[Cite as Coleman v. Davis,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT JACKSON COUNTY

CAROLYN S. COLEMAN, : : Plaintiff-Appellee, : Case No: 10CA5 : v. : : DECISION AND JACK D. DAVIS, : JUDGMENT ENTRY : Defendant-Appellant, : : and : : File-stamped date: 2-1-11 Nationwide Mutual Insurance Company, : : Defendant-Appellee. :

APPEARANCES:

Jack D. Davis, pro se, for Defendant-Appellant Jack D. Davis.

John C. Cahill, Columbus, Ohio, for Defendant-Appellee Nationwide Mutual’s Insurance Company.1

Michael L. Eisner, Elk & Elk Co., Ltd., Mayfield Heights, Ohio, for Plaintiff-Appellee Carolyn S. Coleman.

Kline, J.:

{¶1} Jack D. Davis (hereinafter “Davis”), appeals the judgment of the Jackson

County Court of Common Pleas, which granted default judgments in favor of Carolyn S.

Coleman (hereinafter “Coleman”) and Nationwide Mutual Insurance Company

(hereinafter “Nationwide”). After Coleman sued Davis and Nationwide, Nationwide filed

1 Despite the language of the trial court’s judgment entry, this party’s proper name appears to be Nationwide Mutual Insurance Company. Jackson App. No. 10CA5 2

a cross-claim against Davis. On appeal, Davis claims that Nationwide did not have

standing to assert its cross-claim. We disagree for two reasons. First, because Davis

failed to raise the issue of standing at the trial court level, he has waived this issue on

appeal. And second, because Davis failed to provide a transcript of the relevant

hearing, we must presume the validity of the lower court proceedings. Davis also

contends that the trial court erred in failing to rule upon his request for a jury trial.

Because the trial court did not abuse its discretion by granting default judgments for

Coleman and Nationwide, we disagree. Accordingly, we overrule Davis’s assignments

of error and affirm the judgment of the trial court.

I.

{¶2} On May 11, 2006, Coleman was involved in an automobile accident. She

described the accident as follows: “I was [driving] around the curve. When I got around

the curve, this man [Davis] was standing in front of me with his arms going up and

down. I had no idea what was going on. So I swerved to miss him. When I did, the car

started going around. I don’t remember because I got knocked unconscious. When I

c[a]me to, the car was on its top and the car was still running.” Deposition of Carolyn

. At the time of the accident, Coleman had motor vehicle insurance

coverage through Nationwide.

{¶3} On May 7, 2008, Coleman filed a complaint against “John Does 1 through 5,”

Davis, and Nationwide. In her complaint, Coleman alleged that Davis “was negligently

and/or recklessly directing traffic, thereby causing [Coleman] to swerve her motor

vehicle to avoid hitting defendant, lose control of her vehicle and strike a fence in the Jackson App. No. 10CA5 3

Township of Jefferson, Jackson County, Ohio.” Coleman also claimed that she had the

right to recover under her insurance policy with Nationwide.

{¶4} In his answer to Coleman’s complaint, Davis denied that he acted either

negligently or recklessly at the time of the accident.

{¶5} Nationwide also answered Coleman’s complaint and, in addition, filed a

cross-claim against Davis. In its cross-claim, Nationwide alleged that it was “entitled to

subrogation and/or reimbursement from [Davis] for any amount paid or to be paid.”

Answer and Cross-Claim of Defendant Nationwide at 5.

{¶6} Davis did not respond to Nationwide’s cross-claim. Davis also failed to

appear for his deposition or respond to any of the other parties’ numerous discovery

requests.

{¶7} On October 6, 2009, Nationwide filed a Motion For Default Judgment,

Sanctions, and to Assess Liability Against Defendant, Jack Davis. Davis did not

respond to Nationwide’s motion. Instead, on October 22, 2009, Davis filed a request for

a jury trial.

{¶8} On December 21, 2009, Coleman filed a Motion For Sanctions and Default

Judgment Against Defendant Jack Davis. Davis did not respond to Coleman’s motion,

either. In fact, before filing this appeal, Davis filed nothing other than (1) his answer to

Coleman’s complaint and (2) his request for a jury trial.

{¶9} On January 18, 2010, the trial court notified the parties of an impending Oral

Hearing on Plaintiff’s Motion for Sanctions and Default. Although we do not have a

transcript from this hearing, we assume that the hearing took place based on the

parties’ briefs. Jackson App. No. 10CA5 4

{¶10} Eventually, the trial court granted default judgments to both Coleman and

Nationwide because Davis had “failed [1.] to plead, answer, or otherwise respond to

Plaintiff’s discovery, [2.] to answer Nationwide[’s] cross-claim, and [3.] to participate in

this lawsuit[.]” April 5, 2010 Judgment Entry. As such, the trial court ordered Davis to

pay $74,635.83 in damages. (Under the trial court’s judgment entry, both Coleman and

Nationwide are to receive a portion of the $74,635.83.)

{¶11} Davis appeals and asserts the following two assignments of error: I.

“Nationwide Mutual has no standing in the Case No. [08PI0009] in which Carolyn S.

Coleman is the plaintiff and Jack D. Davis is the defendant.” And, II. “The defendant[’]s

request for a jury trial was never addressed. There was not even a notice that the

request had been acted on yes or no.”

II.

{¶12} Initially, we must note a deficiency in Davis’s appellate brief. That is, Davis’s

appellate brief does not comply with App.R. 16(A)(7), which provides: “The appellant

shall include in its brief, under the headings and in the order indicated, all of the

following: * * * 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.” However, Davis has

cited no authority in support of his assignments of error – not a single statute, case, or

treatise.

{¶13} “‘If an argument exists that can support [an] assignment of error, it is not

this court’s duty to root it out.’” Thomas v. Harmon, Lawrence App. No. 08CA17, 2009- Jackson App. No. 10CA5 5

Ohio-3299, at ¶14, quoting State v. Carman, Cuyahoga App. No. 90512, 2008-Ohio-

4368, at ¶31. “‘It is not the function of this court to construct a foundation for [an

appellant’s] claims; failure to comply with the rules governing practice in the appellate

courts is a tactic which is ordinarily fatal.’” Catanzarite v. Boswell, Summit App. No.

24184,

, quoting Kremer v. Cox (1996),

.

Therefore, “[w]e may disregard any assignment of error that fails to present any

citations to case law or statutes in support of its assertions.” Frye v. Holzer Clinic, Inc.,

Gallia App. No. 07CA4,

. See, also, App.R. 16(A)(7); App.R.

12(A)(2); Albright v. Albright, Lawrence App. No. 06CA35,

;

Tally v. Patrick, Trumbull App. No. 2008-T-0072,

; Jarvis v.

Stone, Summit App. No. 23904,

; Oldacre v. Oldacre, Ross App.

No. 08CA3073,

, at ¶35 (Kline, J., with one judge concurring in

judgment only).

{¶14} We understand that Davis has filed this appeal pro se. Nevertheless, “like

members of the bar, pro se litigants are required to comply with rules of practice and

procedure.” Hardy v. Belmont Correctional Inst., Franklin App. No. 06AP-116, 2006-

Ohio-3316, at ¶9. See, also, State v. Hall, Trumbull App. No. 2007-T-0022, 2008-Ohio-

2128, at ¶11. But here, we also understand that “an appellate court will ordinarily

indulge a pro se litigant where there is some semblance of compliance with the

appellate rules.” State v. Richard, Cuyahoga App. No. 86154,

, at ¶4

(internal quotation omitted). Because we find some semblance of compliance in Davis’s

brief, we will consider his assignments of error. See, e.g., State v. Paulsen, Hocking

App. Nos. 09CA15 & 09CA16,

, at ¶7 (addressing a pro se appellant’s Jackson App. No. 10CA5 6

first-and-second assignments of error “in the interest of justice”) (Kline, J., with one

judge concurring in judgment only).

III.

{¶15} In his first assignment of error, Davis contends that Nationwide “had no

standing in [Case No. 08PI0009] Court of Common Pleas of Jackson County, Ohio.”

Appellant’s Complying Brief at 3. Essentially, Davis claims that he was not an

“uninsured motorist” as defined by Coleman’s policy with Nationwide. Instead, Davis

claims that he was a “Good Samaritan” and, as a result, that Nationwide had “no reason

to seek relief from the defendant[.]” Appellant’s Complying Brief at 3.

{¶16} In addressing Davis’s argument, we first note that “‘[s]tanding’ is defined as a

‘party’s right to make a legal claim or seek judicial enforcement of a duty or right.’”

State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs.,

,

, quoting Ohio Pyro, Inc. v. Ohio Dept. of Commerce,

,

, at ¶27 (other internal quotation omitted).

“‘Whether established facts confer standing to assert a claim is a matter of law.’”

Cuyahoga Cty. Bd. of Commrs. v. State,

,

, at ¶23,

quoting Portage Cty. Bd. of Commrs. v. Akron,

,

, at

¶90. “‘We review questions of law de novo.’” State v. Elkins, Hocking App. No. 07CA1,

, quoting Cuyahoga Cty. Bd. of Commrs. at ¶23; see, also, Bridge

v. Midas Auto Experts #322, Cuyahoga App. No. 94115,

, at ¶6 (“The

question of standing is an issue of law, which we review de novo.”) (citation omitted).

{¶17} Davis bases his first assignment of error on the premise that he was not an

uninsured motorist. Nationwide, however, did not mention uninsured motorist coverage Jackson App. No. 10CA5 7

in its cross-claim against Davis. Instead, Nationwide alleged that it was entitled to

“subrogation, indemnity and/or contribution” because of Davis’s primary negligence in

causing the accident. Answer and Cross-Claim of Defendant Nationwide at 4-5.

Therefore, Davis bases his first assignment of error on a flawed premise. See,

generally, Corn v. Whitmere,

,

, at ¶35 (“In the

insurance context, subrogation is the ‘principle under which an insurer that has paid a

loss under an insurance policy is entitled to all the rights and remedies belonging to the

insured against a third party with respect to any loss covered by the policy.’”), quoting

Black’s Law Dictionary (7 Ed. 1999) (other internal quotation omitted).

{¶18} Furthermore, in the proceedings below, Davis never raised the issue of

standing. He was responsible for just two filings at the trial court level: (1) an answer to

Coleman’s complaint and (2) a request for a jury trial. Davis did not raise the issue of

standing in either of these filings. “Thus, this issue [of standing] is considered waived

on appeal.” Presutti v. Pyrotechnics By Presutti, Belmont App. No. 02-BE-49, 2003-

Ohio-2378, at ¶8.

{¶19} And finally, Davis failed to provide a transcript of the Oral Hearing on

Plaintiff’s Motion for Sanctions and Default. In relevant part, App.R. 9(B) provides: “At

the time of filing the notice of appeal the appellant, in writing, shall order from the

reporter a complete transcript or a transcript of the parts of the proceedings not already

on file as the appellant considers necessary for inclusion in the record and file a copy of

the order with the clerk.” Because Davis bears the burden of demonstrating error by

reference to matters in the record, he has a duty to provide a transcript of the

proceedings. Pryor v. Pryor, Ross App. No. 09CA3096,

, at ¶24. Jackson App. No. 10CA5 8

“When portions of the transcript necessary for resolution of assigned errors are omitted

from the record, the reviewing court has nothing to pass upon and thus, as to those

assigned errors, the court has no choice but to presume the validity of the lower court’s

proceedings, and affirm.” Knapp v. Edwards Laboratories (1980),

. See, also,

. Therefore, even if the parties did address Nationwide’s

standing during the Oral Hearing on Plaintiff’s Motion for Sanctions and Default, we

must presume the validity of the lower court proceedings. See

.

{¶20} Accordingly, for the foregoing reasons, we overrule Davis’s first assignment of

error.

IV.

{¶21} In his second assignment of error, Davis contends that the trial court erred in

failing to rule upon his request for a jury trial. “[M]otions that a trial court fails to

explicitly rule upon are deemed denied once a court enters final judgment.” Savage v.

Cody-Ziegler, Inc., Athens App. No. 06CA5,

. Therefore, we

construe Davis’s second assignment of error in the following manner: that the trial court

erred in granting default judgments for Coleman and Nationwide instead of granting

Davis a jury trial.

{¶22} “We will not reverse a trial court’s decision to enter a default judgment absent

an abuse of discretion.” Motorists Mut. Ins. Co. v. New, Gallia App. No. 01CA6, 2001-

Ohio-2647, citing Huffer v. Cicero (1995),

; see, also, Discover

Bank v. Schiefer, Franklin App. No. 09AP-1178,

, at ¶5; Kentucky-

Indiana Lumber v. Grayland Pelfrey/Remodeling Concepts, Clark App. No. 2006 CA

100,

(using an abuse-of-discretion standard to review a Jackson App. No. 10CA5 9

default judgment under Civ.R. 37(D)). An abuse of discretion connotes more than a

mere error of judgment; it implies that the court’s attitude is arbitrary, unreasonable, or

unconscionable. Blakemore v. Blakemore (1983),

.

{¶23} The trial granted Coleman a default judgment because Davis, in part, “failed

to * * * respond to [Coleman’s] discovery” requests. April 5, 2010 Judgment Entry.

“Civ.R. 37(D) stipulates that a party who fails to appear for a deposition, or to answer

interrogatories, is subject to sanctions by the trial court, as is authorized under

subsections (a), (b) and (c) of Civ.R. 37(B)(2). Civ.R. 37(B)(2)(c) specifically provides

that default judgment may be rendered against the disobedient party.” Kentucky-

Indiana

. Here, it is undisputed that Davis failed to appear for his

deposition. In fact, Davis failed to respond to any of Coleman’s or Nationwide’s various

requests for discovery. Therefore, from the record before us, the trial court may have

been warranted in rendering a default judgment for Coleman. See, generally,

Huntington Natl. Bank v. Zeune, Franklin App. No. 08AP-1020,

, at ¶26-

29 (upholding a default judgment that the trial court imposed as a discovery sanction).

{¶24} Additionally, the trial court granted Nationwide a default judgment because

Davis, in part, “failed to * * * answer [Nationwide’s] cross-claim[.]” April 5, 2010

Judgment Entry. “When a party against whom a judgment for affirmative relief is sought

has failed to plead or otherwise defend as provided by these rules, the party entitled to

a judgment by default shall apply in writing or orally to the court [for a judgment by

default.]” Civ.R. 55(A). Here, it is undisputed that Davis failed to (1) answer

Nationwide’s cross-claim or (2) otherwise respond to Nationwide’s various filings. Jackson App. No. 10CA5 10

Therefore, from the record before us, the trial court may have been warranted in

rendering a default judgment for Nationwide.

{¶25} Finally, we again note that Davis failed to provide a transcript of the Oral

Hearing on Plaintiff’s Motion for Sanctions and Default. Without a transcript from this

hearing, Davis cannot demonstrate that the trial court abused its discretion in granting

the default judgments. See, generally, Kentucky-Indiana

(stating that “‘the

harsh remedies of dismissal and default should only be used when the * * * failure to

comply has been due to * * * willfulness, bad faith or any fault of the petitioner’”), quoting

Toney v. Berkemer (1983),

(omissions sic) (other internal

quotation omitted). If Davis had legitimate reasons for his failures to respond, they are

not in the record before us. Therefore, we must presume that the trial court acted within

its sound discretion. See, e.g., St. Germaine v. St. Germaine, Greene App. No. 2009

CA 28,

, at ¶14 (“[W]e are unable to review the record to determine

whether or not the trial court abused its discretion because [the appellant] did not file a

transcript of the hearing.”); Estep-Baker v. Baker, Vinton App. No. 06CA651, 2007-

Ohio-2423, at ¶9 (“[The appellant’s] arguments require us to examine the transcript in

order to ascertain whether the trial court * * * abused its discretion[.]”).

{¶26} Accordingly, we find that the trial court did not abuse its discretion by granting

default judgments for Coleman and Nationwide. And as a result, the trial court did not

err in denying Davis’s request for a jury trial. Therefore, we overrule Davis’s second

assignment of error. Having overruled both of his assignments of error, we affirm the

judgment of the trial court.

JUDGMENT AFFIRMED. Jackson App. No. 10CA5 11

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Jackson County Common Pleas 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. Exceptions.

Harsha, P.J. and Abele, J.: Concur in Judgment & Opinion.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.