Smith v. Cindy Lucky 7's, L.L.C. , 2019 Ohio 1157 ( 2019 )

[Cite as Smith v. Cindy Lucky 7's, L.L.C., 2019-Ohio-1157.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
SHERNELL SMITH C.A. No. 29065
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CINDY LUCKY 7'S LLC COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CV-2017-07-3042
DECISION AND JOURNAL ENTRY
Dated: March 29, 2019
CARR, Judge.
{¶1} Plaintiff-Appellant Shernell Smith appeals, pro se, from the judgment of the
Summit County Court of Common Pleas. This Court affirms in part, and reverses in part.
I.
{¶2} On July 26, 2015, Ms. Smith went into Defendant-Appellee Cindy Lucky 7’s
LLC, doing business as Cindy’s Lucky 7 (“Cindy’s Lucky 7”). While there, Ms. Smith was
approached by an armed assailant and assaulted. Ms. Smith suffered injuries that ultimately
required medical attention.
{¶3} In July 2017, through counsel, Ms. Smith filed a two-count complaint against
Cindy’s Lucky 7, alleging negligence and premises liability. Ms. Smith alleged that Cindy’s
Lucky 7 owed a duty of care to Ms. Smith as a business invitee and that it breached that duty by
essentially failing to ensure her safety and undertake certain measures that Ms. Smith asserted
would have prevented the assault and her injuries.
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{¶4} On April 5, 2018, Ms. Smith’s attorney filed a motion to withdraw. That motion
was granted on April 12, 2018. The next day, Cindy’s Lucky 7 filed a motion for summary
judgment. It filed an affidavit in support of its motion on May 4, 2018. Ms. Smith did not file a
response to the motion. The trial court granted the motion for summary judgment on May 10,
2018, concluding that there was “no genuine issue of material fact [] regarding [Cindy’s Lucky
7’s] potential duty to warn or protect a business invitee from criminal acts of third parties.” In so
doing, the trial court’s analysis relied on the affidavit submitted by Cindy’s Lucky 7.
{¶5} Ms. Smith has appealed, pro se, raising three assignments of error for our review.
Cindy’s Lucky 7 has not filed a brief. Accordingly, this Court “may accept [Ms. Smith’s]
statement of the facts and issues as correct and reverse the judgment if [her] brief reasonably
appears to sustain such action.” See App.R. 18(C).
II.
ASSIGNMENT OF ERROR I
APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN SHE
RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL[.]
{¶6} Ms. Smith argues in her first assignment of error that she was denied the effective
assistance of counsel.
{¶7} “The right to the effective assistance of counsel arises relative to a defense in
criminal prosecutions.” Lykes v. Akron Dept. of Public Serv., 9th Dist. Summit No. 26570,
2014-Ohio-578, ¶ 14. Because Ms. Smith had no right to counsel for purposes of her civil
action, she “cannot be heard to complain that trial counsel was ineffective in his representation”
of her. Id.
{¶8} Ms. Smith’s first assignment of error is overruled.
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ASSIGNMENT OF ERROR II
APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL
COURT GRANTED DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT[.]
{¶9} Ms. Smith asserts in her second assignment of error that the trial court erred in
granting summary judgment to Cindy’s Lucky 7. Ms. Smith argues that her due process rights
were violated. She notes that the motion for summary judgment was filed the day after her
attorney withdrew from the case, and she then reiterates her assertions that her trial counsel was
ineffective and that the trial judge was biased. Her latter argument will be addressed below.
{¶10} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St. 3d 102, 105 (1996). This Court applies the same standard as the trial
court, viewing the facts in the case in the light most favorable to the non-moving party and
resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio
App.3d 7, 12 (6th Dist.1983).
{¶11} Pursuant to Civ.R. 56(C), summary judgment is proper if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears from
the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St. 2d 317, 327 (1977).
{¶12} The party moving for summary judgment bears the initial burden of informing the
trial court of the basis for the motion and pointing to parts of the record that show the absence of
a genuine issue of material fact. Dresher v. Burt, 75 Ohio St. 3d 280, 292-293 (1996).
Specifically, the moving party must support the motion by pointing to some evidence in the
record of the type listed in Civ.R. 56(C). Id. Once a moving party satisfies its burden of
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supporting its motion for summary judgment with acceptable evidence pursuant to Civ.R. 56(C),
Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or
denials of the moving party’s pleadings. Id. at 293. Rather, the non-moving party has a
reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine
triable issue” exists to be litigated at trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St. 3d
447, 449 (1996).
{¶13} Here, while Ms. Smith did not oppose the motion for summary judgment, we
nonetheless must consider whether the trial court properly awarded summary judgment to
Cindy’s Lucky 7. See Bayview Loan Servicing, L.L.C. v. Woods, 9th Dist. Summit No. 27658,
2016-Ohio-185, ¶ 9.
{¶14} Cindy’s Lucky 7 filed its motion for summary judgment with an accompanying
certificate of service on April 13, 2018. There were no evidentiary materials filed along with the
motion. However, it did file an affidavit in support of its motion for summary judgment on May
4, 2018. That affidavit did not include a certificate of service, nor was a certificate of service
separately filed. The trial court granted the motion for summary judgment only a few days later
on May 10, 2018. In so doing, the trial court clearly relied on evidence contained in the
affidavit.
{¶15} Civ.R. 56(E) provides in relevant part that, “[s]upporting and opposing affidavits
shall be made on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated
in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an
affidavit shall be attached to or served with the affidavit.” Moreover, Civ.R. 5(A) states that,
“[e]xcept as otherwise provided in these rules, every order required by its terms to be served,
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every pleading subsequent to the original complaint unless the court otherwise orders because of
numerous defendants, every paper relating to discovery required to be served upon a party unless
the court otherwise orders, every written motion other than one which may be heard ex parte, and
every written notice, appearance, demand, offer of judgment, and similar paper shall be served
upon each of the parties.” Finally, Civ.R. 5(B)(4) indicates that “[t]he served document shall be
accompanied by a completed proof of service which shall state the date and manner of service,
specifically identify the division of Civ.R. 5(B)(2) by which the service was made, and be signed
in accordance with Civ.R. 11. Documents filed with the court shall not be considered until proof
of service is endorsed thereon or separately filed.” (Emphasis added.)
{¶16} As the affidavit Cindy’s Lucky 7 filed in support of its motion for summary
judgment contained no certificate of service, nor was one separately filed, the trial court should
not have considered the affidavit. See Civ.R. 5(B)(4); Civ.R. 56(E). It is clear that the trial court
relied upon that affidavit in granting summary judgment to Cindy’s Lucky 7. Therefore, we can
only conclude that the trial court erred in granting summary judgment to Cindy’s Lucky 7.
{¶17} Ms. Smith’s second assignment of error is sustained.
ASSIGNMENT OF ERROR III
APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE JUDGE
PRESIDING OVER THE ACTION HAD A CLEAR BIAS TO THE
PREJUDICE OF THE APPELLANT.
{¶18} Ms. Smith argues in her third assignment of error that she was denied due process
because the trial judge demonstrated clear bias against Ms. Smith. Ms. Smith asserts in her
brief on appeal that the trial judge presided over Ms. Smith’s son’s criminal case. Ms. Smith
maintains in her brief that her son filed a complaint against the trial judge alleging that the trial
judge “coerced/induced [her son] into being wrongfully convicted[.]”
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{¶19} To the extent that Ms. Smith is asserting that the trial judge should have been
disqualified or the judgment vacated because of alleged bias, we are unable to address that issue.
“Ordinarily, matters pertaining to judicial bias may only be heard by the Chief Justice of the
Ohio Supreme Court or his or her designees.” In re Estate of Durkin, 9th Dist. Summit No.
28661, 2018-Ohio-2283, ¶ 42, quoting King v. Rubber City Arches, L.L.C., 9th Dist. Summit No.
25498, 2011-Ohio-2240, ¶ 6; see also R.C. 2701.03(A).
{¶20} To the extent that Ms. Smith’s allegations of judicial bias may also raise due
process concerns, even if this Court were to conclude that it had the authority to review the issue,
the allegations are completely unsupported by anything contained in the record before us. See
Volpe v. Heather Knoll Retirement Village, 9th Dist. Summit No. 26215, 2012-Ohio-5404, ¶ 11
(concluding the issue was unreviewable); see also Volpe at ¶ 22 (Carr, J., concurring in judgment
only) (concluding that “this Court has the authority to consider whether a party’s due process
rights have been violated”); State v. Powell, 9th Dist. Lorain No. 12CA010284, 2017-Ohio-4030,
¶ 9 (noting that “[i]t is well[-]settled that a criminal trial before a biased judge is fundamentally
unfair and denies a defendant due process of law”) (Internal quotations and citation omitted.).
{¶21} Given the foregoing, Ms. Smith’s third assignment of error is overruled.
III.
{¶22} Ms. Smith’s second assignment of error is sustained. Her remaining assignments
of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed
in part, reversed in part, and the matter is remanded for proceedings consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
CALLAHAN, J.
CONCURS.
TEODOSIO, P. J.
DISSENTING.
{¶23} I disagree with the majority’s conclusion that the trial court erred in granting
summary judgment to Cindy’s Lucky 7. For that reason, I respectfully dissent.
{¶24} Under her second assignment of error, Ms. Smith argues that she was denied due
process of law when the trial court granted Cindy’s Lucky 7’s motion for summary judgment. In
support of this argument, Ms. Smith states: (1) her attorney filed a motion to withdraw without
her knowledge; (2) the defendant filed an affidavit in support of its motion for summary
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judgment “which [she would have] challenged and would have submitted her affidavit in
response if not for the ineffective assistance of counsel or lack [thereof] * * *”; and (3) the trial
court judge had a conflict of interest and should have recused herself. The first two arguments
are subsumed by her first assignment of error arguing that she was denied due process of law
when she received ineffective assistance of counsel. The third argument is subsumed by her
third assignment of error arguing that she was denied due process of law because the trial court
judge was biased against her.
{¶25} To the extent that Ms. Smith raises any argument with regard to summary
judgment, she states, verbatim:
In regards to Civ.R.56(C) as to no genuine issue as to any material fact remains to
be litigated this assertion is factually false. Please note and factor that appellant’s
counsel informed her of the defendant’s offer to settle for $500.00 to dissolve the
lawsuit and appellant rejected this offer. The fact is the defendant felt there was
no genuine issue as to any material fact why would they attempt to settle. Next
you have to consider appellant’s counsel prior to withdrawing never investigated
any of the following: A witness who was also present the night of the robbery, nor
did counsel investigate appellant’s physical or mental injuries she sustained from
the night in question. With all that transpired appellant’s due process rights were
violated under both the U.S. and Ohio constitutions.
I find no suggestion of an argument by Ms. Smith that the trial court erred in considering the
affidavit filed by Cindy’s Lucky 7, nor do I find any reference to the failure to endorse proof of
service. Moreover, I find nothing in Ms. Smith’s argument to suggest that she was prejudiced by
any such error. See Civ.R. 61.
{¶26} We have consistently stated that an appellant’s assignment of error provides a
roadmap for this Court, and directs our analysis of the trial court’s judgment. See, e.g., Citizens
Bank Natl. Assn. v. Ranch Rd. Superior Properties, L.L.C., 9th Dist. Summit No. 28023, 2016–
Ohio–7590, ¶ 11. See also App.R. 16. An appellant bears the burden of affirmatively
demonstrating the error on appeal, and substantiating his or her arguments in support. Angle v.
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Western Res. Mut. Ins. Co., 9th Dist. Medina No. 2729-M, 1998 WL 646548, *1 (Sept. 16,
1998); Frecska v. Frecska, 9th Dist. Wayne No. 96CA0086, 1997 WL 625488, *2 (Oct. 1,
1997). See also App.R. 16(A)(7) and Loc.R. 7(B)(7). “It is the duty of the appellant, not this
[C]ourt, to demonstrate his assigned error through an argument that is supported by citations to
legal authority and facts in the record.” State v. Taylor, 9th Dist. Medina No. 2783-M, 1999 WL
61619, *3 (Feb. 9, 1999). See also App.R. 16(A)(7). “It is not the function of this court to
construct a foundation for [an appellant’s] claims; failure to comply with the rules governing
practice in the appellate courts is a tactic which is ordinarily fatal.” Kremer v. Cox, 114 Ohio
App.3d 41, 60 (9th Dist.1996).
{¶27} Ms. Smith has made no argument regarding the failure to attach proof of service,
and there is no suggestion that she was prejudiced by the error. I would therefore overrule her
second assignment of error.
APPEARANCES:
SHERNELL SMITH, pro se, Appellant.
DIANE REYNE GUZZO, Attorney at Law, for Appellee.