[Cite as Thrower v. Bolden, 2012-Ohio-3956.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97813
ALBERT THROWER
PLAINTIFF-APPELLANT
vs.
REGINA MARIE BOLDEN, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-738098
BEFORE: Boyle, P.J., Sweeney, J., and Jones, J.
RELEASED AND JOURNALIZED: August 30, 2012
FOR APPELLANT
Albert D. Thrower, pro se
1312 West 89th Street
Cleveland, Ohio 44102
ATTORNEYS FOR APPELLEES
For Regina Marie Bolden
Lynn Sheftel
Alan I. Goodman
55 Public Square
Suite 1300
Cleveland, Ohio 44113
For Charter One
Nathalie A. Dibo
Karen L. Giffen
Melissa A. Laubenthal
Giffen & Kaminski, LLC
1300 East Ninth Street
Suite 1600
Cleveland, Ohio 44114
For Jennie Chiccola
Edward D. Hayman
28499 Orange Meadow Lane
Orange Village, Ohio 44022
MARY J. BOYLE, P.J.:
{¶1} Plaintiff-appellant, Albert Thrower, appeals the trial court’s order
confirming an arbitration award in favor of defendants-appellees, Regina Marie Bolden,
Gramar Realty, Margaret Bedingfield, Jennie Chiccola, and Jennie Chiccola Realty, Inc.
He also appeals the trial court’s judgment granting summary judgment in favor of
defendant-appellee, Charter One Bank. After a thorough review of the briefs and
record, we affirm.
Procedural History and Facts
{¶2} Thrower initially filed the underlying lawsuit in 2009, but the case was
dismissed without prejudice for his failure to prosecute. He refiled the action on
October 1, 2010, and ultimately filed his second amended complaint on April 4, 2011.
{¶3} According to Thrower’s second amended complaint, he hired Bolden, a
real estate agent, in July of 2003 to sell a property located on Denison Avenue in
Cleveland. At that time, Bolden allegedly worked for Jennie Chiccola Realty, Inc.
Bolden allegedly never sold the property but obtained access to a Charter One Bank
account belonging to Thrower under the name of “Thrower dba National Homeowner
Services.” Thrower alleged that Bolden withdrew approximately $9,000 from the
account from August 2003 until April 2005 by using a “falsified” power of attorney.
{¶4} Thrower filed suit, among others, against Bolden, Charter One, and
Bolden’s alleged former and current realtor employers, alleging that the defendants were
“jointly and severally” liable on claims for “theft of funds, negligence, fraud, breach of
contract, conversion, and unjust enrichment.”
{¶5} Bolden admitted to using a power of attorney to withdraw from the account
but maintained that the withdrawals were done at the direction of Thrower. According
to Bolden, she dispersed the money in the account to several third parties on Thrower’s
behalf.
{¶6} Charter One subsequently moved for summary judgment on September 26,
2011, arguing that Thrower’s claims regarding the checks drawn on the account were
time-barred and that he cannot establish a breach of duty by Charter One as a matter of
law. Specifically, Charter One argued that it had no duty to investigate the actions of a
holder of a valid power of attorney. Charter One further argued that the power of
attorney presented by Bolden was facially valid, containing a notarial seal. Charter One
attached copies of Thrower’s account statements and a copy of the power of attorney that
was on file relating to the account.
{¶7} Thrower failed to timely oppose Charter One’s motion for summary
judgment. On November 10, 2011, the trial court granted Charter One’s motion. On
November 18, 2011, Thrower filed a motion for reconsideration of the trial court’s order
granting summary judgment in favor of Charter One, urging the court to reconsider in
light of the response filed by Thrower on November 10, 2011. In his response motion,
Thrower attached several documents, which were not self-authenticating or supported by
affidavit. The trial court denied the motion for reconsideration on December 2, 2011.
{¶8} On December 7, 2011, the trial court subsequently ordered that the case be
referred to Cuyahoga County Common Pleas Court arbitration on claims involving the
remaining parties. Two days later, the arbitration panel issued its report and award,
finding that “plaintiff, as to all defendants, did not prove his case.” Thrower failed to
timely appeal the award within the common pleas court; instead, he filed a premature
notice of appeal with this court on January 6, 2012. On January 11, 2012, the trial court
adopted the judgment of the arbitration panel, thereby entering a final judgment. 1
Under App.R. 4(C), Thrower’s premature notice of appeal was treated as being filed on
January 11, 2012.
{¶9} Thrower raises six assignments of error, which we will address in turn and
together where appropriate.
Referral to Arbitration
We note that the trial court’s order confirming the arbitration judgment was clarified upon
1
remand from this court to reflect that judgment was rendered in favor of all the defendants subject to
the arbitration. The trial court’s initial order erroneously stated defendant as opposed to defendants.
{¶10} In his first assignment of error, Thrower argues that the trial court erred in
referring the case to the court’s arbitration department and denying him the right to a jury
trial. We find that his argument lacks merit.
{¶11} Rule 15(A) of the Rules of Superintendence for the courts of Ohio
expressly permits courts to adopt a plan for mandatory arbitration of civil cases. Loc.R.
29 of the Court of Common Pleas of Cuyahoga County, General Division, governs
arbitration, and pursuant to this rule, the trial court has the authority to refer a civil case
to arbitration. It is well settled that Loc.R. 29 is constitutional and consistent with
Sup.R. 15. See Kuenzer v. Teamsters Union Local 507, 66 Ohio St.2d 201, 420 N.E.2d
1009 (1981); Cavalry Invs., LLC v. Dzilinski, 8th Dist. No. 88769, 2007-Ohio-3767.
{¶12} Further, Loc.R. 29 does not infringe on a litigant’s right to a jury trial.
The rule expressly provides a mechanism for a litigant to appeal the arbitration award
and provides that “[a]ll cases which have been duly appealed shall be tried de novo.”
Loc.R. 29, Part VII(A) and (C). Here, Thrower simply failed to abide by the procedure
for appealing the arbitration award. By failing to comply with Loc.R. 29 and properly
appeal the arbitration award, Thrower effectively waived his right to a jury trial. See
Kicen v. Proficient Indus., Inc., 8th Dist. No. 53159, 1988 Ohio App. LEXIS 1714 (May
5, 1988).
{¶13} The first assignment of error is overruled.
Arbitration Award
{¶14} In his second and fourth assignments of error, Thrower appears to be
challenging the underlying arbitration award. He argues that there was insufficient
evidence to support an award in favor of the defendants and that, conversely, the
evidence overwhelmingly supported a verdict in his favor. In his sixth assignment of
error, although not entirely clear, he seems to challenge an evidentiary ruling of the
arbitration panel. But as discussed above, Thrower failed to comply with Loc.R. 29 and
properly appeal the arbitration award as set forth in the rule, namely, by filing a notice of
appeal in the office of the ADR administrator acting for the clerk of courts. In the
absence of a valid appeal filed pursuant to Loc.R. 29, Part VII (A)(1), the trial court was
required to enter judgment on the award. Specifically, Loc.R. 29 provides the
following:
Part VI: REPORT AND AWARD
***
(B) Legal Effect of Report and Award; Entry of Judgment. The report
and award, unless appealed, shall be final and shall have the attributes and
legal effect of a verdict. If no appeal is taken within the time and in the
manner specified, the Court shall enter judgment. * * *
{¶15} As this court has previously recognized, a litigant’s failure to strictly
comply with the procedure for appealing an arbitration award precludes a later attack of
the underlying award to this court. See Kicen, 8th Dist. No. 53159, 1988 Ohio App.
LEXIS 1714 (overruling all of appellant’s assignments of error related to arbitration
award because “appellant failed to comply with the mandatory provisions of Local Rule
29, by which the trial court would have granted a trial de novo”).
{¶16} And while we recognize that Thrower represented himself in the
proceedings below pro se, his decision to prosecute his claims without legal counsel does
not shield him from the consequences of his mistakes. Under Ohio law, pro se litigants
are held to the same standard as all other litigants: they must comply with the rules of
procedure and must accept the consequences of their own mistakes. Kilroy v. B.H.
Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist.1996).
{¶17} The second, fourth, and sixth assignments of error are overruled.
Summary Judgment and Motion for Reconsideration
{¶18} In his third assignment of error, Thrower argues that the trial court erred in
granting summary judgment in favor of Charter One and that it further erred in denying
his motion for reconsideration of the summary judgment ruling. We disagree.
A. Summary Judgment
{¶19} We review an appeal from summary judgment under a de novo standard.
Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). Accordingly,
we afford no deference to the trial court’s decision and independently review the record
to determine whether summary judgment is appropriate. N.E. Ohio Apt. Assn. v.
Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th
Dist.1997).
{¶20} Civ.R. 56(C) provides that before summary judgment may be granted, a
court must determine that
(1) no genuine issue as to any material fact remains to be litigated, (2) the
moving party is entitled to judgment as a matter of law, and (3) it appears
from the evidence that reasonable minds can come to but one conclusion,
and viewing the evidence most strongly in favor of the nonmoving party,
that conclusion is adverse to the nonmoving party.
State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 1996-
Ohio-326, 672 N.E.2d 654.
{¶21} The moving party carries an initial burden of setting forth specific facts that
demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio
St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264. If the movant fails to meet this
burden, summary judgment is not appropriate, but if the movant does meet this burden,
summary judgment will be appropriate only if the nonmovant fails to establish the
existence of a genuine issue of material fact. Id. at 293.
{¶22} Here, we find that the trial court properly granted Charter One’s motion for
summary judgment. Aside from the fact that Thrower never timely opposed the motion,
the record reveals that Charter One was entitled to judgment as a matter of law. The
gravamen of Thrower’s allegations against Charter One is that (1) they fraudulently and
negligently honored checks against his account between 2003 and 2005 pursuant to an
invalid power of attorney, and (2) they negligently allowed cash to be withdrawn on the
account under the same invalid power of attorney.
{¶23} Thrower’s claims regarding the checks are time-barred. His claim that the
checks were not properly payable fall within the Uniform Commercial Code, namely,
R.C. 1304.30. Such claims are subject to a three-year statute of limitations. See R.C.
1304.09. Here, the three-year statute of limitations began to accrue upon negotiation of
the checks, i.e., in 2003 and 2005. Thus, the statute of limitations would have expired
in 2008 at the latest — well before his 2009 filing of the lawsuit. Contrary to
Thrower’s assertion, the “discovery rule” does not apply to R.C. 1304.30 claims. See
Mattlin Holdings, L.L.C. v. First City Bank, 189 Ohio App.3d 213, 218,
2010-Ohio-3700, 937 N.E.2d 1087 (10th Dist.).
{¶24} With respect to the claims regarding the cash withdrawals, Charter One
established in its motion for summary judgment that it did not breach any duty owed to
Thrower. The record reveals that Charter One has a power of attorney on file
authorizing Bolden to withdraw funds from Thrower’s account. To the extent that
Thrower implied Charter One owed a duty to investigate the actions of Bolden, Ohio law
imposes no such requirement. See Uma Gupta, M.D. v. Lincoln Natl. Life Ins. Co., 10th
Dist. No. 05AP-378, 2005-Ohio-6473 (“the law does not set forth that the conduct of a
third-party is actionable when the conduct was undertaken upon reliance of a valid
power of attorney”).
{¶25} To the extent that the other claims that were listed in Thrower’s second
amended complaint applied to Charter One, i.e., fraud, civil conspiracy, theft of funds,
breach of contract, conversion, and unjust enrichment, Charter One moved for summary
judgment on the grounds that Thrower failed to produce any proof to support such
claims, let alone allege sufficient facts. Our review agrees with the trial court that
Charter One was entitled to judgment as a matter of law on these claims. Indeed,
Thrower failed to even comply with Civ.R. 8 pleading requirements with respect to these
claims. Nor did he meet his burden to rebut Charter One’s motion for summary
judgment. Accordingly, we find that the trial court did not err in granting Charter
One’s motion for summary judgment.
B. Motion for Reconsideration
{¶26} In regard to the Thrower’s motion for reconsideration of the grant of
summary judgment, we apply a de novo standard of review. Dunn v. N. Star Resources,
Inc., 8th Dist. No. 79455, 2002-Ohio-4570, ¶ 10. Thus, we “afford no deference to the
trial court’s decision and independently review the record in the light most favorable to
the non-movant to determine whether summary judgment is appropriate.” Id. See
also Thayer v. Diver, 6th Dist. No. L-07-1415, 2009-Ohio-2053, ¶ 26. In light of our
analysis above, we find that the trial court did not err when it denied Thrower’s motion
for reconsideration. And although Thrower attempted to rebut Charter One’s motion by
his untimely response, the documents attached to the response did not comply with
Civ.R. 56(C).
{¶27} The third assignment of error is overruled.
Video Record the Arbitration Proceedings
{¶28} In his fifth assignment of error, Thrower argues that he was denied due
process by the trial court’s denial of his “motion to allow cameras in the courtroom
and/or arbitration panel.” He argues that he was denied the right to video record the
proceedings. We find that his argument lacks merit. Under Loc.R. 29, Part V(F),
Thrower had the right to record the proceedings by arranging for a court reporter. He
simply failed to do so.
{¶29} The fifth assignment of error is overruled.
{¶30} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
LARRY A. JONES, SR., J., CONCUR