Riley v. Whitehouse

[Cite as Riley v. Whitehouse, 2021-Ohio-3798.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
APRIL L. RILEY JUDGES:
Hon. Craig R. Baldwin, P.J.
Plaintiff-Appellant Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 21-CA-00005
DARREN W. WHITEHOUSE
Defendant-Appellee OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Perry County Court of
Common Pleas, Probate Division, Case
No. 20201057-1
JUDGMENT: Appeal dismissed
DATE OF JUDGMENT ENTRY: October 22, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
APRIL L. RILEY JOSEPH A. FLAUTT
2988 W. Poplar Ridge Road, N.W. 111 North High Street
Malta, Ohio 43758-9682 P.O. Box 569
New Lexington, Ohio 43764-0569
Perry County, Case No. 21-CA-00005 2
Hoffman, J.
{¶1} Plaintiff-appellant April L. Riley appeals the summary judgment entered by
the Perry County Common Pleas Court, Probate Division, dismissing her complaint which
alleged Defendant-appellee Darren W. Whitehouse exerted undue influence on Steven
A. Embrey in the execution of Embrey’s Last Will and Testament.
STATEMENT OF THE CASE1
{¶2} Appellant filed the instant action pro se on October 5, 2020, alleging
Appellee exerted undue influence on Steven Embrey in the execution of Embrey’s will.
Appellee filed an answer, denying the allegations in the complaint. Appellee filed a motion
for summary judgment on January 7, 2021, accompanied by a supporting affidavit.
Appellant failed to respond to appellee’s motion for summary judgment. The Perry
County Common Pleas Court, Probate Division, entered summary judgment on March 9,
2021, dismissing Appellant’s complaint
{¶3} Appellant filed an appeal from the March 9, 2021, judgment of the trial court
dismissing her complaint. Her brief filed with this Court does not set forth any
assignments of error, instead raising two “questions” and a single “issue,” with no
discussion of the same.
{¶4} We begin by noting Appellant has failed to comply with App. R. 16, which
provides:
Brief of the Appellant. The appellant shall include in its brief, under
the headings and in the order indicated, all of the following:
1 A rendition of the facts is unnecessary to our resolution of this appeal.
Perry County, Case No. 21-CA-00005 3
(1) A table of contents, with page references.
(2) A table of cases alphabetically arranged, statutes, and other
authorities cited, with references to the pages of the brief where cited.
(3) A statement of the assignments of error presented for review, with
reference to the place in the record where each error is reflected.
(4) A statement of the issues presented for review, with references
to the assignments of error to which each issue relates.
(5) A statement of the case briefly describing the nature of the case,
the course of proceedings, and the disposition in the court below.
(6) A statement of facts relevant to the assignments of error
presented for review, with appropriate references to the record in
accordance with division (D) of this rule.
(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. The argument may be
preceded by a summary.
(8) A conclusion briefly stating the precise relief sought.
{¶5} Appellant's brief does not satisfy the requirements of App. 16(A); therefore,
her brief is noncompliant. Compliance with the above-stated rule is mandatory. Zanesville
v. Robinson, 5th Dist. Muskingum App. No. 09-CA-39, 2010-Ohio-4843, ¶ 26. “It is not
the function of this court to construct a foundation for [an appellant's] claims; failure to
Perry County, Case No. 21-CA-00005 4
comply with the rules governing practice in the appellate court is a tactic which is ordinarily
fatal.” Musleve v. Musleve, 5th Dist. Stark App. No. 2007CA00314, 2008-Ohio-3961, ¶
21. Such deficiencies permit this court to dismiss Appellant's appeal. State v. Darby, 5th
Dist. Richland App. No. 2019 CA 0013, 2019-Ohio-2186, ¶¶ 21-24.
{¶6} Pursuant to App.R. 12(A)(2), we are not required to address issues which
are not argued separately as assignments of error, as required by App.R. 16(A). Kremer
v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (1996); Hawley v. Ritley, 35 Ohio St.3d
157, 159, 519 N.E.2d 390 (1988). We understand Appellant has filed this appeal pro se.
Nevertheless, “like members of the bar, pro se litigants are required to comply with rules
of practice and procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. Franklin No.
06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. Trumbull No. 2007-
T-0022, 2008-Ohio-2128, ¶ 11. Although “an appellate court will ordinarily indulge a pro
se litigant where there is some semblance of compliance with the appellate rules,” Oyler
v. Oyler, 5th Dist. Stark App. No. 2014CA00015, 2014-Ohio-3468, ¶¶ 18-19, we find
Appellant's noncompliance with the appellate rules is significant and her brief lacks any
cogent argument. “[F]airness and justice are best served when a court disposes of a case
on the merits”, however, we find this brief reflects a substantial disregard for the court
rules which cannot be cured. DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 193, 431
N.E.2d 644 (1982). We “may not construct legal arguments in support of an appellant's
appeal.” Whitehall v. Ruckman, 10th Dist. Franklin No. 07AP-445, 2007-Ohio-6780, ¶ 20,
quoting State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, ¶ 94 (10th
Dist.), appeal not allowed, 110 Ohio St.3d 1439, 2006-Ohio-3862, reconsideration denied,
111 Ohio St.3d 1418, 2006–Ohio–5083.
Perry County, Case No. 21-CA-00005 5
{¶7} Because we find Appellant's brief in derogation of App.R. 16, we dismiss
her appeal for want of prosecution pursuant to App.R. 18(C) and Loc.App.R. 5(B).
{¶8} Appellant's appeal is dismissed.
By: Hoffman, J.
Baldwin, P.J. and
Wise, Earle, J. concur