GREGORY J. BOSL v. FIRST FINANCIAL INVESTMENT FUND I, ET AL.
No. 95464
Cоurt of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 21, 2011
[Cite as Bosl v. First Fin. Invest. Fund I, 2011-Ohio-1938.]
BEFORE: Blackmon, J., Kilbane, A.J., and Rocco, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-714595
JUDGMENT: AFFIRMED
ATTORNEYS FOR APPELLANT
Anand N. Misra
The Misra Law Firm, LLC
3659 Green Road, Suite 100
Beachwood, Ohio 44122
Robert S. Belovich
9100 South Hills Blvd., Suite 300
Broadview Heights, Ohio 44147
ATTORNEYS FOR APPELLEES
Michael D. Slodov
Robert G. Knirsch
Javitch, Block & Rathbone, LLC
1100 Superior Ave., 19th Floor
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, J.:
{¶ 1} Appellant Gregory Bosl appeals the trial court‘s decision granting summary judgment in favor of First Financial Investment Fund I, et al. (“First Financial“) and assigns the following errors for our review:
“I. The trial court committed prejudicial error in granting summary judgment to defendant on its motion.”
“II. The trial court committed prejudicial error in denying summary judgment on plaintiff‘s motion for partial summary judgment.”
{¶ 3} On January 5, 2009, First Financial filed suit in the Berea Municipal Court against Bosl for an unpaid assigned credit card debt in the amount of $2,796.76. In response, on February 2, 2009, Bosl filed an answer, affirmativе defenses, and counterclaim. In his counterclaim, Bosl argued that First Financial lacked the legal competence to file suit in the Berea Municipal Court, because it was a foreign corporation that was not registered with the Ohio Sеcretary of State.
{¶ 4} On February 20, 2009, First Financial filed a motion to dismiss Bosl‘s counterclaim. Bosl opposed the motion, and on April 15, 2009, the Berea Municipal Court granted First Financial leave to register as a business entity with the Ohio Secretary of State. Thereafter, First Financial sought to assign the debt to its affiliate First Financial Asset Management (“FFAM“), who at the time was thought to be licensed in Ohio. However, FFAM‘s license had been cancelled by virtue of its failure to pay taxes.
{¶ 5} On June 25, 2009, as a result of no party bеing substituted for First Financial, the Berea Municipal Court dismissed the complaint without prejudice and also dismissed Bosl‘s counterclaim.
{¶ 6} On January 4, 2010, Bosl filed suit in Cuyahoga County‘s common pleas court against First Financial, FFAM, and the law firm of
{¶ 7} Specifically, against the law firm of Javitch, Block & Rathbone, Bosl alleged that the law firm acted in concert with First Financial and FFAM to collect a debt by illegally filing suit against him on January 5, 2009. Bosl also alleged that the law firm filed the suit with knowledge that First Financial lacked competence to take such action.
{¶ 8} On February 25, 2010, appellees filed a motion to dismiss Bosl‘s complaint for failure to state a claim for which relief could be granted, or in the alternative, for summary judgment. On March 8, 2010, appellees supplementеd their motion with additional evidentiary materials. On April 7, 2010, Bosl filed his motion in opposition as well as a cross-motion for partial summary judgment.
{¶ 9} On June 25, 2010, the trial court granted appellees’ motion for summary judgment, denied Bosl‘s cross-motion for partial summary judgment, and dismissed the case. Bosl now appeals.
Summary Judgment
{¶ 10} In the first assigned error, Bosl argues the trial court erred when it granted summary judgment in favor of the appellees.
{¶ 12} Under
{¶ 13} The moving party carries an initial burden of setting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264. If the movant fails to meet this burden, summary judgment is not appropriate; if the movant does meet this burden, summary judgment will be appropriate only if the non-movant fails to establish the existence of a genuine issue of material fact. Id. at 293.
{¶ 14} In the instant case, the gravamen of Bosl‘s complaint, and likewise his argument on appeal, is that First Financial illegally filed its
{¶ 15} In granting summary judgment in favor of appellees, the trial court stated in pertinent part as follows:
“* * * The Court concludes that First Financial was not required to first obtаin a license from the Ohio Secretary of State before filing suit against Mr. Bosl. The Court finds persuasive the opinion of Judge Burnside in the case of Collins Financial Services, Inc. v. Ballard (Cuy. Cty. Ct. Com. Pl.), CV-638304, 2009 WL 1401693. In Ballard, Judge Burnside concluded that in a situation similar to the present case, foreign corporations are not required to first obtain a license before filing suit because the act of filing a lawsuit does not fall under the definition of ‘transacting business.’ Only foreign corporations transacting business in Ohio are required to obtain a license before it can file аnd maintain a suit in the courts of Ohio. Accordingly, First Financial was not required to first obtain a license before filing and maintaining suit against Mr. Bosl in the Berea Municipal Court. As such, the act of filing and maintaining the lawsuit was not unlawful under Ohio law. Because the basis of Mr. Bosl‘s сomplaint is predicated on First Financial unlawfully filing suit in Ohio, the Court dismisses the complaint in its entirety as to all defendants.” Journal Entry, June 25, 2010.
{¶ 16} In general, foreign corporations must be licensed to do business in the state of Ohio if they “transact business in this state.” First Merit Bank, N.A. v. Washington Square Ents., Cuyahoga App. No. 88798, 2007-Ohio-3920;
{¶ 18} “It is well-recognized * * * that a foreign corporation transacts business within a state when ‘it has entered the statе by its agents and is therefore engaged in carrying on and transacting through them some substantial part of its ordinary or customary business, usually continuous in the sense that it may be distinguished from merely casual, sporadic, or occasional transactions and isоlated acts.‘” State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, quoting Auto Driveaway Co. v. Auto Logistics of Columbus (S.D.Ohio 1999), 188 F.R.D. 262, 265, quoting Dot Sys., Inc. v. Adams Robinson Ent., Inc. (1990), 67 Ohio App.3d 475, 481, 587 N.E.2d 844. A foreign corporation‘s activities must be permanent, continuous, and regular to constitute “doing business” in Ohio. Id.
{¶ 19} In support of their motion for summary judgment apрellees attached the affidavits of Eugene Collins, the president of First Financial, a limited liability company chartered in the state of Delaware. Collins averred
{¶ 20} In addition, Collins averred that First Financial has never engaged in the employment of employees or agents in the state of Ohio. Further, Collins averred that he is also the president of FFAM, a collection agency with offices in Atlanta, Georgia, Phoenix, Arizona, and West Palm Beach, Florida, that services the accounts owned by First Financial. Finally, Collins averred that with respеct to Bosl‘s account, FFAM placed the account for legal action with the law firm of Javitch, Block & Rathbone, and that none of First Financial‘s or FFAM‘s employees ever made any direct contact with any person in the state of Ohio.
{¶ 21} Cоnversely, in support of his cross-motion for partial summary judgment, Bosl attached the affidavit of his attorney‘s secretary, who averred that she had located evidence of 28 lawsuits filed by First Financial in Ohio municipal courts.
{¶ 22} However, after reviewing thе record, we conclude the trial court correctly determined that by virtue of filing suit to collect on a debt, appellees
{¶ 23} Given that appellees were not “transacting business“, but merely attempting to collect a debt, by hiring a domestic law firm to file suit, they were not required to register with the Ohio Secretary of State before filing suit against Bosl. Consequently, construing the evidence most favorably to Bosl, we find that the record discloses no genuine issue of material fact. Therefore, summary judgment was properly granted in favor of the appellees.
{¶ 24} Nonetheless, at oral argument, Bosl‘s appellate counsel indicated that the opinion of Judge Burnside in the case of Collins Fin. Servs, Inc. v. Ballard ( Jan. 21, 2009) ,Cuyahoga C.P. No. CV-638304, which the trial court in the instant case found persuasive, was ultimately vacated. Bosl‘s appellatе counsel essentially suggested that the trial court‘s reliance on Judge Burnside‘s opinion was misplaced. However, our review of the docket in Ballard reveals that Judge Burnside vacated the journal entry granting
{¶ 25} Finally, since Bosl‘s contentions were premised on appellees’ alleged incompetence to file suit without first registering with the Ohio Secretary of State, his claim that appellees viоlated both the Fair Debt Collection Practices Act and the Ohio Consumer Sales Practices Act, as well as his claims of fraud, abuse of process, civil conspiracy, and malicious prosecution, are without merit and rendered moot by our resolution herein. Accordingly, we overrule the first assigned error.
Issue Preclusion and Collateral Estoppel
{¶ 26} In the second assigned error, Bosl argues the trial court erred in denying summary judgment on his cross-motion for partial summary judgment. Bosl maintains that the trial court incorrectly applied the law of collateral estoppel or issue preclusion.
{¶ 27} Issue preclusion, also known as collateral estoppel, precludes the relitigation of an issue that has been actually or necessarily determined between the pаrties in a prior action from being relitigated in a second, different cause of action. JP Morgan Chase Bank v. Ritchey, 11th Dist. No. 2006-L-247, 2007-Ohio-4225, citing Lasko v. Gen. Motors Corp., 11th Dist. No. 2002-T0143, 2003-Ohio-4103, at ¶15. “Under Ohio law, the doctrine of res judicata embraces the doctrine of collateral estoppel.” McDowell v. DeCarlo, 9th Dist. No. 23376, 2007-Ohio-1262, quoting Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 381, 653 N.E.2d 226.
{¶ 28} Pursuant to the doctrine of res judicata, “[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” Id. at syllabus. Accordingly, before res judicata or collateral estoppel can apply, one must have a final judgment. Cote v. Eisinger, 9th Dist. No. 05CA0076, 2006-Ohio-4020, at ¶8.
{¶ 29} Pursuant to
{¶ 30} In the instant case, neither party dispute that the Berea Municipal Court dismissed the original action without prejudice. Thus, the dismissаl was other than on the merits and did not constitute a final judgment. Consequently, the common pleas court‘s subsequent granting of
Judgment affirmed.
It is ordered that appellees recover from apрellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, A.J., and KENNETH A. ROCCO, J., CONCUR