[Cite as McCollum v. Bolgrin, 2014-Ohio-1167.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


SHAWNDA MCCOLLUM, ET AL.                         :   JUDGES:
                                                 :
                                                 :   Hon. W. Scott Gwin, P.J.
       Plaintiffs-Appellants                     :   Hon. William B. Hoffman, J.
                                                 :   Hon. Patricia A. Delaney, J.
-vs-                                             :
                                                 :   Case No. 2013CA00136
                                                 :
MAX E. BOLGRIN                                   :
                                                 :
                                                 :
       Defendant-Appellee                        :   OPINION


CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court of
                                                     Common Pleas, Case No.
                                                     2013CV01292



JUDGMENT:                                            REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                              March 3, 2014




APPEARANCES:

For Plaintiffs-Appellants:                           For Defendant-Appellee:

MARY E. REYNOLDS                                     MARK F. FISCHER
SHANNON M. DRAHER                                    MATTHEW J. WALKER
MORROW & MEYER, LLC                                  FISCHER, EVANS & ROBBINS, LTD.
6269 Frank Road, NW                                  4505 Stephen Circle N.W., Suite 100
North Canton, OH 44720                               Canton, OH 44718
Stark County, Case No. 2013CA00136                                                      2

Delaney, J.

       {¶1} Plaintiffs-Appellants Shawnda McCollum and Stephen McCollum appeal

the June 27, 2013 judgment entry of the Stark County Court of Common Pleas.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} On May 10, 2011, Plaintiff-Appellant Shawnda McCollum was involved in

a motor vehicle accident with Defendant-Appellee Max E. Bolgrin.

       {¶3}   Plaintiffs-Appellants Shawnda and Stephen McCollum attempted to file a

personal injury action against Bolgrin in the Stark County Court of Common Pleas. The

statute of limitations for the McCollums’ claims expired on May 10, 2013. On May 7,

2013, counsel for the McCollums mailed a Complaint for Personal Injuries and a

Designation Form to the Stark County Clerk of Courts. Pursuant to Loc.R. 9.02 of the

Court of Common Pleas of Stark County, General Division, every complaint filed with

the Clerk of Courts must be accompanied by a Designation Form, which states the

caption and the general nature of the action. The Stark County Clerk of Courts received

the McCollums’ Complaint and Designation Form on May 8, 2013.

       {¶4} The Clerk of Courts refused to file the Complaint because the McCollums

did not properly complete the Designation Form. Loc.R. 9.02 states, “[t]his form must be

filled out in its entirety and every question must be answered. The Clerk is instructed to

refuse to accept for filing any case that does not conform to these rules.” The

McCollums failed to complete two sections on the Designation Form: “Brief Factual

Summary” and “Description of damages including all special damages to date.”

       {¶5} On May 13, 2013, counsel for the McCollums received the unfiled

Complaint from the Clerk of Courts. That same day, counsel for the McCollums filed a
Stark County, Case No. 2013CA00136                                                    3


“Motion of Plaintiffs for Order Deeming Complaint Filed as of the Date May 8, 2013.”

Because the case was not yet assigned, the Administrative Judge reviewed the motion

and granted the McCollums’ motion that the Complaint be deemed filed as of May 8,

2013. The judgment entry was filed May 13, 2013.

       {¶6} On June 5, 2013, Bolgrin filed a Motion for Summary Judgment and

Motion to Vacate 5-13-13 Judgment Entry. In the motion, Bolgrin requested the trial

court vacate the May 13, 2013 judgment entry that allowed the McCollums to deem their

complaint filed as of May 8, 2013. His argument was based on this court’s decision in

Norris v. Yamaha Motor Corp. U.S.A., 5th Dist. Stark No. 2008 CA 00296, 2009-Ohio-

4158. Bolgrin’s summary judgment motion argued the McCollums’ complaint was filed

on May 13, 2013, after the expiration of the statute of limitations.

       {¶7} The trial court granted the motion to vacate and motion for summary

judgment on June 27, 2013. The McCollums filed the instant appeal.

                               ASSIGNMENT OF ERROR

       {¶8} The McCollums raise one Assignment of Error:

       {¶9} “THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE

MAX E. BOLGRIN’S MOTION TO VACATE THE JUDGMENT ENTRY FILED ON MAY

13,   2013   AND     MOTION      FOR    SUMMARY        JUDGMENT        AND   DISMISSING

PLAINTIFFS-APPELLANT’S COMPLAINT.”

                                        ANALYSIS

       {¶10} The McCollums argue the trial court erred in vacating the May 13, 2013

judgment entry and granting summary judgment in favor of Bolgrin. We agree.
Stark County, Case No. 2013CA00136                                                   4


      {¶11} The Stark County Clerk of Courts refused to file the McCollums’ complaint

on May 8, 2013 based on Loc.R. 9.02 of the Court of Common Pleas of Stark County,

General Division. The Judges of the Stark County Court of Common Pleas, General

Division, enacted the Local Rules of Practice for use by the Clerk of Courts, the legal

community, and the public. Loc.R. 9.02 specifies the manner in which a complaint must

be filed with the General Division of the common pleas court. The rule states:

      Every Complaint shall be accompanied by a Designation Form, available

      from the Clerk of Court or Administrative Office (FAX copies are available

      upon request, see appendices), stating the caption and the general nature

      of the action in accordance with the following types:

      ***

      This form must be filled out in its entirety and every question must be

      answered. The Clerk is instructed to refuse to accept for filing any case

      that does not conform to these rules. The purpose of this rule is to assist

      the Court in managing its caseload, records, and reporting requirements to

      the Supreme Court of Ohio pursuant to C.P.Sup.R. 5.

There is no dispute the McCollums failed to complete two sections of the Designation

Form when they attempted to file their complaint on May 8, 2013.

      {¶12} Bolgrin argued in his motion to vacate and motion for summary judgment

that the trial court should vacate the May 13, 2013 judgment entry based on our

decision in Norris v. Yamaha Motor Corp. U.S.A., 5th Dist. Stark No. 2008 CA 00296,

2009-Ohio-4158. In Norris, the plaintiff attempted to file his complaint with the Stark

County Clerk of Courts on August 28, 2008. The Clerk of Courts, pursuant to Loc.R.
Stark County, Case No. 2013CA00136                                                          5


9.02, refused to file the complaint because the plaintiff failed to complete four sections

of the Designation Form. The plaintiff filed the complaint with the completed Designation

Form on September 10, 2008. The plaintiff in Norris did not move the trial court to

consider the complaint timely filed. The defendant moved for summary judgment,

arguing the plaintiff’s claims were barred by the applicable statute of limitations. The trial

court granted the motion for summary judgment and dismissed the plaintiff’s claims. Id.

at ¶ 6-9.

       {¶13} Plaintiff appealed. We affirmed the decision of the trial court to dismiss the

complaint because the plaintiff submitted his complaint for filing with a corrected

Designation Form after the expiration of the statute of limitations. We based our

decision to affirm on the trial court’s application of Loc.R. 9.02. We found Loc.R. 9.02

afforded the Clerk of Courts and the trial court no discretion and a complaint submitted

with an incomplete Designation Form must be rejected for filing. Id. at ¶ 35.

       {¶14} Bolgrin argued the facts of the present case were directly on point with the

facts of Norris and Norris required the trial court to dismiss the complaint as untimely

filed. The facts of the case sub judice present this Court with the opportunity to review

Norris and the underlying case law anew.

       {¶15} The leading case on the issue raised by the McCollums is DeHart v. Aetna

Life Ins. Co., 69 Ohio St.2d 189, 431 N.E.2d 644 (1982). In DeHart, the Ohio Supreme

Court reviewed the question whether a court of appeals properly dismissed an appeal

for failure to comply with a local appellate rule as to the filing of a praecipe. The Court

reemphasized the “fundamental tenet of judicial review in Ohio [is] that courts should

decide cases on the merits. See, e.g., Cobb v. Cobb (1980), 62 Ohio St.2d 124, 403
Stark County, Case No. 2013CA00136                                                        6


N.E.2d 991. Judicial discretion must be carefully – and cautiously – exercised before

this court will uphold an outright dismissal of a case on purely procedural grounds.” Id.

at 192. “’Judicial discretion was defined by this court as: ‘* * * the option which a judge

may exercise between the doing and not doing a thing which cannot be demanded as

an absolute right, guided by the spirit, principles and analogies of the law and founded

upon the reason and conscience of the judge, to a just result in the light of the particular

circumstances of the case.’ Krupp v. Poor, 24 Ohio St.2d 123, 265 N.E.2d 268 (1970),

paragraph two of the syllabus.” Id.

       {¶16} The Supreme Court reversed the decision of the court of appeals to

dismiss the appeal for a violation of a local rule. In DeHart, the Court established a

standard of review to determine whether a court “abuses its discretion when, after

dismissing a case, sua sponte, for a minor, technical, correctable, inadvertent violation

of a local rule, it refuses to reinstate the case when: (1) the mistake was made in good

faith and not as part of a continuing course of conduct for purpose of delay, (2) neither

the opposing party nor the court is prejudiced by the error, (3) dismissal is a sanction

that is disproportionate to the nature of the mistake, (4) the client will be unfairly

punished for the fault of his counsel, and (5) dismissal frustrates the prevailing policy of

deciding cases on the merits.” DeHart at syllabus.

       {¶17} The Fifth District Court of Appeals relied upon DeHart in Webster v.

Timken Co., 5th Dist. Stark No. 2004CA00260, 2005-Ohio-1759, to reverse a trial

court’s judgment to dismiss an action based on an incomplete Civil Cover Sheet. The

plaintiff filed a complaint on September 10, 2001 and voluntarily dismissed the action on

June 10, 2003. Id. at ¶ 4-5. The plaintiff submitted the complaint to the Stark County
Stark County, Case No. 2013CA00136                                                         7

Clerk of Courts for re-filing on June 9, 2004. Id. at ¶ 7. The plaintiff failed to place a

check mark on the Civil Cover Sheet indicating the matter was a personal injury action.

Id. The Clerk of Courts refused to file the complaint and returned the complaint to the

plaintiff. Id. The plaintiff re-filed the complaint on June 14, 2004. Id. at ¶ 9.

       {¶18} The defendant filed a motion to dismiss the plaintiff’s complaint because

the plaintiff filed the complaint outside the applicable statute of limitations. Id. at ¶ 10.

The trial court granted the motion to dismiss. Id. at ¶ 11. On appeal, we reversed the

decision of the trial court to dismiss the complaint. We relied on DeHart to find the trial

court abused its discretion in dismissing the complaint for a technical oversight.

       {¶19} In State v. Diersing, 5th Dist. Delaware No. 2012-CA-26, 2012-Ohio-4673,

this Court utilized the rationale of DeHart to overrule the trial court’s decision to dismiss

the defendant’s motion to suppress as being untimely filed. The defendant failed to

request an oral hearing on his motion to suppress and failed to set forth the anticipated

length of the hearing pursuant to Loc.R. 7.07 of the Court of Common Pleas of

Delaware County, General Division. Id. at ¶ 13-14. We applied the five-part test of

DeHart to find the trial court abused its discretion in dismissing the motion to suppress.

Id. at ¶ 18.

       {¶20} With those cases in mind, we review our decision in Norris. In Norris, we

held that based on Loc.R. 9.02 of the Stark County Court of Common Pleas, General

Division, the Clerk of Courts and the trial court had no discretion but to find the

complaint was improperly filed based on an incomplete Designation Form. We

considered the facts of DeHart and Webster to the facts in Norris and found that neither

case was applicable. DeHart, however, directs the court to consider the five-part test to
Stark County, Case No. 2013CA00136                                                           8


determine whether to dismiss a case for a minor, technical, correctable, inadvertent

violation of a local rule. Norris can be interpreted as a bright-line rule that gives the trial

court no discretion but to dismiss a complaint if a plaintiff fails to complete portions of a

Designation Form. Loc.R. 9.02 directs the Clerk of Courts to refuse to file a complaint

for failure to complete the Designation Form, but Loc.R. 9.02 does not prevent the trial

court from exercising its judicial discretion before dismissing a complaint for a technical

filing error. We clarify Norris to follow the holdings of DeHart, Webster, and Diersing that

when presented with the issue of whether to dismiss a complaint for a minor violation of

a local rule, the trial court should consider whether: (1) the mistake was made in good

faith and not as part of a continuing course of conduct for purpose of delay, (2) neither

the opposing party nor the court is prejudiced by the error, (3) dismissal is a sanction

that is disproportionate to the nature of the mistake, (4) the client will be unfairly

punished for the fault of his counsel, and (5) dismissal frustrates the prevailing policy of

deciding cases on the merits.

       {¶21} The procedural history of the present case differs from that in Norris. The

plaintiff in Norris filed the complaint with the correct Designation Form after the

expiration of the statute of limitations. In the present case, when the McCollums filed the

complaint with the correct Designation Form, they also filed with the trial court a motion

requesting the complaint be deemed filed as of May 8, 2013. The Administrative Judge

granted the McCollums’ motion on May 13, 2013.

       {¶22} The trial court’s judgment granting the motion to vacate and motion for

summary judgment in favor of Bolgrin cites only to Norris to hold that Loc.R. 9.02 does

not provide for the exercise of any discretion by the Clerk of Courts or by the trial court
Stark County, Case No. 2013CA00136                                                   9


on whether a complaint should be filed due to an incorrect Designation Form. The trial

court’s judgment did not consider the five-part test as found in DeHart. We reverse the

judgment of the trial court and remand the matter to the trial court to conduct an

analysis pursuant to DeHart to determine whether to vacate the May 13, 2013 judgment

and motion for summary judgment.

      {¶23} The McCollums’ sole Assignment of Error is sustained.

                                   CONCLUSION

      {¶24} The judgment of the Stark County Court of Common Pleas is reversed.

The matter is remanded to the trial court for further proceedings consistent with this

opinion and law.

By: Delaney, J.,

Gwin, P.J., concur,

Hoffman, J.,dissents.
Stark County, Case No. 2013CA00136                                                          10

Hoffman, P.J., dissenting

       {¶25} Although I recognize Norris is procedurally different from the case sub

judice, I would overturn Norris and outright reverse the trial court’s dismissial in this

case based upon an analysis of the factors in DeHart.
