COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71547 ERNEST HOLLIS, JR., dba : H & M ASPHALT & PAVING CO. : : ACCELERATED DOCKET Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROSIE WHEELER, ET AL. : : PER CURIAM Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION: MAY 15, 1997 CHARACTER OF PROCEEDING: Civil appeal from Cleveland Municipal Court Case No. 96-CVI-0011822 JUDGMENT: Reversed and remanded. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendants-appellants: ERNEST HOLLIS, JR. JAMES T. MILLICAN, ESQ. dba H & M Asphalt & Paving Co. BERTSCH, MILLICAN & WINSLOW CO., 9517 Parkview Avenue L.P.A. Cleveland, Ohio 44104 1280 West Third Street Cleveland, Ohio 44113 - 2 - PER CURIAM: Defendants Rosie Wheeler and Cheryl Eanes appeal from the judgment of the trial court which determined that their counterclaim was not filed in accordance with the time requirements of Cleveland Municipal Court Local Rule 13.03. For the reasons set forth below, we reverse and remand for further proceedings. On June 10, 1996, plaintiff Earnest Hollis, Jr., doing business as H &M Asphalt and Paving Co., filed this action in the Small Claims Division of Cleveland Municipal Court against defendants for services rendered at defendants' home and for the recovery of the value of tools left at that location. The summons sent to defendants notified them that the matter was set for hearing on July 12, 1996 and that any "counterclaim [must be filed with the court] at least seven days prior to the trial of the plaintiff's claim." On July 9, 1996, defendants filed an answer in which they denied liability. In addition, defendants set forth a counterclaim in which they maintained that plaintiff had not performed the services in a workmanlike manner, and sought recovery of $1,500 which they had paid to plaintiff, plus $200. The record next reflects the hearing was continued until July 25, 1996. On July 15, 1996, defendants moved for leave to file their counterclaim, arguing that the counterclaim was now timely pursuant to Cleveland Municipal Court Rule 13.03. This motion was denied and the magistrate ordered the counterclaim stricken - 3 - pursuant to Loc. R. 13.03 at the July 25, 1996 hearing. The court found in favor of defendants, however, on plaintiff's complaint. Defendants filed objections to the magistrate's decision, but the trial court overruled the objections and entered judgment in accordance with the magistrate's decision. Defendants now appeal and assign a single error for our review. THE TRIAL COURT ERRED IN FINDING THAT APPELLANTS' COUNTERCLAIM WAS NOT TIMELY FILED IN ACCORDANCE WITH CLEVELAND MUNICIPAL COURT LOCAL RULE 13.03. Within this assignment of error, defendants maintain that because the trial court continued the date of the original hearing, their counterclaim was filed within the requirements of Loc. R. 13.03. Rule 13.03 of the Cleveland Municipal Court provides as follows: All counterclaims must be filed with the clerk of courts office at least seven (7) days prior to the original scheduled trial date, unless the hearing date is changed by the clerk due to service or with leave of court. (Emphasis added). Defendants maintain that this provision should be construed to permit the hearing of counterclaims so long as they are filed at least seven days prior to the actual trial date of plaintiff's claims in the original action. We agree. As an initial matter, we note that it is well-settled that "municipal courts can exercise only such powers as are conferred upon them by statute." Lewis v. Romans (December 24, 1981), - 4 - Cuyahoga App. No. 43594, unreported. Accord Hoerner v. Downs (1989), 63 Ohio App.3d 286, 288; Bretton Ridge Homeowners Club v. DeAngelis (1985), 22 Ohio App.3d 65, 67. Municipal courts are "a creature of the legislature" and it is the legislature which has the right to specify powers of jurisdiction, compensation and procedures of the municipal courts. Hartzmark & Co. v. Weiss (1969), 18 Ohio Misc. 116, 118. We further note that R.C. 1925.02(C) provides that, for small claims matters: Any person who files a counterclaim or cross-claim shall file it with the small claims division and serve it on all other parties at least seven days prior to the date of the trial of the plaintiff's claims in the original action. (Emphasis added). Thus, we hold that Loc. R. 13.03 of the Cleveland Municipal Court may not be applied to preclude the hearing of a counterclaim which has been filed "at least seven days prior to the date of the trial of the plaintiff's claims in the original action." Reversed and remanded for further proceedings consistent with this opinion. - 5 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellee their costs herein. 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. _______________________________ JAMES D. SWEENEY, CHIEF JUSTICE _______________________________ ANN DYKE, JUDGE _________________________________ KENNETH A. ROCCO, JUDGE, DISSENTS (SEE ATTACHED DISSENTING OPINION) 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 of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). - 6 - COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71547 ERNEST HOLLIS, JR., dba : H & M ASPHALT & PAVING CO. : : Plaintiff-appellee : : DISSENTING -vs- : OPINION : ROSIE WHEELER, ET AL. : : Defendants-appellants : : DATE: MAY 15, 1997 ROCCO, J., DISSENTING: I respectfully dissent. The issue in this case is not whether the trial court exceeded its jurisdiction but whether it was merely properly enforcing a local rule it had authority to promulgate pursuant to R.C. 1901.13(A)(1) and M.C. Sup.R. 18. R.C. 1925.02(A)(2)(a) specifies those matters over which a small claims division has no jurisdiction. See, e.g., Lin v. Reid (1983) 11 Ohio App.3d 232. Moreover, with the filing of a counterclaim, R.C. 1925.10 may either require or permit transfer of the case to the municipal court's regular docket. Loc.R. 13.03 obviously is designed to ensure these determinations are made as soon as practicable. R.C. 1925.02(C) contains the words "at least," thus Loc.R. 13.03 does not conflict with the statute. There is no reason, therefore, for this court to imply a municipal small claims court -7- is exceeding its "jurisdiction" when it chooses to enforce its procedural rules. Rather, a trial court is within its prerogative to require a defendant to file his or her counterclaim in a timely manner. The enforcement of local procedural rules is a matter left within the discretion of the trial court. Huffaker v. Ramella (1991), 75 Ohio App.3d 836 at 839; Hanes v. Block (1945), 78 Ohio App. 394. In this case, appellants waited until three days before the original date of trial to file their response to appellee's claim; appellants neither requested the trial court's leave to file a counterclaim nor provided a reason for their delay. Only when the matter was rescheduled did appellants move for leave to file the counterclaim, again without any explanation for their failure to comply with the local rule. Appellants thus gave the trial court nothing to aid it in evaluating their request. Under these circumstances, the trial court did not abuse its discretion in enforcing a properly-promulgated local rule by striking appellants' counterclaim. .