Hillman v. EdwardsHillman v. Edwards
Rendered on June 2, 2011
Robert L. Hillman, pro se.
APPEAL from the Franklin County Court of Common Pleas.
FRENCH, J.
{¶1} Plaintiff-appellant, Robert L. Hillman (“Hillman“), appeals the judgment of the Franklin County Court of Common Pleas, which granted summary judgment in favor of defendant-appellee, William Joseph Edwards (“Edwards“), and denied various motions filed by Hillman, including motions for summary judgment, for default judgment, and to hold Edwards in contempt. We affirm.
{¶2} Hillman, an inmate in the custody of the Ohio Department of Rehabilitation and Corrections, first filed actions against Edwards in September and December 2007.
{¶3} On September 11, 2009, while awaiting this court‘s decision on his appeal, Hillman filed this third action against Edwards; this third action was assigned to Judge Michael J. Holbrook. As in his earlier actions, Hillman‘s claims primarily arose out of Edwards’ appellate representation of Hillman. Hillman alleged that Edwards breached an implied contract, fraudulently misrepresented facts to this court in Hillman‘s criminal appeal, and acted with deliberate indifference to Hillman‘s civil and constitutional rights. He also generally alleged that Edwards violated various criminal statutes and codes of professional responsibility. Finally, Hillman alleged that Edwards’ motion for summary judgment and supporting affidavit in the prior consolidated actions were “fraudulent” because Edwards wrongly suggested support from Hillman‘s criminal trial counsel.
{¶4} On September 17, 2009, this court reversed the trial court‘s judgment in Hillman‘s consolidated cases and remanded them to the trial court. Although “the evidence support[ed] the trial court‘s decision to grant summary judgment to [Edwards] on [Hillman‘s] substantive claim of legal malpractice,” procedural error required reversal. Hillman I at ¶1. Specifically, we held that the trial court abused its discretion in allowing
On remand[,] the trial court may permit [Edwards] to submit a motion for leave to file an answer instanter, with an attached answer. If the trial court finds [Edwards‘] motion demonstrates excusable neglect under the standard of
Civ.R. 6 , then the affirmed summary judgment ruling should be reinstated. If the trial court finds [Edwards] is unable to demonstrate excusable neglect to support his motion for leave to file his answer instanter, then default judgment should be entered for [Hillman].
{¶5} Meanwhile, Edwards filed a timely answer to Hillman‘s third complaint, along with a motion to consolidate it with the remanded cases before Judge Pfeiffer. On November 2, 2009, Judge Pfeiffer granted Edwards leave to file an answer out of rule in the remanded cases and, as directed by this court, reinstated final judgment in Edwards’ favor.1 Judge Holbrook subsequently denied Edwards’ motion to consolidate because the cases before Judge Pfeiffer were no longer pending.
{¶6} During the pendency of his case before Judge Holbrook, Hillman filed a plethora of motions, including the following: a motion to compel Edwards to identify his insurance carrier; a motion for summary judgment; a motion for default judgment against Edwards’ insurer;2 a motion for contempt; a motion for a hearing on his motion for default judgment; a second (or amended) motion for summary judgment; a motion
{¶7} On September 9, 2010, the trial court granted Edwards’ motion for summary judgment and denied Hillman‘s pending motions. The court noted that the gravamen of Hillman‘s complaint remains a legal malpractice action against his former counsel and determined that Hillman‘s claims are barred by the doctrine of res judicata.
{¶8} Hillman, proceeding pro se, filed a timely notice of appeal and now raises the following assignments of error:
[I.] [HILLMAN] CONTENDS THAT THE TRIAL COURT VIOLATED HIS STATUTORY, AND CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF LAW UNDER THE 1ST AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTIONS [SIC] WHEN (1) THE TRIAL COURT DID NOT HOLD ANY TYPE OF HEARING OR INVESTIGATION ON [HILLMAN‘S] CONTEMPT CHARGES AGAINST [EDWARDS], WHICH ALSO VIOLATED [
SECTION 16, ARTICLE I, OHIO CONSTITUTION ,] AND WHEN (2) THE TRIAL COURT IN DENYING THE CONTEMPT SHOW CAUSE ORDER DEFIED THE LEGISLATURE‘S INTENT AND CREATED A SEP[A]RATION OF POWER.[II.] [HILLMAN] CONTENDS THAT HE WAS DENIED DUE PROCESS AND EQUAL PROTECTION OF THE LAW UNDER THE 1ST, 5TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTIONS [SIC] WHEN THE TRIAL COURT ERRONEOUSLY RULED TO DISMISS [HILLMAN‘S] COMPLAINT UNDER THE DOCTRINE OF RES JUDICATA, AND WHEN THE TRIAL COURT
MISAPPLIED SAID DOCTRINE. SAID DEFENSE WAS WAIVED. [III.] [HILLMAN] CONTENDS THAT THE TRIAL COURT DENIED HIM DUE PROCESS AND EQUAL PROTECTION OF LAW UNDER THE 1ST, 5TH, AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTIONS [SIC] WHEN IT VIOLATED RULES OF CIVIL PROCEDURES, [SIC] AND [HILLMAN‘S] RIGHTS TO DEFAULT JUDGMENT, AND RIGHTS TO A DEFAULT JUDGMENT HEARING WHEN (1) [EDWARDS‘] INSURANCE COMPANY NEVER DEFENDED AGAINST THE COMPLAINT, (2) WHEN THE TRIAL COURT REFUSED TO GRANT DEFAULT JUDGMENT TO [HILLMAN] AS A DISCOVERY SANCTION PURSUANT TO
CIVIL RULE 37 (B) .[IV.] [HILLMAN] CONTENDS THAT HE WAS DENIED DUE PROCESS AND EQUAL PROTECTION OF LAW UNDER THE 1ST, AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTIONS [SIC] WHEN THE TRIAL COURT GRANTED THE ET. AL DEFENDANT[S‘] SUMMARY JUDGMENT PURSUANT TO
CIVIL RULE 56 WITHOUT DEFENDANT‘S HAVING NEVER [SIC] ANSWERED THE COMPLAINT, OR PRODUCING EVIDENCE TO CONTRADICT [HILLMAN‘S] EVIDENCE AND ALLEGATIONS CONTAINED WITHIN THE ACTUAL COMPLAINT ITSELF.
{¶9} Because the trial court based its decision solely on the doctrine of res judicata, we begin with Hillman‘s second assignment of error, by which he argues that the trial court erred in applying that doctrine in this case. Although the second assignment of error states that the trial court erred in dismissing the complaint, the trial court did not dismiss this action, but instead granted summary judgment in favor of Edwards.
{¶10} We review a summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, citing Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. When an appellate court reviews a trial court‘s disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court‘s determination. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Brown at 711. We must affirm the trial court‘s judgment if any grounds the movant raised in the trial court support it. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41-42.
{¶11} Pursuant to
{¶12} “Res judicata operates to preclude the relitigation of a point of law or fact that was at issue in a former action between the same parties and was passed upon by a court of competent jurisdiction.” Reasoner v. Columbus, 10th Dist. No. 04AP-800, 2005-Ohio-468, ¶5, citing State ex rel. Kroger Co. v. Indus. Comm., 80 Ohio St.3d 649, 651, 1998-Ohio-174. The doctrine of res judicata provides that “[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out
{¶13} Hillman argues that the claims in this action were not ruled upon in his earlier actions and are, therefore, not barred by res judicata. He further argues that Edwards waived the defense of res judicata by not raising it as an affirmative defense in his answer. We first address the issue of waiver.
{¶14} Res judicata is an affirmative defense.
{¶15} The Supreme Court of Ohio has, at least twice, considered attempts to raise the defense of res judicata other than in an answer or amended pleading. In Freeman, the appellee, who did not file an answer to the appellant‘s mandamus complaint, filed an untimely motion to dismiss based on res judicata. The appellee supported his motion with court filings from previous actions brought by the appellant against the appellee. Based on those documents, the court of appeals found that the issues before it had been previously litigated and dismissed the action. The Supreme Court, in addition to holding that a party may not raise the defense of res judicata through a motion to dismiss under
{¶17} Although the Supreme Court‘s opinion in Jim‘s Steak House suggests that res judicata must be raised in an answer or amended answer, neither that case nor Freeman involved a defendant attempting to first raise res judicata through a motion for summary judgment. The Sixth District Court of Appeals, however, addressed this precise scenario in Internatl. EPDM Rubber Roofing Sys., Inc. v. GRE Ins. Group (May 4, 2001), 6th Dist. No. L-00-1293. Relying on Freeman, the Sixth District stated as follows: By citing to the Johnson v. Linder decision in a case where no answer was filed, but the defense of res judicata was raised for the first time in a motion that was converted to a motion for summary judgment, the Supreme Court of Ohio lent support to the belief that it has recognized an exception to the general rule that a party waives an affirmative defense if no answer is filed. The exception to the rule is that the affirmative defense of res judicata can be raised in a motion for summary judgment. {¶18} Other Ohio courts have also held, or at least suggested, that a party may initially raise the defense of res judicata in a motion for summary judgment. For example, just months after Jim‘s Steak House, this court found that the state waived the defense of res judicata where it had not raised the defense either in a responsive pleading to a petition for postconviction relief or in a motion for summary judgment. See State v. Lelux (June 11, 1998), 10th Dist. No. 97APA10-1308. More recently, the Sixth and Eighth District Courts of Appeal have recognized that a motion for summary judgment is an appropriate vehicle for initially raising res judicata. See Thayer v. Diver, 6th Dist. No. L-07-1415, 2009-Ohio-2053, ¶34 (“the affirmative defense of res judicata may be raised for the first time in a motion for summary judgment“); E.B.P., Inc. v. 623 W. St. Clair Ave., LLC, 8th Dist. No. 93587, 2010-Ohio-4005, ¶29. {¶19} Unlike the defendants in Freeman and Jim‘s Steak House, Edwards filed a timely answer to Hillman‘s complaint, but, like the defendants in Johnson, Edwards did not raise the affirmative defense of res judicata in his answer. When Edwards filed his answer, however, the defense of res judicata was not yet available to him because {¶20} Because Edwards was permitted to argue that the doctrine of res judicata entitled him to summary judgment, we must next consider whether the trial court correctly determined that res judicata bars Hillman‘s claims in this case. {¶21} In support of his motion for summary judgment, Edwards submitted Judge Pfeiffer‘s two decisions and judgment entries granting Edwards summary judgment in the prior, consolidated cases, as well as this court‘s decision in Hillman I, substantively affirming that Edwards was entitled to summary judgment in those cases. Those decisions, which are not incorporated into a properly-framed affidavit, do not fall within the types of evidence listed in {¶22} Three of the four elements necessary for application of res judicata are plainly established here. See Reasoner at ¶5. There is no dispute that the claims raised by Hillman‘s earlier, consolidated actions were finally and validly adjudged on their merits, as Judge Pfeiffer twice entered summary judgment in favor of Edwards, and this court affirmed that judgment. A summary judgment determines an action on the merits, and res judicata bars the refiling of an action that has been decided on summary judgment. Stuller v. Price, 10th Dist. No. 03AP-30, 2003-Ohio-6826, ¶19. Additionally, the judgment entries attached to Edwards’ motion for summary judgment establish that the parties to both the prior, consolidated cases and this case are identical, namely Hillman and Edwards. Further, it is clear from those judgment entries and Hillman‘s complaint in this case that all three actions arise out of the same transaction — Edwards’ representation of Hillman on appeal from his burglary conviction. Indeed, Hillman admits in his appellate brief that this action stems from Edwards’ court-appointed representation of him in his direct appeal. {¶23} The only remaining requirement for application of res judicata is that the claims here were or could have been litigated in the prior actions. See Reasoner at ¶5. Other than waiver, which we have already discussed, Hillman‘s argument against the applicability of res judicata is that the claims he raises in this action were not litigated {¶24} We agree that Hillman‘s claims stemming from Edwards’ appellate representation were raised or could have been raised in the prior actions. While neither the trial court nor this court expressly determined whether Edwards misrepresented or misstated facts in his appellate brief on Hillman‘s behalf, this court stated in Hillman I, at ¶26, as follows: Because [Hillman] was given the opportunity to submit a pro se supplemental brief in his criminal appeal to correct any misstatements [Edwards] made, and because the appellate court in [Hillman‘s] appeal of his criminal conviction considered not only all assignments of error presented but the full record as well, we cannot conclude, in the absence of an expert witness so averring, that any misstatements [Edwards] made affected the outcome of the case. {¶25} ” ‘When a valid and final judgment rendered in an action extinguishes the plaintiff‘s claim pursuant to the rules of merger or bar * * *, the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.’ ” Grava at 382, quoting Restatement (Second) of Judgments (1982), Former Adjudication: The Effects Of A Judicial Judgment, Section 24(1). To the extent that Hillman‘s claims for relief arising out of Edwards’ representation, or the remedies Hillman seeks now, differ from those in the earlier actions, there is no doubt that Hillman could have raised those claims or sought those remedies in the earlier actions. Accordingly, we discern no error in the trial court conclusion that Hillman‘s claims are barred by the doctrine of res judicata and that Edwards was entitled to summary judgment. For these reasons, we overrule Hillman‘s second assignment of error. {¶26} We now briefly turn to Hillman‘s remaining assignments of error. {¶27} In his first assignment of error, Hillman states that the trial court erred by not holding a hearing on his motion for contempt and by failing to hold Edwards in contempt of court. In his February 16, 2010 motion for an order holding Edwards in indirect contempt, Hillman vaguely alleged that Edwards committed an act of fraud upon the court, which he claimed qualified as an act of contempt under
Notes
{¶28} Contempt proceedings are intended ” ‘to secure the dignity of the courts and the uninterrupted and unimpeded administration of justice.’ ” Denovchek v. Bd. of Trumbull Cty. Commrs. (1988), 36 Ohio St.3d 14, 16, quoting Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d 55, paragraph two of the syllabus. Because the primary interest involved is the court‘s authority and proper functioning, “great reliance should be placed upon the discretion of the trial judge.” Denovchek at 16. In exercising its discretion, a trial court may decline a finding of contempt even though a party has violated a court order. See Benfield v. Benfield (Nov. 7, 2003), 2d Dist. No. 19363, ¶9; Ryncarz v. Ryncarz (Feb. 13, 1997), 9th Dist. No. 17856. Absent a showing of prejudice by the party alleging contempt, there is no right of appeal from the denial of a contempt motion. Denovchek at 17; see also Natl. Equity Title Agency, Inc. v. Rivera, 147 Ohio App.3d 246, 2001-Ohio-7095, ¶27 (absent prejudice to the movant, “if the trial court did not believe that its authority required vindication, [the movant] could not force the court to assert its own authority“).
{¶29} In cases of alleged contempt under
{¶30} Much of Hillman‘s argument in support of his third and fourth assignments of error stems from his mistaken belief that Edwards’ professional liability insurer is a party to this lawsuit. In his motion for default judgment, Hillman argued that Edwards’ insurance company was in default and requested an order of default judgment “AGAINST THE DEFENDANT AKA ET[.] AL INSURER‘S OR INSURANCE COMPANY WHO BONDS THE CO-DEFENDANT [EDWARDS].” In his third assignment of error, Hillman contends that he was entitled to default judgment because Edwards’ insurance
{¶31} Hillman‘s remaining arguments stem from discovery concerns. On January 15, 2010, Hillman filed a motion for an order compelling Edwards to disclose the name and address of his insurance company. The trial court denied that motion in its final decision and judgment entry, having concluded that Hillman‘s claims were barred by res judicata. In his third assignment of error, Hillman argues that the trial court erred by not awarding him default judgment as a discovery sanction.
{¶32} While default judgment is available as a discovery sanction under
{¶33} Having overruled each of Hillman‘s assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and DORRIAN, JJ., concur.