COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70348 : CENTURY RENTALS : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION PHILIP E. PAVARINI, SR. : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 15, 1997 CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Common Pleas Court Case No. CV-279732 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: J. DAVID INGERSOLL, ESQ. PHILIP E. PAVARINI, SR., Suite 350, The Arcade pro se 401 Euclid Avenue P.O. Box 360302 Cleveland, OH 44114-2402 Strongsville, OH 44136-0427 - 2 - KARPINSKI, J.: Defendant-appellant, Phillip Pavarini, appeals from the judgment of the trial court in favor of plaintiff. Defendant, representing himself pro se on appeal, raises five assignments of error, but argues only one issue, the denial of his right to trial. On this issue, the record reveals that defendant did request a jury trial, and, therefore, the trial court's decision to enter judgment after the submission of briefs without a motion for summary judgment was in error. Accordingly, the judgment of the trial court is reversed, and the case remanded. The record reflects that plaintiff filed an action against defendant in Berea Small Claims Court. The complaint sought judgment in the amount of $1,669.20 resulting from defendant's alleged default on a car rental contract. Defendant counterclaimed against plaintiff and sought relief in excess of $250,000. Because the case exceeded the jurisdictional limit, the matter was transferred to common pleas court where defendant refiled his answer and counterclaim. In the last sentence of defendant's answer and counterclaim defendant demanded a jury trial. This jury demand appears in bold, capital letters immediately above defendant's signature. The case then developed into a series of discovery disputes between the parties. The trial court ordered defendant to comply with plaintiff's discovery requests and granted plaintiff's motion for a protective order. When defendant failed to comply - 3 - with plaintiff's request for discovery, the trial court, as a sanction, dismissed defendant's counterclaim. On August 14, 1995, the trial court issued an order scheduling trial for September 27, 1995. The court stated that completed trial briefs were to be filed on September 20, 1995. On September 20, 1995, plaintiff filed its trial brief. On September 25, 1995, defendant, through an attorney, filed his trial brief. Two days later, the parties appeared for trial. On the morning of September 27, 1995, however, defendant filed a motion for continuance, a motion to dismiss, a motion for sanctions, a motion for fees, and a motion for the judge to recuse herself. Plaintiff also notified the court that he fired his attorney. At this point in open court, the court stated: There's been no jury demand filed within the applicable time limits on this case; therefore, no jury will be sat [sic] on this case. I'm going to order that this trial go forward on briefs and affidavits. I will enter a motion for summary judgment. The court concluded as follows: All motions filed by the Defendant are hereby denied. This case will go forward on pleadings and affidavits. There being no jury, this Court can certainly -- believes that this Court can rule on this case from those motions. Thereafter, the court issued the following written order: Defts. motion for continuance, motion to dismiss and/or motion for sanctions and/or costs and motion to have judge recuse herself are denied. Pltf. to file motion for summary judgment by 9-29-95. Response due 10-13-95 On that afternoon, plaintiff filed a document titled "Plaintiff's Brief, Affidavit, And Exhibit In Lieu Of Trial." - 4 - Although plaintiff never filed a motion for summary judgment, the trial court, on February 14, 1996, granted judgment for plaintiff in the amount of $1,669.20. Defendant appealed raising five assignments of error, which state as follows: 1 The Trial Judge ruled that the Defendant filed a motion to take the Plaintiffs Deposition first and would be allowed to do so. 2 The Trial Judge had exparte discussions with the Plaintiffs [sic] Attorney, had hearings without proper notification to the Defendant, 3 dismissed the Defendant's counter claim, 4 denied discovery to the Defendant, 5 Denied a trial to the Defendant. [sic] Following these assignments is a one-paragraph argument on only the fifth assignment, the denial of his trial. Because the first four assignments were not separately argued, they will be disregarded. See App.R. 12, 16. As to defendant's fifth assignment, however, the judgment of the trial court is in error no matter whether the judgment be considered a trial judgment or a summary judgment. First, if the judgment of the trial court is considered a summary judgment, it is improper because no motion for summary judgment was filed. In prior cases, this court has held that it is improper to convert a trial brief to a motion for summary judgment. 1540 Columbus Corp. v. Cuyahoga Cty. (1990), 68 Ohio App.3d 713; Bob Schmidt Homes, Inc. v. Cincinnati Ins. Co. (Jan. 18, 1996), Cuyahoga App. No. 68710, unreported. Upon remand, the parties will have the - 5 - opportunity to file motions for summary judgment pursuant to Civ.R. 56. If the trial court determines that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, then defendant's right to a jury trial will not be abridged. Houk v. Ross (1973), 34 Ohio St.2d 77,83-84; Sawchyn v. Buckeye Union Ins. Co. (May 4, 1992), Cuyahoga App. No. 60510, unreported. On the other hand, if the judgment of the trial court is considered the judgment of the court following a bench trial, the judgment is improper because defendant requested a jury in his initial answer and counterclaim. While Civ.R. 38(B) requires that the words "jury demand endorsed hereon" shall be placed in the caption, courts have held that the "technical deficiency" of not having the phrase in the caption will not deny a party's constitutional right to trial by jury. Perry v. LTV Steel Co. (1992), 84 Ohio App.3d 670, 678; Carl Sectional Home, Inc. v. Key Corp. (1981), 1 Ohio App.3d 101. In Perry, defendant LTV Steel specified a jury request in its answer but not in the caption of the answer. In Carl Sectional Home, the jury demand was located in the answer and counterclaim immediately after the attorney's signature, but was not mentioned in the caption. Similarly, in the case at bar, defendant's written request for a jury at the end of his answer and counterclaim is sufficient to invoke his constitutional right to a jury trial. Accordingly, the trial court's judgment after a bench trial was in error. - 6 - This cause is reversed and remanded. It is, therefore, ordered that appellant recover of appellee his costs herein taxed. It is ordered that a special mandate be sent to said 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. O'DONNELL, J., CONCURS; JAMES D. SWEENEY, C.J., CONCURS IN JUDGMENT ONLY. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .