Beckett v. Wisniewski

[Cite as Beckett v. Wisniewski, 2009-Ohio-6158.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
JENNIFER BECKETT, DBA,
LEGAL NURSE STRATEGIES, LLC,
PLAINTIFF-APPELLEE, CASE NO. 5-09-17
v.
MARSHALL D. WISNIEWSKI, OPINION
DEFENDANT-APPELLANT.
Appeal from Findlay Municipal Court
Trial Court No. 09-CV-100489
Judgment Affirmed
Date of Decision: November 23, 2009
APPEARANCES:
Marshall D. Wisniewski, Appellant
Dawn T. Christen for Appellee
Case No. 5-09-17
WILLAMOWSKI, J.,
{¶1} Although this appeal has been placed on the accelerated calendar,
this court elects to issue a full opinion pursuant to Loc.R. 12(5).
{¶2} Defendant-Appellant, Marshall D. Wisniewski (“Appellant”),
appeals the judgment of the Municipal Court of Findlay, Small Claims Division,
finding in favor of Plaintiff-Appellee, Jennifer Beckett, dba Legal Nurse
Strategies, LLC (“Appellee”), and ordering payment for professional services
rendered. Appellant claims that the trial court abused its discretion when it denied
his motion to have the cause removed to the general division of the court. For the
reasons set forth below, the judgment is affirmed.
{¶3} Ms. Beckett is a registered nurse and the owner of Legal Nurse
Strategies, LLC, a consulting firm that specializes in assisting attorneys with
medical, nursing and health related issues. On February 27, 2009, Appellee, pro
se, filed a complaint in the small claims division against Appellant, claiming that
he owed $950 on an account for work that Appellee had performed for him in
2008. Appellant was served on March 2, 2009, and a hearing was set for April 7,
2009. Appellant, an attorney who is representing himself in this matter, did not
file an answer to the complaint nor did he file a Civ.R. 12(B) motion alleging lack
of jurisdiction or improper venue.
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{¶4} On April 2, Appellant filed a Motion for Removal to the general
division of the court, along with an affidavit verifying that the matters set forth in
the motion were true and accurate. Appellant requested a transfer to the general
division, pursuant to R.C. 1925.10(B) stating only that he had “good and valid
defenses” to the action. Appellant denied he entered into an agreement as alleged
by Appellee and claimed that the court lacked “territorial jurisdiction” over the
claim.
{¶5} On April 3, 2009,1 the trial court overruled Appellant’s motion
setting forth the following rationale.
This case involves a small monetary claim and simple legal
issues. This is the kind of claim that should be resolved in the
small claims court. The small claims magistrate can
competently address these issues, including jurisdiction issues,
quickly and at minimal expense.
{¶6} The hearing was held as scheduled on April 7, 2009. Appellant
failed to appear and the magistrate rendered a decision in favor of Appellee in the
amount of $950, plus 5% interest and costs. Appellant did not file any objections
to the Magistrate’s Decision and the trial court entered a judgment pursuant to the
magistrate’s recommendations on April 23, 2009.
{¶7} On May 11, 2009,2 Appellant filed a Civ.R. 60(B) Motion for Relief
1
Appellant states that the Certificate of Service stated that decision was placed in the mail on Friday, April
3, 2009, but he claims that he did not receive it until after the hearing.
2
Appellant claims that his motion was mailed on April 27, 2009, but was not time-stamped until May 11th.
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from Judgment, arguing that the judgment was void ab initio because the trial
court lacked subject matter, territorial, and personal jurisdiction; and, the denial of
his motion to remove was an abuse of discretion. Appellee filed a response and
Appellant filed a Motion to Strike her response and supporting affidavit, arguing
that such constituted the unlicensed and unauthorized practice of law.
{¶8} On May 14, 2009, the trial court issued a judgment entry noting that
“the defendant did not file a motion to dismiss for lack of jurisdiction, but only
asserted this as a potential defense.” The trial court further suggested that “any
error was invited by the defendant by failing to assert his defenses at the small
claims hearing and failing to object to the magistrate’s decision.” However, “in
the interests of justice,” the trial court allowed a hearing on the motion to vacate,
which was scheduled for June 15, 2009.
{¶9} Because the time for appeal would have run prior to the hearing,
Appellant filed his Notice of Appeal on May 26, 2009. The trial court
subsequently overruled the Motion to Vacate because the notice of appeal
removed the matter from the trial court’s jurisdiction. Appellant raises the
following two assignments of error for our review.3
3
Appellee asserts that this Court does not have jurisdiction to decide this appeal due to Appellant’s failure
to submit his brief within the required time frame. Appellant was required to file his brief on or before July
6, 2009. He filed a motion for extension of time, and this Court granted an extension until July 27, 2009.
Appellee argues that the appeal should be dismissed because Appellant’s brief was time-stamped as being
filed on July 31, 2009. We note, however, that the brief was mailed and postmarked on July 29, 2009.
Pursuant to App.R. 13(A), briefs are deemed filed on the day of mailing. Although this was still two days
late, in the interests of justice we will ratify the late filing and determine the case on its merits.
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Case No. 5-09-17
First Assignment of Error
The trial court abused its discretion when, despite his
compliance with Section 1925.10(B) Revised Code, it denied
Appellant’s Motion for Removal of this small claims complaint
to the regular division of its docket.
Second Assignment of Error
The trial court’s denial of Appellant’s Section 1925.10(B)
Revised Code Motion for removal to the general division of
Findlay Municipal Court was a violation of his right to a jury
trial under Section 5, Article I, of the Ohio Constitution.
{¶10} Both of Appellant’s assignments of error contend that the trial court
erred by not granting his motion to remove the case to the general division of the
Findlay Municipal Court. Small claims courts are established under R.C. 1925 et
seq. and have limited civil jurisdiction, primarily for the recovery of money and
taxes in amounts not exceeding three thousand dollars. See R.C. 1925.02(A)(1).
The basic statutory purpose of small claims court is to provide a “simple,
inexpensive and just way for individuals to resolve small financial disputes with a
minimum of legal technicalities.” (Citations omitted.) Miller v. McStay, 9th Dist.
No. 23369, 2007-Ohio-369, ¶12. Attorneys may appear, but are not required to
appear, on behalf of any party in small claims matters. R.C. 1925.01(D). There is
no jury in small claims court. R.C. 1925.04(A). “The goal of small claims court is
*** to provide fast and fair adjudication as an alternative to the traditional judicial
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proceedings.” Cleveland Bar Assn. v. Pearlman, 106 Ohio St.3d 136, 832 N.E.2d
1193, 2005-Ohio-4107, ¶15.
{¶11} If the amount in controversy before the small claims court exceeds
three thousand dollars, R.C. 1925.10(A) provides that the matter shall be
transferred to the regular docket of the court upon the motion of the court. If a
party wishes to transfer a case from the small claims division for other reasons,
R.C. 1925.10(B) sets forth the procedure for transfer upon the motion of a party:
In the discretion of the court, a case duly entered on the docket
of the small claims division may be transferred to the regular
docket of the court upon the motion of a party against whom a
claim, counterclaim, or cross-claim is instituted or upon the
motion of a third-party defendant. A motion filed under this
division shall be accompanied by an affidavit stating that a good
defense to the claim exists, setting forth the grounds of the
defense, and setting forth the compliance of the party or third-
party defendant with any terms fixed by the court. The failure
to file a motion under this division to transfer a case to the
regular docket of the court constitutes a waiver by the party or
third-party defendant of any right to a trial by jury.
A transfer under R.C. 1925.10(B) is left to the discretion of the trial court. Id. To
demonstrate an abuse of discretion warranting a reversal on appeal, an appellant
must establish the trial court committed more than an error of law or judgment and
that its decision was unreasonable, arbitrary or unconscionable. See Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶12} In his first assignment of error, Appellant claims that the trial court
abused its discretion when it denied his motion to transfer this matter to the
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general division. In his motion to transfer, Appellant stated that “he has good and
valid defenses”4 to the action and that the court lacked territorial jurisdiction over
the claim. On appeal, however, Appellant makes the argument that the trial court
should have recognized the problems that were “inherent in the case” and allowed
the transfer. Appellant argues that because Ms. Beckett was appearing pro se on
behalf of her limited liability corporation, any advocacy or fact finding based upon
the presentation of evidence would have constituted the unauthorized practice of
law.
{¶13} Under Ohio law, a corporation can maintain litigation or appear in
court only through an attorney and may not do so through an officer of the
corporation or any other appointed agent. Union Savings Assn. v. Home Owners
Aid (1970), 23 Ohio St.2d 60, 262 N.E.2d 558. However, an exception to this rule
is provided in R.C. 1925.17 which allows a corporation, through an officer or
employee, to file and present a claim or defense in any action in a small claims
court division arising from a claim based on a contract to which the corporation is
a party. Groll Furniture Co. v. Epps, 3d Dist. No. 9-90-13, 2009-Ohio-3533, ¶19.
{¶14} The Ohio Supreme Court recently discussed this matter, stating that
“by design, proceedings in small claims courts are informal and geared to allowing
4
We note that R.C. 1925.10(B) requires an affidavit stating that a good defense to the claim exists “setting
forth the grounds of the defense.” Appellant provided a statement that a good defense to the claim exists
with a minimal statement setting forth the two grounds of the defense, neither of which form any basis of
this appeal.
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individuals to resolve uncomplicated disputes quickly and inexpensively. Pro se
activity is assumed and encouraged.” The Cleveland Bar Assoc. v. Pearlman,
supra, 2007-Ohio-4107, at ¶15. As to the role of a non-attorney appearing on
behalf of a corporation in the small claims division, the Ohio Supreme Court
further stated that “corporations may use small claims courts as individuals may,
i.e., without attorneys, so long as their representatives do not otherwise act as
advocates.” Id. at ¶24. The Court further explained:
In small claims cases, where no special legal skill is needed, and
where proceedings are factual, nonadversarial, and expected to
move quickly, attorneys are not necessary. We decline to
require corporations to hire attorneys to represent them in small
claims courts.
In summary, we hold that a layperson who presents a claim or
defense and appears in small claims court on behalf of a limited
liability company as a company officer does not engage in the
unauthorized practice of law, provided that the layperson does
not engage in cross-examination, argument, or other acts of
advocacy.
Id. at ¶¶26-27. See, also, Groll Furniture Co., supra, 2009-Ohio-3553, at ¶19.
{¶15} Appellant argues that the trial court should have foreseen or guessed
that Appellee would advocate on behalf of her corporation by the pleadings in the
matter. This argument is purely speculative and also suggests that the trial court
could not control the manner of testimony and presentation of evidence. Ohio
courts recognize that a small claims court is a “layman’s forum” and it is the
responsibility of the trial court “to control the manner in which testimony is
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elicited.” Mechler v. Ryan, 7th Dist. No. 05 BE 40, 2006-Ohio-4609, ¶29. The
trial court was aware of the issues that would be before it, and even specifically
stated in its judgment entry that “[t]he small claims magistrate can competently
address these issues.” Moreover, even if there would have been some valid need
for Appellee to retain an attorney, that could have still been accomplished at the
small claims court level without any need for removal to the general division. The
Ohio Supreme Court has specifically ruled that a layman may represent a
corporation in small claims court, and therefore, we find no merit to Appellant’s
argument. See Cleveland Bar Assoc. v. Pearlman, supra.
{¶16} Although Appellant raised the issue of a lack of jurisdiction in his
motions before the trial court and briefly alluded to the jurisdictional issue on
appeal, he did not specify this issue as an assignment of error, nor did he provide
any arguments or support in his appellate brief. Appellate Rule 16 requires an
appellant's brief to contain a statement of the assignments of error set forth for
review and an argument with respect to each assignment of error. Where
arguments have not been adequately set forth for review, an appellate court is not
required to address them. App.R. 16(A)(7); App.R. 12(A)(2). Bellefontaine v.
Miller, 3d Dist. No. 8-08-32, 2009-Ohio-2818, ¶34. It is not appropriate for an
appellate court to construct the legal arguments in support of an appellant's appeal.
Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, ¶94. “If an argument exists
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that can support [an] assignment of error, it is not [an appellate] court's duty to
root it out.” Id., quoting Cardone v. Cardone, 9th Dist. No. 18349, 1998 WL
224934. Accordingly, as Appellant did not set forth this argument in an
assignment of error in his appellate brief, we need not address it. However, since
the issue involves jurisdiction, which an appellate court may raise sua sponte, we
will very briefly review the matter.
{¶17} Appellant cites Cheap Escape Co. Inc. v. Haddox, 106 Ohio St.3d
136, 832 N.E.2d 1193, 2005-Ohio-4107, for his rationale as to lack of jurisdiction.
We find the facts in Cheap Escape are entirely different than the facts before us in
this case. In Cheap Escape, the Ohio Supreme Court analyzed the language of
R.C. 1901.18(A) concerning the jurisdiction of municipal courts and found that it
“limits municipal court subject matter jurisdiction to actions or proceedings that
have a territorial connection to the court.” Id. at ¶22. In Cheap Escape, both
parties agreed that all of the relevant events occurred outside of Franklin County,
and the only connection to Franklin County was a forum-selection clause in the
contract. Id. Therefore, the Franklin County Municipal Court did not have
subject-matter jurisdiction because there was no territorial connection to the court.
Id.
{¶18} The facts in the case before us now more closely resemble those in
Groll Furniture Co. v. Epps, supra. In Groll Furniture Co., the municipal court
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had subject matter jurisdiction over the action because the parties had multiple
territorial connections to the county. Id., 2009-Ohio-3533, at ¶13. Likewise, in
this case, the record shows that there were numerous territorial connections within
the jurisdiction of the trial court, including but not limited to: Appellee’s business
operated in the county, the research and work for Appellant was performed in the
county, and Appellant contacted Appellee and discussed the work in the county.
Furthermore, Appellant did not petition the court and ask that the case be removed
to another jurisdiction; he only asked that it be removed from the small claims
division to the general division of the Findlay Municipal Court. The territorial
jurisdiction and venue of a small claims division are concurrent with that of the
respective municipal court in ordinary civil actions, so Appellant’s request for
removal to the general division is inconsistent with his assertion that the court
lacked jurisdiction. See R.C. 1925.02(A)(3).
{¶19} The trial court did not abuse its discretion when it denied
Appellant’s motion to remove the case to the general division of the Findlay
Municipal Court. Appellant’s first assignment of error is overruled.
{¶20} In his second assignment of error, Appellant claims that he was
denied his constitutional right to a jury trial because the small claims division does
not provide for jury trials and the trial court denied his motion for removal to the
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general division. Appellant cites Dockery v. Dr. Bo Auto Clinic, 6th Dist. No. S-
00-045, 2001 WL 868664, claiming that the case is dispositive of the argument.
{¶21} Dockery involved a case in which the plaintiff filed a complaint in
small claims court seeking $1,749 from an auto repair clinic for unsatisfactory
auto repairs. The defendant filed a motion to transfer the case to the regular
docket of the municipal court along with a demand for a jury trial. The trial court
denied the transfer, and the defendant appealed. Id. The Sixth District Court of
Appeals reversed the decision, finding that the trial court did not have the
discretion to encroach upon the defendant’s fundamental right to a trial by jury by
denying the transfer. Id.{¶22} Although Appellant states that Dockery is “directly on point,” we
find that there is a major distinguishing fact which differentiates the case from
Appellant’s claim. In Dockery, the defendant filed his motion to transfer along
with a demand for a jury trial. In the present case, Appellant did not include any
request for a jury trial in his reasons for removal. There was no way that the trial
court could have surmised that the purpose of the motion for transfer was to obtain
a jury trial which was not requested. Based upon all of the information that
Appellant provided to the trial court as his rationale for the transfer, the trial
court’s decision was logical, proper, and not an abuse of discretion.
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{¶23} Not only did Appellant fail to place his request for a jury in his
motion for removal, he did not raise the issue at any time in the lower court, not
even in his Civ.R. 60(B) motion for relief from judgment. The first time that the
issue of a jury trial was mentioned was on appeal. It is well established in Ohio
law that, generally, an issue may not be raised for the first time on appeal. See,
e.g., Lillie v. Meachen, 3d Dist. No. 1-09-09, 2009-Ohio-4934, ¶20; Marysville
Newspapers, Inc. v. Delaware Gazette Co., Inc., 3d Dist. No. 14-06-34, 2007-
Ohio-4365, ¶23; Civ.R. 53. Appellant’s second assignment of error is overruled.
{¶24} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jlr
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