Sydnor v. Qualls

• Decision Date: 08 December 2016
• Docket Number: No. 15CA3701.,15CA3701.
• Citation: 78 N.E.3d 181,2016 Ohio 8410
• Parties: Mario SYDNOR, et al., Plaintiffs–Appellees, v. Terry QUALLS, et al., Defendants–Appellants.
• Court: Ohio Court of Appeals

78 N.E.3d 181

2016 Ohio 8410

Mario SYDNOR, et al., Plaintiffs–Appellees,

v.Terry QUALLS, et al., Defendants–Appellants.

No. 15CA3701.

Court of Appeals of Ohio, Fourth District, Scioto County.

Dec. 8, 2016.

Mitchell Boggs, Jackson, OH, appellant, pro se.

James H. Banks, Dublin, OH, for appellees.

ABELE, J.

{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment that denied a Civ.R. 60(B) motion for relief from judgment and a Civ.R. 59 motion for a new trial filed by Mitchell Boggs, defendant below and appellant herein. The trial court previously determined that appellant and his co-defendant defrauded Mario Sydnor, Latisha Jones, and Kenetha Norvell, plaintiffs below and appellees herein, and awarded them compensatory and punitive damages. Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"FAILURE OF THE COURT TO TAKE JUDICIAL NOTICE OF THE OHIO SUPREME COURT DECISION IN STATE V. KOLE [.]"

SECOND ASSIGNMENT OF ERROR:

"FAILUR[E] OF THE COURT TO TAKE JUDICIAL NOTICE OF R.C. 2713.22 [.]"

THIRD ASSIGNMENT OF ERROR:

"IRREGULARITY IN THE PROCEEDINGS: CIVIL RULE 59(A)(1) [.]"

FOURTH ASSIGNMENT OF ERROR:

"FALSE STATEMENTS PROPOSED BY PLAINTIFF'S [SIC ] AND THEIR COUNSEL IN DOCUMENTS TO THE COURT AND STATEMENTS AT TRIAL WERE PREJUDICIAL TO DEFENDANT BOGGS: CIVIL RULE 59(A)(2) [.]"

FIFTH ASSIGNMENT OF ERROR:

"DID TESTIMONY NOT INTRODUCED IN STATEMENTS BY PLAINTIFF'S [SIC ] PRIOR TO TRIAL AND CONTRARY TO THE TESTIMONY GIVEN BY DEFENDANT BOGGS AT TRIAL RAISE THE ISSUE

OF SURPRISE AS TO ALLOW A NEW TRIAL[?]"

SIXTH ASSIGNMENT OF ERROR:

"IS THE JUDGMENT OF THE COURT CONTRARY TO LAW[?]"

{¶ 2} This case arises out of a bail bond contract to secure Sydnor's release from incarceration. An October 2, 2009 bail bond premium receipt shows that Sydnor and Latisha Jones gave appellant $9,600 in cash, with a $2,980 balance due. Jones signed a promissory note to repay the balance in $500 monthly installments. Sydnor and Jones signed an application for bail bond dated November 2, 2009. Jones and Kenetha Norvell also signed an undated collateral receipt for the titles to three vehicles. On November 12, 2009, appellant filed a motion to be released from the bond posted for Sydnor. Appellant alleged that Sydnor failed to follow the conditions of the bond contract.

{¶ 3} On March 5, 2010, appellees filed a complaint against, inter alia, appellant and Terry Qualls.¹ Appellees' complaint alleged the following causes of action: (1) breach of contract; (2) fraud; (3) negligence; (4) unjust enrichment; (5) breach of fiduciary duty; (6) abuse of process; and (7) conspiracy. Appellees also alleged that appellant engaged in the unlawful practice of law. Appellees sought compensatory and punitive damages, and further sought injunctive relief to require the defendants to return all money and property and to post bond for Sydnor.

{¶ 4} On May 29, 2012, appellant's counsel filed a motion to withdraw. The trial court subsequently granted the motion. Appellant did not retain new counsel.

{¶ 5} On July 11, 2014, appellees' counsel submitted a jury trial waiver, purportedly on behalf of "defendant." On August 7, 2014, appellees' counsel filed a corrected jury trial waiver to indicate that he filed it on behalf of appellees.

{¶ 6} On November 24, 2014, the trial court held a bench trial. During appellees' opening statement, counsel stated that on October 2, 2009, Sydnor contracted with appellant for a bond. According to appellees, they paid appellant $9,600 in cash and gave appellant the titles to three vehicles. Thirty days later, the bond was posted. On November 12, 2009, appellant and Qualls went to Norvell's sister's house, kicked in the door, and arrested appellant. During the encounter, Qualls told Norvell that if she gave him $500 and possession of one of the vehicles, he would place Sydnor on house arrest. Sydnor was not placed on house arrest.

{¶ 7} Appellant presented his opening statement and claimed that Sydnor gave false information on the bond contract. Appellant asserted that he did not meet with appellees until November 2, 2009, and that the October 2, 2009 date is incorrect. Appellant stated that he mistakenly wrote "October" on the receipt, because he was in a hurry.

{¶ 8} Appellant and Sydnor were the only witnesses, and they gave conflicting accounts of their interactions. Appellant explained that he held the titles for the motor vehicles to secure the balance due on the bond contract and that he did not take physical possession. He and Qualls arrested Sydnor on November 12 based upon his belief that Sydnor had provided false information because appellant claimed, Sydnor did not live at the address Sydnor listed on the bond application. Appellant stated that he drove by the address and he did not believe anyone lived there. Appellant testified that the house was being remodeled. Appellant stated that he called Sydnor and Jones to inform them that they needed to meet with him to correct the address. Appellant explained that when he did not hear from Sydnor, he decided to track him down and arrest him.

{¶ 9} Appellant stated that he learned that Sydnor was staying at Norvell's sister's house in Columbus. Appellant testified that before he entered the sister's house, he contacted the Columbus Police Department. Appellant explained that he and Qualls kicked down the door and arrested Sydnor, and that he did not see any children present at the time.

{¶ 10} Sydnor testified and, in essence, disagreed with everything to which appellant had testified. Sydnor also denied that appellant contacted him and informed him that Sydnor had given a false address. Sydnor also stated that he had not received any information about a problem with his bond.

{¶ 11} Sydnor stated that on the night appellant arrested him, he was with Norvell at her sister's house and that he and Norvell were babysitting. Sydnor additionally refuted appellant's claim that Columbus Police officers were present.

{¶ 12} Sydnor stated that appellant and Qualls promised to release him on an ankle monitor in exchange for $500 and possession of one of the vehicles, a Buick. Norvell gave Qualls $500 and the Buick the next day, but Sydnor was not released on an ankle monitor. Sydnor stated that he called appellant, and appellant "said he ain't letting me out." Sydnor demanded that appellant return the money, but appellant refused.

{¶ 13} On cross-examination, Sydnor stated that it is "not accurate" that the house listed on the bond application was being remodeled. Sydnor denied talking to appellant on November 3, 2009, and denied that they had a conversation in which appellant told Sydnor that "there's false information on the contract and that you had to meet with me to get it corrected or your bond was going to be forfeited[.]"

{¶ 14} The trial court asked Sydnor "if there's anything that's untruthful on that [bond] application." Sydnor stated, "I believe everything's true on this."

{¶ 15} After the parties presented their evidence, the trial court allowed them to file post-trial briefs. In his post-trial brief, appellant alleged that appellees' claim that they signed the bond contract in October 2009 is false. Appellant pointed out that he testified at trial that the date should have been November 2, 2009. Appellant also asserted that he had a right to enter Norvell's sister's house to arrest Sydnor. Appellant claimed that Sydnor had not been merely "babysitting," but had been living at Norvell's sister's house.

{¶ 16} On February 10, 2015, the trial court entered judgment in appellees' favor, awarded the plaintiffs $15,600 in compensatory damages and $5,000 in punitive damages.

{¶ 17} On March 4, 2015, appellant filed a Civ.R. 60(B) motion for relief from judgment that generally attacked Sydnor's credibility. Appellant also filed a motion for a new trial and complained that (1) the jury trial waiver was not proper because his consent was not obtained; (2) appellees made false statements in their complaint; (3) Sydnor's testimony that he and Norvell were babysitting surprised him and he was unable to subpoena witnesses to contradict this testimony; and (4) the trial court did not properly apply the law.

{¶ 18} On April 29, 2015, the trial court denied appellant's motion for a new trial and motion for relief from judgment. This appeal followed.

IPRO SE APPEAL

{¶ 19} Before we consider appellant's assignments of error, we observe that appellant is acting pro se in this appeal. Because we ordinarily prefer to review a case on its merits rather than dismiss it due to procedural technicalities, we afford considerable leniency to pro se litigants. E.g., Viars v. Ironton, 4th Dist. Lawrence No. 16CA8, 2016-Ohio-4912, 2016 WL 3670171, ¶ 25 ; Miller v. Miller, 4th Dist. Athens No. 14CA6, 2014-Ohio-5127, 2014 WL 6488876, ¶ 13 ; In re Estate of Pallay, 4th Dist. Washington No. 05CA45, 2006-Ohio-3528, 2006 WL 1875899, ¶ 10 ; Robb v. Smallwood, 165 Ohio App.3d 385, 2005-Ohio-5863, 846 N.E.2d 878, ¶ 5 (4th Dist.) ; Besser v. Griffey, 88 Ohio App.3d 379, 382, 623 N.E.2d 1326 (4th Dist.1993) ; State ex rel. Karmasu v. Tate, 83 Ohio App.3d 199, 206, 614 N.E.2d 827 (4th Dist.1992). "Limits do exist, however. Leniency does not mean, however, that we are required ‘to find substance where none exists, to advance an argument for a pro se litigant or to address issues not properly raised.’ " State v. Headlee, 4th Dist. Washington No. 08CA6, 2009-Ohio-873, 2009 WL 478085, ¶ 6, quoting State v. Nayar, 4th Dist. Lawrence No. 07CA6, 2007-Ohio-6092, 2007 WL 3407169, ¶ 28. Furthermore, we will not "conjure up questions never squarely asked or construct full-blown claims from convoluted reasoning." Karmasu, 83 Ohio App.3d at 206, 614 N.E.2d 827. We will, however, consider a pro se litigant's appellate brief so long as it "contains at least some cognizable assignment of error." Robb at ¶ 5; accord Coleman v. Davis, 4th Dist. Jackson No. 10CA5, 2011-Ohio-506, 2011 WL 345772, ¶ 14 (considering pro se...