ELAINE MARCONI v. CORRINE SAVAGE, ET AL.
No. 102619
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 28, 2016
2016-Ohio-289
ANITA LASTER MAYS, J.; LARRY A. JONES, SR., A.J., and SEAN C. GALLAGHER, J., CONCUR
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Case No. CV-11-763485
J. Michael Drain
147 Bell Street, Suite 202
Chagrin Falls, Ohio 44022
Scott M. Kuboff
Joseph J. Triscaro
DeMarco & Triscaro Ltd.
30505 Bainbridge Road, Suite 110
Solon, Ohio 44139
Dan A. Morell
Michael D. Schmit
Dan Morell & Associates Co.
250 Spectrum Office Building
6060 Rockside Woods Boulevard
Independence, Ohio 44131
ATTORNEYS FOR APPELLEE
Frank R. Desantis
James L. Defeo
Hope Y. Lu
Thomas M. Rizert
Thompson Hine L.L.P.
3900 Key Center
127 Public Square
Cleveland, Ohio 44114
{¶1} Plaintiff-appellant Elaine Marconi (“Marconi“) appeals the trial court‘s denial of: (1) Marconi‘s request to engage in additional discovery against defendant-appellee Corrine Savage (“Savage“); (2) Marconi‘s motion for attorney fees pursuant to
I. BACKGROUND AND FACTS
{¶2} This court entertained a prior appeal in Marconi v. Savage, 8th Dist. Cuyahoga No. 99163, 2013-Ohio-3805, appeal not accepted, Bank of Am., N.A. v. Mark, 137 Ohio St.3d 1474, 2014-Ohio-176, 2 N.E.3d 269 (”Marconi I“). We draw from that opinion in formulating a concise history of this dispute, because a clear understanding of the background is a prerequisite to addressing Marconi‘s post-dismissal arguments.
{¶3} Marconi and Savage are neighbors. Savage owns the driveway between the properties. Marconi possesses an easement that allows her to access her garage. Marconi purchased her home from her mother‘s estate. Id. at ¶ 4. The mother sued Savage in 1997 for interfering with her easement interest by parking vehicles in the driveway, obstructing access to Marconi‘s garage. The mother died prior to judgment and the action was dismissed with prejudice. Id.
{¶4} Marconi filed for a temporary restraining order while serving as the executor of her mother‘s estate to prevent Savage from pouring a concrete curb dividing
{¶5} Marconi filed to enforce the settlement agreement in 2010, requesting the removal of a fence that had been constructed by Savage that was trespassing onto her property. Marconi admitted knowledge of the three-inch encroachment at the time of the 2002 settlement. The trial court determined that no material breach of the settlement agreement had occurred and ordered that the easement and fence remain in place. The parties were directed to respect each other and maintain their properties in reasonable condition. Id. at ¶ 7.
{¶6} In 2011, Marconi filed the pending action to quiet title, for declaratory judgment regarding the easement, the fence encroachment by Savage and other relief relating to harassment and misconduct by Savage. Marconi alleged Savage erected a fence on the driveway without obtaining building permits and that the fence encroached on her property. The complaint also alleged that Savage intended to interfere with Marconi‘s use of the property and caused her emotional distress. The trial court granted summary judgment in Savage‘s favor based on res judicata and held that Savage‘s conduct did not rise to the level of extreme and outrageous conduct required to support a
{¶7} This court affirmed the trial court‘s decision in Marconi I:
We agree, consistent with principles of res judicata, that all of Marconi‘s present claims have been, or could have been, resolved in the prior litigation between the parties. In so concluding, we find that Marconi is bound by the terms of the 2002 settlement agreement that the court most recently enforced, in similar litigation, in 2011. Finally, we see no equitable basis for denying preclusive effect to the prior litigation between the parties because Marconi offers no plausible basis for failing to bring her claims at any previous point. The court did not err by finding that Marconi is precluded from raising them in this case.
{¶8} We also concluded in Marconi I:
The allegation that Savage engaged in threats and harassment was by itself insufficient to satisfy the element that the conduct complained of was so extreme and outrageous that it went beyond all possible bounds of decency and can be considered completely intolerable in a civilized community. * * *
The complaint did not state what words Savage allegedly said to Marconi. On that basis, the court could not find that anything Savage allegedly said to Marconi was so outrageous to establish as a matter of law the tort of intentional infliction of emotional distress.
{¶9} Upon return to the trial court to entertain the counterclaims, changes of counsel occurred. Savage filed for leave to amend the counterclaim and Marconi filed a 46-page objection. Marconi argued that Savage‘s claims were groundless and that she had become the neighborhood bully, threatening to sue everyone.
{¶10} The court extended discovery to September 2014. Marconi filed a
{¶11} On September 15, 2014, both parties filed dispositive motions. Savage filed for partial summary judgment claiming that she was entitled to the declaratory judgment (Count 2 of her amended counterclaim) for Marconi‘s abandonment of the easement as evidenced by a building permit that had been secured by Marconi who acquired an adjacent lot that included a driveway Marconi could use to access her property. She also claimed entitlement to judgment on her action to quiet title since the new driveway access constituted an abandonment of the easement (Count 4). Savage also sought judgment on three of Marconi‘s affirmative defenses because (1) any claim was waived by the 2002 agreement; (2) there is no evidence supporting estoppel; and (3) there are no circumstances supporting compulsory joinder.
{¶12} The motion was supported by affidavits from Savage and from one of Savage‘s attorneys who possessed actual knowledge regarding the 2010 issues as well as public records obtained regarding Marconi‘s building permit. There are also photographs depicting the driveway and fence and a copy of related deeds.
{¶13} Savage claimed that, during the fall of 2014, Marconi applied for a building permit with the city of Cleveland to build a fence along her easement. The application was accompanied by an affidavit stating she purchased the adjacent lot at 7908 Maryland Avenue that contains a driveway and garage and that she would not use the common
{¶14} Marconi sought summary judgment on all counterclaims. She stated that Savage‘s counterclaims were groundless and brought in bad faith. Her motion recounted a pattern of harassment that existed for years and continued up to the date of the filing.
{¶15} The motion included a link to an authenticated Youtube video filmed by a WKYC television news investigation crew depicting a 1997 encounter between Marconi, her 87-year-old mother and Savage‘s ex-husband, Alvin Savage, Jr., who is no longer a party to this case. Alvin was parked in the shared area of the driveway so that Marconi and her mother could not get in or out instead of parking in the garage area that would not have impeded access. Alvin, who did not respond politely, eventually moved the car. The clip closes with a reference to the lawsuit that Marconi‘s mother subsequently filed.
{¶16} The motion also recounts the history of lawsuits and Savage‘s violations of Cleveland property ordinances. Marconi argued that Savage has ignored the terms of the settlement agreement by blocking the driveway with vehicles and trash containers and erecting a fence on Marconi‘s property without a building permit. Savage also releases her dogs into the yard when Marconi entertains guests in her backyard. A number of Youtube videos are proffered to substantiate the activities complained of and Savage also complained to the city about the condition of Marconi‘s property and more.
{¶17} Marconi defends that she was constructively ejected from the easement by
{¶18} On September 19, 2014, just four days after the dispositive motions were filed by the parties, Savage dismissed all claims without prejudice. Marconi filed for a motion for attorney fees based on
{¶19} In January 2015, the trial court issued an entry denying the motions for attorney fees and to compel discovery. The court granted a protective order to Savage and her counsel barring additional discovery and stated they need not respond to outstanding discovery. Finally, the trial court held that “plaintiff is hereby barred from submitting any further discovery requests in this matter to defendant Savage or her counsel.” This appeal ensued.
II. ASSIGNMENTS OF ERROR
A. Bad Faith, Sanctions, and Attorney Fees
{¶21} We begin with Marconi‘s second assignment of error.
{¶22} “Ohio law provides two separate mechanisms for an aggrieved party to recover attorney fees for frivolous conduct:
1. R.C. 2323.51
{¶23} The discretion to award sanctions and attorney fees under
[A] decision on whether to award sanctions under
R.C. 2323.51 will not be reversed absent an abuse of discretion. State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19, ¶ 11, citing Ron Scheiderer & Assocs. v. London, 81 Ohio St.3d 94, 98, 689 N.E.2d 552 (1998).
Brown v. Carlton Harley-Davidson, Inc., 8th Dist. Cuyahoga No. 101494, 2014-Ohio-5157, ¶ 6. An abuse of discretion “connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶24} The standard for determining frivolous conduct under
{¶25} The Ohio Supreme Court has elaborated:
Frivolous conduct, as contemplated by
R.C. 2323.51(A)(2)(a) , is judged under an objective, rather than a subjective standard, * * * and must involve egregious conduct. Frivolous conduct is not proved merely by winning a legal battle or by proving that a party‘s factual assertions were incorrect. Ohio Power Co. v. Ogle, 4th Dist. Hocking No. 12CA14, 2013-Ohio-1745, ¶ 29-30 (“A party is not frivolous merely because a claim is not well-grounded in fact. * * * [R.C. 2323.51 ] was designed to chill egregious, overzealous, unjustifiable, and frivolous action. * * * [A] claim is frivolous if it is absolutely clear under the existing law that no reasonable lawyer could argue the claim“), quoting Hickman v. Murray, 2d Dist. Montgomery No. CA-15030, 1996 Ohio App. LEXIS 1028, 1996 WL 125916, *5 (Mar. 22, 1996).
State ex rel. DiFranco v. S. Euclid, 8th Dist. Cuyahoga No. 97713, 2015-Ohio-4915, ¶ 15.
{¶26} A tripartite test is applied to determine whether
First, the court must determine whether the claim was frivolous; and,
Sigmon v. S.W. Gen. Health Ctr., 8th Dist. Cuyahoga No. 88276, 2007-Ohio-2117, ¶ 14.
{¶27} The statute defines two types of frivolous conduct, “(1) conduct that serves only to harass or maliciously injure the opposing party in a civil action; and (2) conduct that is unwarranted under existing law and for which there is no good faith argument for an extension, modification, or reversal of existing law.” Id. at ¶ 16, citing
{¶28} Marconi‘s motions were triggered by Savage‘s
{¶29} A party has an absolute right to one dismissal without prejudice under
[E]xercising this right cannot be properly considered “frivolous conduct” pursuant to
R.C. 2323.51 . See Sturm v. Sturm, 63 Ohio St.3d 671, 590 N.E.2d 1214 (1992); Gammons v. O‘Neill, 1994 Ohio App. LEXIS 3636 (8th Dist.1994); Indus. Risk Insurers v. Lorenz Equip. Co., 69 Ohio St.3d 576, 579, 635 N.E.2d 14 (1994) (holding that “a trial court may not take any action that allows prejudice to flow from the plaintiff‘s first voluntary dismissal“); Frazee v. Ellis Bros., Inc., 113 Ohio App.3d 828, 831, 682 N.E.2d 676 (1996) (holding that the court erred when it determined a party was not entitled to voluntarily dismiss the action pursuant toCiv.R. 41(A) after the court called the case for trial, because “a civil trial commences when the jury is empaneled and sworn, or, in a bench trial, at opening statements“).
Wheeler v. Best Emp. Fed. Credit Union, 8th Dist. Cuyahoga No. 92159, 2009-Ohio-2139, ¶ 43. The dismissal here was the first dismissal and, standing alone, does not constitute a violation of
{¶30} Savage offers that each counterclaim was warranted under existing law and supported by fact as demonstrated by the record. We preface our analysis by stating that the mere fact that a claim may not be successful is not enough to warrant sanctions under
{¶31} Count 4 of the amended counterclaim states that Marconi has abandoned the easement. Marconi argues that the claim is frivolous and is not supported by law because Savage constructively ejected Marconi by continuing acts of harassment. Cited to support the lack of legal basis is L.I.D. Dev. Co. v. S. Euclid, 8th Dist. Cuyahoga No. 67282, 1995 Ohio App. LEXIS 1864 (May 4, 1995). The test for abandonment under L.I.D. is nonuse as well as an affirmative intention to abandon the easement.
{¶32} The intent to abandon may be evidenced by acts demonstrating that intent. Id. at *6. Savage points to Marconi‘s City of Cleveland Affidavit for Homeowner‘s
{¶33} Savage argues that the counterclaims for negligence, trespass, and nuisance were based on Marconi‘s “failure to maintain her property, negligently tearing up the driveway and installing rocks that caused water to flow underneath Appellee‘s driveway, and allowing her property to be used to videotape and conduct surveillance on Appellee, her daughter, and her visitors.” Savage sets forth the case law governing a property owner‘s liability in negligence, nuisance, and trespass and details the activities that serve as support for those actions. This, again, demonstrates a legal and factual basis for the causes of action.
{¶34} The basis of the prescriptive easement claim is, as defined by Savage‘s asserted case law, an open and notorious use that is adverse to a neighbor‘s property rights, continuous, and lasts for 21 years or more.1 Savage states Marconi‘s defense to this claim is that Savage‘s use was permissive. Yet Marconi‘s affidavit supporting summary judgment says that Savage trespasses every time she steps over the yellow line dividing the easement area, contradicting Marconi‘s argument as to permissive use. Savage has advanced a basis for the claim.
{¶36} The last claim alleges a breach of the 2002 settlement agreement. The agreement includes an indemnification for damage caused to the driveway by Marconi‘s guests and that access to the driveway would not be blocked. The factual allegations in the record support a belief on the part of Savage that her access has been blocked or impeded.
{¶37} Based on the foregoing, we disagree that no reasonable lawyer would have brought this case in light of existing law. Sigmon, 8th Dist. Cuyahoga No. 88276, 2007-Ohio-2117, ¶ 14. The trial court did not abuse its discretion in denying the motion for sanctions under
2. Civ.R. 11
{¶38}
The signature of an attorney or pro se party constitutes a certificate by the attorney or party that the attorney or party has read the document; that to the best of the attorney‘s or party‘s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a document is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the document had not been served. For a willful violation of this rule, an attorney or pro se party, upon motion of a party or upon the court‘s own motion, may be subjected to appropriate action, including an award to the opposing party of expenses and reasonable attorney fees incurred in bringing any motion under this rule. Similar action may be taken if scandalous or indecent matter is inserted.
{¶40} Marconi argues that Savage‘s counsel did not act in good faith, did not examine the lack of evidence to support the counterclaims and signed off on assertions based on “phantom facts, with no basis in the law.” She also asserts that Savage‘s conduct was willful and offered based upon “barren proof.” Savage did not, Marconi argues, conduct an additional investigation to “yield a new basis for additional Counterclaims.”
{¶41} We agree with Marconi‘s position that subjective bad faith and willful actions violate
{¶42} In our analysis of
B. Discovery for Bad Faith, Sanctions, and Attorney Fees
{¶43} We now address Marconi‘s first assignment of error arguing entitlement to discovery to support the imposition of sanctions and fees. We find that the trial court did not abuse its discretion in denying discovery.
{¶44} Marconi asserts that “[d]iscovery will expose the answers” to the grounds for sanctions and fees. Distilled, Marconi‘s arguments are based on the premise that if the grounds for the counterclaims were valid and made in good faith, then Savage would not have dismissed her claims. In order to prove the premise, Marconi seeks discovery. Marconi also states that “[t]he entire record of Appellee‘s case demonstrates the weakness of the counterclaim * * *.” The question arises that, if that is the case, why is additional discovery required to prevail?
{¶45} Be that as it may, the Third Appellate District addressed the propriety of
For purposes of
Fed.R.Civ.P. 11 , federal circuit courts have concluded that trial courts “must to the extent possible limit the scope of sanction proceedings to the record. Thus, discovery should be conducted only by leave of the court, and then only in extraordinary circumstances.” Amwest Mortg. Corp. v. Grady, 925 F.2d 1162, 1165 (9th Cir.1991), quotingFed.R.Civ.P. 11 , Notes of 1983 Advisory Committee on Rules; Borowski v. DePuy, Inc., 876 F.2d 1339, 1341 (7th Cir.1989), citing Indianapolis Colts v. Mayor and City Council of Baltimore, 775 F.2d 177, 183 (7th Cir.1985); Donaldson v. Clark, 819 F.2d 1551, 1560-1561 (11th Cir.1987); McLaughlin v. Bradlee, 803 F.2d 1197, 1205, 256 U.S. App. D.C. 119 (D.C. Cir.1986).
(Emphasis added.) Holloway at ¶ 29.
{¶46} We do not find that this case presents exceptional and extraordinary circumstances that would require delving into discovery or that the trial court abused its discretion in limiting the scope of the sanctions proceedings to the record. Id. To allow collateral proceedings on sanctions and fees to expand into a full blown relitigation of the underlying issues is not in accord with the purpose of the rule and statute:
A motion for sanctions does not provide parties an opportunity to litigate fully—conduct discovery, present and cross-examine witnesses * * *.” [Klayman v. Barmak, 602 F.Supp.2d 110, 117 (D.D.C. 2009)]. The 1983 Advisory Committee on Rules noted that the limitation on discovery during sanction proceedings was “[t]o assure that the efficiencies achieved through more effective operation of the pleading regimen will not be offset by the cost of satellite litigation over the imposition of sanctions * * *.”
Fed.R.Civ.P. 11 , 1983 Advisory Committee Notes.
Holloway at ¶ 29. The first assignment of error is overruled.
C. Hearing Denial
{¶48} The exception to the no hearing required rule is the “arbitrary” denial of a request for attorney fees.
An arbitrary denial occurs when (1) the record clearly evidences frivolous conduct and (2) the trial court nonetheless denies a motion for attorney fees without holding a hearing. Id. Similarly, if an arguable basis exists for an award of sanctions under
Civ.R. 11 , a trial court must hold a hearing on the motion. Fitworks Holdings, L.L.C. v. Pitchford-El, 8th Dist. Cuyahoga No. 88364, 2007-Ohio-2517, ¶ 14, citing Capps v. Milhem, 10th Dist. Franklin No. 03AP-251, 2003-Ohio-5212.
Bikkani v. Lee, 8th Dist. Cuyahoga No. 89312, 2008-Ohio-3130, ¶ 31.
{¶49} We do not find that the trial court acted arbitrarily in denying a hearing. The third assignment of error is overruled.
III. Conclusion
{¶50} The trial court‘s order is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANITA LASTER MAYS, JUDGE
LARRY A. JONES, SR., A.J., and SEAN C. GALLAGHER, J., CONCUR