2016 Ohio 7030
Ohio Ct. App.2016Background
- Dr. James Bressi, a physician and part-owner of Summit Pain Specialists, was criminally indicted on 27 sex-related counts; he was later convicted of one count of sexual imposition and acquitted of the other 26. Dozens of civil claims by patients/employees followed alleging nonconsensual touching and related claims.
- Plaintiffs obtained a prejudgment attachment (Feb. 21, 2014) that included a $100,000 criminal bond held by the county clerk, directing that bond be released to plaintiffs’ counsel at termination of the criminal case. Bressi did not appeal that attachment order.
- After the criminal case concluded, counsel for Bressi moved in the civil case to release the bond funds; plaintiffs opposed and the trial court noted remedies were Civ.R. 60(B) or a statutory motion to discharge the attachment.
- Bressi (through criminal and civil counsel) filed Civ.R. 60(B) motions and R.C. 2715.44 motions to discharge the attachment, arguing (among other points) that (1) the bond funds belonged to his wife or were borrowed, and (2) his acquittals on 26 counts constituted newly discovered evidence and made the attachment inequitable.
- The trial court held hearings, considered testimony (including from a patient who did not testify at the criminal trial), and on Dec. 1, 2014 denied the requested relief and permitted limited releases for payment of criminal counsel; Bressi and his wife appealed.
- The court of appeals: dismissed parts of the appeals as untimely or for lack of standing, and affirmed the trial court’s denial of Civ.R. 60(B) relief and discharge of attachment on the merits where reviewable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the attachment order could be challenged on appeal or by Civ.R. 60(B) after Bressi failed to timely appeal | Attachment was improper and bond release exceeded court's authority | The attachment order was final; appellant failed to timely appeal the Feb. 21 order | Appeal on the attachment terms was untimely; court lacked jurisdiction to consider those challenges |
| Whether Civ.R. 60(B) relief was warranted based on acquittals/newly discovered evidence | Acquittals on 26 counts are new evidence entitling relief under Civ.R. 60(B)(2) and make the order inequitable under (4) | Criminal acquittals do not constitute newly discovered evidence for civil attachment; different burdens/elements in criminal vs civil cases | Denial of Civ.R. 60(B) relief affirmed; acquittals do not show new evidence or inequity sufficient for relief |
| Whether the trial court abused discretion in denying the motion to discharge attachment under R.C. 2715.44 | No probable cause remains after criminal acquittals; funds belong to wife/third parties so attachment improper | Trial court found independent probable-cause grounds (victim testimony and grand jury indictment) and testimony at discharge hearing undermined appellant's contentions; appellant failed to provide hearing transcript | Denial of discharge affirmed; attachment was supported by probable cause and appellant failed to preserve/transmit record to overturn credibility findings |
| Whether Ms. Annette Consentino‑Bressi can appeal attachment of assets she claims as her own | Her assets were improperly attached and she seeks reversal | She was not a party when the order issued and did not intervene; therefore lacks standing | Appeal dismissed for lack of standing because she was not a party at time of the order |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard explained)
- Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619 (Ohio 1993) (appellate review limits and deference to trial court)
- GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 (Ohio 1976) (standards for Civ.R. 60(B) relief)
- Strack v. Pelton, 70 Ohio St.3d 172 (Ohio 1994) (Civ.R. 60(B) conjunctive requirements)
- Key v. Mitchell, 81 Ohio St.3d 89 (Ohio 1998) (Civ.R. 60(B) cannot substitute for timely appeal)
- Rice v. Wheeling Dollar Sav. & Trust Co., 163 Ohio St. 606 (Ohio 1955) (appeal from attachment order is on questions of law/whether wrongfully obtained)
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (Ohio 1980) (when parts of transcript are missing, appellate court presumes regularity)
- John H. Spencer, Inc. v. Baker & Hostetler, 38 Ohio App.3d 117 (Ohio Ct. App.) (attachment orders are final, appealable orders)