Greenhouse v. AndersonGreenhouse v. Anderson
(C.P.C. No. 17DR-3614)
(REGULAR CALENDAR)
DECISION
Rendered on December 16, 2021
On brief: Michael Greenhouse, pro se.
On brief: Strip, Hoppers, Leithart, McGrath & Terlecky Co., L.P.A., Paul W. Leithart, and Kenneth R. Goldberg, for appellants.
MENTEL, J.
{1} Appellants, Paul W. Leithart and Kenneth R. Goldberg, appeal from the January 24, 2020 dеcision and entry, in relevant part, awarding attorney fees to plaintiff-appellee, Michael Greenhouse, in the amount of $7,000 for frivolous conduct in violation of
{2} This matter originates out of a complaint for divorce filed September 29, 2017. Relevant to the instant appeal, defendant-appellee, Leigh Anderson, hired Leithart and Goldberg and the firm Strip, Hoppers, Leithart, McGrath & Terlecky Co., L.P.A., as counsel in the divorce proceedings. On December 5, 2017, Anderson filed an answer and counterclaim as well as a third-party complaint to join Pure Life Fitness, LLC, Michelangelo Builders, LLC (“MAG Builders“), Michelangelo Industries, LLC, and Michael R. Greenhouse Trust in the case. The parties prоceeded with discovery in what appears to be a particularly contentious dispute. Of note, Anderson retained Bryan Daulton to perform income analysis for Greenhouse and business evaluations for the third-party entities named in the case.
{3} On April 28, 2019, Anderson met with Goldberg at his office. At the conclusion of the meeting, Goldberg requested that Anderson send an e-mail terminating him as counsel because she wanted to go a different direction with her case and no longer wanted to retain his services. On April 29, 2019, Goldberg filed a motion to withdraw as counsel. The trial court granted the motion to withdraw on May 2, 2019. An amended motion to withdraw was filed to allow Leithart to withdraw from the case, which was grаnted on May 10, 2019.
{4} On July 24, 2019, Greenhouse filed a motion for allocation of litigation fees and expenses against Anderson, Goldberg, Leithart, and the firm of Strip, Hoppers, Leithart, McGrath & Terlecky Co., L.P.A. Greenhouse alleged that Leithart‘s and Goldberg‘s retention of experts created excessive costs of $30,000, and their last-minute withdrawal resulted in increased trial preparation expenses. On August 15, 2019, Greenhouse served the motion on Goldberg and Leithart by certified mail. A receipt of completed service was filed August 20, 2019. Goldberg and Leithart declined to file a memorandum in opposition to Greenhouse‘s motion.
{5} On July 25, 2019, Diane Einstein entered an appearance as counsel on behalf of Anderson and filed a motion to continue the hearing on the allocation of fees. The motion was granted, and the hearing was scheduled for September 17, 2019. Also on July 25, 2019, the parties presented the trial court with a proposed decree of divorce, and the trial court took testimony from the parties as to their acknоwledgment and resolution of issues in the
{6} The matter of Greenhouse‘s motion for allocation of fees came before the trial court on September 17, 2019. Goldberg and Leithart did not aрpear for the hearing, and the trial court proceeded as scheduled. The trial court heard testimony and admitted exhibits filed by the parties before taking the matter under advisement.
{7} On January 24, 2020, the trial court issued its decision and entry in this case. In relevant part, the trial court granted Greenhouse‘s motion for fees against Leithart and Goldberg, finding thеy engaged in frivolous conduct in violation of
{8} A notice of appeal was timely filed.
II. ASSIGNMENTS OF ERROR
{9} Leithart and Goldberg assign the following as trial court error:
- THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED APPELLANTS’ RIGHTS TO DUE PROCESS OF THE LAW UNDER
CIVIL RULE 5 . - THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED APPELLANTS’ RIGHTS TO DUE PROCESS OF THE LAW UNDER OHIO REVISED CODE
§2323.51 . - THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED APPELLANTS’ RIGHTS TO DUE PROCESS OF THE LAW UNDER FRANKLIN COUNTY DOMESTIC COURT RULE 13(D).
III. LEGAL ANALYSIS
{10} For clarity of analysis, we will address all of appellants’ assignments of error together. Appellants argue that the trial court erred and violated their due process rights under
{11}
(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 adversеly 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 cоnduct;
(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 аdversely affected by it, and then determines the amount of the award to be made. If any party or counsel of record who allegedly engaged in or allegedly was adversely affected by frivolous conduct is confined in a state correctional institution or in a county, multicounty, municipal, municipal-county, or multicounty-municipal jail or workhouse, the court, if practicable, may hold the hearing by telephone or, in the alternative, at the institution, jail, or workhouse in which the party or counsel is confined.
{12} The Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution provide that individuals are entitled to reasonablе notice of judicial proceedings. Ohio Valley Radiology Assocs. Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 125 (1986), quoting State ex rel. Allstate Ins. Co. v. Bowen, 130 Ohio St. 347 (1936), paragraph five of the syllabus (finding
{13} This court has generally found that a party receives constructive notice of a heаring by virtue of the trial court‘s entry on its online docket. See Davidson v. West, 10th Dist. No. 18AP-268, 2019-Ohio-224 (concluding that appellant was not denied due process rights when the trial court proceeded with trial without him, despite the notice of the trial date going unclaimed, as the appellant had constructive notice of the trial date from the court‘s entry on its docket); Coleman v. R&T Inv. Prop., 10th Dist. No. 13AP-863, 2014-Ohio-2080 (finding that despite the notice of the trial date sent to appellant was returned unclaimed, the appellant had sufficient constructive notice based on the entry of the trial date on the docket); Yoder v. Thorpe, 10th Dist. No. 07AP-225, 2007-Ohio-5866, ¶ 16 (concluding that “[e]ven if [the appellant] did not receive the order of reference notifying him of the [date of] trial, he had sufficient constructive notice of the trial date by virtue of the court‘s entry of the trial date on its docket“); Leader Ins. Co. v. Moncrief, 10th Dist. No. 05AP-1289, 2006-Ohio-4232, ¶ 43 (finding the appellant received constructive notice of the correct time of trial on the court‘s docket); Ketchum v. Hoffman, 10th Dist. No. 93APE09-1270 (May 26, 1994) (“As a general rule, once a person becomes a party to an action, he has a duty to check on the proceedings of the court to assure that he will be at the hearings or trial.“); Metcalf v. Ohio State Univ. Hosp., 2 Ohio App.3d 166, 167-68 (10th Dist.1981) (finding that appellant must establish that the trial date was not published on the docket, and he therefore had no manner of keeping himself informed of the trial date, if he is to demonstrate a due process violation; otherwise, this court is to presume regularity with the prоceedings).
{15} Here, there is no dispute that Greenhouse filed a motion for an award of fees for frivolous conduct, as required under
{16} While Leithart or Goldberg were not served with copies of the notice for the September 17, 2019 hearing, the trial court‘s docket indicates that the September hearing date was published on July 25, 2019. Appellants were aware of the pending motion as late as August 15, 2019 and had, until their removal as counsel, actively participated in thе litigation of this case for nearly two years. They were more than familiar with how to access the court‘s online docket and how to discern whether the motion was set for a hearing. Parties, or in this case former counsel served with a
{17} Appellants cite Boulder Capital Group, Inc. v. Lawson, 2d Dist. No. 2014-CA-58, 2014-Ohio-5797, for the proposition that parties are not еxpected to monitor the court‘s online docket on a daily basis. A brief review of this case is instructive.
{18} In Boulder Capital, the appellant was alleged to have breached a finance lease agreement regarding the rental of car-wash equipment. The appellant filed an answer in the case. Thereafter, the lessor filed a motion for summary judgment as to liability, which was granted. The trial court also granted the lessor‘s motion to reset the damages hearing from September 5 to 21, 2012. The appellant failed to appear at the hearing and the trial court awarded damages to the lessor. The appellant appealed arguing his due process rights were violаted as he had not received proper notice of the hearing under
{19} We find the facts in Boulder Capital are distinct from the instant case. Here, the record reflects that on July 25, 2019, Diane Einstein entered an appearance as counsel on behalf of Anderson and filed a motion to continuе the motion hearing, which was granted. Notice of the September 17, 2019 hearing was filed on the trial court‘s docket on July 25, 2019. There is no dispute that appellants were served with the motion for fees on August 15, 2019 as evidenced by the receipt of completed service filed August 20, 2019. Even accepting some delay in publishing notice of the hearing, the trial court‘s docket in this case provided substantially more notice than the trial court‘s docket in Boulder Capital. Moreover, appellants conceded in their brief that they were not even monitoring the online docket as they had already withdrawn from the case. (See Appellants’ Brief at 11.) While
{20} Finally, appellants’ argue that the trial court erred and deprived them of due process by not complying with Loc.R. 13(D). Loc.R. 13(D) states: “[e]xcept for motions for relief from judgment filed pursuant to
{21} Moreover, appellants failed to raise this issue with the trial court at the time the motion was filed or move to strike the motion based on non-compliance with Loc.R. 13(D). While appellants will likely contend that they were not aware that the motion was set for a hearing and were not aware that the trial court waived the enforcement of Loc.R.
{22} Accordingly, appellants’ three assignments of error are overruled.
IV. CONCLUSION
{23} Having overruled appellants’ three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Judgment affirmed.
BEATTY BLUNT, J., concurs.
BROWN, J., concurring.
{24} Appellants’ position might be more persuasive had they filed a memorandum in opposition to the motion. Howеver, in light of the facts and procedural posture of the case, as well as the precedent cited by the majority, I must concur.