Samuel Lee Brisco, Jr. et al., Plaintiffs-Appellants, [Kevin J. O‘Brien et al., Appellants], v. U.S. Restoration & Remodeling, Inc. et al., Defendants-Appellees.
No. 18AP-109 (C.P.C. No. 12CV-2577)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 24, 2019
2019-Ohio-5318
DORRIAN, J.
(REGULAR CALENDAR)
Rendered on December 24, 2019
On brief: Kevin O‘Brien & Associates Co., L.P.A., Kevin J. O‘Brien, and Jeffrey A. Catri, for appellants. Argued: Jeffrey A. Catri.
On brief: The Tyack Law Firm Co., L.P.A., James P. Tyack, and Holly B. Cline, for appellees. Argued: James P. Tyack.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiffs-appellants Samuel Lee Brisco, Jr. and Ruth A. Brisco (“plaintiffs“), and appellants, Kevin J. O‘Brien and Jeffrey A. Catri (“plaintiffs’ counsel” and when combined with plaintiffs, “appellants“),1 appeal the January 16, 2018 decision and judgment entry of the Franklin County Court of Common Pleas adopting the magistrate‘s decision awarding sanctions to defendants-appellees, U.S. Restoration & Remodeling, Inc.,
I. Facts and Procedural History
{¶ 2} This appeal follows our September 1, 2015 decision in Brisco v. U.S. Restoration & Remodeling, Inc., 10th Dist. No. 14AP-533, 2015-Ohio-3567. As we thoroughly discussed the factual and procedural history of this matter in our prior decision, we adopt such discussion here. See Brisco at ¶ 2-7. In our decision, we found the trial court did not abuse its discretion by striking plaintiffs’ memorandum contra appellees’ motion for summary judgment. Next, we found the trial court did not err by granting summary judgment in favor of appellees because plaintiffs failed to respond, by affidavit or as otherwise provided under
{¶ 3} On remand from this court, on March 10, 2016, the trial court held a hearing on appellees’ motion for sanctions. On the same date as the hearing, plaintiffs filed a document “giv[ing] notice” to the trial court that they were refiling two documents: (1) their July 9, 2013 memorandum contra appellees’ motion for summary judgment, which had been stricken by the trial court on July 26, 2013, and (2) their August 28, 2013 motion to reconsider the trial court‘s July 26, 2013 decision granting summary judgment in favor of appellees, which had been denied by the trial court on January 15, 2014. In the filing, appellants urged the trial court to consider the documents in making its determination on appellees’ motion for sanctions. On March 18, 2016, appellees filed a motion to strike appellants’ March 10, 2016 filing. On March 25, 2016, Samuel L. Brisco, Jr. filed a memo contra appellees’ motion for sanctions.
{¶ 4} On April 26, 2016, the trial court filed a decision and entry granting appellees’ motion for sanctions, granting appellees’ March 18, 2016 motion to strike plaintiffs’
II. Assignments of Error
{¶ 5} Appellants appeal and assign the following four assignments of error for our review:
- BRISCO TIMELY FILED HIS MEMO CONTRA DEFENDANT-APPELLEE‘S [sic] MOTION FOR SUMMARY JUDGMENT ON JUNE 7, 2013 BUT THE CLERK‘S ELECTRONIC FILING SYSTEM OVERWROTE IT; BRISCO WAS IMPROPERLY DEFAULTED AND DENIED DUE PROCESS.
- THE RECORD DOES NOT SUPPORT AN AWARD OF SANCTIONS AGAINST PLAINTIFF-APPELLANT‘S COUNSEL; THED [sic] TRIAL COURT ABUSED ITS DISCRETION IN SANCTIONING O‘BRIEN AND CATRI.
- THE TRIAL COURT FAILED TO HAVE THE HEARING REQUIRED BY SECTION 2323.51(B), R.C.
- IN OHIO, A CREDITOR IS NOT PERMITTED TO RECOVER ATTORNEY FEES INCURRED IN CONNECTION WITH A DEBT COLLECTION SUIT INVOLVING PERSONAL, FAMILY OR HOUSEHOLD DEBT UNDER GIONIS AND FOSTER; THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES TO USRRR.
III. First Assignment of Error—Memorandum Contra Appellees’ Motion for Summary Judgment
{¶ 6} In their first assignment of error, appellants assert they timely filed a memorandum contra appellees’ motion for summary judgment, but the electronic filing system improperly failed to docket the filing. We previously addressed appellants’ contention in Brisco, in which we stated:
[D]efendants filed their motion for summary judgment on May 10, 2013. Plaintiffs sought and received leave to file an untimely response on or before June 7, 2013. Despite receiving an extension of time to file two weeks after the time limit required by Loc.R. 21.01, the record reflects that plaintiffs did not file their memorandum contra until July 9, 2013, approximately one month after the extended deadline, without seeking additional leave of court. Plaintiffs assert that they did timely file their response on June 7, 2013, but claim that the clerk of courts erroneously did not document their filing.
Regardless of the truth of plaintiffs’ assertion, it was the responsibility of plaintiffs or their counsel to ensure that the electronic filing of their response was successful, a responsibility that plaintiffs’ counsel acknowledges. See Essi Acoustical Prods. Co. v. Friedman, 8th Dist. No. 65477 (May 19, 1994) (“Parties or their attorneys are expected to keep themselves apprised of the progress of their case.“); Carpenter v. Gibson, 10th Dist. No. 98AP-1327 (July 15, 1999). Although plaintiffs claim that the trial court‘s staff attorney told them to refile their response electronically once plaintiffs discovered that the docket did not reflect the filing of their memorandum contra, plaintiffs did not file for leave from the court to do so. Moreover, plaintiffs were clearly aware of the need to seek the court‘s leave to file a response outside of the rule since they had already sought leave to untimely file their memorandum contra.
As plaintiffs did not file an affidavit demonstrating good cause for their untimely filing or respond to the motion to strike, we cannot find that the trial court abused its discretion by striking plaintiffs’ response, which was filed without leave of the court after the extended period of time previously granted for filing.
Brisco at ¶ 13-15.
{¶ 7} “The law of the case doctrine provides that 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.” (Citations and quotations omitted.) Yurkowski v. Univ. of Cincinnati, 10th Dist. No. 13AP-1049, 2015-Ohio-1511, ¶ 6. “The law of the case doctrine is rooted in principles of res judicata and issue preclusion.” State v. Harding, 10th Dist. No. 10AP-370, 2011-Ohio-557, ¶ 16, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 35. The law of the case doctrine “ensures consistent results in a case, avoids endless litigation by settling the issues, and preserves the constitutional structure of superior and inferior courts.” Farmers State Bank v. Sponaugle, 157 Ohio St.3d 151, 2019-Ohio-2518, ¶ 22, citing Giancola v. Azem, 153 Ohio St.3d 594, 2018-Ohio-1694, ¶ 14. Courts consider the law of the case doctrine to be a rule of practice, rather than one of substantive law, and will not apply it to achieve unjust results. Browne v. Artex Oil Co., __ Ohio St.3d __, 2019-Ohio-4809, ¶ 11, citing Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984).
{¶ 8} As we resolved in Brisco the same issue that appellants raise again in their first assignment of error, the law of the case doctrine precludes our review of such issue in the present matter. Yurkowski at ¶ 9. Accordingly, we overrule appellants’ first assignment of error.
IV. Second, Third, and Fourth Assignments of Error—Award for Frivolous Conduct
{¶ 9} Appellant‘s second, third, and fourth assignments of error all pertain to the trial court‘s award for frivolous conduct pursuant to
A. Applicable Law
{¶ 10} With regard to the recovery of attorney fees, Ohio generally follows the “American rule” under which each party is responsible for paying for its own attorney fees. Gianetti v. Teakwood, Ltd., 10th Dist. No. 17AP-606, 2018-Ohio-1621, ¶ 10; Forrester v. Mercker, 10th Dist. No. 15AP-833, 2016-Ohio-3080, ¶ 11. Among exceptions to this rule, a court may award attorney fees when specifically authorized by statute. Gianetti at ¶ 10; Orth v. Ohio Dept. of Edn., 10th Dist. No. 14AP-937, 2015-Ohio-3977, ¶ 12 (listing exceptions).
{¶ 11} Pursuant to
(i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.
(ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.
(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief.
{¶ 12}
An award may be made pursuant to division (B)(1) of this section upon the motion of a party to a civil action or an appeal of the type described in that division or on the court‘s own initiative, but only after the court does all of the following:
(a) Sets a date for a hearing to be conducted in accordance with division (B)(2)(c) of this section, to determine whether particular conduct was frivolous, to determine, if the conduct was frivolous, whether any party was adversely affected by it, and to determine, if an award is to be made, the amount of that award;
(b) Gives notice of the date of the hearing described in division (B)(2)(a) of this section to each party or counsel of record who allegedly engaged in frivolous conduct and to each party who allegedly was adversely affected by frivolous conduct;
(c) Conducts the hearing described in division (B)(2)(a) of this section in accordance with this division, allows the parties and counsel of record involved to present any relevant evidence at the hearing, including evidence of the type described in division (B)(5) of this section, determines that the conduct involved was frivolous and that a party was adversely affected by it, and then determines the amount of the award to be made.
Thus, when considering a motion for an award under
{¶ 13} No single standard of review applies in
B. Second Assignment of Error
{¶ 14} In their second assignment of error, appellants assert the trial court abused its discretion in finding that appellants engaged in frivolous conduct. In its decision, the trial court found that “[p]laintiffs’ claims lacked any evidentiary basis” and, furthermore, “[p]laintiffs’ counsel should have discovered such claims lacked factual and legal support upon a reasonable investigation into such claims.” (Apr. 22, 2016 Decision & Entry at 4.)
{¶ 15} Whether conduct is frivolous pursuant to
{¶ 16} In analyzing whether appellants’ claims were frivolous, the trial court first examined plaintiffs’ claim for a violation of the Ohio Home Solicitation Sales Act under
{¶ 17} Second, the trial court examined plaintiffs’ claim for a violation of the Ohio Consumer Sales Practices Act (“CSPA“) under
In his deposition, Mr. Brisco stated that defendants did not “misrepresent anything” and specifically that they did not “misrepresent[] anything * * * regarding the goods or services that could be provided.” (S. Brisco Depo., 33.) Next, in response to plaintiffs’ claim that they failed to perform services in a competent, satisfactory, and workmanlike manner and failed or refused to correct substantial work or defects, defendants pointed to Mr. Brisco‘s deposition in which he stated that defendants did not perform any repairs to his house and that he had no complaints about the work that they in fact never began. Mr. Brisco further stated that, as defendants never performed any work on his roof, he did not expect any warranties and that defendants made no representations to him regarding warranties.
Brisco at ¶ 25. Therefore, we find competent, credible evidence exists to support the trial court‘s finding of frivolous conduct with regard to plaintiffs’ CSPA claim.
{¶ 18} Appellants also assert that, under the doctrine of collateral estoppel, appellees should be precluded from arguing frivolous conduct with regard to the CSPA claim because appellees were found to have violated the CSPA in other cases. Appellants failed to raise their collateral estoppel argument in the trial court and cannot raise the same for the first time on appeal. Open Container, Ltd. v. CB Richard Ellis, Inc., 10th Dist. No. 14AP-133, 2015-Ohio-85, ¶ 22, citing State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278 (1993); Lycan v. Cleveland, 8th Dist. No. 107700, 2019-Ohio-3510, ¶ 33 (finding city waived its res judicata argument by not raising it before the trial court); State v. Chapa, 10th Dist. No. 04AP-66, 2004-Ohio-5070, ¶ 9.
{¶ 19} Third, with regard to plaintiffs’ claim for fraud, the trial court found “[p]laintiffs’ counsel failed to allege a proper complaint for fraud” by failing to allege that appellees “made the alleged misrepresentations with the intent of misleading [p]laintiffs into relying on them.” (Apr. 22, 2016 Decision & Entry at 3.) Based on the language of the decision, it is unclear as to which of the statutory grounds provided in
{¶ 20} In their complaint, plaintiffs asserted appellees made four separate representations “with knowledge of their falsity, or with such utter disregard and recklessness as to whether such representations were true or false that knowledge may be inferred or with fraudulent intent and actual malice.” (Am. Compl. at 10.) Furthermore, plaintiffs alleged that they “reasonably relied on [appellees‘] false statements of fact.” (Am. Compl. at 11.) However, in his deposition testimony, Brisco, Jr. stated that appellees did not “misrepresent[] anything” with regard to “[a]ny of the representations made” by appellees. (Brisco, Jr. Depo. at 33.) Furthermore, Brisco, Jr. stated he did not have any information or evidence that led him to believe appellees knowingly made a misleading statement to him and that he relied on such statement. (Brisco, Jr. Depo. at 39.) Therefore, we find competent, credible evidence supports the trial court‘s determination that appellants engaged in frivolous conduct with regard to the fraud claim.
{¶ 21} Finally, with regard to plaintiffs’ slander of title claim, the trial court found it was barred by the statute of limitations. Furthermore, the trial court found that Brisco, Jr.‘s
{¶ 22} Accordingly, we overrule appellants’ second assignment of error.
C. Third Assignment of Error
{¶ 23} In their third assignment of error, appellants assert the trial court erred by failing to hold a hearing in compliance with
{¶ 24} Here, appellants have failed to provide this court with a complete transcript of the March 10, 2016 hearing.3 Because the appellant bears the burden of showing error by reference to matters in the record, the appellant is under a duty to provide a transcript for purposes of appellate review. Studley v. Biehl, 10th Dist. No. 18AP-11, 2018-Ohio-2274, ¶ 12; Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). See
{¶ 25} Further, appellants do not contend that they objected to the trial court‘s procedure or the admission of the record as evidence at the March 10, 2016 hearing. Because appellants failed to object in the trial court, we may apply a plain error standard of review. In re L.W., 10th Dist. No. 17AP-586, 2018-Ohio-2099, ¶ 36; Patton v. Ditmyer, 4th Dist. No. 05CA12, 2006-Ohio-7107, ¶ 59 (finding plain error standard applied where appellants failed to object to trial court taking judicial notice of proceedings at attorney fee hearing). In civil cases, the plain error doctrine is not favored and may only be applied in the extremely rare case involving exceptional circumstances such that the error, if left uncorrected, would challenge the fairness, integrity, or public reputation of the judicial process itself. Bonds v. Hinkle, 10th Dist. No. 18AP-606, 2019-Ohio-1016, ¶ 8; L.W. at ¶ 36, citing In re Moore, 10th Dist. No. 04AP-229, 2005-Ohio-747, ¶ 8, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 122 (1997). “The error must be clearly apparent on the face of the record and prejudicial to the appellant.” Bonds at ¶ 8.
{¶ 26} In Jackson v. Bellomy, 10th Dist. No. 01AP-1397, 2002-Ohio-6495, we considered whether a trial court erred in finding frivolous conduct based on the record of the proceedings contained in the court‘s case file. In that case, the appellees, who in the trial court sought sanctions pursuant to
{¶ 27} Here, appellants failed to object to the trial court‘s consideration of the record of proceedings. Furthermore, appellants do not contend they were prevented from challenging such material in the record by the introduction of testimony or other evidentiary materials. Therefore, based on our decision in Jackson, we cannot find the trial court‘s consideration of evidence already contained in the record of the proceedings in making its determination on the existence of frivolous conduct under
{¶ 28} Accordingly, we overrule appellants’ third assignment of error.
D. Fourth Assignment of Error
{¶ 29} In their fourth assignment of error, appellants assert the trial court erred by awarding attorney fees incurred through participation in a debt collection action involving personal, family, or household debt. In support of their argument, appellants cite to
{¶ 30} Accordingly, we overrule appellants’ fourth assignment of error.
V. Conclusion
{¶ 31} Having overruled appellants’ four assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRUNNER and McGRATH, JJ., concur.
McGRATH, J., retired, formerly of the Tenth Appellate District, Assigned to active duty under authority of the Ohio Constitution, Article IV, Section 6(C).
Notes
“A person of ordinary mind cannot say that he was misled into signing a paper which was different from what he intended to sign when he could have known the truth by merely looking when he signed. * * * If this were permitted, contracts would not be worth the paper on which they are written. If a person can read and is not prevented from reading what he signs, he alone is responsible for his omission to read what he signs.”Id. at 441, quoting Dice v. Akron, Canton & Youngstown RR. Co., 155 Ohio St. 185, 191 (1951). See also Nesco Sales & Rental v. Superior Elec. Co., 10th Dist. No. 06AP-435, 2007-Ohio-844, ¶ 20-22. Importantly, Brisco, Jr. does not allege that he informed defendants he was unable to read the documents he signed or that defendants were otherwise aware of his alleged inability to read the documents. Although he could not recall specifically whether or not he told defendants he could not read the documents, he stated he did not “normally tell anybody that I‘m blind in my left eye.” (Jan. 31, 2013 Brisco, Jr. Depo. at 45.)