Givens v. Longwell , 2024 Ohio 947 ( 2024 )

[Cite as Givens v. Longwell, 2024-Ohio-947.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
CAROL GIVENS,
Plaintiff-Appellant,
v.
JOHN D. LONGWELL,
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Case No. 23 BE 0029
Civil Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 22 CV 316
BEFORE:
William A. Klatt, Retired Judge of the Tenth District Court of Appeals,
Sitting by Assignment,
Cheryl L. Waite, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Carol Givens, Plaintiff-Appellant and
Atty. M. Winiesdorffer-Schirripa and Atty. G. Thomas Smith, Smith Law PLLC, and Atty.
Bradley A. Powell, Droder & Miller Co., L.P.A., for Defendant-Appellee.
Dated: March 14, 2024
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KLATT, J.
{¶1} Plaintiff-Appellant, Carol L. Givens, acting pro se, appeals the Docket and
Journal Entry and Judgment Journal Entry of the Belmont County Court of Common Pleas
sustaining the motion for summary judgment filed on behalf of Defendant-Appellee, John
D. Longwell in this conversion and replevin action. Appellee purchased real property
where Appellant previously resided, and Appellant seeks to recover personal property
allegedly remaining on the premises. For the following reasons, the Docket and Journal
Entry and Judgment Journal Entry of the trial court are affirmed.
STANDARD OF REVIEW
{¶2} This appeal is from a trial court judgment resolving a motion for summary
judgment. An appellate court conducts a de novo review of a trial court’s decision to grant
summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C).
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before
summary judgment can be granted, the trial court must determine that: (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; (3) it appears from the evidence that reasonable minds can
come to but one conclusion, and viewing the evidence most favorably in favor of the party
against whom the motion for summary judgment is made, the conclusion is adverse to
that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
Whether a fact is “material” depends on the substantive law of the claim being litigated.
Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
Dist.1995).
{¶3} “[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element of the nonmoving party’s
claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264(1996). If the moving party carries its burden, the nonmoving party has a reciprocal
burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at
293. In other words, when presented with a properly supported motion for summary
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judgment, the nonmoving party must produce some evidence to suggest that a
reasonable factfinder could rule in that party’s favor. Doe v. Skaggs, 7th Dist. Belmont
No. 18 BE 0005, 2018-Ohio-5402, ¶ 11.
{¶4} The evidentiary materials to support a motion for summary judgment are
listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact that
have been filed in the case. In resolving the motion, the court views the evidence in a
light most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327.
PLEADING REQUIREMENTS
{¶5} “A pro se appellant is held to the same obligations and standards set forth
in the appellate rules that apply to all litigants.” Bryan v. Johnston, 7th Dist. Carroll No. 11
CA 871, 2012-Ohio-2703, ¶ 8, Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363,
676 N.E.2d 171 (8th Dist.1996). “Although a court may, in practice, grant a certain amount
of latitude toward pro se litigants, the court cannot simply disregard the Rules of Civil
Procedure in order to accommodate a party who fails to obtain counsel.” Pinnacle Credit
Servs., LLC v. Kuzniak, 7th Dist. Mahoning No. 08 MA 111, 2009-Ohio-1021, ¶ 30, Robb
v. Smallwood, 165 Ohio App.3d 385, 2005-Ohio-5863, 846 N.E.2d 878, at ¶ 5 (4th Dist.).
“The rationale for this policy is that if the court treats pro se litigants differently, ‘the court
begins to depart from its duty of impartiality and prejudices the handling of the case as it
relates to other litigants represented by counsel.’ ” Pinnacle Credit Servs., at ¶ 31, citing
Karnofel v. Kmart Corp., 11th Dist. Trumbull Nos. 2007-T-0036, 2007-T-0064, 2007-Ohio-
6939, at ¶ 27. (Internal citations omitted.)
{¶6} Further, courts may disregard an assignment of error if an appellant fails to
comply with App.R. 16(A)(7). Vari v. Coppola, 7th Dist. Mahoning No. 18 MA 0114, 2019-
Ohio-3475, ¶ 8. App.R. 16(A)(7) states in pertinent part:
(A) Brief of the Appellant. The appellant shall include in its brief * * *:
***
Case No. 23 BE 0029
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(7) An argument containing the contentions of the appellant with respect to
each assignment of error presented for review and the reasons in support
of the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies.
{¶7} An appellant has a burden of affirmatively demonstrating error on appeal.
App.R. 16(A)(7). Moreover, we may disregard an assignment of error presented for
review if the party raising it fails to identify in the record the error on which the assignment
of error is based. App.R. 12. An appellate court has no duty to search the record in order
to find support for an assignment of error. Vari at ¶ 10.
LAW
{¶8} In Ohio, replevin is solely a statutory remedy. Gregory v. Martin, 7th Dist.
Jefferson No. 15 JE 17, 2016-Ohio-650, ¶ 20 “A replevin suit simply seeks to recover
goods from one who wrongfully retains them at the time the suit is filed. Replevin does
not even require an ‘unlawful taking.’ The plaintiff in replevin need only prove that he is
entitled to certain property and that the property is in the defendant’s possession.” Id.(internal citations omitted.)
{¶9} R.C. 2737.03, which governs replevin, provides:
Any party to an action involving a claim for the recovery of specific personal
property, upon or at any time after commencement of the action, may apply
to the court by written motion for an order of possession of the property. The
motion shall have attached to it the affidavit of the movant, his agent, or his
attorney containing all of the following:
(A) A description of the specific personal property claimed and the
approximate value of each item or category of property claimed;
(B) The specific interest of the movant in the property and, if the interest is
based upon a written instrument, a copy of that instrument;
Case No. 23 BE 0029
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(C) The manner in which the respondent came into possession of the
property, the reason that the detention is wrongful and, to the best of the
knowledge of the movant, the reason, if any, that the respondent may claim
the detention is not wrongful;
(D) The use to which the respondent has put the property, as determined
by the movant after such investigation as is reasonable in the
circumstances;
(E) The extent, if any, to which the movant is or will be damaged by the
respondent’s detention of the property;
(F) To the best of the movant’s knowledge, the location of the property;
(G) That the property was not taken for a tax, assessment, or fine pursuant
to statute, or seized under execution of judgment against the property of the
movant or, if so seized, that it is statutorily exempt from seizure.
R.C. 2737.03.
{¶10} Conversion, on the other hand, is “an exercise of dominion or control
wrongfully exerted over property in denial of or under a claim inconsistent with the rights
of another.” Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96, 551 N.E.2d 172 (1990).
The elements of conversion are: “(1) plaintiff’s ownership or right to possession of the
property at the time of the conversion; (2) defendant’s conversion by a wrongful act or
disposition of plaintiff's property rights; and (3) damages.” Francisco A. Mateo MD, Inc.
v. Proia, 7th Dist. Mahoning No. 22 MA 0053, 2023-Ohio-3908, ¶ 68. “The plaintiff need
not be the owner but can have some other interest in the property; the first element
includes a party with actual or constructive possession or an immediate right of
possession at the time of conversion.” Id.{¶11} Where conversion is premised on the unlawful retention of property, the
plaintiff must demonstrate: (1) she demanded the return of the property from the
possessor after the possessor exerted dominion or control over the property; and (2) that
the possessor refused to deliver the property to its rightful owner. Keybank Natl. Assoc.
Case No. 23 BE 0029
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v. Guarnieri & Secrest, P.L.L., 7th Dist. Columbiana No. 07 CO 46, 2008-Ohio-6362, ¶
15.
FACTS AND PROCEDURAL HISTORY
{¶12} On November 10, 2022, Appellant filed a form complaint for replevin,
seeking to recover “MACHINES, WARES, FURNATURE [SIC], FIXTURES, CURRENCY
& PAPER VALUABLES, ANTIQUES, HEIRLOOMS, JEWELRY, CLOTHING, PETS,
HISTORICAL ITEMS, MUSIC AND SCIENTIFIC INSTTRUMENTS [SIC], TOOLS,
VENDING MACHINES, COMMERCIAL/BUSINESS EQUIPMENT, BIBLE, AND
PERSONAL ITEMS, ETC.” Appellant predicated her ownership upon Belmont County
Court Case No. 21-ES-595 and records of property taxation and business filings with the
state and federal government. She alleged Appellee took possession of the property by
“THEFT & DECEPTION, [AND] WRONGFUL EVICTION.” Appellant valued the property
located at 3735 Highland Avenue, Shadyside, Ohio, 43947, at $50,000. The second
cause of action in the complaint stated a claim for conversion.
{¶13} At a status conference on December 5, 2022, Appellant was given notice
by the trial court that her complaint was deficient. Appellant requested additional time to
retain an attorney and amend her complaint. Appellant was granted an extension of sixty
days, however, Appellant neither retained counsel nor amended her complaint.
{¶14} Appellee filed a motion to dismiss on February 9, 2023. Several exhibits
were attached to the motion. Appellant filed her opposition brief on February 21, 2023.
Several exhibits were attached to the opposition brief. As a consequence, on May 25,
2023, the trial court converted the motion to dismiss to a motion for summary judgment.
The trial court granted the parties an extension of time until June 12, 2023 to supplement
their evidence.
{¶15} The following facts are taken from the exhibits offered in support of and
against summary judgment. The property located at 3735 Highland Avenue was owned
by Joseph and Mary Givens. Mary preceded Joseph in death. Joseph died on March 26,
2007. Appellant is Mary and Joseph’s daughter-in-law.
{¶16} The property was the subject of a foreclosure action for delinquent real
estate taxes filed on June 11, 2021 (21-TF-004). On December 30, 2021, an application
Case No. 23 BE 0029
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to probate Joseph’s will was filed (21-ES-00595). The application was dismissed on
September 7, 2022, due to the failure of Joseph’s chosen fiduciary, Greg P. Givens, who
is Appellant’s son, to execute the Application for Authority to Administer Estate Fiduciary
form. Notably, Joseph bequeathed all of his real estate to Greg.
{¶17} Appellee acquired the property from the county treasurer in case number
21-TF-004 by way of a Sheriff’s Deed, recorded on June 28, 2022. In 2023, we affirmed
the decision of the trial court overruling a 60(B) motion filed by Appellant in that case
seeking to overturn the foreclosure order and confirmation of sale. We concluded
Appellant lacked standing as she was not an owner of the property at issue. Matter of
Foreclosure of Liens for Delinquent Land Taxes by Action in Rem v. Jaber, 7th Dist.
Belmont No. 23 BE 0007, 2023-Ohio-4247.
{¶18} The record reflects Appellee extended to Appellant and Greg several
opportunities to reenter the property and collect their personal property. Correspondence
dated July 12, 2022 from Appellee’s counsel to Greg informed him that four motor
vehicles, referred to as “junk cars,” would be towed from the premises and stored at
Greg’s expense should Greg fail to remove them from the property within ten days of
receipt of the letter. Correspondence dated July 18, 2022 from Appellee’s counsel to
Greg informed him that any personal property remaining at 3735 Highland Avenue would
either be destroyed or stored at Greg’s expense if he did not retrieve the personal property
within thirty days of the receipt of the letter.
{¶19} After three civil complaints were filed by Greg against Appellee, an
electronic mail dated November 23, 2022 extended to Appellant and Greg yet another
opportunity to reclaim their personal property. The opportunity was conditioned upon the
designation of a specific date and time, police presence, and the selection of a third-party
designee to maintain a record of the property removed versus property allegedly missing
from the residence. Counsel for Appellee also required a detailed and signed inventory
of all of the items removed and alleged to be missing. As consideration for the opportunity
to retrieve the Givens’ personal property, Appellee demanded an entry of dismissal of
Greg’s civil actions, as well as any other case asserting personal property rights against
Appellee, and a general release and settlement agreement. Greg’s three civil actions
Case No. 23 BE 0029
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were ultimately dismissed by the trial court and we ultimately affirmed all three of the
dismissals.
{¶20} After Appellant filed three civil complaints, which were characterized by
Appellee’s counsel as duplicative of the actions filed by Greg, the same opportunity to
retrieve personal property was offered to Appellant and Greg in correspondence dated
December 6, 2022. The letter cautions, “[d]o not enter the premises without first making
the necessary arrangements with me to do so.” The final exhibit attached to the motion
for summary judgment is a portion of the docket in case no. 23-CRB-0012E, reflecting
charges of theft leveled against Greg on January 13, 2023.
{¶21} In the converted motion for summary judgment, Appellee argues the
complaint fails to state a claim upon which relief can be granted as its contents are
deficient. Appellee writes, “[Appellant] has failed to specifically identify such items, how
she came to own such items, how such items came to be located at the 3735 Highland
Venue property, or the value of said items, as required by [R.C.] 2737.03.” (2/9/23 Mot.,
p. 4.)
{¶22} The motion also contains allegations that various utility services to the
property were terminated between 2017 and 2019. However, there is no evidence in the
record supporting Appellee’s allegations.
{¶23} Attached to the opposition brief are the affidavits of Appellant and Greg, as
well as “BILL OF SALE OF REAL PROPERTY Affidavit,” purporting to transfer 3735
Highland Avenue from Joseph and Mary to Greg on June 16, 2022. The final exhibit is an
attestation by Appellant of the personal property allegedly located at 3735 Highland
Avenue. The attestation contains a chart with the following captions, “category,”
“description/use,” “item,” and “approx. value.” The general list provided in the complaint
is restated under the caption “category,” with a slightly more specific description of the
property included under the remaining captions. The attestation does not state the
manner in which Appellant acquired the property.
{¶24} Appellee filed his supplement to the converted motion on June 9, 2023.
Attached to the supplement is the affidavit of M. Winiesdorffer-Schirripa. Attached to the
affidavit is correspondence to Appellee from H. Chadwick Stratton, a content manager at
Panhandle Cleaning and Restoration. The letter reads that it is not feasible to remove
Case No. 23 BE 0029
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any contents or personal property from the structure at 3735 Highland Avenue due to
limited access, the extreme hoarding situation, multiple breaches in the roof, and
instability in the upper floors. Stratton opines, “the condition of any property inside the
structure has degraded, molded, and been contaminated with animal waste to the point
where nothing would be considered salvageable.” Stratton concludes, “for the sake of
health, safety and feasibility, no attempt should be made to perform any internal work in
the structure.” Photographs of both the exterior and interior of the structure are attached
to Stratton’s letter.
{¶25} With leave of the Court on June 30, 2023, Appellant filed her opposition
brief to the converted motion. The brief is essentially identical to her original brief,
however an amended attestation is attached and includes additional personal property
not identified in the original attestation. The amended attestation is signed by Appellant
but is not sworn.
{¶26} In a journal judgment entry dated July 6, 2023, the trial court opined
“[Appellant] here must offer some competent proof that she has either possessory and/or
ownership rights to the claimed personal property.” (7/6/23 J.J.E., p. 3.) Appellant’s proof
of ownership was predicated upon probate records, and property taxation and business
filings with the state and federal government. The trial court opined Appellant was not a
named beneficiary in Joseph’s will and Appellant failed to produce any taxation or
business records establishing her ownership of the personal property.
{¶27} The trial court continued, “As [Appellee] has by affidavit put in issue
[Appellant’s] bare claims, in her Response, [Appellant] had to produce evidentiary quality
rebuttal evidence. She fails to do so, choosing instead to again rely upon the allegations
in her pleadings.” (Id. at p. 4.) As a consequence, the trial court entered summary
judgment in favor of Appellee. This timely appeal followed.
{¶28} All three of the cases filed by Appellant against Appellee were appealed
here. While the above-captioned case asserts claims for conversion and replevin, the
other two cases assert various constitutional, tort, and breach of contract claims. Despite
the fact that the above-captioned action asserts claims for conversion and replevin,
Appellant advances many of the assignments of error from the other two appeals. In
Givens v. Longwell, Case No. 23 BE 0008 (“Longwell I”), which was released on
Case No. 23 BE 0029
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December 5, 2023, we overruled all of Appellant’s assignments of error asserted here,
with the exception of the sole assignment of error addressing conversion and replevin.
Oral argument in Givens v. Longwell, Case No. 23 BE 0023, which likewise repeats the
assignments overruled in Longwell I was heard on January 17, 2023.
ANALYSIS
ASSIGNMENT OF ERROR NO. 1
TRIAL COURT ABUSED ITS DISCRETION IN TREATMENT AND
DISMISSAL OF COMPLAINT FOR REASONS AND PREJUDICES
STATED IN ARBITRARY AND UNIQUE ORDERS TO DEFENDANT [SIC]
GIVENS ALONE, AND BY PLACING MATTERS AND PRIVATE
ADJUDICATIONS OFF RECORD SO TO DENYING DUE PROCESS OF
LAW AND THE EQUAL PROTECTION OF LAW REQUIRED TO THE
DEFENDANT [SIC], CAROL GIVENS, IN VIOLATION OF THE U.S. BILL
OF RIGHTS, AND ARTICLE I OF THE CONSTITUTION OF THE STATE
OF OHIO, JUDICIAL CANNONS.
{¶29} We addressed the identical assignment of error in Longwell I. Appellant’s
argument does not relate to this conversion and replevin action, but instead to Appellant’s
challenge to the foreclosure action, which we overruled in Longwell I. Insofar as this
assignment of error is wholly unrelated to this conversion and replevin action, and we
previously overruled the identical assignment of error in Longwell I, we find the first
assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 2
TRIAL COURT ABUSED ITS DISCRETION, AND IN FAILURE TO
ADHERE TO, AND OBEY OHIO STATUTE, HIGHER COURT OPINIONS,
DETERMINATION, MANDATES OF THE OHIO SUPREME COURT, AND
DISTRICT COURT OPINIONS, ISSUED ACCORDINGLY, AND IN
ACCORDANCE WITH LAW.
Case No. 23 BE 0029
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ASSIGNMENT OF ERROR NO. 6
THE TRIAL COURT ERRED IN ITS FAILURE AND DUTY TO CORRECT
JUDGMENT IN FAVOR OF PLAINTIFF, AND ADHERE TO LOCAL RULE
23, AND IN OBSERVANCE OF TENANT/LANDLORD/RESIDENCY
REQUIREMENTS OF THE OHIO REVISED CODE, AND OF THE
BELMONT COUNTY COURT, COMMON PLEAS, IN ITS RULINGS.
{¶30} We addressed the second and sixth assignments of error in Longwell I. We
concluded the assignments challenged the foreclosure action, however, the foreclosure
action was not designated in Appellant’s notice of appeal. Insofar as these assignments
of error are wholly unrelated to this conversion and replevin action, and we previously
overruled the identical assignments of error in Longwell I, we find the second and sixth
assignments of error have no merit.
ASSIGNMENT OF ERROR NO. 3
TRIAL COURT ERRED IN DISMISSAL OF COMPLAINT FOR REASONS
NOT PRESENTED BY DEFENDANT(S) [SIC], IN MOTION TO DISMISS,
OR BY SUMMARY JUDGMENT.
{¶31} In the third assignment of error, Appellant contends the trial court erred in
entering summary judgment for Appellee based on Appellant’s lack of standing. Insofar
as this assignment of error is wholly unrelated to this conversion and replevin action, and
we previously overruled the identical assignment of error in Longwell I, we find the third
assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 4
TRIAL COURT ABUSED ITS DISCRETION IN ARBITRARY RULINGS
AND SUA SPONTE OPINIONS DIRECTED TO THE CLERKS AGAINST
PLAINTIFF, WITHOUT HEARING OR OPPORTUNITY FOR INQUIRY AS
TO PLAINTIFF, EX PARTE, WHO IS SEVENTY-FIVE (75) YEARS OF
AGES [SIC], ON A WALKER/CANE, AND REQUIRED BY IMPLICATION,
Case No. 23 BE 0029
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COURT ORDER FOR PLAINTIFF TO COURT, MORE THAN TWELVE
(12) MILES AWAY FROM THE COURTROOM, SUBJECTING PHYSICAL
REQUIREMENTS OF PLAINTIFF, PRIOR TO OBJECTIONS,
DISCOVERY, OR TRIAL, NOT SIMILARLY IMPOSED UPON THE
DEFENDANT, [APPELLEE], DEPRIVING PLAINTIFF OF
FUNDAMENTAL RIGHTS OVER TO THE FAVOR OF THE DEFENDANT,
AND CONTRARY AGAINST THE PLAINTIFF’S FIRST AMENDMENT TO
THE U.S. CONSTITUTION, AND THE DUE PROCESS OF LAW, AND AS
RIGHTS GUARANTEED BY ARTICLE I OF THE OHIO STATE
CONSTITUTION, U.S. CONSTITUTION, AND THE CANNON OF
JUDICIAL CANNON AND CONDUCT, AND IN DETERMINATION OF
COSTS AGAINST THE PLAINTIFF.
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT ERRED IN ITS FAILURE AND DUTY TO RECUSE,
HOLDING EACH AND EVERY CASE OF THE PLAINTIFF, AND
LACKING RANDOM STRAW POLL OF JUDGES.
{¶32} We addressed the identical assignments of error in Longwell I. Insofar as
we previously opined that violations of the Judicial Code of Conduct are not properly
raised before us, we find the fourth and fifth assignments of error have no merit.
ASSIGNMENT OF ERROR NO. 7
TRIAL COURT ABUSED ITS DISCRETION BY CONCLUSIONS OF LAW
NOT BACKED IN FACT, STATUTE, LAW, OR IN EVIDENCE, AND THE
GUARANTEED RIGHT TO THE PURSUIT OF HAPPINESS.
{¶33} In the seventh assignment of error, Appellant challenges the costs taxed to
her as the losing party. Insofar as we previously overruled the identical assignment of
error in Longwell I, due to Appellant’s failure to comply with App.R. 16(A)(7), we find the
seventh assignment of error has no merit.
Case No. 23 BE 0029
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ASSIGNMENT OF ERROR NO. 8
TRIAL COURT ABUSED ITS DISCRETION BY JOINDER, AND IN
DISMISSAL OF BELMONT COUNTY COURT, COMMON PLEAS,
CASES 22-CV-0332, 21-TF-0004 WITH 22-CV-0331, AND IN
CONCLUSIONS OF LAW NOT BACKED IN FACT, IN STATE AND
LOCAL LAW, OR IN EVIDENCE.
{¶34} A trial court’s decision to consolidate cases pursuant to Civ.R. 42(A)(1)(b)
is reviewed for an abuse of discretion, as it relates to the court’s management of its
docket. Monus v. Day, 7th Dist. Mahoning No. 10 MA 35, 2011-Ohio-3170, ¶ 74, citing
Director of Highways v. Kleines, 38 Ohio St.2d 317, 319, 313 N.E.2d 370 (1974). “The
obvious purpose of Rule 42(A) is for convenience of trial, for preventing multiplicity of
actions, and for the saving of costs.” Monus, citing Civ.R. 42(A), Staff Notes (1970).
{¶35} We previously overruled the identical assignment of error in Longwell I, due
to Appellant’s failure to comply with App.R. 12(A)(2). We find the eighth assignment of
error has no merit.
ASSIGNMENT OF ERROR NO. 9
{¶36} The ninth assignment of error in the statement of assignment of errors
reads:
TRIAL COURT ABUSED ITS DISCRETION BY CONCLUSIONS OF LAW
NOT BACKED IN FACT, STATUTE, LAW, OR IN EVIDENCE THAT
APPELLANT UNDER STRICT INTERPRETATION OF OHIO LAW AND
STATUTE IS ENTITLED TO HER ORIGINAL ELVIS RECORDS,
HEIRLOOMS, AND MEMORIES.
{¶37} The ninth assignment of error in the body of the appellate brief reads:
TRIAL COURT ABUSED ITS DISCRETION BY CONCLUSIONS OF LAW
NOT BACKED IN FACT, STATUTE, LAW, OR IN EVIDENCE THAT
APPELLANT UNDER STRICT INTERPRETATION OF OHIO LAW AND
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STATUTE IS ENTITLED TO HER ORIGINAL ELVIS RECORDS; FAMILY
HEIRLOOMS AND PHOTOS; JEWELRY; ANTIQUE TELEPHONE,
PHONOGRAPH, SEWING MACHINE CHAIRS, TOOLS, IMPORTED
DISHES; IRREPLACEBLES, KEEPSAKES, GOVERNMENT PAPERS,
MEMORIES AND MORE.
TRIAL COURT ABUSED ITS DISCRETION BY JOINDER, AND IN
DISMISSAL OF BELMONT COUNTY COURT, COMMON PLEAS,
CASES 22-CV-0332, 21-TF-0004 WITH 22-CV-0331, AND IN
CONCLUSIONS OF LAW NOT BACKED IN FACT, IN STATE AND
LOCAL LAW, OR IN EVIDENCE.
{¶38} Appellant’s argument in the ninth assignment of error reads, in its entirety:
II. All Findings by the Trial Court on Defendant judgment were insufficient
to standards administered by Ohio Statute, Local Rule, the Ohio
Constitution, Article IV, Section 3(B)(2); U.S. Constitution, Article IV, Section
2; Ohio Revised Code 2505.01, et seq, and Constitutional Provisions.
(Appellant’s Brf., p. 9.)
{¶39} The cited Ohio statute and state and federal constitutional provisions do not
have any application to the issue presented in the ninth assignment of error. Moreover,
Appellant has failed to comply with the appellate rules insofar as she has not advanced
any applicable law in support of her assertion the trial court erred in granting summary
judgment to Appellee.
{¶40} Appellant appears to argue that the trial court erred as a matter of law by
entering summary judgment in favor of Appellee on her claims for conversion and
replevin. With respect to her claim for replevin, Appellant has not executed an affidavit in
conformance with R.C. 2737.03. Further, the amended attestation, which is signed but
not sworn, contains some specific descriptions of property, including the manner in which
the property was acquired, but for the most part contains general descriptions, i.e. “pots
and pans,” “Dresses, Purses.” Insofar as Appellant has failed to comply with the statutory
Case No. 23 BE 0029
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requirements of R.C. 2737.03, we find the trial court did not err in awarding summary
judgment in favor of Appellee on the action for replevin.
{¶41} Appellant’s failure to establish ownership or actual or constructive
possession or an immediate right of possession at the time of conversion of the property
is likewise fatal to her conversion claim. In the absence of an affidavit establishing
Appellant’s ownership or right to actual or constructive possession or an immediate right
of possession, we find the trial court did not err in awarding summary judgment in favor
of Appellee on the conversion claim.
CONCLUSION
{¶42} For the foregoing reasons, Docket and Journal Entry and Judgment Journal
Entry of the trial court are affirmed.
Waite, J., concurs.
Hanni, J., concurs.
Case No. 23 BE 0029
[Cite as Givens v. Longwell, 2024-Ohio-947.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgments of
the Court of Common Pleas of Belmont County, Ohio, are affirmed. Costs to be taxed
against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.