PAMELA E. NAMENYI, et al. v. JAC TOMASELLO
Appellate Case No. 2013-CA-75
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
October 10, 2014
2014-Ohio-4509
WELBAUM, J.
Trial Court Case Nos. 2012-CVG-1350, 2012-CVH-1304 (Civil Appeal from Municipal Court)
Rendered on the 10th day of October, 2014.
DOUGLAS D. BRANNON, Atty. Reg. No. 0076603, CARIN E. BIGLEY, Atty. Reg. No. 0090231, 130 West Second Street, Suite 900, Dayton, Ohio 45402
Attorneys for Plaintiffs-Appellees
DAVID GREER, Atty. Reg. No. 009090, 6 North Main Street, Suite 400, Dayton, Ohio 45402
Attorney for Defendant-Appellee
JACK HARRISON, 2222 Powers Lane, Dayton, Ohio 45440
Defendant-Appellant-Pro Se
WELBAUM, J.
Facts and Course of Proceedings
{¶ 2} Harrison appeared as legal counsel for Tomasello in the middle of two consolidated landlord/tenant cases pending in the Xenia Municipal Court. Both cases involved a May 2012 lease agreement between Tomasello and Pamela and Emanuel Namenyi, in which the Namenyis agreed to rent Tomasello a piece of residential real property, including a horse barn, in exchange for monthly rental payments.
{¶ 3} The first case arising from the lease agreement—Case No. 12 CVH 1304—was initiated by Tomasello on November 20, 2012. On that date, Tomasello filed a pro se application to deposit his rental payments with the Clerk of Courts due to the Namenyis allegedly failing their duties as landlords under
{¶ 4} The second case arising from the lease agreement—Case No. 12 CVG 1350—was initiated by the Namenyis, who on December 4, 2012, filed a forcible entry and detainer action and an action for damages against Tomasello. In the complaint, the Namenyis alleged that Tomasello failed to timely pay his monthly rent and that they served Tomasello with a statutory notice to leave the premises on November 18, 2012.
{¶ 5} On January 3, 2013, the two cases were consolidated for trial purposes.
{¶ 6} Both cases were heard at a bench trial on April 9, 2013. At that time, Tomasello was no longer appearing pro se, but was represented by attorney Griff Nowicki. Following trial, the trial court issued a written decision under Case No. 12 CVH 1304 denying Tomasello‘s application to deposit rent with the Clerk of Court. In so holding, the trial court found that Tomasello had failed to establish the Namenyis were in violation of any of their duties as landlords under
{¶ 8} Under his claim alleging retaliatory eviction, Harrison argued that Tomasello incurred significant costs for lodging, boarding horses, packing, moving, storage, and travel as a result of being evicted from the Namenyis’ property. As it relates to Tomasello‘s breach of contract claim, Harrison alleged the same basic arguments that Tomasello had previously raised as part of his January 23, 2013 pro se pleading in Case No. 12 CVH 1304. The loss of consortium claim was based on allegations that the delay in taking possession of the property caused bickering and arguing between Tomasello and his fiancé, Joan Malinoski. With respect to Tomasello‘s security deposit claim, Harrison argued that the Namenyis had failed to refund or notify by itemization any charges or deductions from the security deposit as required by
{¶ 9} On August, 28, 2013, the trial court issued a written decision on the motion for damages. In its decision, the trial court determined that Tomasello‘s breach of contract and retaliatory eviction claims were barred by res judicata, because those claims were resolved by the court‘s April 10, 2013 decision, in which the court found that Tomasello breached the parties’ rental agreement and granted restitution in favor of the Namenyis. The trial court further held
{¶ 10} Following the trial court‘s decision on the motion for damages, on September 3, 2013, the Namenyis filed a motion for sanctions under
{¶ 11} On November 8, 2013, the trial court issued a written decision detailing the complex procedural history of the case and setting forth its factual findings and conclusions of law. The court concluded, in part, that the motion for damages Harrison filed on behalf of Tomasello was made in bad faith, frivolous, and subject to sanctions under
The filing involved claims for “Retaliatory Eviction” (the Court had previously awarded a writ of restitution effective April 22, 2013), “Breach of Contract” (the Court had previously ruled that Mr. Tomasello himself had breached the parties’ contract by its DECISION; ENTRY AND ORDER filed April 10, 2013), and “Loss of Consortium” (the record is absolutely void of any evidence to support this claim). These three claims were totally without merit
and could not be supported by evidence at hearing. By both the subjective bad faith standard of Civ.R. 11 and the objective standard ofORC 2323.51 , the court finds attorney Harrison‘s conduct in filing his claims against the Namenyis on August 27, 2013, was frivolous and not in good faith. [Note: The Court allowed one claim in said filing to proceed, to wit: the handling by the Namenyis of the security deposit of $2,800. This fact does not negate the fact that overall, the filing was frivolous and in bad faith. * * *.]The Court finds that the Namenyis incurred additional attorney fees by attorney Harrison‘s frivolous, bad faith filing and awards reasonable attorney fees against attorney Harrison individually (not against Mr. Tomasello) in the amount of $1,375.
Decision Entry & Order (Nov. 8, 2013), Xenia Municipal Court Case Nos. 12 CVG 1350, 12 CVH 1304, p. 18-19, ¶ D.
{¶ 12} Harrison appeals from the trial court‘s judgment finding that three of the damages claims he asserted on behalf of Tomasello were without good grounds and frivolous. Harrison has raised two assignments of error for our review, and for purposes of convenience, we will address both of his assignments of error together.
Assignments of Error Nos. I and II
{¶ 13} Instead of presenting a statement of his assignments of error as required by
{¶ 14} “The imposition of a sanction under
{¶ 15} In contrast, 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. The court may assess and make an award to any party to the civil action or appeal who was adversely affected by frivolous conduct * * *.
{¶ 16} Prior to awarding damages under
{¶ 17} “Frivolous conduct” is the conduct of a party to a civil action or of the party‘s counsel that satisfies any of the following four criteria:
- 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.
- 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.
- 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.
- 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.
{¶ 18} This Court has previously noted “that the frivolous conduct implicated by
{¶ 19} “[N]o single standard of review applies in
{¶ 20} “In contrast, if there is no disputed issue of law and the question is factual, we apply an abuse of discretion standard of review.” Riverview Health Inst., L.L.C. at ¶ 33, citing Natl. Check Bur. at ¶ 11. Likewise, if the trial court determines that a violation under
{¶ 21} In this case, after holding a sanctions and damages hearing, the trial court determined that the loss of consortium, breach of contract, and retaliatory eviction claims raised in the motion for damages were frivolous and made in bad faith, because they were totally without merit and could not be supported by evidence at the hearing. The trial court did not include a detailed discussion concerning its findings, but its decision implies that it found the breach of contract and retaliatory eviction claims to be unwarranted under existing law, and the loss of consortium claim to be without any supporting evidence. Accordingly, the inquiry in this case is one of both fact and law.
{¶ 22} After reviewing the record, we conclude that the trial court did not err in finding the loss of consortium claim involving Tomasello and Malinoski, his fiancé, to be without any supporting evidence. Loss of consortium “ ‘is a right which grows out of marriage, is incident to marriage, and cannot exist without marriage. Because it is a marital right, the right of consortium is not conferred upon partners to extramarital cohabitation.’” Reygaert v. Palmer, 2d Dist. Montgomery No. 9296, 1986 WL 1340, *4 (Jan. 29, 1986), quoting Haas v. Lewis, 8 Ohio App.3d 136, 137, 456 N.E.2d 512 (10th Dist.1982). In the motion for damages, Harrison specifically referred to Tomasello‘s fiancé and alleged damages for loss of consortium. Since there was admittedly no marital relationship, there was indeed no evidence to support the loss of consortium claim, and Harrison had absolutely no grounds to assert it. Accordingly, the claim
{¶ 23} We also conclude that the breach of contract claim was frivolous due to being unwarranted under existing law on res judicata grounds. “ ‘[R]es judicata precludes a party from relitigating issues already decided by a court or raising matters that the party should have brought in a prior action.’” SunTrust Bank v. Wagshul, 2d Dist. Montgomery No. 25567, 2013-Ohio-3931, ¶ 8, quoting Am. Tax Funding, L.L.C. v. Whitlow, 2d Dist. Montgomery No. 24559, 2012-Ohio-3839, ¶ 9. Pursuant to
{¶ 24} Here, the breach of contract claim had been raised and ruled upon prior to Harrison filing the motion for damages, as Tomasello raised the same basic claim in his January 23, 2013 pro se filing in Case No. 2012 CVH 1304. Following trial, the trial court issued written decisions finding that Tomasello was in breach of the lease agreement and that he failed to establish the Namenyis breached their obligations as landlords. Because the breach of contract issue was actually and necessarily ruled upon after trial, res judicata barred it from being relitigated during the damages proceeding. Accordingly, the claim was unwarranted under existing law and thus frivolous.
{¶ 25} As for the retaliatory eviction claim, we note that the trial court determined in its
{¶ 26} In this case, we cannot determine from the record whether the issue of retaliatory eviction was litigated and decided upon during the forcible entry and detainer action. The trial court did not discuss retaliatory eviction in its written decision granting restitution of the premises to the Namenyis, and Harrison failed to file a transcript of the April 9, 2013 forcible entry and detainer trial. In Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980) the Supreme Court of Ohio stated that:
The duty to provide a transcript for appellate review falls upon the appellant. This is necessarily so because an appellant bears the burden of showing error by reference to matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d 162, 372 N.E.2d 1355. This principle is recognized in
App.R. 9(B) , which provides,in part, that “ * * * the appellant shall in writing order from the reporter a complete transcript or a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record * * *.” When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court‘s proceedings, and affirm.
{¶ 27} Here, Harrison failed his duty to provide a transcript for appellate review that is necessary for determining whether he was barred from raising the retaliatory eviction claim in the motion for damages. Accordingly, we must presume the validity of the trial court‘s decision finding that the claim was barred as a result of the previous forcible entry and detainer judgment. Based on this finding, we conclude the retaliatory eviction claim raised in the motion for damages was unwarranted under existing law and thus frivolous.
{¶ 28} In finding Harrison‘s conduct frivolous, it is unnecessary to discuss whether his conduct was also a violation of
{¶ 29} With respect to the imposition of sanctions, we note that no recording of the sanctions hearing was made, thus leaving no transcript for review. Additionally, Harrison failed to file an acceptable alternative statement of the evidence or proceedings as permitted by
{¶ 30} Harrison‘s First and Second Assignments of Error are overruled.
Conclusion
{¶ 31} Having overruled both of Harrison‘s assignments of error, the judgment of the trial court is affirmed.
HALL, J., concurs.
FROELICH, P.J., concurring:
{¶ 32} In Reygaert v. Palmer, 2d Dist. Montgomery No. 9296, 1986 WL 1340 (Jan. 29, 1986), we acknowledged that “some affianced couples may establish as deep and significant a relationship as a married couple.” Id. at *4. While Reygaert did “not abrogate Ohio‘s well-settled rule that only a married individual has standing to sue for loss of consortium,” Judge
{¶ 33} I agree that any “change in Ohio law based upon such circumstances may not be made by this Court,” Reygaert at *4. I would not necessarily hold that making a loss of consortium claim for a fiancé is per se frivolous in a case drafted to make its way to the Supreme Court; this is not such a case.
{¶ 34} The fact that the security deposit claim was continued or that the loss of consortium claim could arguably be “supported by the good faith argument for the establishment of new law,”
{¶ 35} Further, I agree with the majority that the amount of the sanctions cannot be successfully challenged on this record.
Copies mailed to:
Douglas D. Brannon
Carin E. Bigley
David Greer
Jack Harrison
Hon. Michael K. Murry