McCollum v. Bolgrin , 2014 Ohio 1167 ( 2014 )

[Cite as McCollum v. Bolgrin, 2014-Ohio-1167.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SHAWNDA MCCOLLUM, ET AL. : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiffs-Appellants : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2013CA00136
:
MAX E. BOLGRIN :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No.
2013CV01292
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: March 3, 2014
APPEARANCES:
For Plaintiffs-Appellants: For Defendant-Appellee:
MARY E. REYNOLDS MARK F. FISCHER
SHANNON M. DRAHER MATTHEW J. WALKER
MORROW & MEYER, LLC FISCHER, EVANS & ROBBINS, LTD.
6269 Frank Road, NW 4505 Stephen Circle N.W., Suite 100
North Canton, OH 44720 Canton, OH 44718
Stark County, Case No. 2013CA00136 2
Delaney, J.
{¶1} Plaintiffs-Appellants Shawnda McCollum and Stephen McCollum appeal
the June 27, 2013 judgment entry of the Stark County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} On May 10, 2011, Plaintiff-Appellant Shawnda McCollum was involved in
a motor vehicle accident with Defendant-Appellee Max E. Bolgrin.
{¶3} Plaintiffs-Appellants Shawnda and Stephen McCollum attempted to file a
personal injury action against Bolgrin in the Stark County Court of Common Pleas. The
statute of limitations for the McCollums’ claims expired on May 10, 2013. On May 7,
2013, counsel for the McCollums mailed a Complaint for Personal Injuries and a
Designation Form to the Stark County Clerk of Courts. Pursuant to Loc.R. 9.02 of the
Court of Common Pleas of Stark County, General Division, every complaint filed with
the Clerk of Courts must be accompanied by a Designation Form, which states the
caption and the general nature of the action. The Stark County Clerk of Courts received
the McCollums’ Complaint and Designation Form on May 8, 2013.
{¶4} The Clerk of Courts refused to file the Complaint because the McCollums
did not properly complete the Designation Form. Loc.R. 9.02 states, “[t]his form must be
filled out in its entirety and every question must be answered. The Clerk is instructed to
refuse to accept for filing any case that does not conform to these rules.” The
McCollums failed to complete two sections on the Designation Form: “Brief Factual
Summary” and “Description of damages including all special damages to date.”
{¶5} On May 13, 2013, counsel for the McCollums received the unfiled
Complaint from the Clerk of Courts. That same day, counsel for the McCollums filed a
Stark County, Case No. 2013CA00136 3
“Motion of Plaintiffs for Order Deeming Complaint Filed as of the Date May 8, 2013.”
Because the case was not yet assigned, the Administrative Judge reviewed the motion
and granted the McCollums’ motion that the Complaint be deemed filed as of May 8,
2013. The judgment entry was filed May 13, 2013.
{¶6} On June 5, 2013, Bolgrin filed a Motion for Summary Judgment and
Motion to Vacate 5-13-13 Judgment Entry. In the motion, Bolgrin requested the trial
court vacate the May 13, 2013 judgment entry that allowed the McCollums to deem their
complaint filed as of May 8, 2013. His argument was based on this court’s decision in
Norris v. Yamaha Motor Corp. U.S.A., 5th Dist. Stark No. 2008 CA 00296, 2009-Ohio-
4158. Bolgrin’s summary judgment motion argued the McCollums’ complaint was filed
on May 13, 2013, after the expiration of the statute of limitations.
{¶7} The trial court granted the motion to vacate and motion for summary
judgment on June 27, 2013. The McCollums filed the instant appeal.
ASSIGNMENT OF ERROR
{¶8} The McCollums raise one Assignment of Error:
{¶9} “THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE
MAX E. BOLGRIN’S MOTION TO VACATE THE JUDGMENT ENTRY FILED ON MAY
13, 2013 AND MOTION FOR SUMMARY JUDGMENT AND DISMISSING
PLAINTIFFS-APPELLANT’S COMPLAINT.”
ANALYSIS
{¶10} The McCollums argue the trial court erred in vacating the May 13, 2013
judgment entry and granting summary judgment in favor of Bolgrin. We agree.
Stark County, Case No. 2013CA00136 4
{¶11} The Stark County Clerk of Courts refused to file the McCollums’ complaint
on May 8, 2013 based on Loc.R. 9.02 of the Court of Common Pleas of Stark County,
General Division. The Judges of the Stark County Court of Common Pleas, General
Division, enacted the Local Rules of Practice for use by the Clerk of Courts, the legal
community, and the public. Loc.R. 9.02 specifies the manner in which a complaint must
be filed with the General Division of the common pleas court. The rule states:
Every Complaint shall be accompanied by a Designation Form, available
from the Clerk of Court or Administrative Office (FAX copies are available
upon request, see appendices), stating the caption and the general nature
of the action in accordance with the following types:
***
This form must be filled out in its entirety and every question must be
answered. The Clerk is instructed to refuse to accept for filing any case
that does not conform to these rules. The purpose of this rule is to assist
the Court in managing its caseload, records, and reporting requirements to
the Supreme Court of Ohio pursuant to C.P.Sup.R. 5.
There is no dispute the McCollums failed to complete two sections of the Designation
Form when they attempted to file their complaint on May 8, 2013.
{¶12} Bolgrin argued in his motion to vacate and motion for summary judgment
that the trial court should vacate the May 13, 2013 judgment entry based on our
decision in Norris v. Yamaha Motor Corp. U.S.A., 5th Dist. Stark No. 2008 CA 00296,
2009-Ohio-4158. In Norris, the plaintiff attempted to file his complaint with the Stark
County Clerk of Courts on August 28, 2008. The Clerk of Courts, pursuant to Loc.R.
Stark County, Case No. 2013CA00136 5
9.02, refused to file the complaint because the plaintiff failed to complete four sections
of the Designation Form. The plaintiff filed the complaint with the completed Designation
Form on September 10, 2008. The plaintiff in Norris did not move the trial court to
consider the complaint timely filed. The defendant moved for summary judgment,
arguing the plaintiff’s claims were barred by the applicable statute of limitations. The trial
court granted the motion for summary judgment and dismissed the plaintiff’s claims. Id.
at ¶ 6-9.
{¶13} Plaintiff appealed. We affirmed the decision of the trial court to dismiss the
complaint because the plaintiff submitted his complaint for filing with a corrected
Designation Form after the expiration of the statute of limitations. We based our
decision to affirm on the trial court’s application of Loc.R. 9.02. We found Loc.R. 9.02
afforded the Clerk of Courts and the trial court no discretion and a complaint submitted
with an incomplete Designation Form must be rejected for filing. Id. at ¶ 35.
{¶14} Bolgrin argued the facts of the present case were directly on point with the
facts of Norris and Norris required the trial court to dismiss the complaint as untimely
filed. The facts of the case sub judice present this Court with the opportunity to review
Norris and the underlying case law anew.
{¶15} The leading case on the issue raised by the McCollums is DeHart v. Aetna
Life Ins. Co., 69 Ohio St. 2d 189, 431 N.E.2d 644 (1982). In DeHart, the Ohio Supreme
Court reviewed the question whether a court of appeals properly dismissed an appeal
for failure to comply with a local appellate rule as to the filing of a praecipe. The Court
reemphasized the “fundamental tenet of judicial review in Ohio [is] that courts should
decide cases on the merits. See, e.g., Cobb v. Cobb (1980), 62 Ohio St. 2d 124, 403
Stark County, Case No. 2013CA00136 6
N.E.2d 991. Judicial discretion must be carefully – and cautiously – exercised before
this court will uphold an outright dismissal of a case on purely procedural grounds.” Id.
at 192. “’Judicial discretion was defined by this court as: ‘* * * the option which a judge
may exercise between the doing and not doing a thing which cannot be demanded as
an absolute right, guided by the spirit, principles and analogies of the law and founded
upon the reason and conscience of the judge, to a just result in the light of the particular
circumstances of the case.’ Krupp v. Poor, 24 Ohio St. 2d 123, 265 N.E.2d 268 (1970),
paragraph two of the syllabus.” Id.
{¶16} The Supreme Court reversed the decision of the court of appeals to
dismiss the appeal for a violation of a local rule. In DeHart, the Court established a
standard of review to determine whether a court “abuses its discretion when, after
dismissing a case, sua sponte, for a minor, technical, correctable, inadvertent violation
of a local rule, it refuses to reinstate the case when: (1) the mistake was made in good
faith and not as part of a continuing course of conduct for purpose of delay, (2) neither
the opposing party nor the court is prejudiced by the error, (3) dismissal is a sanction
that is disproportionate to the nature of the mistake, (4) the client will be unfairly
punished for the fault of his counsel, and (5) dismissal frustrates the prevailing policy of
deciding cases on the merits.” DeHart at syllabus.
{¶17} The Fifth District Court of Appeals relied upon DeHart in Webster v.
Timken Co., 5th Dist. Stark No. 2004CA00260, 2005-Ohio-1759, to reverse a trial
court’s judgment to dismiss an action based on an incomplete Civil Cover Sheet. The
plaintiff filed a complaint on September 10, 2001 and voluntarily dismissed the action on
June 10, 2003. Id. at ¶ 4-5. The plaintiff submitted the complaint to the Stark County
Stark County, Case No. 2013CA00136 7
Clerk of Courts for re-filing on June 9, 2004. Id. at ¶ 7. The plaintiff failed to place a
check mark on the Civil Cover Sheet indicating the matter was a personal injury action.
Id. The Clerk of Courts refused to file the complaint and returned the complaint to the
plaintiff. Id. The plaintiff re-filed the complaint on June 14, 2004. Id. at ¶ 9.
{¶18} The defendant filed a motion to dismiss the plaintiff’s complaint because
the plaintiff filed the complaint outside the applicable statute of limitations. Id. at ¶ 10.
The trial court granted the motion to dismiss. Id. at ¶ 11. On appeal, we reversed the
decision of the trial court to dismiss the complaint. We relied on DeHart to find the trial
court abused its discretion in dismissing the complaint for a technical oversight.
{¶19} In State v. Diersing, 5th Dist. Delaware No. 2012-CA-26, 2012-Ohio-4673,
this Court utilized the rationale of DeHart to overrule the trial court’s decision to dismiss
the defendant’s motion to suppress as being untimely filed. The defendant failed to
request an oral hearing on his motion to suppress and failed to set forth the anticipated
length of the hearing pursuant to Loc.R. 7.07 of the Court of Common Pleas of
Delaware County, General Division. Id. at ¶ 13-14. We applied the five-part test of
DeHart to find the trial court abused its discretion in dismissing the motion to suppress.
Id. at ¶ 18.
{¶20} With those cases in mind, we review our decision in Norris. In Norris, we
held that based on Loc.R. 9.02 of the Stark County Court of Common Pleas, General
Division, the Clerk of Courts and the trial court had no discretion but to find the
complaint was improperly filed based on an incomplete Designation Form. We
considered the facts of DeHart and Webster to the facts in Norris and found that neither
case was applicable. DeHart, however, directs the court to consider the five-part test to
Stark County, Case No. 2013CA00136 8
determine whether to dismiss a case for a minor, technical, correctable, inadvertent
violation of a local rule. Norris can be interpreted as a bright-line rule that gives the trial
court no discretion but to dismiss a complaint if a plaintiff fails to complete portions of a
Designation Form. Loc.R. 9.02 directs the Clerk of Courts to refuse to file a complaint
for failure to complete the Designation Form, but Loc.R. 9.02 does not prevent the trial
court from exercising its judicial discretion before dismissing a complaint for a technical
filing error. We clarify Norris to follow the holdings of DeHart, Webster, and Diersing that
when presented with the issue of whether to dismiss a complaint for a minor violation of
a local rule, the trial court should consider whether: (1) the mistake was made in good
faith and not as part of a continuing course of conduct for purpose of delay, (2) neither
the opposing party nor the court is prejudiced by the error, (3) dismissal is a sanction
that is disproportionate to the nature of the mistake, (4) the client will be unfairly
punished for the fault of his counsel, and (5) dismissal frustrates the prevailing policy of
deciding cases on the merits.
{¶21} The procedural history of the present case differs from that in Norris. The
plaintiff in Norris filed the complaint with the correct Designation Form after the
expiration of the statute of limitations. In the present case, when the McCollums filed the
complaint with the correct Designation Form, they also filed with the trial court a motion
requesting the complaint be deemed filed as of May 8, 2013. The Administrative Judge
granted the McCollums’ motion on May 13, 2013.
{¶22} The trial court’s judgment granting the motion to vacate and motion for
summary judgment in favor of Bolgrin cites only to Norris to hold that Loc.R. 9.02 does
not provide for the exercise of any discretion by the Clerk of Courts or by the trial court
Stark County, Case No. 2013CA00136 9
on whether a complaint should be filed due to an incorrect Designation Form. The trial
court’s judgment did not consider the five-part test as found in DeHart. We reverse the
judgment of the trial court and remand the matter to the trial court to conduct an
analysis pursuant to DeHart to determine whether to vacate the May 13, 2013 judgment
and motion for summary judgment.
{¶23} The McCollums’ sole Assignment of Error is sustained.
CONCLUSION
{¶24} The judgment of the Stark County Court of Common Pleas is reversed.
The matter is remanded to the trial court for further proceedings consistent with this
opinion and law.
By: Delaney, J.,
Gwin, P.J., concur,
Hoffman, J.,dissents.
Stark County, Case No. 2013CA00136 10
Hoffman, P.J., dissenting
{¶25} Although I recognize Norris is procedurally different from the case sub
judice, I would overturn Norris and outright reverse the trial court’s dismissial in this
case based upon an analysis of the factors in DeHart.