Robert E. Williams, Trustee, Tubalcain Trust, D.B.A. Ironmaster v. Global Construction Co., Ltd., 85-LW-3446

• Decision Date: 25 July 1985
• Docket Number: 85-LW-3446,84AP-699
• Parties: Robert E. Williams, Trustee, Tubalcain Trust, d.b.a. Ironmaster, Plaintiff-Appellant v. Global Construction Co., Ltd. et al., Defendants-Appellees, and Board of Trustees, Public Library of Columbus and Franklin County, Defendant and Third-Party Plaintiff-Appellee v. Indiana Insurance Co., Third-Party Defendant-Appellee.
• Court: Ohio Court of Appeals

Robert E. Williams, Trustee, Tubalcain Trust, d.b.a Ironmaster, Plaintiff-Appellant v. Global Construction Co., Ltd. et al Defendants-Appellees, and Board of Trustees, Public Library of Columbus and Franklin County, Defendant and Third-Party Plaintiff-Appellee v. Indiana Insurance Co., Third-Party Defendant-Appellee.

No. 84AP-699 (REGULAR CALENDAR).

85-LW-3446 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

July 25, 1985

ON MOTION to assess attorney fees; APPEAL from the Franklin County Common Pleas Court.

MR ROBERT E. WILLIAMS, pro se.

MR. ALAN K. VEATCH, for appellees Global Construction Co. and Indiana Insurance Co.

MR. JAMES J. MARLIN, JR., for appellee Jezerinac Engineering, Inc.

MR. MICHAEL MILLER, Prosecuting Attorney, and Mr. JEFFREY L. GLASGOW, for appellee Board of Trustees, Public Library of Columbus and Franklin County.

OPINION

COOK J.

On April 26, 1984, Robert E. Williams, Trustee, Tubalcain Trust, d.b.a. Ironmaster, filed a complaint, signed by "Robert E. Williams - Pro Se," against Global Construction Co., Ltd., Jezerinac Engineering, Inc., and the Board of Trustees, Public Library of Columbus and Franklin County. The complaint set forth a claim of breach of contract against Global Construction and a claim against Jezerinac for refusal to approve structural steel drawings submitted to Global Construction by Tubalcain Trust, d.b.a. Ironmaster.

Global Construction filed an answer and a counterclaim. The Public Library of Columbus and Franklin County filed an answer and a cross-claim against Global Construction. The Public Library of Columbus and Franklin County filed a third-party complaint against Indiana Insurance Company, the bonding company for Global Construction. On May 24, 1984, Jezerinac Engineering filed a motion to dismiss the complaint because it was filed by a non-attorney and is not a pro se action and for failure to state a claim.

On June 21, 1984, the trial court dismissed Tubalcain Trust's complaint with prejudice as to Jezerinac and also dismissed the complaint without prejudice as to Global Construction and the Public Library of Columbus and Franklin County. The court held that such dismissal had no effect on Global Construction's counterclaim and the cross-claim of the Public Library of Columbus and Franklin County, and found that, pursuant to Civ. R. 54(B), there was no just cause for delay. The court, on July 18, 1984, entered a default judgment in favor of Global Construction on its counterclaim.

Tubalcain Trust, on July 23, 1984, filed a notice of appeal from the judgment of June 21, 1984. On August 21, 1984, it filed an amended notice of appeal without leave of court and included the default judgment of July 18, 1984 in favor of Global Construction on its counterclaim as an additional judgment being appealed.

Appellant has filed the following three assignments of error:

"1. Trial courts assertion of a non-pro se action and defense on behalf of plaintiff-appellant, is in error.

"2. Trial courts affirming defendant-appellee Jezerinac Engineering Inc.'s motion to dismiss is:

"A. Invalid for lack of certificate of service.

"B. In error as to assertion of plaintiff-appellant's failure to state a claim.

"3. Trial courts affirming defendant-appellee Global Construction Co., Ltd.'s motion for default judgment is:

"A. In error as to assertion of plaintiff-appellant's failure to answer counterclaim.

"B. In error if, assuming arguendo, that the initial action was a non-pro se action, then the original action was invalid and the subsequent counterclaim would likewise be invalid; and such is an abuse of discretion."

The second assignment of error is well-taken, but the first and third assignments of error are without merit.

Tubalcain Trust first contends the court erred in concluding that Robert E. Williams is not a concerned party in the instant cause. It argues that, as trustee of the Tubalcain Trust, he is personally liable for any deficiencies in the trust assets to satisfy claims of creditors of the trust. Therefore, it maintains, he should be permitted to proceed "pro se."

R.C. 4705.01, in pertinent part, provides:

"No person shall be permitted to practice as an attorney and counselor at law, or to commence, conduct, or defend any action or proceeding in which he is not a party concerned, either by using or subscribing his own name, or the name of another person, unless he has been admitted to the bar by order of the supreme court in compliance with its prescribed and published rules. ***"

In the cause sub judice, it is clear that Robert E. Williams, as trustee of the Tubalcain Trust, was not a party in the action which is the subject of this appeal. The first paragraph of the complaint reads:

"1. Plaintiff is a business trust engaged in a steel fabricating business, residing at S.R. 314, Box 22, County of Morrow, State of Ohio."

Thus it appears clear that Robert E. Williams was acting as an attorney for Tubalcain Trust when he filed the complaint against the three defendants. He was not representing himself in the lawsuit since he was not a party to the lawsuit. Therefore, by...