IN RE GUARDIANSHIP OF THOMAS J. CALVEY [Aрpeal by Thomas J. Calvey]
No. 109289
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
August 27, 2020
2020-Ohio-4221
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 27, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Division Case No. 2019-GRD-246182
Appearances:
Edward M. Mullin, for applicant-appellee.
L. Bryan Carr, for respondent-appellant.
LARRY A. JONES, SR., P.J.:
{¶ 1} Respondent-appellant Thomas J. Calvey (“Calvey“) appeals from the probate court‘s November 19, 2019 final order in this guardianship action. In relevant part, the order denied his request for sanctions against applicant-appellee Richard Antall (“Antall“). For the reasons that follow, we affirm.
{¶ 2} The record before us shows that in August 2019, Antall filed an application to be appointed the guardian of Calvey. According to Antall‘s application, he and Calvey are first cousins. Antall alleged that Calvey was incompetent because of his “cоnfused mental state.” The court assigned an investigator to the case, and the matter was set for a hearing before a magistrate for September 24, 2019.
{¶ 3} On September 6, 2019, counsel for Calvey filed a motion to dismiss and a motion fоr sanctions. The motion to dismiss alleged that the application was “defective, deficient, and in violation of the Civil Rules, Revised Code and Rules of Superintendence for the Courts of Ohio.” The motion for sanctions was basеd on the alleged “frivolous nature” of the application and sought sanctions against Antall and his counsel in the form of an award of Calvey‘s attorney fees.
{¶ 4} On September 17, 2019, Antall‘s counsel filed a motion to continue the mаgistrate‘s hearing “in order to further prepare for the hearing, locate witnesses, and gather the necessary medical and expert information needed in this case“; the motion to continue was granted. On Septembеr 20, 2019, the investigator‘s report was filed.
{¶ 5} On October 7, 2019, Calvey renewed his motions to dismiss and for sanctions. In addition to the contentions previously made in his original motions, Calvey contended that his motions should also be granted becausе Antall never
{¶ 6} On October 30, 2019, Antall filed a dismissal of his application. On November 1, 2019, the magistrate issued а decision, in which Antall‘s withdrawal of his application was accepted, and the motions to dismiss were denied as moot. The magistrate noted that Calvey‘s motion to dismiss was based on (1) Antall‘s alleged failure to allege sufficient facts, and (2) Calvey‘s claim that the Ohio Rules of Superintendence were violated because the application did not have a statement of expert evaluation (or an allegation that Calvey refused to submit to evaluation). The magistrate‘s decision stated the following:
This Court has historically allowed Applications for Guardianship to be accepted for filing without an accompanying Statement of Expert Evaluation with thе understanding that such a Statement is required to be provided prior to or at hearing and certainly before any determination regarding whether guardianship should be granted may be made.
{¶ 7} Based on the above, the magistrate determined that Calvey‘s motion for sanctions should be dismissed.
{¶ 8} On November 19, 2019, the probate court, noting that no objections had been filed to the magistrate‘s decision, adopted the magistrate‘s decision as the final order of the court. This appeal followed. Calvey‘s sole assignment of error reads: “The trial court erred in denying appellant‘s motion for sanctions pursuant to
{¶ 9} Initially, we note that the magistrate‘s decision specifically prоvided the following:
A party shall not assign as error on appeal the court‘s appeal adoption of any finding of facts or conclusion of law in this magistrate‘s decision unless the party timely and specifically objеcts to the finding or conclusion as required by civil rule.
(All caps removed.)
{¶ 10} Calvey did not object to the magistrate‘s decision. An appellant‘s failure to object to a magistrate‘s decision waives all but plain error review on appeаl. Hamilton v. Hamilton, 10th Dist. Franklin No. 14AP-1061, 2016-Ohio-5900, ¶ 6, citing Lavelle v. Lavelle, 10th Dist. Franklin No. 12AP-159, 2012-Ohio-6197, ¶ 8;
[I]n appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error seriously affects thе basic fairness, integrity, or public reputation of the judicial process itself. Uretsky v. Uretsky, 10th Dist. [Franklin] No. 02AP-1011, 2003-Ohio-1455, ¶ 7, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 1997-Ohio-401, 679 N.E.2d 1099 (1997), syllabus. ‘Indeed, the plain error doctrine implicates errors in the judicial process where the error is clearly apparent on the face of the record and is prejudicial to the appellant.’ Skydive Columbus Ohio, L.L.C. v. Litter, 10th Dist. [Franklin] No. 09AP-563, 2010-Ohio-3325, ¶ 13, citing Reichert v. Ingersoll, 18 Ohio St.3d 220, 223, 18 Ohio B. 281, 480 N.E.2d 802 (1985). “Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise.” In re C.M., 10th Dist. [Franklin] No. 07AP-933, 2008-Ohio-2977, ¶ 50, quoting State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990).
{¶ 11} With the above in mind, we consider Calvey‘s assignment of error.
{¶ 12} The parties disagree on the standard of our review. Calvey contends that because the probate court denied his motion on “its own erroneous, unwritten ‘Rule’ that contradicts thе Rules of Superintendence,” we review de novo. On the other hand, Antall contends that we must accord great deference to the probate court‘s decision and, therefore, review for an abuse of discretion.
{¶ 13} If the issue is whether the probate court had the authority to impose a sanction pursuant to a rule, it is a question that is reviewed de novo on appeal. In re Estate of Robertson, 159 Ohio App.3d 297, 2004-Ohio-6509, 823 N.E.2d 904, ¶ 24 (7th Dist.), citing Cleveland Elec. Illum. Co. v. PUC, 76 Ohio St.3d 521, 523, 668 N.E.2d 889 (1996). If the probate court has the authority under а rule to impose a monetary sanction, the actual imposition of, or failure to impose, a sanction is reviewed for abuse of discretion. In re Estate of Robertson at id.; In re Davis, 8th Dist. Cuyahoga No. 82233, 2003-Ohio-5074, ¶ 13.
{¶ 14} For example, in In re Estate of Robertson, the Seventh Appellate District stated that determining whether a violatiоn of
{¶ 15} In light of the above, we review de novo whether
{¶ 16} We next consider, under the abuse-of-discretion standard generally utilized for a probate court‘s decision regarding sanctions for alleged frivolous conduct, the court‘s denial of Calvey‘s motion for sanctions, which were made under
{¶ 17}
{¶ 18} “Frivolous conduct” includes conduct that: (1) “obviously serves merely to harass or maliciously injure another party to the civil action * * * or is for another improper purpose, including, but not limited to, causing unnecessаry delay
{¶ 19}
{¶ 20} According to Calvey, Antall‘s motivation for filing the guardianship appliсation was to assist Calvey‘s mother and brother in civil litigation they were engaged in against Calvey. Further, Calvey contends that Antall‘s application that alleged that Calvey had a “confused mental state,” was insufficient to meet the legal definition of an incompetent person. And, as mentioned, Calvey contends that Antall‘s application violated
{¶ 21} In regard to Calvey‘s claim about Antall‘s motive for filing the guardianship application, it is a claim for which the only evidence in the record directed toward it is Calvey‘s affidavit. Calvey‘s affidavit is naturally self-serving;
{¶ 22} In regard to Calvey‘s claim that Antall‘s allegation of Calvey‘s “confused mental state” was insufficient for a guardianship application, we note that Ohio is a notice pleading state. Under the notice pleading required by
{¶ 23} We also find no merit to Calvey‘s contention that he should have been grаnted sanctions against Antall for his failure to file an expert statement with his application. As the probate court noted, it historically accepts applications for guardianships without expert statements and, instead, requires them to be “provided prior to or at hearing and certainly before any determination regarding whether guardianship should be granted may be made.”
{¶ 24} Courts have inherent power independent of legislative enactment. See generally Jelm v. Jelm, 155 Ohio St. 226, 240, 98 N.E.2d 401 (1951). Inherent powers are those powers of a court “necessary to the orderly and efficient exercise
{¶ 25} In light of the above, Calvey‘s sole assignment of error is overruled.
{¶ 26} Judgment affirmed.
It is ordered that appellee recover from appellant 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
LARRY A. JONES, SR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR