Adams Babner & Gitlitz, L.L.C. v. Tartan W., L.L.C.Adams Babner & Gitlitz, L.L.C. v. Tartan W., L.L.C.
Mills, Mills, Fiely & Lucas LLC, Laura L. Mills, and Paul W. Vincent, for appellee/cross-appellant.
APPEAL from the Franklin County Municipal Court
SADLER, P.J.
{¶ 1} Plaintiff-appellant/cross-appellee, Adams, Babner & Gitlitz, LLC (“ABG“), appeals from the March 5, 2014 decision and entry of the Franklin County Municipal Court denying its motion for sanctions filed pursuant to
I. BACKGROUND
{¶ 2} On September 2, 2010, ABG filed a complaint for breach of contract against “Tartan West, LLC c/o Steve Simonetti,” seeking the payment of legal fees allegedly incurred by Tartan West, LLC between March 2007 and June 2008. Tartan West, LLC filed an answer on January 24, 2011 stating, in relevant part, “[ABG] has not named a legal entity associated with Steven Simonetti.” (Jan. 24, 2011 Answer, 2.)
{¶ 3} On February 9, 2011, ABG filed a motion to substitute Tartan West for Tartan West, LLC as the defendant, asserting the complaint misidentified the defendant as Tartan West, LLC. The trial court granted ABG‘s mоtion on March 1, 2011. On March 28, 2011, ABG filed a motion for leave to amend its complaint to add Simonetti as a defendant, asserting there was a question of law as to Simonetti‘s personal liability on the debt ABG sought to collect from Tartan West. The trial court granted the motion on March 29, 2011.
{¶ 4} On April 7, 2011, Simonetti filed an answer, along with a motion for
{¶ 5} Thе trial court scheduled a trial on ABG‘s breach of contract action for August 31, 2011. Minutes before trial was to commence, ABG dismissed Simonetti as a defendant without prejudice pursuant to
{¶ 6} On September 8, 2011, Simonetti renewed his
{¶ 7} The trial court scheduled a hearing on the parties’ motions for sanctions for June 2012. Following numerous continuances and procedural maneuverings, the hearing was finally set for November 20, 2013.
{¶ 8} On October 11, 2013, the parties filed pre-hearing briefs in support of their respective motions for sanctions. In his brief, Simonetti again alleged he was substituted as a party to the lawsuit only in retaliation for separate litigation Simonetti filed against ABG and Adams and that ABG dismissed its lawsuit at the last minute despite Simonetti‘s request that it not do so. Citing unrelated litigation between him and Adams, Simonetti claimed that Adams had a “propensity to file harassment litigation against Mr. Simonetti.” (Simonetti Oct. 11, 2013 Sanctions Brief, 3.) Simonetti claimed that ABG‘s conduct qualified as frivolous conduct “obviously purposed in harassing or maliciously injuring [Simonetti] by causing a needless increase in the cost of litigation” and was “not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, and also cannot be supported by a good faith argument for the establishment of new law.” (Simonetti Oct. 11, 2013 Sanctions Brief, 6.) Simonetti requested sanctions in the amount of $14,808.53.
{¶ 9} In its brief, ABG claimed Simonetti engaged in sanctionable frivolous conduct by intentionally concealing the identity of the party responsible for payment of the legal services rendered, by denying his personal responsibility for payment of the legal services rendered, by filing frivolous pretrial motions, and by filing a frivolous motion for sanctions. ABG argued that Simonetti‘s “gamesmanship” violated
{¶ 10} During a November 20, 2013 status conference, the parties agreed to submit their motions for decision upon non-oral hearing after filing supplemental briefs and/or evidentiary materials. On Decеmber 9, 2013, the trial court filed an entry which memorialized the parties’ agreement and ordered that the supplemental materials be filed
{¶ 11} In his supplemental filing, Simonetti asserted that “[d]espite the game of musical defendants [ABG] played,” ABG was аware of the proper legal name of the entity that had incurred the legal fees and/or had access to numerous members of that entity who could have informed him of such. (Dec. 23, 2013 Supplemental Brief, 2.) He further averred that despite knowledge that Simonetti was not a proper defendant, ABG nonetheless added him аs a party. Simonetti claimed that due to its “misbehavior and misuse of the system,” ABG “should be responsible for the expense * * * created for Mr. Simonetti.” (Dec. 23, 2013 Supplemental Brief, 4.) Simonetti attached various evidentiary materials to his supplemental filing, most notably his own affidavit.
{¶ 12} In its supplemental filing, ABG did not offer argument beyond that assertеd in its October 11, 2013 sanctions brief. ABG filed evidentiary materials in the form of affidavits of two of its in-house attorneys, two members of an entity known as Tartan Development Company (West), LLC, and the outside counsel who filed the motion for sanctions on behalf of ABG. In his affidavit, outside counsel averred that ABG paid $13,492.85 for his services in pursuing the motion for sanctions.
{¶ 13} In its decision and entry, the trial court acknowledged the parties’ conflicting factual assertions underlying their motions for sanctions. As to Simonetti, the court stated, “the version of those facts advanced by Mr. Simonetti asserts that ABG engaged in an elaborate and calculated legal ruse to harass Mr. Simonetti by filing a lawsuit, wherein the wrong party was deliberately named, but only just slightly misnamed so as to lend the gambit an air of believability, and thereafter ABG brazenly twice repeated the tactic before dismissing. Mr. Simonetti asserts that all of this was done, (presumably at great expense to ABG), for the sole purpose of burdening him with an expensive lawsuit.” (Mar. 5, 2014 Dеcision and Entry, 4.) Regarding ABG, the court averred, “[i]n stark contrast, ABG‘s version of the facts asserts that for over one year ABG provided legal services to a client without coming to know the true legal identity of that client, only to have the representative of that client extend the scheme to its extreme by continuing to conсeal the true identity of the client after ABG brought suit for unpaid legal fees.” (Mar. 5, 2014 Decision and Entry, 4.)
{¶ 15} As to ABG, the court stated, “instead of showing a deliberate scheme to evade paying legal fees by concealing the proper defendant‘s identity, the evidence and the record show that Mr. Simonetti‘s counsel chose to employ a legal strategy of declining to aid ABG‘s stumbling efforts to prosecute its claim for relief. The Court notes that although that strategy was consistent with the Civil Rules and applicable law, and was therefore within Mr. Simonetti‘s counsel‘s prerogative to emрloy, whether that strategy was a wise one is questionable, in hindsight, given the way in which it contributed to the prolonged character of this case.” (Mar. 5, 2014 Decision and Entry, 4-5.) In a related footnote, the court noted, “[t]he strategy was also futile, ultimately, because ABG also represents that after dismissing the instant action, it filed suit against the prоper legal entity (a company associated with Mr. Simonetti) and obtained summary judgment, and the judgment was affirmed on appeal. * * * See Adams, Babner & Gitlitz, L.L.C. v. Tartan Dev. Co. (West), L.L.C., 10th Dist. No. 12AP-729, 2013-Ohio-1573.” (Mar. 5, 2014 Decision and Entry, 5, fn. 3.) The court further observed that “the general confusion over precise legal names in this case is consistent with the numerous instances in the record in which the parties and their counsel used various versions of the name ‘Tartan West,’ seemingly interchangeably.” (Mar. 5, 2014 Decision and Entry, 5.)
{¶ 16} The court also rejected Simonetti‘s claim that ABG engaged in frivolous conduct by adding him as a defendant without sufficient basis and dismissing him on the day of trial, finding that ABG‘s evidentiary materials provided “colorable legal arguments to support adding and dismissing Mr. Simonetti.” (Mar. 5, 2014 Decision and Entry, 6.) The court averred, “[t]hus, the Court cannot conclude, as a matter of fact, that adding and then dismissing Mr. Simonetti was done solely for the purpose of harassing and maliciously injuring him.” (Mar. 5, 2014 Decision and Entry, 6.)
II. ASSIGNMENT OF ERROR
{¶ 18} In a timely appeal, ABG sets forth a single assignment of error:
IN LIGHT OF THIS COURT‘S DECISION IN ADAMS, BABNER & GITLITZ, LLC V. TARTAN DEVELOPMENT CO. (WEST), LLC., 2013-Ohio-1573 (APRIL 2013), IT IS CLEAR THAT APPELLEE‘S CONDUCT WAS FRIVOLOUS; THEREFORE, ABG SHOULD BE AWARDED REASONABLE ATTORNEY‘S FEES AS COMPENSATION IN LITIGATING THIS ISSUE.
III. DISCUSSION
{¶ 19} At the outset, we note that even after ABG voluntarily dismissed its breach of contract action, the trial court retained jurisdiction to decide the motions for sanctions, as such are considered collateral issues unrelated to the merits of the action. State ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 88, 2002-Ohio-3605, ¶ 23; Grossman v. Mathless & Mathless, 85 Ohio App.3d 525, 528 (10th Dist.1993) (holding that a trial court may entertain a mоtion to impose sanctions under
{¶ 20} ABG states in its assignment of error that our decision in Adams, Babner & Gitlitz, LLC v. Tartan Dev. Co. W., LLC, 10th Dist. No. 12AP-729, 2013-Ohio-1573, wherein we concluded the trial court did not err in granting summary judgment to ABG on its breach of contract claim against an entity known as Tartan Development Company (West) LLC, necessitates a finding that Simonetti engaged in frivolous conduct. However, ABG fails tо offer any legal argument as to why this is true. Indeed, ABG mentions our decision only in its procedural history and in reference to the trial court‘s footnote quoted above. Under
{¶ 21} ABG‘s actual argument is set forth in the body of its brief: “[t]he issue presented on appeal is whether [Simonetti‘s] tactic of prolonging the case is sufficient grounds for sanctions under
{¶ 22} “No single standard of review applies to appeals of rulings on
{¶ 23} ABG‘s contention that Simonetti engaged in frivolous conduct by “prolonging the case” invokes
{¶ 24} ABG seizes upon the trial court‘s language quoted above in arguing that “[i]nexplicably, in coming to the conclusion that [Simоnetti] had employed a legal strategy, solely for the purpose of prolonging the case, the trial court then denied ABG‘s claim for sanctions.” (ABG‘s Brief, 6.) We disagree with ABG‘s characterization of the trial court‘s statement. Contrary to ABG‘s contention, the trial court did not find that the legal strategy employed by Simonetti was for the sole purpose of prolonging the case; rather, the trial court merely found that such strategy may not have been wise, as it contributed to the lengthy proceedings in this case.
{¶ 25} Upon review, while we agree with the trial court that the legal tactics taken by Simonetti may have contributed, at least in part, to the lengthy naturе of this case, we do not find sufficient evidence that those tactics were employed with the specific intention of “causing unnecessary delay or a needless increase in the cost of litigation.”
{¶ 26} ABG‘s assignment of error is overruled.
IV. CROSS-ASSIGNMENT OF ERROR
{¶ 27} Simonetti filed a notice of cross-appеal and sets forth the following assignment of error:
The trial court erred to the prejudice of Defendant/Cross-Appellant Steven Simonetti (“Simonetti“) when it determined that Simonetti is not entitled to attorneys fees and sanctions stemming from Plaintiff/Cross-Appellee Adams Babner, LLC‘s (“Adams“) frivolous conduct.
{¶ 28} Before considering the merits of this assignment of error, we must first consider our jurisdiction to do so.
{¶ 29}
{¶ 30} The trial court entered final judgment in this matter on March 5, 2014. ABG filed its notice of appeal on April 4, 2014, within the time prescribed by
{¶ 31} Accordingly, having overruled ABG‘s assignment of error, we affirm the judgment of the Franklin County Municipal Court. Simonetti‘s cross-appeal is dismissed.
Judgment affirmed; cross-appeal dismissed.
TYACK and CONNOR, JJ., concur.