Abe Bahgat v. Mark Kissling et al.
No. 17AP-641
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 14, 2018
2018-Ohio-2317
SADLER, J.
(C.P.C. No. 14CV-5098) (REGULAR CALENDAR)
Rendered on June 14, 2018
On brief: Brunner Quinn, Rick L. Brunner, and Patrick M. Quinn, for appellant. Argued: Patrick M. Quinn.
On brief: Mularski, Bonham, Dittmer & Phillips, LLC, and David M. Kennedy, for appellee Mahmoud Sami Ayyash. Argued: David M. Kennedy.
On brief: Albert A. Yannon, for appellee John D. Adkins. Argued: Albert A. Yannon.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{1} Plaintiff-appellant, Abe Bahgat, appeals from three decisions and entries of the Franklin County Court of Common Pleas, Civil Division: the October 7, 2015 decision and entry granting the motion for summary judgment filed by defendants-appellees Mahmoud Sami Ayyash and John D. Adkins; the March 30, 2016 decision and entry denying appellant reconsideration of the October 7, 2015 decision; and the August 8, 2017 decision and judgment entry overruling appellant‘s objections and adopting a magistrate‘s decision on appellant‘s claims against another defendant and the counterclaims of appellees against appellant. For the following reasons, we affirm the trial court.
{2} In 2010, appellant asked his neighbor and close friend Ayyash, a civil engineer with experience in commercial construction management, for a recommendation of a residential roofing contractor to perform work on a multi-family dwelling that he owned. Ayyash contacted his friend Adkins, a commercial roofing contractor, and Adkins gave Ayyash the business card of Kissling Kontracting, LLC (“Kissling“), a residential roofing contractor. According to Ayyash, Ayyash provided appellant with Kissling‘s business card and made no representations to appellant about Kissling‘s qualifications or the quality of Kissling‘s work. Appellant and Kissling entered into a contract for $9,150 for Kissling to perform the roofing work, and Kissling completed the work in March 2011. At that point, appellant contacted Ayyash to ask whether he should hire an inspector to review Kissling‘s work. Ayyash told appellant, based on his experience, an inspector was an unnecessary expense if Kissling provided a warranty. Appellant did not hire an inspector and paid Kissling for the work.
{3} Several years later, appellant claimed that the work performed by Kissling was deficient. Appellant demanded that Ayyash and Adkins inspect Kissling‘s work. Ayyash and Adkins agreed to look at the property, but they were unable to fully inspect the work without a ladder. Ultimately, Kissling did not remedy the work to appellant‘s satisfaction, and appellant hired another contractor for $12,850 to perform work on the roof that exceeded the scope of work performed by Kissling.
{4} On May 12, 2014, appellant initiated a lawsuit against Adkins, Ayyash, Kissling, and Mark Kissling in regard to work performed on the roof and gutters of his residential property. Against Kissling, appellant raised claims for breach of contract, violations of the Consumer Sales Practices Act (“CSPA“), fraud, and civil conspiracy. Against appellees, appellant raised claims of breach of fiduciary duty and civil conspiracy. Appellees counterclaimed against appellant alleging violations of
{5} On November 25, 2014, after Mark Kissling‘s deposition was taken, appellees requested appellant dismiss his claims against them, which appellant refused to do. Following appellant‘s discovery responses in December 2014, appellant again refused appellees’ request to dismiss the claims against them. On June 30, 2015, appellees moved
{6} On October 7, 2015, the trial court granted summary judgment in appellees favor. The trial court found “no evidence that there was any agreement whereby * * * Ayyash was to be an agent for [appellant]” and that “[appellant‘s] own affidavit testimony establishe[d] that he simply asked * * * Ayyash to refer him to a roofing contractor because * * * Ayyash had experience working with construction professionals and was a close friend whose judgment he trusted.” (Oct. 7, 2015 Decision on Summ. Jgmt. at 6.) The trial court concluded there were no genuine issues of material fact as to the existence of a fiduciary relationship between the parties. In the alternative, the trial court found that even if an agency relationship existed, there were no genuine issues of material fact as to breach of any duty owed by appellees to appellant. Regarding the civil conspiracy claim, the trial court found no genuine issues of material fact as to the existence of an underlying wrongful act to support the claim.
{7} Appellant moved for the trial court to reconsider its decision. The trial court denied reconsideration on March 30, 2016, noting it would decide “whether Ayyash is entitled to attorney fees for defending against [appellant‘s] Motion for Reconsideration when it considers Ayyash‘s Counterclaim brought under
{8} On May 9, 2017, a magistrate of the trial court conducted a non-jury trial on “all remaining claims” in the action, including appellant‘s claims against Kissling,1 the counterclaims of Ayyash and Adkins against appellant, and Ayyash‘s entitlement to attorney fees against appellant for defending against appellant‘s motion for reconsideration. (June 13, 2017 Mag.‘s Decision at 1.) The magistrate acknowledged appellant‘s claims against Kissling included breach of contract, violations of the CSPA, and fraud, Ayyash‘s counterclaim against appellant included frivolous conduct under
29. * * * Mr. Kissling‘s deposition revealed that there was no evidence of an agency relationship between [appellant] and Mr. Ayyash, and that there was no evidence of an agency relationship between [appellant] and Mr. Adkins. Mr. Kissling‘s deposition revealed that there was no evidence of a civil conspiracy between/among Mr. Kissling and/or Mr. Ayyash and/or Mr. Adkins to cause harm to [appellant].
* * *
31. * * * [Appellant‘s] discovery responses revealed that there was no evidence of an agency relationship between [appellant] and Mr. Ayyash, and that there was no evidence of an agency relationship between [appellant] and Mr. Adkins. [Appellant‘s] discovery responses revealed that there was no evidence of a civil conspiracy between/among Mr. Kissling and/or Mr. Ayyash and/or Mr. Adkins to cause harm to [appellant].
* * *
43. During the course of this litigation, [appellant] never took the deposition of Mr. Ayyash or Mr. Adkins, and [appellant] never served discovery requests on Mr. Ayyash or Mr. Adkins. The only deposition [appellant] took was the deposition of Mr. Kissling, who testified that he did not have a relationship of any sort with Mr. Ayyash or Mr. Adkins.
44. At the trial/hearing before the Magistrate, [appellant] asserted, for the first time in this litigation, that the alleged civil conspiracy between/among Mr. Kissling, Mr. Ayyash, and Mr. Adkins was that, in April 2013, Mr. Ayyash and Mr. Adkins became aware of the “wrongdoing” committed by Mr. Kissling against [appellant], but Mr. Ayyash and Mr. Adkins “walked away” without “fixing” Mr. Kissling‘s wrongdoing.
(June 13, 2017 Mag.‘s Decision at 7, 9-10.)
There is no evidence, and there has never been any evidence, to support [appellant‘s] claims against Mr. Ayyash and Mr. Adkins for breach of agency and civil conspiracy. [Appellant‘s] conduct, in commencing and prosecuting this action against Mr. Ayyash and Mr. Adkins, as described in detail in the Findings of Fact above, constituted “frivolous conduct” as defined by
R.C. 2323.51(A)(2)(a)(iii) . Mr. Ayyash and Mr. Adkins were adversely affected by [appellant‘s] frivolous conduct.* * *
* * * Mr. Ayyash is entitled to recover his reasonable and necessary attorney fees in the amount of $14,017.50 from [appellant], and Mr. Adkins is entitled to recover his reasonable and necessary attorney fees in the amount of $3,300 from [appellant].
(June 13, 2017 Mag.‘s Decision at 12-13.) In a section marked “Decision,” the magistrate concluded:
Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is the Magistrate‘s decision that [appellant] is entitled to a judgment in the principal amount of $9,150 against Defendant Kissling Kontracting LLC, plus interest on that amount at the legal rate from the date of judgment.
Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is the Magistrate‘s decision that Defendant Mahmoud Sami Ayyash is entitled to a judgment in the principal amount of $14,017.50 against [appellant], plus interest on that amount at the legal rate from the date of judgment.
Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is the Magistrate‘s decision that Defendant John Adkins is entitled to a judgment in the
principal amount of $3,300 against [appellant], plus interest on that amount at the legal rate from the date of judgment.
(June 13, 2017 Mag.‘s Decision at 13-14.)
{11} On June 27, 2017, appellant filed a document entitled “Objection of Magistrate‘s Decision.” Appellant did not delineate specific objections. Appellant contended that Mark Kissling‘s deposition testimony contradicted finding number 43 of the magistrate‘s decision, which states “[t]he only deposition [appellant] took was the deposition of Mr. Kissling, who testified that he did not have a relationship of any sort with * * * Ayyash and * * * Adkins.” (June 27, 2017 Obj. to Mag.‘s Decision at 2.) Appellant additionally took issue with the trial court‘s credibility findings, contending Ayyash lied under oath regarding only providing contact information to appellant and not contacting Kissling himself or arranging appellant‘s meeting with Kissling. Appellant additionally states:
[Appellant] is in the process of requesting preparation of the proceeding transcript. Accordingly, [appellant] reserves the right and request [sic] extension of time to supplement his memorandum in the near future upon receipt of the proceeding transcript.
(June 27, 2017 Obj. to Mag.‘s Decision at 2.)
{12} Ayyash filed a memorandum contra appellant‘s objection asserting “[t]he magistrate ha[d] committed no error.” (July 4, 2017 Memo. Contra at 4.) Specifically, Ayyash contended appellant had not requested the required affidavit of proceeding within three days of filing his objections as required by Loc.R. 99.05 of the Court of Common Pleas of Franklin County, General Division, and appellant‘s objection was based on a fact—an alleged phone call placed by Ayyash to Kissling—which was both outside of the evidence presented at trial and irrelevant to sustaining the claim. Ayyash characterized appellant‘s claim as one for “[n]egligent [r]eferral,” a cause of action not recognized in Ohio, and argued appellant again was attempting to needlessly prolong litigation. (July 4, 2017 Memo. Contra at 1.)
{13} On July 12, 2017, appellant filed a reply to Ayyash‘s memorandum contra. Appellant again pointed to the magistrate‘s credibility findings and finding of fact number 43, asserting it had “no substance in fact.” (July 12, 2017 Reply at 2.) Appellant also states:
{14} On August 8, 2017, the trial court entered a decision overruling appellant‘s objections. The trial court noted appellant‘s objections took issue with the magistrate‘s finding of fact and credibility determination. According to the trial court, “[t]ranscripts from the May 9th trial/hearing were not filed with the Objections and [appellant] has not requested an extension of time to file the same,” therefore, pursuant to
However, even if [appellant] had filed the transcript, the Court would nevertheless overrule his objections because the Finding of Fact that he complains about does not affect the merits of the Magistrate‘s Decision. Furthermore, because the Magistrate, as the trier of fact, was in the best position to observe and judge the credibility of the parties and witnesses, the Court gives due deference to the Magistrate‘s credibility determinations. See Seasons Coal, Inc. v. Cleveland, 10 Ohio St. 3d 77, 80 (1984).
(Aug. 8, 2017 Decision at 3.) Thus, the trial court adopted the magistrate‘s June 13, 2017 decision as its own and found:
- [Appellant] is entitled to a judgment in the principal amount of $9,150.00 against Defendant Kissling Kontracting LLC plus interest on that amount at the legal rate from the date of this entry;
- Defendant Sami Ayyash is entitled to a judgment in the principal amount of $14,017.50 against [appellant], plus interest on that amount at the legal rate from the date of this entry;
- Defendant John Adkins is entitled to a judgment in the principal amount of $3,300.00 against [appellant], plus interest at that amount on the legal rate from the date of this entry.
(Aug. 8, 2017 Decision at 3-4.) The trial court specified “[t]his is a final order as to all parties and claims. There is no just cause for delay.” (Aug. 8, 2017 Decision at 4.) Less than two
{15} Appellant filed a timely appeal to this court. On September 29, 2017, appellant filed a motion requesting that this appeal be stayed and the matter remanded to the trial court to allow the court to rule on appellant‘s CSPA and fraud claims and/or the
II. ASSIGNMENTS OF ERROR
{16} Appellant presents three assignments of error:
- The trial court erred in denying Appellant‘s request for an extension of time to file the transcript of the trial.
- The trial court erred as a matter of law in sanctioning Appellant under
R.C. 2323.51 . - The trial court erred in failing to adjudicate Appellant‘s CSPA claim.
III. DISCUSSION
A. First Assignment of Error
{17} Under the first assignment of error, appellant contends the trial court erred when it denied appellant‘s request for an extension of time to file the transcript of the trial before the magistrate. For the following reasons, we disagree.
{18} Under
An objection to a factual finding, whether or not specifically designated as a finding of fact under
Civ.R. 53(D)(3)(a)(ii) , shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available. * * * The objecting party
shall file the transcript or affidavit with the court within thirty days after filing objections unless the court extends the time in writing for preparation of the transcript or other good cause. If a party files timely objections prior to the date on which a transcript is prepared, the party may seek leave of court to supplement the objections.
A party‘s failure to object to the magistrate‘s findings of fact or conclusions of law as required by
{19} Loc.R. 99.05 of the Court of Common Pleas of Franklin County incorporates the requirements of
The 14-day time limit established by
Civ.R. 53 for the filing of objections to the Magistrate‘s Decision may be extended by the Trial Judge only upon written application supported by an affidavit stating facts indicating a practical impossibility of compliance. If a transcript of the trial or hearing is necessary to support objections to the Magistrate‘s Order or Decision, the transcript must be filed with the Trial Judge by the moving party within 30 days after the filing of the objections unless the Trial Judge, in writing, extends the time for inability of the reporter to complete the transcript of the testimony.The request for a transcript shall be submitted to the proper Court reporter within three days after the filing of the objections.
{20} ”
{22} To appellant, the trial court‘s decision regarding the transcript constituted an abuse of discretion for two reasons. First, appellant argues the trial court based its denial on the erroneous conclusion that appellant had never requested an extension. Appellant asserts he twice requested (in his objections and in his reply to Ayyash‘s memorandum contra) that the trial court extend the deadline to file the transcript and allow him to supplement his objections on its receipt. Second, appellant argues the trial court‘s denial of appellant‘s request for an extension constituted an abuse of discretion on the merits since
{23} Conversely, Ayyash2 first argues the trial court correctly found that appellant never moved for an extension of time to obtain a transcript to prepare his objections to the magistrate‘s decision. Next, Ayyash contends, under
{24} Here, appellant timely filed objections to the magistrate‘s decision within the 14 days allotted under
{25} Based on the record of this case, we agree with the trial court that appellant failed to request an extension of time to file the transcript. Appellant states in his June 27, 2017 objections to the magistrate‘s decision, “[appellant] is in the process of requesting preparation of the proceeding transcript. Accordingly, [appellant] reserves the right and request [sic] extension of time to supplement his memorandum in the near future upon receipt of the proceeding transcript.” (June 27, 2017 Obj. to Mag.‘s Decision at 2.) In his July 12, 2017 reply, appellant states “[appellant] is awaiting receipt of the transcript of May 9, 2017 and renew [sic] his request for extension of time to file more fully brief that support [sic] the Objection for Magistrate‘s decision.” (July 12, 2017 Reply at 2.) On close review, rather than asking the trial court for an extension of time to file the transcript, both appellant‘s requests ask the trial court for an extension of time to supplement his objections on receipt of the transcript. Whether appellant properly sought leave of the trial court to supplement his objections under
{26} In addition to never requesting an extension of time to file the transcript, we note the record is unclear as to when appellant requested the proper court reporter to prepare the transcript, and appellant‘s July 12, 2017 comment regarding the transcript did not allege or address court reporter delay or assert any other “good cause” for an extension to file a transcript.
{27} Accordingly, appellant‘s first assignment of error is overruled.
B. Second Assignment of Error
{28} Under the second assignment of error, appellant contends the trial court erred as a matter of law in sanctioning appellant under the frivolous conduct statute,
{29} Pursuant to
{30} In the instant case, the magistrate found appellant‘s conduct frivolous under
Whether conduct is frivolous under
R.C. 2323.51(A)(2)(a)(iii) presents a factual question; namely, whether evidence supports a party‘s allegations or factual contentions. Carasalina LLC v. Bennett, 10th Dist. No. 14AP-74, 2014-Ohio-5665, ¶ 32. An allegation or factual contention needs only minimal evidentiary support in order for a party or its attorney to avoid a frivolous conduct finding underR.C. 2323.51(A)(2)(a)(iii) . Carasalina at ¶ 36.Because a finding of frivolous conduct under
R.C. 2323.51(A)(2)(a)(iii) results from a factual analysis, appellate courts afford such a finding a degree of deference. Carasalina at ¶ 37. Appellate courts will not reverse a determination that conduct is frivolous underR.C. 2323.51(A)(2)(a)(iii) unless the record lacks competent, credible evidence to support the trial court‘s factual findings. Carasalina at ¶ 37; Groves v. Groves, 10th Dist. No. 09AP-1107, 2010-Ohio-4515, ¶ 18, overruled in part on other grounds, Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203.
{31} In support of his assignment of error, appellant first argues, under Shaver v. Wolske & Blue, 138 Ohio App.3d 653 (10th Dist.2000), frivolous conduct, pursuant to
{32} It is undisputed that appellant did not raise the procedural argument concerning Shaver and McKibben to the magistrate or to the trial court. Generally, “an appellate court will not consider any error which counsel for a party complaining of the trial court‘s judgment could have called but did not call to the trial court‘s attention at a time when such error could have been avoided or corrected by the trial court.” (Internal citations omitted.) State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 15. Thus, by failing to raise an issue to the trial court, an appellant forfeits that issue on appeal. Risner v. Ohio Dept. of Natural Resources, 144 Ohio St.3d 278, 2015-Ohio-3731, ¶ 26;
{33} Under
{34} Regarding waiver, appellant argues that under
{35} Appellant next argues the decision of the trial court to impose sanctions is fundamentally flawed on the merits since he had at least minimal evidentiary support to avoid a frivolous conduct finding under
{36} As stated in Southard Supply at ¶ 14-15, a finding of frivolous conduct under
{37} “When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court‘s proceedings, and affirm.” (Internal citations omitted.) Id. at ¶ 14. We find, without a transcript, we are unable to conduct a complete review of appellant‘s argument on the merits of the finding of frivolous conduct under
{38} Accordingly, appellant‘s second assignment of error is overruled.
C. Third Assignment of Error
{39} Under the third assignment of error, appellant contends the trial court erred in failing to adjudicate appellant‘s CSPA claim. Appellant specifically contends, outside of noting the claim existed, the magistrate did not make any findings or discuss the CSPA claim, and the trial court adopted the magistrate‘s decision also without reference to the
{40} In King, the appellant argued the trial court failed to rule on his claims that defendant was negligent in hiring, supervising, and disciplining certain correctional officers and in failing to protect him from their abusive and demeaning treatment, including an alleged assault. We agreed, noting we had previously found the trial court improperly characterized the appellant‘s entire cause of action as one for civil conspiracy, disposed of the entire case on that action, and did not make any findings or discuss appellant‘s negligence claims which were clearly set forth in the complaint. As a result, we held the trial court erred in failing to address the negligence claims, and the case must be remanded for that purpose.
{41} First, the facts of this case set it apart from King. The magistrate‘s decision referenced presiding over a non-jury hearing to address “all remaining claims in this civil action,” specifically cited to appellant‘s CSPA claim, and stated that the magistrate‘s decision resolved the merits of appellant‘s complaint against Kissling, as well as appellee‘s counterclaims, and the issue of attorney fees. (June 13, 2017 Mag.‘s Decision at 1.) The magistrate did not endeavor to roll the CSPA claim into any other claim and dispose of the case under that alternative basis.
{42} Second, the case is procedurally distinct from King. The instant case involves a magistrate‘s decision followed by a trial court‘s adoption of the magistrate‘s decision, invoking the procedural requirements of
{44} Considering all the above, contrary to appellant‘s argument, King is not dispositive on the facts of this case, and appellant has not otherwise demonstrated reversible error on appeal in this regard. App.R. 16(A)(7); Sims, 10th Dist. No. 14AP-1025, 2016-Ohio-4763, ¶ 11.
{45} Accordingly, appellant‘s third assignment of error is overruled.
IV. CONCLUSION
{46} Having overruled appellant‘s three assignments of error, we affirm the October 7, 2015, March 30, 2016, and August 8, 2017 decisions of the Franklin County Court of Common Pleas.
Judgments affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.