Shamrock Restoration, L.L.C. v. Muncy

[Cite as Shamrock Restoration, L.L.C. v. Muncy, 2024-Ohio-1002.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

SHAMROCK RESTORATION, LLC, :
CASE NO. CA2023-07-056
Appellee, :
OPINION
: 3/18/2024
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:

RYAN M. MUNCY, :

Appellant. :

CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 21 CV 94617

Coolidge Wall Co., L.P.A., and David P. Pierce and Sarah J. Sparks, for appellee.

Ryan M. Muncy, pro se.

M. POWELL, J.

{¶ 1} Appellant, Ryan Muncy, appeals a decision of the Warren County Court of

Common Pleas granting summary judgment to appellee, Shamrock Restoration, LLC

("Shamrock").

{¶ 2} In February 2021, a leak occurred in a residential property in Mason,

Warren County, Ohio, causing water damages to the upstairs primary bathroom, the
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primary bedroom, and the downstairs kitchen. The property is owned by appellant and

occupied by his friend Tracy Otto ("Otto") and her son. Appellant submitted a claim to his

insurer, State Auto, and contacted Shamrock to obtain estimates for remediation and

restoration of the premises. State Auto approved Shamrock's estimates of $3,786.03 for

remediation and $7,313.54 for restoration. On March 9, 2021, appellant contracted with

Shamrock to remediate and restore the premises in accordance with the estimates.

Shamrock began work on March 12, 2021, and completed the remediation phase of the

work on March 16, 2021.

{¶ 3} Shamrock began the restoration phase of the work on March 22, 2021. On

March 25, 2021, Otto requested that work cease due to concerns she had about an

uneven ceiling texture in the kitchen. The parties discussed the matter and work

resumed. On March 29, 2021, Otto again suspended the work due to other concerns.

Work resumed a few days later. This on-and-off pattern of work due to concerns of Otto

and/or appellant continued for the next two weeks until April 14, 2021, when appellant

stopped all work on the project. At the time, the remaining work to be completed under

the contract involved finishing the primary bathroom, fixing the kitchen ceiling, and

installing carpet in the primary bedroom. Although Shamrock sought to complete the

work, appellant and Otto refused to allow Shamrock access to the premises.

{¶ 4} On April 15, 2021, Shamrock presented appellant with an invoice for work

performed under the contract, totaling $6,903.37. On April 20, 2021, appellant confirmed

that Shamrock would not be permitted back on the premises to complete the work;

consequently, Shamrock presented appellant with a "notice of breach of contract,"

demanding payment for the completed work. Appellant refused to pay Shamrock's

invoice.

{¶ 5} On August 19, 2021, Shamrock filed a complaint against appellant in the

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Mason Municipal Court, Small Claims Division, seeking damages of $6,000. On October

6, 2021, the day the matter was set for trial, appellant answered Shamrock's complaint,

filed a counterclaim seeking damages of $16,860.12, and moved to have the matter

transferred to the Butler County Court of Common Pleas. Because the amount sought

by appellant's counterclaim exceeded the municipal court's monetary jurisdiction, the

matter was transferred to the Warren County Court of Common Pleas, General Division.

Subsequently, Shamrock filed an amended complaint on September 2, 2022, alleging

breach of contract, action on account, and unjust enrichment, and seeking damages of

$6,903.37.

{¶ 6} On March 31, 2023, Shamrock moved for summary judgment on its claims

and appellant's counterclaim. The certificate of service attached to the summary

judgment motion states that the motion was served on appellant by electronic and/or

regular mail. On April 4, 2023, the trial court mailed a notice to all parties advising that

Shamrock's motion for summary judgment would be submitted to a magistrate for a non-

oral hearing on May 5, 2023. Attached to Shamrock's motion for summary judgment was

an affidavit of Robert O'Brien, Shamrock's owner; six exhibits accompanied the affidavit,

including the report of Richard Gaydosik, Shamrock's home restoration expert. Appellant

did not file a response to Shamrock's motion for summary judgment.

{¶ 7} On May 5, 2023, the magistrate granted Shamrock's motion for summary

judgment. Regarding Shamrock's claim for breach of contract, the magistrate found that

Shamrock set forth sufficient evidence that appellant contracted with Shamrock for

remediation and restoration of the premises, that Shamrock performed under the contract

until appellant prevented further performance, and that appellant then failed to pay

Shamrock for the work it had completed. Regarding appellant's counterclaim, the

magistrate found that there was no genuine issue of material fact that Shamrock had not

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completed the work in a workmanlike manner based upon Gaydosik's report. Upon

inspecting the property in December 2022, Gaydosik concluded that all work completed

by Shamrock was done in a workmanlike manner, except the drywall on the kitchen ceiling

which Shamrock was not afforded an opportunity to correct. The magistrate also rejected

appellant's claimed damages for "substantial depreciation" and "loss of use" of the

property as an incorrect measure of damages, noting that appellant did not have the

property repaired and presented insufficient evidence of the cost of repairing the deficient

work. The magistrate further ruled that appellant could not claim damages for the contract

work left unfinished as it was he who prevented Shamrock from completing the work.

{¶ 8} Appellant filed objections to the magistrate's decision on May 19, 2023. The

trial court issued an entry advising the parties that appellant's objections "shall be

submitted to the Court for review on June 9, 2023." Shamrock filed a memorandum

opposing appellant's objections. On June 7, 2023, the trial court overruled appellant's

objections and adopted the magistrate's May 5, 2023 decision. The trial court issued a

final judgment entry on June 21, 2023, granting summary judgment to Shamrock,

awarding Shamrock $6,903.37 in damages, pre- and post-judgment interest, and court

costs, and dismissing appellant's counterclaim with prejudice. Appellant represented

himself in the proceedings below.

{¶ 9} Appellant now appeals, pro se, raising 13 assignments of error. For ease

of discussion and readability, we will initially consider appellant's second, fourth, fifth, and

ninth assignments of error together; appellant's sixth and seventh assignments of error

will be considered together. For purposes of clarity, appellant's third and eleventh

assignments of error will be restated by this court.

{¶ 10} Assignment of Error No. 2:

{¶ 11} PURSUANT TO THE REQUIREMENTS OF RULE 16(A)(3), THIS APPEAL

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PRIMARILY COMES AS THE RESULT OF A DEFAULT JUDGMENT BECAUSE OF

LACK OF EFFECTIVE COMMUNICATION AND A DISPARITY IN THE APPELLANT

BEING ABLE TO ENJOY HIS EQUAL PROTECTION RIGHTS AND EQUAL ACCESS

TO COURTS.

{¶ 12} Assignment of Error No. 4:

{¶ 13} IN 2021, AT THE START OF THIS CASE, THE PRO SE APPELLANT

FILED A CROSS COMPLAINT AND COUNTER CLAIM THAT HAS BEEN IGNORED BY

THE APPELLEE AND THE COURT. AT NO TIME HAS THE APPELLEE RECOGNIZED

OR BEEN RESPONSIVE TO THE CROSS COMPLAINT AND COUNTER CLAIM AND

HAS PROSECUTED THIS ENTIRE ACTION IN THE CASE SIMPLY STYLED IN THE

SINGULAR AS SHAMROCK RESTORATION, LLC VS. RYAN M. MUNCY.1

{¶ 14} Assignment of Error No. 5:

{¶ 15} WITH ALL OF HIS RESPONSIVE PLEADINGS AND ANSWERS, THE

APPELLANT PROPERLY STYLED HIS DOCUMENTS TO REFLECT HIS COUNTER

CLAIM AND CROSS COMPLAINT AGAINST SHAMROCK RESTORATION LLC,

JAMES ABNER AND ROBERT O'BRIEN. THE APPELLANT PRO SE HAS ALSO FILED

NUMEROUS LEGIBLE PICTURES OF THE STRUCTURAL DEFECTS WHICH

UNDERPIN THE BASIS OF DISPUTE IN THIS MATTER.

{¶ 16} Assignment of Error No. 9:

{¶ 17} THE TRIAL COURT ENTERED NOT ONE, BUT TWO DISTINCT RULINGS

WHICH WERE A MISNOMER OF TIME LINES OF FILINGS MADE BY THE

1. Contrary to his assertions, appellant has never filed a complaint against Shamrock and there is no cross
complaint in this case. Appellant claims that Shamrock and the trial court ignored his counterclaim. The
record belies such assertion. After the case was transferred to the trial court, appellant filed an amended
counterclaim on February 2, 2022, which he incorrectly labeled as an amended complaint; Shamrock filed
an answer to the counterclaim on February 16, 2023; and the trial court dismissed the counterclaim with
prejudice on summary judgment on June 21, 2023.
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APPELLANT, STATING THAT DOCUMENTS WERE NOT FILED BEFORE THE

DEADLINES AND IN ANOTHER INSTANCE, A MAGISTRATE ENTERED A RULING

AGAINST THE APPELLANT SEVERAL DAYS BEFORE THE DEADLINE THAT WAS

SET BY THE TRIAL JUDGE THAT REQUIRED THE APPELLANT TO HAVE HIS

RESPONSIVE PLEADING IN ON JUNE 9TH, 2023.

{¶ 18} App.R. 16(A)(7) requires an appellate brief to include reasons in support of

an assignment of error with citations to authorities, statutes, and parts of the record relied

upon. If a party fails to identify the error in the record upon which the assignment is based

or argue an assignment as required by App.R. 16(A), an appellate court may disregard

the assignment of error. App.R. 12(A)(2). Appellant bears the burden of affirmatively

demonstrating error on appeal and substantiating his arguments in support thereof.

Ostigny v. Brubaker, 12th Dist. Warren No. CA2023-03-026, 2024-Ohio-384, ¶ 38. It is

not an appellate court's duty to "root out" or develop an argument that can support an

assigned error, even if one exists. Lebanon v. Ballinger, 12th Dist. Warren No. CA2014-

08-107, 2015-Ohio-3522, ¶ 27. Nor is it the duty of an appellate court to search the record

for evidence to support an appellant's argument as to alleged error. Hellmuth v.

Stephens, 12th Dist. Butler No. CA2022-04-034, 2023-Ohio-4592, ¶ 23.

{¶ 19} Appellant's argument under his second, fourth, fifth, and ninth assignments

of error simply consists of the conclusory statements recited above. Appellant does not

cite to the record, fails to cite any legal authority, and does not offer any analysis of the

assigned errors. Although appellant is proceeding pro se, a pro se appellant is held to

the same obligations and standards set forth in the appellate rules that apply to all

litigants. Bowles v. Singh, 12th Dist. Clermont No. CA99-10-094, 2000 Ohio App. LEXIS

3410, *5 (July 31, 2000). Appellant's second, fourth, fifth, and ninth assignments of error

are therefore overruled. To the extent the caption of the ninth assignment of error

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challenges the trial court's "premature" ruling on appellant's objections, such is addressed

under the first assignment of error.

{¶ 20} We now turn to appellant's remaining assignments of error. At issue is

whether the trial court properly granted summary judgment to Shamrock. An appellate

court reviews a trial court's decision to grant or deny summary judgment de novo, without

any deference to the trial court's judgment. Bravard v. Curran, 155 Ohio App.3d 713,

2004-Ohio-181, ¶ 9 (12th Dist.).

{¶ 21} Assignment of Error No. 1:

{¶ 22} ON 05/22/2023, HONORABLE JUDGE TIMOTHY N. TEPE ENTERED AN

ORDER STATING THAT THE APPELLANT'S "OBJECTIONS SHALL BE SUBMITTED

TO THE COURT FOR REVIEW ON JUNE 9, 2023."

{¶ 23} On May 19, 2023, appellant filed objections to the magistrate's decision

granting summary judgment to Shamrock. The trial court subsequently advised the

parties that appellant's objections would be submitted to the court for review on June 9,

2023. The trial court overruled appellant's objections on June 7, 2023, two days before

the June 9, 2023 submit date established by the court.2 On June 9, 2023, appellant filed

a "Responsive Pleading in Support of Motion to Vacate Default Order and Reset a

Scheduling Order for Trial by Jury." The phrase "Motion to Vacate Default Order"

apparently refers to appellant's May 19, 2023 objections to the magistrate's decision

granting summary judgment to Shamrock.

{¶ 24} Appellant argues that the trial court improperly ruled on his objections

before the June 9, 2023 submit date and in doing so, failed to consider his Responsive

2. Appellant incorrectly labels the June 7, 2023 order and entry overruling his objections as an "early order"
entered by the magistrate. It is not. The June 7, 2023 "Order and Entry Overruling Objections and Adopting
the Magistrate's May 5, 2023 Decision as if Fully Rewritten Herein" is an order issued and signed by the
trial court.
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Pleading. Appellant does not otherwise identify any error in the trial court's overruling of

his objections.

{¶ 25} While the better course of action would have been for the trial court to rule

on the objections on June 9, 2023, the submit date it had established, we find no error in

the trial court overruling appellant's objections on June 7, 2023. A trial court "may enter

a judgment either during the fourteen days permitted by Civ.R. 53(D)(3)(b)(i) for the filing

of objections to a magistrate's decision or after the fourteen days have expired." Civ.R.

53(D)(4)(e)(i). The only time constraints under Civ.R. 53 relate to the filing of objections

to a magistrate's decision: "A party may file written objections to a magistrate's decision

within fourteen days of the filing of the decision, whether or not the court has adopted the

decisions during that fourteen-day period as permitted by Civ.R. 53(0)(4)(e)(i)." Civ.R.

53(D)(3)(b)(i). "If any party timely files objections, any other party may also file objections

not later than ten days after the first objections are filed." Id.

{¶ 26} We likewise find no error in the trial court overruling appellant's objections

without considering his Responsive Pleading. A trial court is not required to take

additional evidence in support of objections to a magistrate's decision: "Before so ruling,

the court may hear additional evidence but may refuse to do so unless the objecting party

demonstrates that the party could not, with reasonable diligence, have produced that

evidence for consideration by the magistrate." Civ.R. 53(D)(4)(d). A review of appellant's

Responsive Pleading shows that it was mostly redundant of his objections and that it

sought to introduce evidence that was not before the magistrate on summary judgment.

If we construe appellant's Responsive Pleading as a reply in support of his objections,

neither the Ohio Civil Rules nor the trial court's local rules permit a party to file a reply in

support of the party's objections to a magistrate's decision. If we construe appellant's

Responsive Pleading as supplemental objections, "neither Civ.R. 53 nor statutory law

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permits a party to submit a memorandum supplementing timely objections to a

magistrate's decision, as of right, after the time for filing objections has passed" without

requesting leave of court to do so. Beasley v. Beasley, 4th Dist. Adams No. 06CA821,

2006-Ohio-5000, ¶ 13. Appellant filed his Responsive Pleading after the time for filing

objections had passed and without requesting leave of court to do so. The trial court's

entry advising the parties of the June 9, 2023 submit date neither required appellant nor

granted him leave to file his Responsive Pleading.

{¶ 27} Appellant's first assignment of error is overruled.

{¶ 28} Assignment of Error No. 3:

{¶ 29} THE TRIAL COURT ERRED BY FAILING TO PROPERLY DOCKET A

PLEADING RECEIVED FROM APPELLANT ON JUNE 16, 2023, THUS CAUSING AN

ADVERSE RULING TO APPELLANT.

{¶ 30} This assignment of error refers to appellant's "Motion for Relief From

Scheduling Order" which he claims was received by the clerk of courts on June 16, 2023

(based upon a certified mail return receipt appellant attached to his brief, reflecting receipt

on June 14, 2023), but not filed until June 19, 2023. Appellant claims this delay resulted

in the magistrate denying his motion as untimely.

{¶ 31} The trial court's docket does not reflect that such a motion was filed on June

19, 2023. Appellant's only filings around this time were his June 9, 2023 Responsive

Pleading in support of his objections to the magistrate's decision granting summary

judgment, and his July 5, 2023 Notice of Intention to Appeal.

{¶ 32} Appellant may be referring, instead, to a motion he filed in the spring of

2023. The docket shows that a scheduling order was journalized in March 2022 and an

amended scheduling order was journalized on November 28, 2022. Appellant filed a

motion for relief from the scheduling order on March 10, 2023, arguing he needed

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additional time because (1) he was unable to retain counsel; (2) he was unable to issue

discovery requests; (3) he was unable to fully participate in discovery because of the

distance he must drive to work; (4) he was unable to access the clerk's electronic filing

system; and (5) he had recently discovered new evidence to be included in a cross-

complaint. On March 27, 2023, the magistrate denied appellant's motion for relief. The

magistrate found that after the November 2022 amended scheduling order was issued,

the parties had "ample time to conduct discovery, research relevant law, depose

appropriate witnesses, and file dispositive motions. The fact [appellant] has not taken the

opportunity to fully participate in this matter over the last year and a half does not warrant

an extension of the Court's deadline." On April 11, 2023, appellant moved to set aside

the magistrate's foregoing order. On April 20, 2023, the trial court denied the motion to

set aside the magistrate's order as untimely filed under Civ.R. 53 (D)(2)(b) and lacking

merit.

{¶ 33} Assuming appellant's third assignment of error relates to his March 10, 2023

motion for relief from the scheduling order, we find that the trial court did not err in denying

appellant's motion to set aside the magistrate's order that denied appellant's motion for

relief from the scheduling order. Civ.R. 53(D)(2)(b) governs motions to set aside a

magistrate's order and explicitly states, "The motion * * * shall be filed no later than ten

days after the magistrate's order is filed." The magistrate's order appellant sought to set

aside was filed on March 27, 2023. Thus, a motion to set aside that order was due on

or before April 6, 2023. As appellant's motion to set aside was not filed until April 11,

2023, it was untimely filed under Civ.R. 53(D)(2)(b) and was therefore properly denied by

the trial court. Moreover, appellant's motion lacked merit based upon appellant's failure

to participate in the case in the 18 months since it was transferred to the trial court and

the fact the scheduling order had already been once amended to extend various

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deadlines.

{¶ 34} Appellant's third assignment of error is overruled.

{¶ 35} Assignment of Error No. 6:

{¶ 36} THE APPELLANT HAS NOT BEEN AFFORDED AN OPPORTUNITY TO

PRESENT HIS OBJECTIONS OR EVIDENCE IN AN OPEN COURT. THE APPELLANT

DEMANDS A TRIAL BY JURY [AND] HAS ALREADY PAID UNTO THE TRIAL COURT,

THE APPLICABLE FEE OF $250.00 FOR A JURY TRIAL.

{¶ 37} Assignment of Error No. 7:

{¶ 38} THE PROCEDURES OF THE TRIAL COURT FAVORED THE "PAPER

MILL" PROCESS UTILIZED BY THE APPELLEE AND IGNORED THE RIGHTS AND

CLAIMS OF APPELLANT.

{¶ 39} Both assignments of error loosely challenge the trial court's granting of

summary judgment to Shamrock. In his sixth assignment of error, appellant argues he

was not given an opportunity to present his objections or evidence in open court, thus

seemingly arguing the trial court erred in granting summary judgment to Shamrock

without conducting an evidentiary hearing or a jury trial. In his seventh assignment of

error, appellant argues that the trial court erred in relying upon Shamrock's summary

judgment evidence⎯O'Brien's affidavit and Gaydosik's report⎯because they both

included false, unverifiable, or unsubstantiated statements. By contrast, appellant asserts

he "has sound evidence which proves his claims with regard to the gross negligence of

the contractor, damages, depreciation and substandard work by omission or

commission." In other words, appellant asserts he has evidence contradicting

Shamrock's summary judgment evidence.

{¶ 40} Under Civ.R. 56(C), summary judgment is proper when (1) there are no

genuine issues of material fact to be litigated; (2) the moving party is entitled to judgment
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as a matter of law; and (3) when all evidence is construed most strongly in favor of the

nonmoving party, reasonable minds can come to only one conclusion, and that conclusion

is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367,

369-370, 1998-Ohio-389. In determining whether a genuine issue of material fact exists,

the court must answer the following inquiry: "Does the evidence present a sufficient

disagreement to require submission to a jury or is it so one-sided that one party must

prevail as a matter of law?" Wilson v. Maple, 12th Dist. Clermont No. CA2005-08-075,

2006-Ohio-3536, ¶ 18.

{¶ 41} The party moving for summary judgment bears the initial burden of

informing the court of the basis for the motion and demonstrating the absence of a

genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107.

Once this burden is met, the nonmoving party has a reciprocal burden to set forth specific

facts showing there is some genuine issue of material fact yet remaining for the trial court

to resolve. Id. The nonmoving party may not rest upon the mere allegations or denials

of his pleadings. Civ.R. 56(E). Rather, the nonmoving party's response must present

evidence setting forth specific facts showing that there is a genuine issue for trial. Id.;

Dresher at 293. Summary judgment is proper if the nonmoving party fails to set forth

such facts. Civ.R. 56(E); Puhl v. U.S. Bank, N.A., 12th Dist. Butler No. CA2014-08-171,

2015-Ohio-2083, ¶ 13.

{¶ 42} Civ.R. 56(C) provides that courts are only to consider "pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact" when ruling on summary judgment motions.

"Civ.R. 56(C) does not allow for testimony to be presented in a summary judgment

hearing." Litva v. Richmond, 172 Ohio App.3d 349, 2007-Ohio-3499, ¶ 10 (7th Dist.).

Furthermore, a trial court is not required to hold an evidentiary hearing or oral argument

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on motions for summary judgment. Hooten v. Safe Auto Ins. Co., 100 Ohio St.3d 8, 2003-

Ohio-4829, ¶ 14; Viars v. Ironton, 4th Dist. Lawrence No. 16CA8, 2016-Ohio-4912, ¶ 52.

A "hearing contemplated by Civ.R. 56 may involve as little as the submission of

memoranda and evidentiary materials for the court's consideration." Viars at ¶ 52.

Additionally, the right to a jury trial is only enforceable where there are factual issues to

be tried. Id. at ¶ 53. When summary judgment is properly granted to the moving party,

the nonmoving party has no right to a jury trial. Id.

{¶ 43} Summary judgment was proper here. Shamrock met its initial burden by

informing the trial court of the basis of its motion and identifying parts of the record

demonstrating the absence of a genuine issue of material fact. Consequently, in

response to Shamrock's motion for summary judgment, appellant was required to present

evidence setting forth specific facts showing that there is a genuine issue for trial.

Appellant had the reciprocal burden of specificity and could not rest on the mere

allegations or denials of his prior pleadings. Despite filing numerous pleadings throughout

the proceedings below, appellant did not file a memorandum in opposition to Shamrock's

motion for summary judgment or otherwise respond to the motion. Appellant offered no

evidence showing the existence of a genuine triable issue of material fact in response to

Shamrock's motion for summary judgment. The evidence that appellant now claims

contradicts Shamrock's summary judgment evidence was never presented to the trial

court on summary judgment. Thus, appellant failed to meet his reciprocal burden under

Civ.R. 56. It follows appellant was not entitled to a jury trial. The trial court did not err in

granting summary judgment to Shamrock without conducting an evidentiary hearing on

Shamrock's motion.

{¶ 44} Further, contrary to appellant's suggestion, the trial court did consider his

objections to the magistrate's decision granting summary judgment to Shamrock. In fact,

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although appellant's objections were neither clearly nor specifically identified as such in

the pleading he filed, the trial court identified nine objections, individually addressed them,

and overruled them.

{¶ 45} Appellant's sixth and seventh assignments of error are overruled.

{¶ 46} Assignment of Error No. 8:

{¶ 47} RESPONSIBLE PARTY IN A CIVIL CONTRACT.

{¶ 48} The parties' March 9, 2021 contract was signed by appellant and Robert

O'Brien. The contract begins with, "owner of the described property authorize James

Abner dba 'Shamrock Restoration, LLC' hereinafter referred to as contractor, to make

repairs to [my] property[.]" In his affidavit attached to Shamrock's motion for summary

judgment, O'Brien averred that he is the owner of Shamrock. When appellant refused to

pay the invoice for work performed, Shamrock filed a complaint against appellant; the

complaint was signed by O'Brien. Appellant argues that Abner, not Shamrock, is the

proper party and real party in interest, and that Shamrock lacked the authority "to

prosecute this matter in the first place."

{¶ 49} The record shows that appellant repeatedly argued this issue below. In

February 2022, appellant sought to dismiss Shamrock as plaintiff, arguing that it was not

a party to the contract and that only Abner was the proper party to initiate the lawsuit

against appellant. In its memorandum in opposition, Shamrock construed appellant's

pleading as a Civ.R. 12(B)(7) motion to dismiss for failure to join a party under Civ.R. 19

or 19.1 and argued it should be denied because the contract was plainly entered with

Shamrock, a limited liability company, and not an individual person, and there was no

defect under State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77 (1989) (dismissal due to a

party's failure to join a necessary party is warranted only where the defect cannot be

cured). On March 21, 2022, the trial court denied appellant's motion to dismiss as

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untimely and filed without leave of court under Civ.R. 15.

{¶ 50} In June 2022, appellant moved "to set a hearing to determine the moving

parties," arguing that Shamrock's complaint was defective because it did not contain the

proper and necessary parties to the case, and that Abner was "the legal party with

standing to bring a legal action in the name of Shamrock." In response, Shamrock argued

that the reference to James Abner in the first paragraph of the contract was of no

consequence and merely a misnomer and that Shamrock had standing and was the

proper party to bring the lawsuit against appellant. On July 15, 2022, the trial court denied

appellant's motion. The court construed appellant's motion as (1) a motion to dismiss for

failure to join any and all necessary and proper parties, (2) a motion to dismiss due to

Shamrock's lack of standing, and (3) a motion to amend appellant's counterclaim. The

trial court denied the motions to dismiss as untimely filed and the motion to amend as

violative of Civ.R. 15(A) as appellant "did not request leave to amend his counterclaim or

to file a third-party complaint, nor was leave ever granted to do the same."

{¶ 51} When Shamrock subsequently sought leave of court to amend its complaint,

appellant objected on the ground, inter alia, that the contract was between him and Abner

dba Shamrock, and that "at no time has [the trial court] made a ruling on that fact." The

trial court overruled appellant's objections and granted leave to amend the complaint;

Shamrock filed an amended complaint. On September 14, 2022, appellant objected to

the amended complaint, arguing that it was defective because Shamrock was not the

proper party to bring the lawsuit as the contract was entered between Abner dba

Shamrock and appellant. Construing appellant's objection as a Civ.R. 12(B)(6) motion to

dismiss based on standing, the trial court denied it on October 24, 2022. Citing Civ.R.

17(A) and Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, the trial court found

that the contract was "clearly between Shamrock Restoration, LLC. and [appellant].

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Plaintiff has standing to bring the above captioned case."

{¶ 52} A "party commencing litigation must have standing to sue in order to present

a justiciable controversy and invoke the jurisdiction of the common pleas court." Fed.

Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 41.

Standing is a jurisdictional requirement that a party has a sufficient stake in an otherwise

justiciable controversy to obtain judicial resolution of that controversy. Honeywell

Internatl., Inc. v. Vanderlande Industries, Inc., 12th Dist. Warren No. CA2021-12-114,

2022-Ohio-2986, ¶ 6. To establish standing, "plaintiffs must show that they suffered (1)

an injury that is (2) fairly traceable to the defendant's allegedly unlawful conduct, and (3)

likely to be redressed by the requested relief." Moore at ¶ 22. Civ.R. 17(A) requires that

"[e]very action shall be prosecuted in the name of the real party in interest." "A real party

in interest is one who has a real interest in the subject matter of the litigation, and not

merely an interest in the action itself, i.e., one who is directly benefitted or injured by the

outcome of the case." Shealy v. Campbell, 20 Ohio St.3d 23, 24 (1985); Ebbing v.

Stewart, 12th Dist. Butler No. CA2016-05-085, 2016-Ohio-7645, ¶ 14. "In a breach of

contract claim, 'only a party to the contract or an intended third-party beneficiary may

bring an action on a contract in Ohio.'" Discover Bank v. Brockmeier, 12th Dist. Warren

No. CA2006-07-028, 2007-Ohio-1552, ¶ 7, quoting Grant Thornton v. Windsor House,

Inc., 57 Ohio St.3d 158, 161 (1991). "'[T]he test for determining who is a real party in

interest is: 'Who would be entitled to damages?'" Givens v. Longwell, 7th Dist. Belmont

No. 23 BE 0008, 2023-Ohio-4516, ¶ 13.

{¶ 53} Despite appellant's contentions, the record shows that the contract was

clearly between Shamrock Restoration, LLC and appellant, that Shamrock is the real

party in interest under Shealy and Civ.R. 17(A), and that Shamrock has standing to sue

appellant pursuant to Moore. We therefore find no merit to appellant's arguments.

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{¶ 54} Appellant's eighth assignment of error is overruled.

{¶ 55} Assignment of Error No. 10:

{¶ 56} PRO SE APPELLANT WAS DISADVANTAGED BY ACCESS TO COURTS

ISSUES AND OTHER HARDSHIPS.

{¶ 57} This assignment of error summarily raises a hodgepodge of arguments, to

wit, summary judgment is improper because (1) the trial court "received and relied upon

False information in the Affidavit of Robert O'Brien and generalized inconclusive

statements of Richard Gaydosik, expert witness for [Shamrock]," (2) the trial court

overruled his objections to the magistrate's decision without considering his Responsive

Pleading filed on the June 9, 2023 submit date, and (3) "there has never been any hearing

on facts of the case."

{¶ 58} Having considered and rejected the foregoing arguments in appellant's first,

six, and seventh assignments of error, appellant's tenth assignment of error is without

merit and overruled.

{¶ 59} Assignment of Error No. 11:

{¶ 60} SHAMROCK/JAMES ABNER DEFRAUDED APPELLANT.

{¶ 61} Appellant asserts that it "has never made any logical sense why" Shamrock

"would issue a contract bearing the name, James Abner dba: Shamrock Restoration, LLC

unless there was some nefarious underpinning reason. In point instant, appellant

believes that the intent of the parties involved was to confuse [him] with Intent to Defraud."

It appears appellant is arguing Shamrock defrauded him because the contract bore the

name "James Abner dba: Shamrock Restoration, LLC."

{¶ 62} While appellant repeatedly argued below that Abner was the real party in

interest in the litigation at bar, neither his counterclaim in the municipal court nor his

amended counterclaim in the trial court asserted a fraud claim based upon the fact the

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contract bears the name James Abner dba: Shamrock Restoration, LLC. Both Shamrock

and the magistrate construed appellant's counterclaim as alleging damages related to

substantial depreciation and loss of use of his property; appellant never challenged such

construction. Even assuming, arguendo, that appellant's amended counterclaim asserted

such a fraud claim, it was not pled with the requisite specificity under Civ.R. 9(B). Pro se

litigants are not relieved of the duty to develop claims with an appropriate degree of

specificity. See Adena at Miami Bluffs Condominium Owners' Assn., Inc. v. R. Hugh

Woodward, 12th Dist. Warren No. CA2020-08-044, 2021-Ohio-3872. Moreover,

appellant did not meet his burden of proof in responding to Shamrock's summary

judgment motion or in identifying specific parts of the evidentiary record that show a

genuine issue of material fact regarding a claim of "fraud." We therefore find no merit to

appellant's argument.

{¶ 63} Appellant's eleventh assignment of error is overruled.

{¶ 64} Assignment of Error No. 12:

{¶ 65} THE APPELLANT IS GROSSLY IMPAIRED IN HIS ABILITY TO ACCESS

THE DOCKET, FILINGS OR RECORDS AT THE OFFICE OF THE CLERK.

{¶ 66} Appellant complains he is not permitted to access the trial court's online

docket filings because he is not an attorney, thereby impairing his ability to check court

dates, scheduling orders, and other pertinent information. Appellant states that he is not

able to access court records in person during regular business hours because he works

60 hours a week and resides outside of Warren County. Appellant specifically raised this

issue in his objections to the magistrate's decision granting summary judgment to

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Shamrock.3

{¶ 67} The trial court overruled the objection on the ground that appellant "does

not explain how his inability to access court records online implies that the Magistrate

erred in" granting summary judgment to Shamrock. The trial court further found that "the

determination of the Clerk of Courts to permit online access to records by only licensed

attorneys does not violate [appellant's] civil rights, as he has had access to these court

records by appearing in person before the Warren County Clerk of Court and has been

served copies of all filings in this case by mail."

{¶ 68} Loc.R. 4.04 governs e-filings in the trial court and provides that

Unrepresented parties may utilize the e-Filing system. The
Clerk of Courts will provide secure public access terminals
from which unrepresented filers will be permitted to use the
Court's e-Filing system and electronically file documents.

Unrepresented filers who do not utilize the e-Filing system
must file all documents by mail, commercial carrier service, or
personal delivery to the Clerk's Office. The clerk must accept
the paper document filing, docket the document, and scan the
document before the end of the next business day or as soon
as practicable, and retain the original for placement in the
case file.

Loc.R. 4.04(B)(a)-(b).

{¶ 69} Contrary to appellant's assertion, the trial court's pleadings are available

online, for free, 24 hours a day, and no password or account is required to access the

trial court's online docket filings. Appellant is correct that only licensed attorneys are

permitted to electronically file documents and pleadings. However, the fact that appellant

cannot electronically file documents and pleadings does not mean he is denied equal

access to the courts. In addition to personally delivering the documents to the clerk's

3. Appellant briefly noted his lack of equal access to courts as a pro se litigant in his February 2023 Filing
of Newly Acquired Evidence (Estimate for Demolition of Defective Workmanship and Cost of Repair by
Qualified Contractor) and his April 2023 motion to set aside the magistrate's March 27, 2023 order denying
appellant's motion for relief from the scheduling order.
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office, appellant may also file documents by mail or commercial carrier service.

Furthermore, appellant does not explain how his lack of equal access to the online docket

filings as a pro se litigant prejudiced him. We therefore find no merit to appellant's

argument.

{¶ 70} Appellant's twelfth assignment of error is overruled.

{¶ 71} Assignment of Error No. 13:

{¶ 72} A DEPOSITION OF STEPHEN DEARDOFF, EXPERT WITNESS FOR

APPELLANT SCHEDULED BY APPELLEE. THE APPELLANT WAS NOT GIVEN AN

OPPORTUNITY TO CROSS EXAMINE HIS OWN EXPERT.

{¶ 73} Appellant argues he was unable to cross-examine his expert witness,

Certified Real Estate Appraiser Stephen Deardoff, during the latter's deposition because

Shamrock's counsel "totally disregarded appellant during the deposition, [and] abruptly

closed the meeting and dismissed Mr. Deardoff from the telephonic meeting, without

affording appellant any opportunity to clarify certain questions and representations."

{¶ 74} Deardoff was deposed on January 27, 2023; he appeared by video.

Appellant and Shamrock's counsel were in the same room during the deposition. A

review of the deposition transcript belies appellant's assertions and instead shows that

(1) Shamrock's attorney did not dismiss the expert, (2) rather, the expert logged out of

the deposition on his own and without any prompting, and (3) Shamrock's counsel offered

to call back the expert but appellant declined. Subsequently, appellant did not attempt to

schedule a follow-up/continuation of the expert's deposition, did not ask the expert if

changes were needed to be made on the errata sheet, and did not obtain an affidavit of

his expert in response to Shamrock's motion for summary judgment. As already stated,

appellant did not file a response to Shamrock's motion for summary judgment. We

therefore find no merit to appellant's argument.

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{¶ 75} Appellant's thirteenth assignment of error is overruled.

{¶ 76} We recognize that appellant represented himself below and on appeal.

However, pro se litigants are held to the same standard as members of the bar and are

expected to abide by the relevant rules of procedure and substantive laws, regardless of

their familiarity with them. See Harshman Dynasty, L.L.C. v. Mason, 2d Dist. Montgomery

No. 25873, 2014-Ohio-1108; In re C.B., 12th Dist. Clermont No. CA2013-12-094, 2014-

Ohio-3784. Thus, as a pro se litigant, appellant is presumed to have knowledge of the

law and legal procedure regarding summary judgment. Unifund CCR, L.L.C. v. Birch, 8th

Dist. Cuyahoga No. 109705, 2021-Ohio-1487, ¶ 11. "Pro se litigants are not to be

accorded greater rights and must accept the results of their own mistakes and errors,

including those related to correct legal procedure." Cox v. Zimmerman, 12th Dist.

Clermont No. CA2011-03-022, 2012-Ohio-226, ¶ 21.

{¶ 77} The consequence of appellant's failure to file a memorandum opposing

Shamrock's motion for summary judgment and his failure to provide the trial court with

evidence showing that there is a genuine issue of material fact for trial in response to

Shamrock's summary judgment motion resulted in the trial court finding a lack of genuine

issue of material fact regarding the validity of Shamrock's claims and consequently

granting summary judgment to Shamrock. "This case demonstrates that it is rarely wise

for litigants to represent themselves and shows the importance of competent counsel

even in civil cases." Kidz Bop L.L.C. v. Broadhead, 1st Dist. Hamilton No. C-140686,

2015-Ohio-3744, ¶ 14.

{¶ 78} Judgment affirmed.

S. POWELL, P.J., and BYRNE, J., concur.

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