[Cite as Third Fed. S. & L. v. McCulloch, 2012-Ohio-1956.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97525
THIRD FEDERAL SAVINGS AND LOAN
PLAINTIFF-APPELLEE
vs.
CEDRIC MCCULLOCH, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-753811
BEFORE: Sweeney, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: May 3, 2012
FOR APPELLANTS
Cedric McCulloch, Pro Se
Laurie McColloch, Pro Se
2820 Lander Road
Pepper Pike, Ohio 44124
ATTORNEYS FOR APPELLEE
Benjamin N. Hoen, Esq.
Jennifer Monty Rieker, Esq.
Weltman, Weinberg & Reis
323 W. Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
FOR APPELLEE
RSMPART MMW, INC.
9112 Camp Bowie West, #405
Fort Worth, Texas 76116
JAMES J. SWEENEY, J.:
{¶1} Defendants-appellants, Cedric McCulloch (“McCulloch”) and Laurie
McCulloch (“Laurie”), appeal following the trial court’s orders that granted
plaintiff-appellee, Third Federal Savings and Loan’s (the “Bank”), motion for summary
judgment and that struck McCulloch’s counterclaim in this action for foreclosure on a
promissory note and mortgage. For the reasons that follow, we affirm.
{¶2} The Bank filed the complaint April 22, 2011. The record indicates that
service was perfected on McCulloch and Laurie. On May 18, 2011, McCulloch filed an
unconventional responsive pleading captioned “Re: Conditional acceptance for value for
proof of claim as to any fraud on the contract, or to an unconscionable contract or to
determine a meeting of the minds and/or full disclosure as to the mortgage contract
mortgage/account.” McCulloch then filed “an amended complaint” on May 31, 2011,
which contained the same or similar content as his May 18th response. On July 8, 2011,
McCulloch requested default pursuant to the federal rules of civil procedure against the
Bank. Laurie did not respond to the Bank’s complaint. On August 2, 2011, the Bank
moved for summary judgment against McCulloch and requested default judgment against
all other defendants.
{¶3} The court set the default judgment motion for hearing, which was attended
by the Bank and McCulloch. The court gave McCulloch an extension of time to respond
to the Bank’s motion for summary judgment. Following the hearing, the court granted the
Bank’s default judgment against all non-answering defendants. Thereafter, Laurie filed a
motion in opposition to the court’s entry of default judgment against her, which the trial
court denied. On September 28, 2011, McCulloch filed a motion in opposition to
summary judgment with a jury trial request, which the trial court denied. The same day,
McCulloch and Laurie filed a document captioned as a “counterclaim,” which the court
struck because it was filed without leave. The trial court granted the Bank’s motion for
summary judgment.
{¶4} On October 13, 2011, the magistrate’s decision was filed awarding
judgment to the Bank on its claims. Defendants did not file any objections to the
magistrate’s decision that was adopted by the trial court on November 4, 2011.
{¶5} McCulloch and Laurie filed a notice of appeal on November 7, 2011 where
they allege three errors relating to (1) the court’s order that struck McCulloch’s
counterclaim; (2) the magistrate’s decision; and (3) the trial court’s summary judgment
order.
{¶6} The appellant’s brief does not comply with App.R. 16 and could be
disregarded pursuant to App.R. 12(A)(2) for that reason. The lead brief sets forth no
argument and contains different assignments of error than appellant’s reply brief. The
reply brief very generally argues that the trial court erred by granting summary judgment
to the Bank and asserts a denial of due process premised upon alleged violations of “Title
42 1983, 1985 and 1986.” The confusion is compounded by the Bank’s reply brief which
does not appear to correlate to appellant’s brief.
{¶7} In the interest of justice, we have attempted to discern and address the
merits of the appeal. Appellant’s have raised an argument that the trial court erred by
granting judgment to the Bank and also take issue with the court’s order that struck the
counterclaim.
{¶8} Summary judgment is appropriate where it appears that: (1) there is no
genuine issue as to any material fact; (2) the moving party is entitled to judgment as a
matter of law; and (3) 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, who is entitled to have the evidence construed most strongly in his favor. Harless
v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978); Civ.R.
56(C).
{¶9} The burden is on the movant to show that no genuine issue of material fact
exists. Id. Conclusory assertions that the nonmovant has no evidence to prove its case are
insufficient; the movant must specifically point to evidence contained within the
pleadings, depositions, answers to interrogatories, written admissions, affidavits, etc.,
which affirmatively demonstrate that the nonmovant has no evidence to support his
claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996); Civ.R. 56(C).
Unless the nonmovant then sets forth specific facts showing there is a genuine issue of
material fact for trial, summary judgment will be granted to the movant.
{¶10} An appellate court reviews a trial court’s grant of summary judgment de
novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
{¶11} In support of its motion for summary judgment, the Bank submitted
evidence of the note and mortgage and an affidavit averring that appellant was in default
as well as the amounts that were due and owing.
{¶12} In the appellate brief, appellants do not specifically address the Bank’s
claims, nor do they point us to any record evidence that would suggest there was a
genuine issue of material fact concerning them. Accordingly, appellant’s have not
demonstrated error with the trial court’s order.
{¶13} Further, appellant did not file any objections to the magistrate’s decision
that entered judgment in the Bank’s favor. The trial court adopted the magistrate’s
decision and the law provides that appellants have waived any error by failing to timely
object. O’Brien v. O’Brien, 167 Ohio App.3d 584, 2006-Ohio-1729, 856 N.E.2d 274 (8th
Dist.), citing State ex rel. Booher v. Honda of Am. Mfg., 88 Ohio St.3d 52,
2000-Ohio-269, 723 N.E.2d 571; see also, Civ.R. 53(D)(3)(b)(iv). This is an alternative
ground for overruling this appeal.
{¶14} Appellants also argue that the trial court erred by striking the
“counterclaim” filed in September 2011. We note that this document was similar in
substance to the response McCulloch filed in May 2011. The nature of the document is
difficult to discern. It contains a caption that casts it as a conditional offer, it also contains
an salutation to the attorney who signed the Bank’s complaint, and it also sets forth 55
“proofs of claim.” It does not appear to conform to Civ.R. 8 that requires a counterclaim
to contain a claim for relief, a short plain statement of the claim showing that the party is
entitled to relief and a demand for judgment. Even if it were construed as a
counterclaim, McCulloch did not designate this document as such until September 2011
and he never requested leave of court to file it as required by Civ.R. 13(F).
{¶15} Judgment affirmed.
It is ordered that appellee recover from appellants 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.
JAMES J. SWEENEY, JUDGE
MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
Third Fed. S. & L. v. McCulloch
Combined Opinion