First Merit Bank v. Doll

[Cite as First Merit Bank v. Doll, 2012-Ohio-2292.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
FIRST MERIT BANK, N.A. : W. Scott Gwin, P.J.
: William B. Hoffman, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2011CA00187
:
:
JOHN A. DOLL : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from Canton Municipal
Court Pleas Case No.
2011CVF2440
JUDGMENT: Affirmed In Part and Reversed
In Part, Judgment Entered
DATE OF JUDGMENT ENTRY: May 21, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PHILLIP D. SCHANDEL JOHN A. DOLL, Pro Se
116 Cleveland Ave., N.W. 2444 Howenstine Drive
Suite 709 East Sparta, Ohio 44626
Canton, Ohio 44702
[Cite as First Merit Bank v. Doll, 2012-Ohio-2292.]
Edwards, J.
{¶1} Defendant-appellant, John Doll, appeals from the July 28, 2011, Judgment
Entry of the Canton Municipal Court granting the Motion for Summary Judgment filed by
plaintiff-appellee First Merit Bank, N.A. and granting plaintiff-appellee judgment against
defendant-appellant in the amount of $9,410.11 plus interest.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 6, 2011, appellee First Merit Bank, N.A. filed a complaint against
appellant John Doll in the Canton Municipal Court. Appellee, in its complaint, alleged
that appellant had executed and delivered to appellee a promissory installment note and
that appellant had failed to pay such note. Appellee sought judgment against appellant
in the amount of $9,410.11 plus interest at the rate of 6.99% from March 4, 2011.
Appellant filed an answer to the complaint on June 3, 2011. The case was assigned to
Judge Stephen Belden.
{¶3} Pursuant to a Judgment Entry filed on June 3, 2011, Judge Belden
recused himself “feeling that his impartiality might reasonably be questioned in any
subsequent action herein…” The case was transferred to Judge Mary Falvey.
{¶4} A telephone status conference was held on June 21, 2011. The trial court,
as memorialized in a Judgment Entry filed on June 21, 2011, granted appellee leave to
file a Motion for Summary Judgment by August 1, 2011.
{¶5} On June 30, 2011, appellee filed a Motion for Summary Judgment. Via a
Notice filed on June 30, 2011, the trial court indicated that it intended to consider such
motion on July 19, 2011. Appellant did not file a response to the Motion for Summary
Judgment. Pursuant to a Judgment Entry filed on July 28, 2011, the trial court granted
Stark County App. Case No. 2011CA00187 3
such motion and granted appellee judgment against appellant in the amount of
$9,410.11 plus interest at the rate of 6.99% from March 4, 2001.
{¶6} Appellant now appeals from the trial court’s July 28, 2011 Judgment Entry.
{¶7} Appellant has failed to comply with App.R. 16(A)(3) as his brief does not
include a statement of the assignments of error presented for review.
{¶8} Appellant, in essence, argues that the trial court erred in granting
appellee’s Motion for Summary Judgment.
{¶9} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As
such, we must refer to Civ.R. 56(C) which provides, in pertinent part: “Summary
judgment shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence in the pending
case and written stipulations of fact, if any, timely filed in the action, show that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. * * * A summary judgment shall not be rendered unless it
appears from such evidence or stipulation, and only from the evidence or stipulation,
that reasonable minds can come to but one conclusion and that conclusion is adverse
to the party against whom the motion for summary judgment is made, such party being
entitled to have the evidence or stipulation construed most strongly in the party's favor.”
{¶10} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,
Stark County App. Case No. 2011CA00187 4
1997-Ohio-259, 674 N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-
107, 662 N.E.2d 264.
{¶11} As is stated above, appellee, on June 30, 2011, filed a Motion for
Summary Judgment. Appellee, in support of its motion, submitted the affidavit of Gail
Jeffreys, an employee of and Collections Officer for appellee. Jeffreys, in her affidavit,
stated, in relevant part, as follows:
{¶12} “2. Affiant states that Plaintiff First Merit Bank, N.A. is the holder of the
promissory note attached to plaintiff’s complaint as Exhibit A.
{¶13} “3. Affiant states that there has been a default in payment under the terms
of the note. Plaintiff has therefore elected to accelerate the entire balance due.
{¶14} “4. Affiant states that there is due it on said account the balance of
$9,410.11, together with interest therefrom March 4, 2011, at the rate of 6.99 percent
per annum.
{¶15} “5. Affiant states that all the exhibits attached to plaintiff’s complaint are
true and accurate copies of original documents maintained by First Merit Bank, N.A.,
and that all of the statements contained herein and in plaintiff’s complaint are true to the
best of affiant’s knowledge and belief.”
{¶16} We note that appellee did not file a response to such motion. We find,
that, construing the evidence in appellant’s favor, there are no genuine issues of
material fact and that the trial court did not err in granting appellee’s unopposed Motion
for Summary Judgment. However, we find, as appellee concurs, that the trial court erred
in awarding appellee interest from March 4, 2001 rather than March 4, 2011, as
requested in the complaint.
Stark County App. Case No. 2011CA00187 5
{¶17} Appellant, in his brief, also appears to argue that Judge Falvey had a
conflict of interest. The statutory procedure for disqualification of a municipal court judge
is set forth in R.C. 2701.031: “(A) If a judge of a municipal or county court allegedly is
interested in a proceeding pending before the judge, allegedly is related to or has a bias
or prejudice for or against a party to a proceeding pending before the judge or to a
party's counsel, or allegedly otherwise is disqualified to preside in a proceeding pending
before the judge, any party to the proceeding or the party's counsel may file an affidavit
of disqualification with the clerk of the court in which the proceeding is pending ...” We
note that appellant did not file such an affidavit.
{¶18} Appellant also asserts that appellee’s counsel had a conflict of interest.
We note, however, that appellant did not file a Motion to Disqualify appellee’s counsel
and that the assertions made in appellant’s brief concerning appellee’s counsel are not
reflected in the record.
{¶19} Finally, appellant also contends that after the appeal was filed, he
received a notice from the court indicating that he had a “right to trial against garnishing
my wages.” Appellant maintains that the same was sent to the wrong address, making
him unable to timely respond. However, the document that appellant refers to is not part
of the record on appeal.
Stark County App. Case No. 2011CA00187 6
{¶20} Accordingly, appellant’s assignments of error are overruled in part and
sustained in part. We hereby enter judgment pursuant to App.R. 12(B) in favor of
appellee and against appellant in the amount of $9,410.11 plus interest at the rate of
6.99% per annum from March 4, 2011.
By: Edwards, J.
Gwin, P.J. and
Hoffman, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d0210
[Cite as First Merit Bank v. Doll, 2012-Ohio-2292.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
FIRST MERIT BANK, N.A. :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JOHN A. DOLL :
:
Defendant-Appellant : CASE NO. 2011CA00187
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Canton Municipal court is affirmed in part, and reversed in part.
Judgment is entered in favor of appellee and against appellant in the amount of
$9,410.11 plus interest at the rate of 6.99% per annum from March 4, 2011. Costs
assessed 75% to appellant and 25% to appellee.
_________________________________
_________________________________
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JUDGES