Law Office of Natalie F. Grubb v. BolanLaw Office of Natalie F. Grubb v. Bolan
Civil Appeal from the Chardon Municipal Court, Case No. 2007 CVF 520.
Judgment: Affirmed in part, reversed in part, and remanded.
Natalie F. Grubb, pro se, and John S. Lobur, Grubb & Associates, L.P.A., 437 West Lafayette Road, Suite 260-A, Medina, OH 44256 (For Plaintiff-Appellant and Third Party Defendant-Appellant).
R. Russell Kubyn, pro se, The Kubyn Law Firm, 8373 Mentor Avenue, Mentor, OH 44060 (Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellants, The Law Office of Natalie F. Grubb (NFG) and Natalie F. Grubb, Esq. (Attorney Grubb), appeal from the judgment of the Chardon Municipal
{¶2} On May 3, 2007, NFG filed a complaint against Kelly Bolan for failure to pay legal services rendered. After retaining Attorney Kubyn, Ms. Bolan later filed an answer accompanied by a counterclaim, as well as a third-party complaint which named Attorney Grubb as third-party defendant. Ms. Bolan‘s counterclaim asserted that Attorney Grubb committed malpractice in representing her in a previous case. The counterclaim specifically alleged, in relevant part:
{¶3} *** Bolan[] consulted with [appellants] with regard to a domestic relations action which occurred in Geauga County, Ohio.
{¶4} ***
{¶5} As a result of the aforementioned, an attorney-client relationship was created between *** Bolan[] and [appellants] ***.
{¶6} ***
{¶7} [Appellants‘] breach of duty to exercise reasonable care, skill and diligence caused *** Bolan[] to sustain and incur monetary damages and losses.
{¶8} The damages sustained by *** Bolan[] were proximately caused by [appellants‘] breach of duty *** without any negligence contributing thereto on the part of *** Bolan.
{¶10} [Appellants‘] conduct in neglecting matters entrusted to them, rendering negligent legal advise [sic] and failing to investigate *** Bolans’ [sic] legal matter that they accepted[] were [sic] a breach of [appellants‘] duty to exercise reasonable care[,] skill[,] and diligence on *** Bolans’ [sic] behalf.
{¶11} As a result of [appellants‘] breach of duty owed to *** Bolan, prior to, during and post litigation, *** [Bolan] sustained injury and loss. (Bolan‘s September 7, 2007 counterclaim/third-party complaint, ¶6-14).
{¶12} NFG and Attorney Grubb subsequently filed an answer to Ms. Bolan‘s counterclaim and a third-party counterclaim to Ms. Bolan‘s counterclaim/third-party complaint. In her third-party counterclaim, Attorney Grubb asserted a cause of action against Ms. Bolan alleging malicious prosecution. NFG and Attorney Grubb subsequently filed a motion for sanctions pursuant to
{¶13} On October 22, 2007, NFG and Attorney Grubb renewed their motion for attorney fees and costs against Attorney Kubyn pursuant to
{¶14} At the hearing, the trial court received evidence relating to appellants’ frivolous conduct allegations as well as their malicious prosecution claim. Attorney Grubb testified to the services NFG provided in defending against Attorney Kubyn‘s alleged frivolous allegations. In total, appellants incurred $1,750 in fees and an untold amount in costs. Although not specifically relevant to the motion and third-party counterclaim, appellants also testified they incurred $10,246.78 in fees and costs in prosecuting the underlying action against Ms. Bolan.
{¶15} Subsequent to the hearing, on April 18, 2008, Ms. Bolan, via newly retained counsel, filed a pleading captioned Suggestion of Stay. The pleading sought to notify the trial court that a bankruptcy stay had been entered by the federal court pursuant to
{¶16} On April 23, 2008, the magistrate issued his ruling on appellants’ motion and third-party counterclaim, concluding NFG and Attorney Grubb failed to prove that Attorney Kubyn violated
{¶17} On May 16, 2008, appellants filed their notice of appeal of the trial court‘s April 28, 2008 decision. Ms. Bolan later filed a motion to stay the appellate proceedings, asserting all further proceedings related to the underlying case should be stayed pending a final order from the United States Bankruptcy Court. On June 5, 2008, this court granted Ms. Bolan‘s motion. On January 28, 2009, Ms. Bolan was discharged in bankruptcy. As a result, the stay of proceedings was lifted by a judgment of this court entered on May 26, 2009. The record was subsequently transmitted and the parties filed their respective briefs.
{¶18} On March 19, 2010, in The Law Office of Natalie F. Grubb v. Bolan, 11th Dist. No. 2008-G-2840, 2010-Ohio-1156, this court issued a memorandum opinion dismissing appellants’ appeal for lack of a final, appealable order. The trial court entered final judgment and the matter is now properly before this court. Appellants assert three assignments of error on appeal. As they are related, we shall consider them together. They respectively provide:
{¶19} [1.] The trial court erred to the prejudice of appellants as the trial court failed to make a factual finding or legal conclusion that the appellee violated Civil Rule 11.
{¶20} [2.] The trial court erred to the prejudice of appellants as the trial court failed to make a factual finding or legal conclusion that the appellee violated O.R.C. Section 2323.51.
{¶22} Appellants’ three assigned errors argue the trial court erred in ruling against them on the following issues: (1) appellants’
{¶23} We initially point out that appellants’ assigned errors challenge, in part, the trial court‘s purported failure to file findings of fact and conclusions of law. Because it bears on the scope of our review of appellants’ arguments, we shall begin by analyzing this contention.
{¶24} Appellants are correct that neither the magistrate nor the trial court made formal findings of fact and conclusions of law. The record, however, does not indicate appellants specifically requested the magistrate or the trial court to make such findings.
{¶25} [W]hen separate facts are not requested by counsel and/or supplied by the court the challenger is not entitled to be elevated to a position superior to that he would have enjoyed had he made his request. Thus, if from an examination of the record as a whole in the trial court there is some evidence from which the court could have reached the ultimate conclusions of fact which are consistent with [its] judgment the appellate court is bound to affirm on the weight and sufficiency of the evidence.
{¶26} In other words, because a lack of findings necessarily circumscribes appellate review, an appellate court will generally presume the trial court applied the law correctly and affirm if there is some basis in the record for doing so. Bugg v. Fancher, 4th Dist. No. 06CA12, 2007-Ohio-2019, at ¶10, citing Allstate Financial Corp. v. Westfield Serv. Mgt. Co. (1989), 62 Ohio App.3d 657, 662. Under these circumstances, therefore, we must review the record to determine whether there is some evidence to support the trial court‘s rulings.
{¶27} With this standard in mind, we shall first consider appellants’ claim that the trial court erred in dismissing their malicious prosecution claim. In Crawford v. Euclid Natl. Bank (1985), 19 Ohio St.3d 135, 139, the Supreme Court of Ohio held that a plaintiff must satisfy four elements to establish a cause of action for malicious civil prosecution; to wit: (1) malicious institution of prior proceedings against the plaintiff by defendant, *** (2) lack of probable cause for the filing of the prior lawsuit, *** (3) termination of the prior proceedings in plaintiff‘s favor, *** and (4) seizure of plaintiff‘s
{¶28} Even assuming Attorney Grubb‘s third-party counterclaim contained sufficient facts to set forth a cause of action on elements (1) and (2), there are no facts that would support elements (3) and (4). With respect to the former, there was no indication, let alone an allegation, that Attorney Grubb and NSG had prevailed in a previous proceeding against Attorney Kubyn. And, furthermore, there is nothing in the record that would suggest Attorney Kubyn ever seized appellants’ property or Attorney Grubb‘s person. Because the third-party counterclaim does not allege sufficient facts to set forth a claim for malicious prosecution, we hold the trial court properly dismissed the action as a matter of law.
{¶29} We shall next consider appellants’ arguments relating to their motion for sanctions pursuant to
{¶30}
{¶32}
{¶34} With respect to
{¶35} (a) Conduct of *** [a] party to a civil action *** or *** party‘s counsel of record that satisfies any of the following:
{¶36} (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.
{¶37} (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.
{¶38} (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.
{¶40} Under the circumstances, the record demonstrates Attorney Grubb did not represent Ms. Bolan during her domestic proceeding and, in fact, never met Ms. Bolan. Ms. Bolan, however, via Attorney Kubyn, filed a counterclaim alleging Attorney Grubb committed malpractice in the course of representing Ms. Bolan. Such a filing is considered conduct under the statute.
{¶41} For the reasons discussed above, appellants’ first and third assignments of error are overruled. The trial court‘s judgment, as it pertains to appellants’ motion for sanctions pursuant to
TIMOTHY P. CANNON, P.J.,
MARY JANE TRAPP, J.,
concur.