Brisco v. U.S. Restoration & Remodeling, Inc.
2019 Ohio 5318
Ohio Ct. App.2019Background
- Plaintiffs Samuel L. Brisco, Jr. and Ruth A. Brisco sued U.S. Restoration & Remodeling, Inc. and related defendants; their attorneys were Kevin J. O’Brien and Jeffrey A. Catri.
- Defendants moved for summary judgment; plaintiffs’ memorandum contra was stricken as untimely and the trial court granted summary judgment for defendants.
- This court previously affirmed summary judgment but reversed and remanded solely for a hearing on defendants’ R.C. 2323.51 motion for sanctions (frivolous conduct).
- On remand the trial court held proceedings, struck certain late filings, and a magistrate awarded defendants $43,262.50 in attorney fees plus $2,275.00 in expert fees (total $45,537.50).
- The trial court adopted the magistrate’s decision; appellants appealed, raising four assignments of error: (1) alleged timely filing/docketing error, (2) challenge to finding of frivolous conduct, (3) alleged inadequate R.C. 2323.51 hearing procedure, (4) objection to recovery of attorney fees in context of consumer/debt claims.
- The Tenth District affirmed: it applied the law-of-the-case rule to bar relitigation of the filing issue, found competent, credible evidence supporting the frivolous-conduct findings, upheld the hearing/procedure, and rejected the statute-based fee objection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether Brisco timely filed his memorandum contra and was denied due process when the clerk’s e-filing failed to docket it | Brisco: he timely filed (June 7, 2013) but the e-filing system overwrote/did not record it; default was improper | Defendants: plaintiffs failed to ensure successful filing and did not obtain leave to refile after the extended deadline | Denied — law of the case: this court had already resolved the filing/timeliness issue against plaintiffs in prior appeal, so it is not reviewable here |
| 2. Whether plaintiffs/appellate counsel engaged in frivolous conduct under R.C. 2323.51 | Plaintiffs: their claims had arguable factual and legal basis and were not frivolous | Defendants: plaintiffs’ claims lacked evidentiary support (e.g., cancellation notice, CSPA, fraud, slander of title) and counsel failed reasonable investigation | Affirmed — trial court’s factual findings are supported by competent, credible evidence; claims lacked evidentiary support and were properly deemed frivolous |
| 3. Whether the R.C. 2323.51(B)(2) hearing was procedurally deficient (due process) because defendants relied on the existing record rather than live evidence | Plaintiffs: hearing violated due process; defendants presented no live evidence and only relied on the record | Defendants: using the court file for evidence is permissible; plaintiffs did not object at trial or provide a complete transcript on appeal | Denied — no transcript provided to establish error; consideration of the record was permissible and no plain error shown |
| 4. Whether awarding attorney fees was barred because fees arose from debt-collection/consumer context under other statutes (R.C. 1345.031, 1319.02) | Plaintiffs: fee award impermissible when tied to consumer/personal debt collection | Defendants: award was statutory under R.C. 2323.51 for frivolous conduct against counsel, not a debt-collection fee recovery under those statutes | Denied — statutes cited by plaintiffs inapposite; fees were properly awarded under R.C. 2323.51 against counsel for frivolous conduct |
Key Cases Cited
- Ed Schory & Sons, Inc. v. Francis, 75 Ohio St.3d 433 (1996) (a person who can read and is not prevented from reading what he signs cannot later claim he was misled by the document's contents)
- Dice v. Akron, Canton & Youngstown R.R. Co., 155 Ohio St. 185 (1951) (contract signor responsible for reading what he signs)
- Nolan v. Nolan, 11 Ohio St.3d 1 (1984) (law-of-the-case is a rule of practice and may be withheld to avoid unjust results)
- State v. Fischer, 128 Ohio St.3d 92 (2010) (law-of-the-case and res judicata/issue preclusion principles)
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997) (plain error in civil cases is disfavored and applies only in exceptional circumstances)
- Farmers State Bank v. Sponaugle, 157 Ohio St.3d 151 (2019) (law-of-the-case preserves consistent results and prevents endless relitigation)