pro se brief are somewhat difficult to follow, but appellant appears to initially contend that the trial court erred in converting her motion to dismiss all but one of her claims, pursuant to
{¶ 16} As noted above, appellant filed a motion seeking to dismiss all claims except for the claim purportedly brought under
{¶ 17} Case law supports the trial court's determination that a motion to voluntarily dismiss less than all claims in a multi-count complaint is properly treated as an amendment under
{¶ 18} Regarding appellant's contention that the trial court erred in failing to provide notice, one commentator has noted that, in instances in which the parties have consented to dismissal of certain claims, "[t]he pleader's right to amend is not subject to the court's discretion and the court must permit the amendment to be filed." 6 Wright, Miller Kane, Federal Practice and Procedure (1990) 700, Section 1490. In the instant case, Huntington expressly represented, in its memorandum contra appellant's motion for partial summary judgment, that it did not oppose the withdrawal of appellant's non-
{¶ 19} Appellant also contends that her own motion to dismiss contained a violation of
{¶ 20} Based upon the foregoing, appellant's first, second and third assignments of error in her perfected brief are without merit and are overruled.
{¶ 21} Appellant's fourth assignment of error in the perfected brief, and the first, second, third, fourth and fifth assignments of error raised in appellant's June 2, 2004 brief are interrelated and will be considered together. Under these assignments of error, appellant asserts that the trial court erred in failing to include, pursuant to
{¶ 22} In general,
{¶ 23} We note that appellant does not cite any authority for the proposition that her voluntary dismissal of the non-statutory claims constituted a "final adjudication" of those claims on the merits. However, assuming that the court's February 11, 2004 entry was a final order, the trial court did not abuse its discretion in failing to include
{¶ 24} We will address the fifth and sixth assignments of error contained in appellant's perfected brief in inverse order. Under the sixth assignment of error, appellant argues that the trial court erred in granting summary judgment in favor of Huntington.
{¶ 25} This court conducts a de novo review of the trial court's granting of summary judgment, applying the same standards as set forth in
{¶ 26} At issue under this assignment of error is whether the trial court erred in granting summary judgment in favor of Huntington on appellant's claim for relief under
{¶ 27}
No person shall knowingly fail to file any return or report required to be filed by this chapter, or file or knowingly cause to be filed any incomplete, false, or fraudulent return, report, or statement, or aid or abet another in the filing of any false or fraudulent return, report, or statement.
{¶ 28} In the trial court's January 26, 2004 decision, the court denied plaintiffs' motion for partial summary judgment as to their statutory claim on the grounds that plaintiffs failed to present any evidence that Huntington "knowingly" filed an incomplete, false or fraudulent statement, and because
{¶ 29} In her assignment of error, appellant does not challenge the trial court's determination that
{¶ 30} Further, we note that R.C. Chapter 5747 pertains to the collection of a state income tax on individuals as well as estates, and
{¶ 31} As argued by Huntington, there are a limited number of Ohio cases addressing
{¶ 32} Appellant's sixth assignment of error is without merit and is overruled.
{¶ 33} Under the fifth assignment of error in her perfected brief, appellant argues that the trial court erred in relying upon purported hearsay evidence, in the form of the affidavit of Steven Smith, in granting summary judgment in favor of Huntington. The trial court, however, did not rely upon the challenged affidavit in granting summary judgment in favor of Huntington on appellant's
{¶ 34} Accordingly, appellant's fifth assignment of error in her perfected brief is without merit and is overruled.
{¶ 35} Based upon the foregoing, appellant's six assignments of error in her perfected brief, as well as the five assignments of error in her June 2, 2004 brief, are overruled, and the judgments of the Franklin County Court of Common Pleas are hereby affirmed. In addition, we deny the outstanding motion of appellant, seeking to strike, as untimely, the July 19, 2004 appellate brief of Huntington.
Motion to strike denied; judgments affirmed.
Bryant and McCormac, JJ., concur.
McCormac, J., retired of the Tenth Appellate District, assigned to active duty under authority of Section