Whittington v. Hill

[Cite as Whittington v. Hill, 2023-Ohio-835.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
RICHARD WHITTINGTON : Hon. John W. Wise, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellant : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 22CA0104
ELIZABETH HILL, et al. :
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Licking County
Municipal Court, Case No. 22CVE01222
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: March 16, 2023
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee Kenna Hill
Richard Whittington Kenna Hill
245 Eddy Street, Apt. D 659 East Main Street
Newark, Ohio 43055 Newark, Ohio 43055
Licking County, Case No. 22CA0104 2
Wise, P.J.
{¶1} Plaintiff-Appellant Richard Whittington appeals the October 17, 2022,
decision of the Licking County Municipal Court finding in favor of Defendants-Appellees
Elizabeth Hill and Kenna Hill following a bench trial.
{¶2} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App.R. 11.1. It shall
be sufficient compliance with App.R. 12(A) for the statement of the reason
for the court's decision as to each error to be in brief and conclusionary form
The decision may be by judgment entry in which case it will not be
published in any form.
{¶3} This appeal shall be considered in accordance with the aforementioned
rule.
STATEMENT OF THE FACTS AND CASE
{¶4} On July 5, 2022, Appellant Richard Whittington filed an action for money
damages on a tort claim in the Licking County Municipal Court naming Kenna Hill and
Elizabeth Hill as defendants. Appellant alleged that Kenna Hill was the driver of a vehicle
which caused an automobile accident which resulted in injuries to Appellant. Elizabeth
Hill is the owner of the vehicle driven by Kenna Hill.
{¶5} On September 19, 2022, the matter proceeded to trial. Present at the trial
were Richard Whittington and Elizabeth Hill. The testimony presented at trial indicated
Licking County, Case No. 22CA0104 3
that there was an automobile accident and that as a result of the accident Appellant and
his ex-wife Eudora suffered physical injuries.
{¶6} Appellant testified that on the day of the accident, his ex-wife Eudora was
driving a car which was involved in an accident with a car owned by Elizabeth Hill and
being driven by Kenna Hill. Appellant testified that he was following Eudora in a U-Haul
truck. Appellant testified that his injuries occurred when he fell out of the U-Haul truck
because he was panicking when he exited the truck after the accident. (T. at 4-6, 9-10).
{¶7} Appellant testified that the U-Haul truck was not involved in the accident. (T.
a 6). He further testified that the car being driven by Eudora Whittington had not yet been
titled in his name, and that his insurance company paid the car dealership and the car
was also returned to the dealership. (T. at 7).
{¶8} Elizabeth Hill testified that she is the owner of the vehicle involved in the
accident, and that on the day in question her brother Jason Burchard was driving the
vehicle. (T. at 20-21).
{¶9} At the conclusion of the trial the court took the matter under advisement.
{¶10} By Judgment Entry filed October 17, 2022, the trial court found in favor of
Appellee, finding that Appellant failed to prove that Appellee was negligent with regard to
the automobile accident and further failed to prove that the accident was the proximate
cause of his injuries.
{¶11} Appellant now appeals.
Analysis
{¶12} We begin by noting Appellant has failed to comply with App. R. 16 and Local
App.R. 9.
Licking County, Case No. 22CA0104 4
{¶13} App.R. 16(A) provides: The appellant shall include in its brief, under the
headings and in the order indicated, all of the following:
(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 the facts relevant to the assignments of error
presented for review, with appropriate references to the record * * *
(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.
{¶14} Appellant has the burden of demonstrating an error on appeal. See, App.R.
16(A)(7). “It is the duty of the appellant, not this court, to demonstrate his assigned error
through an argument that is supported by citations to legal authority and facts in the
record.” State v. Untied, 5th Dist. Muskingum No. CT2006-0005, 2007-Ohio-1804, ¶141,
Licking County, Case No. 22CA0104 5
quoting State v. Taylor, 9th Dist. Medina No. 2783-M, 1999 WL 61619 (Feb. 9, 1999).
See, also, App.R. 16(A)(7).
{¶15} Appellant's brief does not satisfy the requirements of App.R. 16 and Local
R. 9 in any of the above respects, not the least of which it does not present this Court with
a stated assignment of error. Such deficiency is tantamount to the failure to file a brief.
{¶16} Pursuant to App.R. 18(C)1 we hereby dismiss this appeal for failure to file a
brief.
By Wise, P.J.
Delaney, J., and
Baldwin, J., concur.
JWW/kw 0314
1
(C) Consequence of Failure to File Briefs. If an appellant fails to file the
appellant's brief within the time provided by this rule, or within the time as extended, the
court may dismiss the appeal.