2022 Ohio 1000
Ohio Ct. App.2022Background
- Marcus Fontain (pro se) litigated multiple suits arising from control and management of the Dina Tower condominium; a receiver (Prodigy Properties/Jeff Lane) was appointed in Hamilton County and later the receivership was terminated.
- The Hamilton County court awarded receivership fees and costs; the receiver obtained certificates of judgment and filed them in Warren County on September 25, 2019, creating liens on Fontain’s Warren County property.
- Fontain sued the receiver, receiver’s attorneys/employees (Prodigy Defendants and Prendergast), H&R Cincy and its lawyers (including Berberich and O’Connell) and others in Warren County alleging fraud, slander of title, conspiracy, and related claims.
- The Warren County court (Jan. 19, 2021) dismissed claims against Berberich and the Prodigy Defendants; it ordered Fontain to provide a more definite statement as to claims against the H&R Cincy defendants.
- Fontain failed to comply by the deadline; the court dismissed all remaining claims (Feb. 8, 2021). Fontain appealed; the court of appeals affirmed.
- The First District in a separate Hamilton County appeal reversed/remanded only as to calculation of receivership fees — it did not vacate the receivership judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the First District vacated the Hamilton County receivership judgment and required vacatur here | Fontain: First District "vacated" Judge Nestor's judgment; this invalidates the Warren County dismissals | Defendants: First Dist. reversed/remanded only to recalculate fee amount; it did not vacate the judgment | Court: Plaintiff mischaracterized the First District decision; it reversed/remanded limited fee calculation only; Assignment 1 overruled |
| Whether claims against Attorney Berberich could be dismissed where the court considered exhibits outside the complaint without 14‑day notice (conversion to summary judgment) | Fontain: Berberich's name on the certificates shows involvement; dismissal improper | Berberich: he withdrew before the relevant events; exhibits show no participation; dismissal appropriate | Court: Conversion to summary judgment occurred but was harmless because Fontain had opportunity to and did submit opposing evidence; no genuine issue of material fact as to Berberich; dismissal affirmed |
| Whether the Barton doctrine bars suits against receiver, receiver’s employees, and receiver’s attorneys — including for acts after receivership termination (e.g., filing certificates of judgment) | Fontain: Prendergast and others were not appointed receivers and were not acting as receivers when certificates were filed; claims not barred | Defendants: Barton doctrine requires leave of appointing court to sue receiver; extends to employees/attorneys acting within scope; certificates related to pre-termination fees and are protected | Court: Extends Barton to receiver's employees and attorneys for acts within scope; where certificates enforce fees ordered by appointing court (even if filed post-termination) claims without leave are barred; Prodigy claims dismissed |
| Whether dismissal of H&R Cincy claims for failure to provide a more definite statement violated due process, self‑representation rights, or was otherwise improper | Fontain: Order coerced fabrication of claims and violated constitutional rights | Defendants: Court properly ordered a more definite statement and permissibly dismissed under Civ.R. 41(B) for noncompliance | Court: Failure to supply the ordered more definite statement justified dismissal under Civ.R. 41(B); constitutional arguments inadequately developed and rejected |
Key Cases Cited
- Barton v. Barbour, 104 U.S. 126 (1881) (establishes doctrine requiring leave of appointing court to sue a receiver)
- Petrey v. Simon, 4 Ohio St.3d 154 (1983) (trial court must give reasonable notice before treating a motion to dismiss as one for summary judgment)
- Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (1988) (on a Civ.R. 12(B)(6) motion, court must presume factual allegations true and draw inferences for nonmoving party)
- Schulman v. Cleveland, 30 Ohio St.2d 196 (1972) (unsupported legal conclusions are not accepted as true on a motion to dismiss)