MARY BERRYHILL v. RUSTOM R. KHOURI, ET AL. [Aрpeal by Robert Berryhill, Counterclaim Defendant-Appellant]
No. 105587
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 3, 2018
2018-Ohio-1757
BEFORE: Laster Mays, J., Keough, P.J., and Jones, J.
JUDGMENT: AFFIRMED. Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-10-721073. RELEASED AND JOURNALIZED: May 3, 2018.
Robert J. Berryhill, pro se
ATTORNEYS FOR APPELLEES
Mary Berryhill, pro se 345 East Pioneer Trail Aurora, OH 44202
Michael C. O‘Malley Cuyahoga County Prosecutor
By: Mary M. Frey Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
Robert B. Weltman Weltman Weinberg & Reis Co., L.P.A. 323 W. Lakeside Avenue, Suite 200 Cleveland, OH 44113
Tracy K. Stratford James R. Wooley Katie M. Mcvoy Jones Day North Point Building 901 Lakeside Avenue Cleveland, OH 44114
Jennifer Armstrong R. Jeffrey Pollock McDonald Hopkins Co., L.P.A. 600 Superior Avеnue, East Suite 2100
John R. Climaco Climaco Wilcox Peca Tarantino & Garofoli 55 Public Square, Suite 1950 Cleveland, OH 44113
ANITA LASTER MAYS, J.:
{¶1} Counterclaim defendant-appellant, Robert J. Berryhill, appeals the trial court‘s denial of his motion to reopen judgment under
I. Background and Facts
{¶2} According to appellant,
[T]he case arises from a dispute between partners over a long-standing real estate partnership that was absеnt a partnership agreement. The parties conducted themselves under an oral agreement or understanding for over an eleven year period, which resulted in the creation in excess of $300 million dollars in equity as a direct result of [appellant‘s] relatiоnships, knowledge and experience.
Appellant‘s brief, p. 1.
{¶3} The partnership referenced was between appellant and defendants-appellees Rustom Khouri (“R. Khouri“) and R. Khouri‘s wife Mary Khouri (“M. Khouri and collectively referred to as the “Khouris“) as the owners of defendant Carnegiе Management and Development Corporation (“Carnegie“), a commercial real estate development company. According to the independent contractor employment agreement governing the parties’ relationship, apрellant was hired to serve as Carnegie‘s senior vice-president. The executive compensation package included a 10 percent ownership interest in the limited liability companies formed to hold each development project that appellant secured and implemented.
{¶4} Appellant was terminated in 2009 for illegally receiving funds from one of the company‘s projects. In 2010, appellant‘s wife Mary Berryhill (“M. Berryhill“) sued the Khouris, Carnegie, and the limited liability companies, claiming entitlement to the 10 percеnt profit distributions from the development deals created by appellant. M. Berryhill v. Khouri, Cuyahoga C.P. No. CV-10-721073 (Mar. 12, 2010). The case was assigned to the commercial docket.
{¶5} The Khouris admitted that M. Berryhill was entitled to the ownership interests but countered with several claims including that appellant had been embezzling funds from development projects. Appellees also asserted affirmative defense and counterclaim that M. Berryhill assisted appellant‘s fraud by allowing the limited liability distributions to be placed in her name.
{¶6} On December 21, 2011, the trial court granted partial summary judgment for the Khouris barring recovery by M. Berryhill of distributions for ownership interests earned after August 6, 2008, when the embezzlement began. The Khouris later filed a second motion for partial summary judgment arguing that they learned of appellant‘s false credentials during discovery and would not have hired him if they had known.
{¶7} The parties settled the case on Dеcember 21, 2012. On March 13, 2013, the Khouris filed to vacate the settlement and for attorney fees on the ground that appellant and M. Berryhill misrepresented their assets and ability to satisfy a judgment. M. Berryhill, Cuyahoga C.P. No. CV-10-721073, ¶ 9 (Mar. 12, 2010). The appellant and M. Berryhill withdrew their initial opposition, and the trial court vacаted the settlement. Discovery was reopened, and trial was scheduled.
{¶8} On May 8, 2013, the trial court granted the second motion for partial summary
{¶9} In Berryhill v. Khouri, 8th Dist. Cuyahoga No. 100173, 2014-Ohio-5041, ¶ 3 (”Berryhill I“),1 this court affirmed the trial court‘s grant of summary judgment. Id. at ¶ 20. This court also concluded “that the trial court did not abuse its discretion in rendering the attorney fees award and the award of costs.” Id. at ¶ 31.
{¶10} Defendants-appellees’ motion for partial summary judgment was filed on November 25, 2014. It reiterated as undisputed facts, the importance of credentials to the position for which appellant was hired, and stated the amounts appellant received in salary, health benefits, expense reimbursements, and $2,005,740.57 in bonuses and distributions from the limited liability companies.
{¶11} Noting that the trial court had already determined appellant‘s liability for fraudulent inducement, “the only outstanding question is the equitable amount due to [d]efendants to return them to their original position.” Motion for summary judgment, p. 4.
{¶12} On January 9, 2015, due to the retirement of the commercial docket judge, coupled with the pending dissolution of the commercial docket, the case was transferred to same judgе who was then serving as a visiting judge. The pending motion for partial summary judgment was granted on January 20, 2015. The commercial docket was disbanded on January 21, 2015.
{¶13} On June 25, 2015, appellant filed a motion entitled “motion to reopen or reinstate to arrest summary judgment.” The motion was summarily denied on July 10, 2015, by the visiting judge. On July 20, 2015, appellant filed a
{¶14} On January 25, 2017, this court granted, in part, appellant‘s complaint for a writ of mandamus ordering the visiting judge to issue a ruling on the pending motion, but denying appellant‘s request for findings of fact and conclusions of law. State ex rel. Berryhill v. Khouri, 8th Dist. Cuyahoga No. 105090, 2017-Ohio-302.
{¶15} On February 9, 2017, appellant requested that the trial court accept his amended affidavit in support of the pending motion to reopen because he was denied access to a notary at the time he filed the motion. On March 1, 2017, the case was transferred to the docket of the administrative and presiding judge because the previously assigned visiting judge was no longer available. Also on March 1, 2017, the administrative judge denied appellant‘s motion to reopen judgmеnt.
{¶16} Appellant appeals the denial.
II. Assignments of Error
- Whether the administrative judge of the trial court lacked authority to assign case from a disbanded commercial docket to his own docket per
Ohio Rules Superintendence 49.03(B) . - Whether a retired judge formally sitting on a Court of Common Pleаs commercial docket has the authority to retain his own cases and issue rulings after the commercial docket is disbanded in disregard of
Rule 49.03(B) of the Ohio Supreme Court Rules of Superintendence . - Whether the trial court abused its discretion by denying appellant‘s
Civ.R. 60(B) motion in аpparent disregard to the factual allegations of mistake by the court, excusable neglect, and/or inadvertence by appellant, without a hearing and without the ability to present testimony in support of the errors allegedly committed. - Whether the trial cоurt abused its discretion by denying appellant‘s
Civ.R. 60(B) motion containing factual allegations of lies and misrepresentations made to the trial court by defendant-counterclaiming-appellees in their affidavit and pleadings, causing the trial court to issue its basis in ruling in favor of a default judgment against appellant, as the appellant deserved such relief in the interests of justice and equity. - Whether the trial court abused is discretion, causing a miscarriage of justice and equity, when it denied appellant‘s
Civ.R. 60(B)
III. Discussion
A. Judicial Authority Pursuant to Rule 49.03, Ohio Supreme Court Rules of Superintendence
{¶18} We combine the first and second assigned errors for analysis. Appellant challenges the authority of the administrative and presiding judge to assign the case to the judge‘s own docket after the commercial docket was disbanded, and quеstions the authority of a retired visiting judge to retain cases and issue rulings after the commercial docket was disbanded.
We find that the assigned errors lack merit.
{¶19} Appellant argues that the trial court‘s January 2015 entry granting partial summary judgment is invalid because the commercial docket had disbanded.2 Appellant cites
{¶20} Appellant also argues that the March 1, 2017 denial of his
{¶21} “A presiding judge of a court may servе as an administrative judge of a court or division of a court pursuant to
{¶22} The first and second assigned errors are without merit.
B. Motion to Reopen
{¶24} A trial court‘s denial of a motion for relief from judgment under
{¶25} A movant must meet each of three requirements to prevail on a motion for relief from judgment under
(1) a meritorious defense or claim to present if relief is granted; (2) entitlement to relief under one of the grounds stated in
Civ.R. 60(B)(1) through(5) ; and (3) the timeliness of the motion. GTE Automatic Elec., Inc. v. ARC Industries, 47 Ohio St.2d 146, 150-151, 351 N.E.2d 113 (1976). The failure to establish any one of these requirements will result in the denial of the motion. See Rose Chevrolet, Inc., at 20.
{¶26}
{¶27} Motions for
{¶28} This court affirmed the trial court‘s finding that appellant fraudulently induced the parties into contracting with him in Berryhill I. Also in Berryhill I, we affirmed the trial court‘s decision to award attorney fees and costs where the fees and costs were incurrеd due to “appellant‘s extensive fraud,” and the fees were discounted to an hourly rate “commensurate with those charged by large corporate firms in the community.” Id. at ¶ 30.
{¶29} The crux of appellant‘s motion to vacate is to challenge the previously adjudicated issue of the determinations as to fraud in this case. That issue is barred by the doctrines of res judicata and law of the case. “The doctrine of res judicata bars claims that were or could have been raised on appeal.” Clinton v. MetroHealth Sys., 8th Dist. Cuyahoga No. 104957, 2017-Ohio-4073, ¶ 8, citing M & T Bank v. Steel, 8th Dist. Cuyahoga No. 101924, 2015-Ohio-1036, ¶ 13. Under the law of the case dоctrine “‘the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.‘” Id. at ¶ 9, quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984).
{¶30} The sole issue for the trial court‘s resolution of the November 25, 2014 mоtion for partial summary judgment was to determine what remedy would return appellees to their “original position” in light of the rescission. Journal entry No. 8756158 (Jan. 20, 2015), p. 2, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954). Appellees did not request that appellant return his salary and benefits, but only the 10 percent interest in the prоject limited
{¶31} Appellant has advanced no viable defenses supporting entitlement to relief from judgment in this case. The claims contained in apрellant‘s motion are without merit and are barred by the doctrines of res judicata and law of the case. See Clinton, 8th Dist. Cuyahoga No. 104957, 2017-Ohio-4073, ¶ 8-9, citing M & T Bank, 8th Dist. Cuyahoga No. 101924, 2015-Ohio-1036, ¶ 13 and Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410.
{¶32} The remaining assignments of error lack merit.
{¶33} The trial court‘s judgment is affirmed.
It is ordered that appellees recover of said appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
ANITA LASTER MAYS, JUDGE
KATHLEEN ANN KEOUGH, P.J., and LARRY A. JONES, SR., J., CONCUR