JOHN KOSTOGLOU, Plaintiff-Appellee, v. JOHN FORTUNA, ET AL., Defendants-Appellants.
No. 107937
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
December 12, 2019
2019-Ohio-5116
FRANK D. CELEBREZZE, JR., J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-845367
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 12, 2019
Appearances:
Kaufman, Drozdowski & Grendell, L.L.C., and Evan T. Byron, for appellee.
Harvey B. Bruner Co., L.P.A., and Harvey Bruner, for appellants.
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Defendants-appellants, John Fortuna (“Fortuna“), Parmatown Spinal Rehabilitation Center, Inc. (“Parmatown Spinal“), and Parmatown Physical Therapy, L.L.C. (“Parmatown PT“) (collectively “appellants“), bring the instant
I. Factual and Procedural History
{¶ 2} This matter arose out of a ten-year promissory note executed on February 29, 2008, by Fortuna to plaintiff-appellee, John Kostoglou (“Kostoglou“), in the amount of $250,000. Fortuna is a licensed chiropractor and operated a chiropractic practice. Kostoglou is also a licensed chiropractor and owned and operated Parmatown Spinal. Fortuna became an employee of Parmatown Spinal in 2007. Thereafter, Kostoglou sold all of his shares in Parmatown Spinal to Fortuna for a total amount of $750,000. The transaction included a payment of $500,000 from Fortuna to Kostoglou, and also included the promissory note for an additional $250,000. The promissory note required Fortuna to pay Kostoglou monthly payments in the amount of $3,303.77, plus interest at 10 percent annum, for a period of 120 months with the first payment due on April 1, 2008.
{¶ 3} Fortuna failed to make any payments on the note, and as a result, on May 10, 2015, Kostoglou filed a complaint against Fortuna to enforce the note. The note contained a warranty of attorney clause that mandated a confession of judgment on behalf of Fortuna if Fortuna failed to make payments on the note. On May 12, 2015, an attorney filed the confession of judgment against Fortuna. On May
{¶ 4} On June 24, 2015, Fortuna filed a motion for relief from judgment pursuant to
{¶ 5} On February 16, 2016, Kostoglou filed an amended complaint. Kostoglou joined Parmatown Spinal and Parmatown PT as defendants in the amended complaint.1 Kostoglou‘s amended complaint alleged a breach of fiduciary duty, breach of care, breach of loyalty, and various other claims against appellants. On March 16, 2016, Kostoglou filed a motion to appoint a receiver. On May 20, 2016, Fortuna filed an answer to the amended complaint, and asserted a counterclaim against Kostoglou for overpayments in excess of the original purchase
{¶ 6} Thereafter, Kostoglou alleged that Parmatown Spinal and Parmatown PT had not engaged in discovery, and on August 11, 2016, Kostoglou filed a motion to compel discovery, which was unopposed by appellants. Then, on August 22, 2016, the trial court granted Kostoglou‘s motion to compel discovery and issued an order compelling appellants to comply with discovery. The trial court‘s order stated “[appellants] are ordered to respond to [Kostoglou‘s] discovery requests within seven days of this order.”
{¶ 7} On August 30, 2016, based on appellants’ failure to comply with discovery in accordance with the trial court‘s August 22, 2016 order, Kostoglou filed a motion for sanctions, and again asked the trial court for an appointment of a receiver. On October 26, 2016, the trial court granted Kostoglou‘s motion for sanctions, and entered an order granting sanctions and appointing a receiver. In its order, the trial court found that appellants willfully failed to comply in a meaningful way with discovery requests and “have willfully failed to comply with the [c]ourt [o]rder and that [appellants] should be sanctioned for their failure to comply with the [o]rder.” The trial court further ordered appellants to pay the receivers fees. On March 22, 2017, the receiver filed a motion seeking to have his bill reduced to judgment because appellants had not paid the bill within five business days as required by the trial court‘s sanctions order.
{¶ 9} On October 30, 2017, the trial court granted Kostoglou‘s motion for entry of judgment, and entered judgment in favor of Kostoglou in the amount of $250,000 plus 10 percent interest annum.
{¶ 10} On November 22, 2017, appellants filed a notice of appeal. However, this court, sua sponte, on December 4, 2017, issued an order dismissing appellants’ appeal for lack of a final appealable order.
{¶ 11} Upon remand, on May 7, 2018, Kostoglou filed another motion for entry of judgment on the basis of repeated failures on the part of appellants to comply with discovery requests, and noting that appellants failed to appear at a scheduled deposition on March 21, 2018. Appellants sought an extension of time to respond to Kostoglou‘s May 7, 2018 motion for entry of judgment, and the trial court granted this extension. However, appellants did not file a response motion to Kostoglou‘s motion for entry of judgment, and instead, on June 15, 2018, appellants
did not have access to all of [Fortuna‘s] checks issued from [Parmatown Spinal] because they were initially in the hands of the [f]ederal [g]overnment,2 who was investigating [Fortuna] and in the hands of Kenneth Callahan, the receiver in this case.
After retrieving the checks, [Fortuna] had an accountant, Richard Lemongello, go through all of the checks, and for the period of 2009 through 2016 at the time of the closing of the [Parmatown Spinal], [Fortuna] had paid [Kostoglou] $685,354.00, which included both rent and charges for the building, as well as full payment on the note of $250,000.00 between [Fortuna] and [Kostoglou].
It is requested that the [c]ourt have hearing on this matter so that [Fortuna] can put forth the evidence mentioned herein showing that he has fully paid [Kostoglou].
Attached and marked as Exhibit A are a letter from accountant Richard Lemongello, and list of the checks, as well as copies of canceled checks to [Kostoglou].
Although referenced in appellants’ motion, appellants failed to actually attach “Exhibit A.” The trial court scheduled appellants’ motion for a hearing on July 31, 2018.
{¶ 12} On July 27, 2018, appellants filed a motion to continue the July 31 hearing. As a result, the trial court converted the July 31 hearing on appellants’ motion for relief from judgment to a settlement conference. Appellants did not object to the trial court‘s order converting the hearing to a settlement conference.
{¶ 13} On November 29, 2018, appellants filed a notice of appeal from the trial court‘s order denying its motion for relief from judgment. Appellants assign a sole error of our review.
II. Law and Analysis
{¶ 14} In appellants’ sole assignment of error, they argue that the trial court abused its discretion in denying their motion for relief from judgment without a hearing. In addition, and although not argued in a separate assignment of error as required by
A. Motion for Relief from Judgment
{¶ 15} As an initial matter, we note that appellants’ motion for relief from judgment was not proper in that appellants did not file their motion from a final judgment.
{¶ 16} In the instant case, appellants appealed from the trial court‘s November 21, 2017 judgment entry which ruled in favor of Fortuna. However, this court dismissed appellants’ appeal for lack of a final, appealable order because the trial court did not rule on Fortuna‘s claims for attorney fees. Upon remand, Fortuna
{¶ 17} Moreover, because appellants’ motion for relief from judgment was not from a final order, appellants’ motion is considered to be from an interlocutory order. See Scaccia v. Fid. Invests., 2d Dist. Greene No. 2018-CA-5, 2019-Ohio-50, ¶ 28, citing Seniah Corp. v. Buckingham, Doolittle & Burroughs, L.L.P., 5th Dist. Stark No. 2016CA00039, 2016-Ohio-7516, ¶ 19-21 (where the Second District noted that “[w]here parties have filed interlocutory motions for
{¶ 18} Nevertheless, whether the trial court treated appellants’ motion as a motion for reconsideration is of no consequence to our analysis because we review both a motion for reconsideration and a motion for relief from judgment for an abuse of discretion. See Maddox Defense, Inc. v. GeoData Sys. Mgt., 8th Dist. Cuyahoga No. 107559, 2019-Ohio-1778, ¶ 74, citing Vanest v. Pillsbury Co., 124 Ohio App.3d 525, 535, 706 N.E.2d 825 (4th Dist.1997). As such, we will examine whether
{¶ 19}
the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud * * *, misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment.
{¶ 20} In order to prevail on a motion for relief from judgment, the moving party must demonstrate that: “(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in
These requirements must be shown by “operative facts” that demonstrate the movant‘s entitlement to relief. Rose Chevrolet at 21; see also Coleman v. Cleveland School Dist. Bd. of Edn., [8th Dist. Cuyahoga Nos. 84274 and 84505, 2004-Ohio-5854]. Although a movant is not required to submit evidentiary material in support of the motion, a movant must do more than make bare allegations of entitlement to relief. Your [Fin.] Community of Ohio, Inc. v. Emerick, [123 Ohio App.3d 601, 607, 704 N.E.2d 1265 (10th Dist.1997)]. “Moreover, if the material submitted by the movant does not provide
operative facts which demonstrate that relief is warranted, the court may deny the motion without conducting a hearing.” McBroom v. McBroom, [6th Dist. Lucas No. L-03-1027, 2003-Ohio-5198, ¶ 39]. Williams v. Wilson-Walker, 8th Dist. Cuyahoga No. 95392, 2011-Ohio-1805, ¶ 7.
{¶ 21} “The trial court has discretion in deciding a motion for relief from judgment under
{¶ 22} Appellants argue that the trial court abused its discretion in denying their motion for relief from judgment because “the trial court did not entertain any of the argument[s] that the [a]ppellants had satisfied the $250,000 promissory note.” Appellants’ brief at 9. Although not further articulated by appellants in their brief, we presume that appellants are arguing that the trial court did not consider whether appellants had satisfied the judgment. Further, appellants argue that their motion for relief from judgment was made within a reasonable time.
{¶ 23} First, we do not necessarily agree with appellants that their motion for relief from judgment was made within a reasonable time. The trial court‘s order granting Kostoglou‘s motion for entry of judgment was entered on October 30, 2017.
{¶ 24} Appellants also contend that the trial court abused its discretion because it did not consider that appellants were entitled to relief because they had satisfied the judgment pursuant to
{¶ 25} With regard to appellants’ argument that they have satisfied the judgment, it appears that appellants are referencing Fortuna‘s arguments in his
Upon seeing the profitability of Parmatown [Spinal] and believing that [Kostoglou] could obtain better returns from his shares, [Kostoglou], with [Fortuna‘s] assent, canceled the stock purchase agreement and [n]ote and, with [Fortuna‘s] assent, entered into a partnership agreement with [Fortuna]. [Kostoglou] received 20% interest in Parmatown [Spinal], after transferring the remaining 80% interest to [Fortuna]. Based on this new arrangement, [Kostoglou] told [Fortuna] to disregard the stock purchase agreement and to “forget about the [n]ote.”
Fortuna further contended that “[s]ince the creation of the partnership, [Kostoglou] ha[d] received large sums of money [from Fortuna] over the years, well in excess of the $250,000.00.”
{¶ 26} However, these arguments were made by Fortuna individually in his motion for relief from judgment. Furthermore, these arguments were persuasive because the trial court granted Fortuna‘s motion for relief from judgment. In this way, appellants failed to present this particular argument in their motion for relief from judgment that is the subject of the instant appeal. “It is well established that a party cannot raise new arguments and legal issues for the first time on appeal, and that failure to raise an issue before the trial court results in waiver of that issue for
{¶ 27} In appellants’ motion for relief from judgment that is the subject of the instant appeal, appellants argued that the documents which they failed to provide to Kostoglou where in the possession of the federal government. Appellants essentially argued that they could not have possibly complied with the trial court‘s order compelling discovery because the documents were not in appellants’ possession. Appellants then filed their motion for relief from judgment on June 15, 2018, and argued that the documents were now in their possession.
{¶ 28} First, appellants fail to identify precisely what documents were in the federal government‘s possession. Even assuming that these documents were in the possession of the federal government, these documents almost certainly pertain to the federal prosecution of an entirely separate business entity with which Fortuna is associated, Physician‘s Surgical Group, L.L.C. Therefore, these documents are in no way relevant to the underlying litigation between Kostoglou and Fortuna.
{¶ 29} In their motion for relief from judgment, appellant‘s provided no affidavits attesting to support the assertions within the motion. In fact, the “Exhibit A” cited to in appellants’ motion was not attached to their motion. On appeal, appellants do not argue that the failure to attach the exhibit or accompanying affidavits was in some way neglect, mistake, or utter disregard, on behalf of their
{¶ 30} When seeking relief under
{¶ 31} In our review of the record, it appears that appellants had argued that the trial court simply made a mistake in rendering its decision granting Kostoglou‘s
{¶ 32} Civil Rule 60(B)(1) provides that the trial court “may relieve a party or his [or her] legal representative from a final judgment, order or proceeding for mistake, inadvertence, surprise or excusable neglect[.]”
The term “excusable neglect” is an elusive concept which has been difficult to define and to apply. Nevertheless, we have previously defined “excusable neglect” in the negative and have stated that the inaction of a defendant is not “excusable neglect” if it can be labeled as a “complete disregard for the judicial system.”
Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996), citing GTE Automatic Elec., 47 Ohio St.2d at 153; Rose Chevrolet, 36 Ohio St.3d at 21.
{¶ 34} Indeed, appellants’ “mistake” can be more properly labeled as a “complete disregard for the judicial system.” Kay at 20. On August 11, 2016, Kostoglou filed a motion to compel discovery. Then on August 22, 2016, the trial court granted Kostoglou‘s motion to compel discovery and issued an order compelling appellants to comply with discovery. The matter continued through October 2018 with appellants failing to ever comply with discovery requests.
{¶ 35} For all the foregoing reasons, we find appellants’ arguments that the trial court abused its discretion in denying their motion for relief from judgment to be completely without merit.
B. Hearing
{¶ 36} Appellants also argue that the trial court abused its discretion by failing to hold a hearing on appellants’ motion for relief from judgment. We note again that appellants have not presented any arguments as required by
{¶ 37} Nevertheless, we note that a party moving for relief from judgment under
{¶ 38} In the instant case, the trial court was painfully aware of appellants’ arguments as to why appellants did not comply with the discovery requests. Appellants failed to present any operative facts in their motion for relief from judgment that would have demonstrated that relief from judgment was warranted. Indeed, although appellants referenced an “Exhibit A” in their motion for relief from judgment, appellants failed to attach this exhibit to their motion for the trial court‘s consideration. Moreover, appellants failed to attach an affidavit attesting to the
{¶ 39} Accordingly, appellants’ sole assignment of error is overruled.
{¶ 40} Judgment affirmed.
It is ordered that appellee recover from appellants 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.
FRANK D. CELEBREZZE, JR., JUDGE
MICHELLE J. SHEEHAN, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY
SEAN C. GALLAGHER, P.J., CONCURRING IN JUDGMENT ONLY:
{¶ 41} Although the parties have treated Fortuna‘s June 15, 2018 motion as one seeking relief from a final judgment under
{¶ 42} In the December before Fortuna filed the motion at issue, this court dismissed a pending appeal based on the lack of a final appealable order — there were claims for relief asserted in the complaint that were then unresolved. Thus, there was no final judgment in this case at the time Fortuna filed the motion. Although the majority considers the parties’ arguments as framed, the underlying focus of the argument in this appeal is on the procedural requirements under