Case Information
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[Cite as
Adams v. Pitorak & Coenen Invests., Ltd.
,
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO
KENNETH J. ADAMS, : O P I N I O N
Plaintiff-Appellee, :
CASE NO. 2013-G-3129 - vs - :
PITORAK & COENEN INVESTMENTS, :
LTD., et al.,
:
Defendant-Appellant,
:
(JAMES A. SENNETT,
:
Appellee). Civil Appeal from the Geauga County Court of Common Pleas, Case No. 08 M 000868. Judgment: Affirmed.
Kenneth J. Adams , pro se, 9441 Pekin Road, Novelty, OH 44072 (Plaintiff-Appellee). G. Michael Curtin , Curtin & Kemtz, LLP, 159 South Mаin St., Suite 920, Akron, OH 44308 (For Defendant-Appellant).
Richard C. Alkire and Dean C. Nieding , Richard C. Alkire Co., LPA, 250 Spectrum Office Building, 6060 Rockside Woods Boulevard, Independence, OH 44131-7300 (For Appellee).
TIMOTHY P. CANNON, P.J.
Appellant, Pitorak & Coenen Investments, Ltd. (“Pitorak & Coenen”),
appeals the judgment of the Geauga County Court of Common Pleas dismissing appellant’s R.C. 2323.51 motion for sanctions against appellee, James A. Sennett, the *2 attorney for appellee, Kenneth J. Adams. The issue before this court is whether the trial court erred in finding appellant’s R.C. 2325.51 motion untimely. Based on the following, we affirm. This case has a protracted procedural history which is detailed in our prior
opinions. See Adams v. Pitorak & Coenen Invests., Ltd. , 11th Dist. Geauga Nos. 2009-
G-2931 & 2009-G-2940,
R.C. 2323.51, on July 30, 2012. This motion sought sanctions against Attorney Sennett for filing an action where “(1) the action was not warranted under existing law or under an argument to establish new law; (2) the suit consisted of allеgations and/or factual contentions that had no evidentiary support; and (3) factual contentions alleged in the Complaint were not warranted by the evidence.” These allegations were based on the fact that Adams sought compensation for damage to real property that he allegedly did not own during the relevant time. Thereaftеr, Pitorak & Coenen filed three additional R.C. 2323.51 motions:
one on October 3, 2012, and two on December 5, 2012. These three motions reiterated the aforementioned conduct. The trial court denied Pitorak & Coenen’s post-appeal sanctions motions
as untimely. The trial court stated:
In this case, defеndants argue a final appealable order was not issued until the Court of Appeals reversed this Court or until the Ohio Supreme Court declined review. This is incorrect. Final judgment was еntered in this case on March 8, 2011. Defendants’ first R.C. 2323.51 motion was filed on July 30, 2012, substantially more than 30 days after the final judgment. Appellant filed a timely appeal and asserts the following assignment of
error for our consideration: “The trial court erred when it denied Defendant-Appellant’s Motion for
Sanctions pursuant to R.C. § 2323.51 based upon its opinion that Defendant- Appеllant’s motion was not filed within 30 days of final judgment as set forth in R.C. § 2323.51.” On appeal, appellant argues the trial court misapplied the definition of
“final judgment” as used in R.C. 2323.51. Specifically, aрpellant claims the motion for frivolous conduct was within the 30-day filing limit of R.C. 2323.51 because the final judgment occurred when this court issued its decision on June 29, 2012. Although appellant filed four separate sanctions motions, the only one this court must consider is the first post-appeal sanctions motion, filed July 30, 2012; the other motions filed were clearly outside the 30-day limitatiоn under any interpretation. R.C. 2323.51, which governs the filing of motions for frivolous conduct in
civil actions states, in pertinent part: “[A]t any time not more than thirty days after the entry of final judgment in a civil action or appeal, any party adversely affected by frivolous conduct may file a motion for an award of court costs, reasonable attorney’s fees, аnd other reasonable expenses incurred in connection with the civil action or appeal.” R.C. 2323.51(B)(1).
{¶10}
R.C. 2323.51(B)(1) contains a specific 30-day timing provision. This
limitation contrasts with Civ.R. 11, which dоes not have a specific time limitation. See Fast Prop. Solutions, Inc. v. Jurczenko , 11th Dist. Lake Nos. 2012-L-015 & 2012-L-016,
R.C. 2323.51(B)(1) in arriving at its conclusion; thus, our standard of review is de novo.
State v. Owen , 11th Dist. Lake No. 2012-L-102,
clock beings to run when a “final judgment” is issued. R.C. 2323.51(B)(1). The term
“final judgment” as used in R.C. 2323.51 is synonymous with the term “final order” as
defined by R.C. 2505.02. Soler v. Evans, St. Clair & Kelsey ,
which the 30-day time period began to run, appellant points to R.C. 2505.02(B)(3), which defines “final order” as, inter alia, “[a]n order that vacates or sets aside a judgment оr grants a new trial.” Appellant contends it is illogical to expect the losing party at trial to move for sanctions against the prevailing party. Appellant argues the more sensible approach is to await a favorable appellate ruling before seeking sanctions, particularly where, as in this case, the claim for sanctions was that the complaint was unfounded. These arguments are without merit. R.C. 2323.51(B)(1) explicitly provides that “any party adversely affected by
frivolous conduct” may move for sanctions. Allоwing “any party” to file a motion for *5 sanctions serves the purpose of such a motion, i.e., to punish misbehavior. A party’s misconduct is not excused merely because the party prevails. Losing the case in no way prohibits a party adversely affected by frivolous conduct from bringing that conduct to the attention of the court. In fact, it may be the frivolоus conduct that affected the outcome. Additionally, appellant’s argument is belied by its own conduct, as it filed a Civ.R. 11 motion seeking sanctions against Attorney Sennett after trial, but before the appeal was concluded. In the trial court’s January 14, 2013 entry, it notes that appellant’s “Civil Rule 11 based motions are continued.” The Ohio Supreme Court, in interpreting fоrmer R.C. 2323.51, stated:
The plain meaning of the statute provides a means for an immediate judicial determination and a speedy sanctioning of such abuse. However, the aggrievеd party also has the option of waiting until the conclusion of the action to seek sanctions. Construing the word ‘judgment’ as used in the statute to mean a final appealablе order serves the remedial purpose of the statute. By enacting R.C. 2323.51, the General Assembly sought to provide a remedy for those harmed by frivolous conduct. Yet, by the same tokеn, the General Assembly manifested its intent that there be a cutoff time for this sanction to be imposed. This purpose is served by giving the aggrieved party the option of filing the sanctions mоtion at any time prior to trial or within twenty-one days of the last judgment rendered in the case. This would assure that twenty-one days after the entry of final judgment, the proceedings would be оver. To adopt appellants’ interpretation would penalize the very parties that the statute seeks to benefit. Accordingly, we hold that pursuant to R.C. 2323.51, an aggrieved party has the option of filing a sanctions motion at any time prior to the commencement of the trial or within twenty-one days of a final judgment.
Soler v. Evans, St. Clair & Kelsey , supra , at 436. To support the argument that a directed verdict issued on remand
constitutes a final judgment for purposes of R.C. 2323.51, appellant cites the Seventh
Appellate District’s opinion in Merino v. Salеm Hunting Club , 7th Dist. Columbiana No.
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Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
COLLEEN MARY O’TOOLE, J.,
concur.