Brenard Fellman v. Mary E. Rice

• Decision Date: 29 September 1999
• Docket Number: 99-LW-4053,91-C-72
• Parties: BRENARD FELLMAN, PLAINTIFF-APPELLANT v. MARY E. RICE, ET AL., DEFENDANTS-APPELLEES CASE
• Court: United States Court of Appeals (Ohio)

BRENARD FELLMAN, PLAINTIFF-APPELLANT v. MARY E. RICE, ET AL., DEFENDANTS-APPELLEES

No. 91-C-72

99-LW-4053 (7th)

Court of Appeals of Ohio, Seventh District Columbiana

September 29, 1999

Civil Appeal from Columbiana County Common Pleas Court Case No. 91 CIV 167

Hon Edward A. Cox, Hon. Gene Donofrio, Hon. Joseph J. Vukvoich

For Plaintiff-Appellant: Bernard Fellman, Pro Se, P.O. Box 477 Lisbon, Ohio 44432

For Defendants-Appellees: Atty. Wade W. Smith, Jr., South Bridge Executive Park, 725 Boardman-Canfield Rd., Unit L-2 Youngstown, Ohio 44512

OPINION

PER CURIAM

This cause comes on appeal from a November 13, 1991 judgment of Common Pleas Court granting appellee Mary E. Rice the sum of $1,848.75 for attorney fees she expended in defense of frivolous litigation filed by appellant, her ex-husband. The lower court found that money claims between the parties should have been included in the parties' divorce proceeding several years earlier and the claims were barred by the statute of limitations. Appellant filed his assignment of error and brief on March 24, 1992. Appellee answered on May 26, 1992. This matter was then placed on the regular calendar but was subsequently postponed. Neither party actively pursued rescheduling of a hearing and on March 8 1996 this court put on a journal entry identifying the fact that correspondence from this court to the appellant as his last known address was returned unclaimed. That same order advised the parties that oral argument was deem waived pursuant to a (newly adopted) local rule of court.

Subsequently to the filing of that order, this court was advised that appellant was deceased. There has been no substitution for a deceased party pursuant to App.R. 29.

Based on the history of this case, it appears that consideration of this appeal would be nothing more than an academic exercise as no effective relief could be provided to appellant. When, without fault of any party, circumstances evolve which preclude the court from granting any relief, the appeal must be dismissed. See Drydock Coal Co., Inc. v. Ohio Div. of Reclamation (1996), 115 Ohio App.3d 563. See also Miner v. Witt (1910), 82 Ohio St. 237 and Tschantz v. Ferguson (1991), 57 Ohio St.3d 131. As any decision on appeal would neither benefit nor harm the appellant, this court must dismiss this appeal.

This action is being taken for the additional reason that in all likelihood appellee has abandoned,...