Givens v. Longwell , 2023 Ohio 3379 ( 2023 )

[Cite as Givens v. Longwell, 2023-Ohio-3379.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
GREG P. GIVENS,
Plaintiff-Appellant,
v.
JOHN D. LONGWELL,
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Case Nos. 22 BE 0056, 22 BE 0057, 22 BE 0058
Civil Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case Nos. 22 CV 241, 22 CV 242, 22 CV 243
BEFORE:
Mark A. Hanni, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Greg P. Givens, Pro se, P.O. Box 117, Bellaire, Ohio 43906, Plaintiff-Appellant and
Atty. M. Winiesdorffer-Schirripa, Atty. G. Thomas Smith, Smith Law PLLC, 516 West Main
Street, Clarksburg, West Virginia 26301, and Atty. Bradley A. Powell, Droder & Miller,
Co., L.P.A., 250 East Fifth Street, Suite 700, Cincinnati, Ohio 45202, for Defendant-
Appellee.
Dated: September 20, 2023
–2–
HANNI, J.
{¶1} This matter involves three separate appeals by Plaintiff-Appellant, Greg P.
Givens, from three judgments by the Belmont County Common Pleas Court dismissing
Appellant’s three lawsuits against Defendant-Appellee, John D. Longwell, with prejudice.
{¶2} All of Appellant’s claims/cases arise from the same facts. Appellee
purchased a house at 3735 Highland Avenue in Shadyside (the House) at a sheriff’s sale.
The deed transferring title was filed on June 28, 2022. The House was formerly owned
by Appellant’s grandparents, Joseph and Mary Givens. Joseph Givens died in 2007 and
was predeceased by his wife.
{¶3} In case 22 CV 241 (22-BE-0056), Appellant filed a complaint for replevin
against Appellee on August 26, 2022. Appellant asserted Appellee took his personal
property (including items such as four automobiles, antiques, heirlooms, clothing, pets,
and business equipment) on July 6, 2022, by way of wrongful eviction. That same day,
Appellant filed an Affidavit of Inability to Prepay Court Costs for this action, requesting
that the trial court waive the filing fee.
{¶4} In case 22 CV 243 (22-BE-0057), Appellant filed a complaint against
Appellee on August 26, 2022. This complaint asserted what Appellant termed
“Constitutional Claims,” which included claims for “injury and tort damages,” “breach of
contract,” and “other appropriate claims” and sought a declaratory judgment. That same
day, Appellant filed an Affidavit of Inability to Prepay Court Costs for this action,
requesting that the trial court waive the filing fee.
{¶5} In case 22 CV 242 (22-BE-0058), Appellant filed a complaint against
Appellee on August 26, 2022. This complaint also asserted what Appellant termed
“Constitutional Claims,” which included claims for “injury and tort damages,” “breach of
contract,” and “other appropriate claims” and sought monetary relief. That same day,
Appellant filed an Affidavit of Inability to Prepay Court Costs for this action, requesting
that the trial court waive the filing fee.
{¶6} On September 2, 5, and 6, 2022, the trial court filed judgment entries stating
that the cases appeared to be refilings of cases 22 CV 206, 22 CV 207, and 22 CV 208,
which were previously dismissed without prejudice for failure to pay the filing fees within
Case Nos. 22 BE 0056, 22 BE 0057, 22 BE 0058
–3–
the allotted time. The court acknowledged that Appellant once again did not pay the filing
fees and instead filed indigency affidavits asking the court to waive the filing fees. The
court noted that for the same reason it had put forth in the previous cases, that being that
Appellant still owed over $2,000 in unpaid costs for his prior unsuccessful filings, it was
declining Appellant’s requests to waive the filing fees. The court therefore ordered the
clerk to dismiss the cases without prejudice on September 30, 2022, unless Appellant
paid the required deposits.
{¶7} Subsequently, on September 15, 2022, Appellant filed a “motion for finding
of fact hearing on the court order of September 2, 2022, et al” and a motion for change of
venue in each case. The trial court scheduled these motions for hearing on October 4,
2022, and instructed Appellant that he would need to establish that he has a legally
recognized ownership interest in, or right to possess, the Highland Avenue property.
{¶8} On October 3, 2022, Appellant filed motions to continue the October 4
hearing due to his recent exposure to Covid-19 stating that he was exhibiting symptoms
and was under quarantine. The trial court granted the motions on October 4, and
rescheduled the hearing for October 25, 2022. The court further ordered Appellant to
provide, in advance, written proof of the cause stated in his motion to continue.
{¶9} On October 12, 2022, Appellant filed objections to the trial court’s order to
provide written proof of the cause stated in his motion to continue. The trial court
overruled Appellant’s objections on October 13, 2022, stating that there was no authority
for the objections. The court further questioned whether Appellant had attempted to
mislead the court, noting: “This Court is aware that on August 15, 2022, Petitioner, now
Plaintiff herein, Greg Givens, filed a Motion to Continue his case before the Magistrate.
That Motion is practically identical to Plaintiff’s said October 3, 2022 Motion to Continue.”
The court stated this was the reason for its requirement that Appellant provide written
proof of his Covid-19 claim.
{¶10} Next, on October 17, 2022, the Ohio Supreme Court filed an entry giving
notice that Appellant had filed affidavits of disqualification seeking to disqualify the trial
court in each of the three cases. The Supreme Court later denied the disqualification.
{¶11} On October 25, 2022, the trial court held the re-scheduled hearing on
Appellant’s motions for findings of fact hearing and change of venue. Appellant failed to
Case Nos. 22 BE 0056, 22 BE 0057, 22 BE 0058
–4–
appear. Appellant also failed to provide, in advance, written proof of his cause stated in
his motion to continue as ordered by the court. Consequently, the court overruled
Appellant’s motions for findings of fact hearing and change of venue based on lack of
proof given Appellant’s failure to appear and failure to prosecute. Additionally, the court
dismissed Appellant’s complaints stating: “Further, based upon Plaintiff’s failure to
appear and his failure to comply with the Order of this Court that he provide advance
written proof of his claims in his Motion to Continue, this Court dismisses this case, with
prejudice to refiling.” In a subsequent judgment entry, the trial court noted that Appellant
had filed another motion to continue later in the day and after the hearing of October 25,
2022. The court overruled Appellant’s motion as moot.
{¶12} Appellant filed timely notices of appeal on November 2, 2022.
{¶13} Appellant now sets out the same five assignments of error in each of the
three cases. Each of the assignments of error assert that the trial court erred in dismissing
Appellant’s cases. Thus, we will address them together.
{¶14} Appellant’s first assignments of error state:
TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF’S
AFFIDAVIT OF INDIGENCY, SO AS PREPARED ON FORM IN
COMPLIANCE WITH THE OHIO LEGISLATURE, AND SECTION
§2323.311 OF THE OHIO REVISED CODE, SO DEPRIVING PLAINTIFF
OF THE DUE PROCESS OF LAW, AND THE EQUAL PROTECTION OF
LAW, AND ACCESS TO FUNDAMENTAL RIGHTS, BECAUSE HIS
INCOME FALLS BELOW THE POVERTY LEVEL, AS APPROVED BY
FEDERAL AND STATE LAW GUIDELINES AND AGENCY, AND AS
APPLIED TO EVERYONE ELSE IN THE SAME CIRCUMSTANCES [sic].
{¶15} Appellant’s second assignments of error state:
TRIAL COURT ERRED IN THE INSTANT DISMISSAL OF TRIAL AND
COMPLAINT, AND DID SO WITHOUT HEARING OR OPPORTUNITY
FOR INQUIRY INTO THE POVERTY STATUS AND SUBJECTING
PHYSICAL EXAMINATION OF PLAINTIFF, PRIOR TO OBJECTIONS,
DISCOVERY, OR TRIAL, DEPRIVING PLAINTIFF OF FUNDAMENTAL
Case Nos. 22 BE 0056, 22 BE 0057, 22 BE 0058
–5–
RIGHTS OVER TO THE FAVOR OF THE DEFENDANT, AND TO THE
PLAINTIFF’S FIRST AMENDMENT TO THE U.S. CONSTITUTION, AND
THE DUE PROCESS OF LAW, AND AS GUARANTEED BY ARTICLE I OF
THE OHIO STATE CONSTITUTION, AND IN VIOLATION OF THE
CANNON OF JUDICIAL CONDUCT AND IN FAILURE TO RECUSE,
HOLDING EACH AND EVERY CASE OF THE PLAINITFF, AND LACKING
RANDOM STRAW POLL OF JUDGES [sic].
{¶16} Appellant’s third assignments of error state:
TRIAL COURT ERRED 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 [sic].
{¶17} Appellant’s fourth assignments of error state:
TRIAL COURT ERRED IN DISMISSAL OF COMPLAINT FOR REASONS
AND PREJUDICES STATED IN ARBITRARY AND UNIQUE ORDERS TO
PLAINTIFF ALONE, REQUIRING THE SUBMISSION OF UNIQUE AND
EXTRAORDINARY FILINGS, OR RE-FILINGS, IN ADDITION TO EACH
OF THE PLAINTIFF’S STANDARD FILINGS WITH THE COURT, IN THAT
OF AFFIDAVITS REAFFIRMING FACTS IN EVIDENCE, OF THE SAME
ALREADY AFFIRMED AND REPEATED, THAT WAS NOT REQUIRED OF
ANY OTHER LITIGANT, OR OPPOSING PARTY OR COUNSEL, AND
DIRECTED SOLELY AT THE PLAINTFF, ALONE, AND WHERE LOCAL
RULES, OR CIVIL RULES DO NOT ADHERE TO CLEAR AND CONCISE
INTERPRETATIONS OF LAW, SO DENYING DUE PROCESS TO THE
PLAINTIFF [sic].
{¶18} Appellant’s fifth assignments of error state:
Case Nos. 22 BE 0056, 22 BE 0057, 22 BE 0058
–6–
TRIAL COURT ERRED IN DISMISSAL OF COMPLAINT FOR REASONS
NOT PRESENTED BY DEFENDANT(S), IN MOTION TO DISMISS, OR BY
SUMMARY JUDGMENT [sic].
{¶19} Appellant argues that the trial court violated his rights by refusing to waive
the filing fees and subsequently dismissing his cases. But as Appellee points out, this
was not the basis of the trial court’s dismissal in these case. Appellant does not make
any argument relating to the trial court’s actual reason for dismissal in this case.
{¶20} Pursuant to Civ.R. 41(B)(1): “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.” A
dismissal under Civ.R. 41(B) operates as an adjudication upon the merits unless the
court, in its order for dismissal, otherwise specifies. Civ.R. 41(B)(3).
{¶21} The decision to dismiss a complaint for failure to prosecute is within the trial
court’s sound discretion. Jones v. Hartranft, 78 Ohio St.3d 368, 371, 678 N.E.2d 530(1997). Thus, an appellate court's review is confined solely to the question of whether
the trial court abused its discretion. Id. Abuse of discretion implies that the court's attitude
is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983).
{¶22} Although our standard of review is abuse of discretion, we must keep in
mind that the law favors the disposition of cases on their merits. Jones, 78 Ohio St.3d at
371. Therefore, although reviewing courts apply an “abuse of discretion” standard of
review for dismissals with prejudice, that standard is actually heightened when reviewing
decisions that forever deny a plaintiff a review of a claim's merits. Id. at 372.
{¶23} Proper factors for consideration in a Civ.R. 41(B)(1) dismissal with prejudice
include evidence that the plaintiff is deliberately proceeding in dilatory fashion or has done
so in a previously filed, and voluntarily dismissed, action. Id.
{¶24} In these cases, on September 2, 5, and 6, 2022, the trial court informed
Appellant that his cases would be dismissed without prejudice if he failed to pay the filing
fees associated with them. Appellant then filed motions in each case for a change of
venue and for findings of fact relating to the previous judgment entries. The trial court set
Appellant’s motions for a hearing on October 4, 2022. The court informed Appellant that
Case Nos. 22 BE 0056, 22 BE 0057, 22 BE 0058
–7–
he would also have to establish at the October 4 hearing that he has a legally recognized
interest in or right to possess the property at issue.
{¶25} The day before the scheduled hearing, on October 3, Appellant filed a
motion for a continuance of the hearing stating that he was quarantined due to exposure
to Covid-19. On October 4, the trial court granted Appellant’s requested continuance but
ordered Appellant that in order to continue, he was required to provide the court with
written proof of the cause stated in his motion, i.e., proof of his Covid-19
diagnosis/quarantine. Appellant next filed objections to the court’s order. The court then,
on October 13, overruled the objections explaining:
[T]his Court questions whether Plaintiff [Appellee] has attempted to mislead
this Court. This Court is aware that on August 15, 2022, Petitioner, now
Plaintiff herein, Greg Givens, filed a Motion to Continue in his case before
the Magistrate. That Motion is practically identical to Plaintiff’s said October
3, 2022, Motion to Continue.
This explains the Court’s order filed October 4, 2022, listing the requirement
that Plaintiff provide, in advance, written proof of his alleged claim.
(October 13, 2022 JE). Thus, the trial court had reason to believe Appellant was
deliberately proceeding in dilatory fashion.
{¶26} Additionally, Appellant failed to comply with the court’s order to provide
advanced written proof of his alleged claim (that he required a continuance because of a
Covid-19 quarantine). And Appellant failed to establish that he has a legally recognized
interest in or right to possess the property at issue as ordered by the court. Moreover,
Appellant failed to appear at the October 25 re-scheduled hearing on his motions, which
the court had rescheduled on Appellant’s request.
{¶27} Given the above circumstances, we cannot conclude the trial court abused
its discretion in dismissing Appellant’s complaints for failure to prosecute and failure to
comply with the orders of the court.
Case Nos. 22 BE 0056, 22 BE 0057, 22 BE 0058
–8–
{¶28} Appellant’s assignments of error are without merit and are overruled.
{¶29} For the reasons stated above, the trial court’s judgments are hereby
affirmed.
Waite, J., concurs.
Robb, J., concurs.
Case Nos. 22 BE 0056, 22 BE 0057, 22 BE 0058
[Cite as Givens v. Longwell, 2023-Ohio-3379.]
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.