Krohn v. KrohnKrohn v. Krohn
Mollie B. Hojnicki-Mathieson, for appellee.
David Krohn, pro se.
JENSEN, P.J.
{¶ 1} Defendant-appellant, David Krohn, appeals judgment entries of the Toledo Municipal Court denying his
{¶ 2} On July 29, 2015, Charles Krohn placed a three-day notice to evict on the door of 1721 Delmonte Drive, Toledo, Lucas County, Ohio. The notice instructed David Krohn (Charles’ son), to vacate the premises on or before August 3, 2015. A copy of the notice was sent by certified mail, return receipt requested, to the property address.
{¶ 3} On August 11, 2015, Charles filed a form “COMPLAINT IN FORCIBLE ENTRY AND DETAINER FOR PAST DUE RENT AND OTHER MONEY DAMAGES.” The two-count complaint sought restitution of the Delmonte Drive premises and unspecified monetary damages. In his complaint, Charles alleged that his “tenant” was in default of a rental agreement because of “Property Abandonment.” Charles explained, “Defendant was working on house and moved in without permission. He then abandoned house but left his car in driveway and some items in garage.”
{¶ 4} On August 14, 2015, the clerk sent a summons and a copy of the complaint to David at the Delmonte Drive address. The bailiff attempted personal service at the premises on August 18, 2015, but was unable to locate anyone. Therefore, he posted the summons and complaint on the door.
{¶ 5} Charles appeared at the August 25, 2015 eviction hearing. David did not. A brief discussion was held on the record:
THE COURT: Charles Krohn, do you own the premises at 1721 Delmonte Drive in Toledo?
CHARLES KROHN: Yes, yes.
THE COURT: And David Krohn occupies your premises by moving in without your permission is what your complaint says?
CHARLES KROHN: Yes.
THE COURT: And did you serve them with a copy of the Notice that you attached to your complaint?
CHARLES KROHN: Yes, sir.
THE COURT: It‘s dated July 29th. That would have been the date that you served the Notice?
CHARLES KROHN: Yes, sir.
THE COURT: Very Well. I‘m granting you possession of the premises. You can purchase a writ in the basement in the clerk‘s office today if you wish.
The magistrate entered a decision that David had been in default of an oral lease agreement since August 10, 2015. The magistrate further found that David was lawfully served with the notice to vacate and that Charles was entitled to possession of the Delmonte Drive premises. Later that day, the trial court adopted the magistrate‘s decision and issued a final appealable
{¶ 6} On September 17, 2015, David, pro se, filed a motion for relief from judgment alleging lack of proper service and arguing the complaint was made up of “false vindictive statements.” The motion was denied in an entry dated September 22, 2015. A pretrial was scheduled for November 2, 2015.
{¶ 7} On September 22, 2015, David filed a counterclaim in the amount of $16,200 alleging “the actions brought against me are false” and seeking “damages and lose [sic] of use, plus costs.” On the same day, David filed an answer to the second cause of action asserting:
Defendant owes Plaintiff nothing for rent or damages, I have proof of this which will be presented in court. The Plaintiff can prove that this cause of action is nothing more than a LIE brought against him by his sister for her own financial gain. This family dispute is much more than meets the eye of this court. Therefore I pray that this court give me my day in court to prove the false actions being claimed against me.
{¶ 8} On October 6, 2015, attorney John C. Intagliata entered his appearance as counsel of record for Charles. At Intagliata‘s request, the November 2, 2015 pretrial was continued until December 7, 2015.
{¶ 9} At the December 7, 2015 pretrial, the parties indicated that settlement was not likely. Trial was scheduled for January 11, 2016.
{¶ 10} On December 8, 2015, David moved to amend his counterclaim to include allegations that Charles violated various sections of the Ohio Landlord-Tenant Act. The trial court denied David‘s request.
{¶ 11} On December 9, 2016, David filed a motion for default judgment alleging Charles failed to file a timely reply to the counterclaim in violation of
{¶ 12} On December 16, 2015, Charles filed an answer denying the allegations set forth in the counterclaim.
{¶ 13} On December 17, 2015, David filed a renewed motion for relief from judgment. Here, as in the first motion to vacate, David alleged lack of proper service and argued that the complaint was made up of “false vindictive statements.” Charles filed a memorandum in opposition.
{¶ 14} On January 8, 2016, David filed a motion asking the court to require Charles to take a polygraph and allow the results be used as evidence “to ensure that the truth will be told.” Charles filed a response on January 22, 2016. David filed a reply on February 10, 2016.
{¶ 15} On February 12, 2016, David filed a motion for default judgment. He alleged that Charles “failed to follow”
{¶ 16} A pretrial was held February 18, 2016. The parties were ordered to complete any and all discovery by 4:30 p.m. on February 24, 2016. The trial court denied David‘s motion to amend the counterclaim, denied David‘s second motion to vacate, and denied David‘s motion for polygraph. The trial court also denied Charles’ motion to strike the counterclaim.
{¶ 17} On February 23, 2016, Charles filed a
{¶ 18} On March 1, 2016, the trial court issued a judgment entry granting Charles’ motion to dismiss David‘s counterclaim and set a hearing on Charles’ motion for
{¶ 19} On March 10, 2016, the trial court sua sponte “closed” the second cause of action after having found that it was “MISTAKENLY ENTERED AS NOT REQUESTED.”
{¶ 20} David now appeals assigning the following errors for our review:
- The trial court erred in law and abused its discretion by denying the Defendant the due process of law.
- The trial court erred in law and abused its discretion in granting the motion to dismiss, because it was under prejudice against the defendant.
- The trial court erred in law and abused its discretion in following [
R.C. ]2323.51 . - The trial court erred in law and abused its discretion in denying defendant‘s motion to vacate the eviction, based on fraud.
First Assignment of Error
{¶ 21} In his first assignment of error, David asserts “[t]he trial court erred in law by not following the Fifth and Fourteenth Amendments to the United States Constitution.” He then cites a number of cases interpreting and explaining the Constitution‘s due process clauses. David fails, however, to point to any portion of the record, or to assert any legal or factual argument relating to the case before us. Under
Second Assignment of Error
{¶ 22} In his second assignment of error, David asserts that the trial court erred when it granted Charles’
{¶ 23}
{¶ 24} In its March 1, 2016 entry dismissing David‘s counterclaim, the court indicated that “[a]fter reviewing this case extensively,” it had come to the conclusion that David‘s counterclaim fails to state a claim upon which relief can be granted. The court reasoned that “[t]his matter seems to have risen out of a family dispute and now this Court is being used as a pawn to get back at Plaintiff for testifying against Defendant in a divorce proceeding
{¶ 25}
{¶ 26} In dismissing David‘s counterclaim, the trial court expressly relied on evidence outside the pleadings without giving notice to the parties of its intent to do so. This error requires us to reverse the trial court‘s judgment entry granting Charles’
Third Assignment of Error
{¶ 27} In his third assignment of error, David first argues that the trial court abused its discretion when it determined that his filing of a motion for polygraph examination was frivolous conduct in violation of
{¶ 28} “[N]o single standard of review applies in
{¶ 29} The imposition of sanctions under
[A]t any time not more than thirty days after the entry of final judgment in a
civil action or appeal, any party adversely affected by frivolous conduct may file a motion for an award of court costs, reasonable attorney‘s fees, and other reasonable expenses incurred in connection with the civil action or appeal.
{¶ 30} “Frivolous conduct” is the conduct of a party to a civil action that satisfies, in relevant part, any of the following:
(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.
R.C. 2323.51(A)(2)(a) .
{¶ 31} Here, the trial court deemed David‘s filing of a motion for polygraph examination frivolous conduct under
{¶ 32} We find that David‘s conduct—the filing of a motion asking the court for an order demanding Charles take a polygraph examination “to ensure that the truth will be told“—was not warranted under existing law and cannot be supported by a good faith argument for the establishment of new law. In general, the results of a polygraph examination are inadmissible in civil cases. See Zanesville v. Sheets, 38 Ohio App.3d 24, 25, 525 N.E.2d 842 (5th Dist.1987). There is no exception that would apply in this case. Thus, the conduct is frivolous under
{¶ 33} In his second argument under his third assignment of error, David asserts that Charles failed to prove that the amount of attorney‘s fees awarded was related to the alleged frivolous conduct, and failed to prove that the fees sought were reasonable.
{¶ 34} “The decision whether to assess a penalty for frivolous conduct lies within the court‘s sound discretion.” Foland v. City of Englewood, 2d Dist. No. 22940, 2010-Ohio-1905, ¶ 68, citing Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 146, 569 N.E.2d 464 (1991). Under
{¶ 35} While the moving party is required to prove the reasonableness of the requested attorney fees, he is not required to prove that the amount of attorney fees requested is directly related to or necessitated by the frivolous conduct. See Mid-Ohio Mech., Inc. v. Eisenmann Corp., 5th Dist. Guernsey Nos. 07 CA 000035, 08 CA 00012, 2009-Ohio-5804, ¶ 157 (holding that an amendment to
{¶ 36} In this case, Charles’ attorney, John C. Intagliata, submitted a fee statement at the hearing on the motion for sanctions. The statement included itemized notations on services rendered. The details set forth in the statement were sufficient to permit the trial court to render an informed opinion regarding the reasonableness of the fees. See Lozada v. Lozada, 11th Dist. Geauga No. 2012-G-3100, 2014-Ohio-5700, ¶ 61; see also
Fourth Assignment of Error
{¶ 37} In his fourth assignment of error, David contends that the trial court abused its discretion and violated his right to due process when it denied his motions to vacate the judgment entry granting possession of the subject property.
{¶ 38} In his September 17 and December 18, 2015 motions, David argued: (1) service of summons was not perfected because Charles failed to instruct the bailiff to serve him at his “current address“; (2) Charles removed the copy of the summons placed on the Delmonte Drive door “in order to conceal and defraud” David; (3) Charles never served David with any notice pursuant to
{¶ 39} “A motion for relief from judgment under
{¶ 40} To prevail on a
{¶ 41} Here, David does not assert a meritorious defense to the allegations set forth in the first count of the complaint (i.e., that he was a tenant of the premises in default of his lease agreement). Rather, he simply asserts that the allegations are “all false vindictive statements.” No explanation is provided for this assertion, and no facts are set forth in support of David‘s position. “A ‘meritorious defense’ means a defense ‘going to the merits, substance, or essentials of the case’ and for purposes of vacating a default judgment, it refers to allegations which, ‘if established on trial, would constitute a complete defense to the action * * *.‘” Wayne Mut. Ins. Co. v. Marlow, 2d Dist. Montgomery No. 16882, 1998 Ohio App. LEXIS 2378 (June 5, 1998), citing Black‘s Law Dictionary, abridged, 290 (6 Ed.Rev.1991). “The burden is upon the movant to demonstrate that the interests of justice demand the setting aside of a judgment normally accorded finality.” General denials that allegations set forth in the complaint are true, without any elucidation, are insufficient to warrant relief under
{¶ 42} Because David did not satisfy the first prong of the GTE Automatic Electric, Inc. test when moving for relief under
Conclusion
{¶ 43} For the reasons set forth above, the decision of the Toledo Municipal Court granting sanctions against David Krohn in the amount of $2,397.50 is affirmed; the judgment entry granting Charles Krohn‘s
{¶ 44} There were reasonable grounds for this appeal. It is ordered that the parties split the costs of this appeal pursuant to
Judgments affirmed, in part, and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J.
JUDGE
Stephen A. Yarbrough, J.
JUDGE
James D. Jensen, P.J.
JUDGE
CONCUR.