Thompson v. Summit Pain Specialists, Inc.Thompson v. Summit Pain Specialists, Inc.
{¶1} Appellants James Bressi, D.O., and Annette Consentino-Bressi appeal the judgment of the Summit County Court of Common Pleas that ordered the release of bond money deposited on behalf of Dr. Bressi in his criminal case, and denied Dr. Bressi’s motions for relief from judgment and to discharge the prejudgment attachment. Dr. Bressi appealed and raises four assignments of error. Ms. Annette Consentino-Bressi raises one assignment of error. As some assignments of error are untimely or proffered by a non-party below, this Court is precluded from considering those portions of the appeals; and they are dismissed to that extent. Where Dr. Bressi raises timely issues which this Court may properly review, we affirm the trial court’s judgment.
I.
{¶2} Bressi was a practicing physician and part-owner of Summit Pain Specialists, Inc., where he used techniques including osteopathic manipulative therapy to alleviate patients’ pain.
{¶3} Shortly after the plaintiffs filed their initial complaint, they filed a motion for an emergency order of attachment without notice or hearing. Bressi opposed the motion, and the parties filed multiple supplemental briefs in support of their respective positions. The trial court held a hearing on the issue and permitted the parties to file post-hearing supplemental briefs. On February 21, 2014, the trial court granted the plaintiffs’ motion for a prejudgment order of attachment as it related to Bressi’s property. The order encompassed a $100,000.00 cash bond held by the Summit County Clerk of Courts relative to Bressi’s criminal case that the court ordered be released to the plaintiffs’ attorney for retention in his IOLTA account at the termination of the criminal case. Bressi did not appeal the order of attachment.
{¶4} In his criminal case, Bressi was ultimately found guilty of one count of sexual imposition and acquitted of the remaining 26 sexually oriented offense counts. The attorney who represented him in the criminal case (the “criminal attorney“) filed a motion in the civil case to release the bond money based on a bond assignment executed by Bressi and his wife. The plaintiffs opposed that motion, arguing that the bond money was subject to the order of attachment and was to be released to the plaintiffs’ counsel. The trial court declined to rule on the criminal attorney’s motion, noting that there were two mechanisms to overturn an order of
{¶5} The trial court held a hearing on Bressi’s motions for relief from judgment and to discharge the order of attachment on September 17, 2014. The same day, it issued an order permitting the release of certain funds in Bressi’s IRA account to pay the criminal attorney for his representation of Bressi in the criminal matter. Subsequently, one of two attorneys who represented Bressi in the civil case (the “civil attorney“), filed on behalf of Bressi a motion for relief from judgment pursuant to
{¶6} The plaintiffs opposed Bressi’s second set of motions both on the merits, as well as arguing that the trial court had already heard the identical motions filed by the criminal attorney. The civil attorney replied, stating that he had not received notice of the September 17, 2014 hearing. He further argued that, given Bressi’s acquittals, the witnesses who testified in support of the order of attachment lacked credibility.
{¶7} On December 1, 2014, the trial court issued an order ruling on the motions for relief from judgment and to discharge the order of attachment. It noted that it had conducted a hearing on the first set of motions, that all counsel for Bressi were in attendance, and that it heard the testimony of one of Bressi’s former patients who did not testify at his criminal trial. The trial court refused to hold a separate hearing on the second motion for relief from judgment, explaining that no hearing was required in the absence of operative facts demonstrating that relief was warranted. Specifically, the court reasoned that, given the stark difference in the burdens of proof and elements of charges/claims between criminal and civil actions, the fact of Bressi’s acquittal on 26 of 27 charges did not constitute newly discovered evidence tending to demonstrate that the plaintiffs were not likely to prevail in their civil claims, thereby negating any basis for the order of attachment.
{¶8} Bressi and Ms. Consentino-Bressi each filed notices of appeal from the December 1, 2014 order. This Court consolidates some assignments of error to facilitate discussion.
II.
JAMES BRESSI’S ASSIGNMENT OF ERROR I
THE TRIAL COURT VIOLATED SUMMIT COUNTY LOCAL RULE 23.02,
JAMES BRESSI’S ASSIGNMENT OF ERROR II
THE TRIAL COURT DID NOT HAVE JURISDICTION TO RELEASE THE BAIL MONEY DEPOSITED ON BEHALF OF DR. BRESSI IN AN UNRELATED CRIMINAL MATTER.
{¶9} Bressi challenges the trial court’s order attaching his criminal bond money and ordering its release to the plaintiffs’ counsel upon termination of the criminal case and pending resolution of the civil matter. As he is effectively challenging the trial court’s February 21, 2014 order of attachment, his appeal is untimely and this Court is divested of jurisdiction to consider the merits of his arguments.
{¶10} Ohio courts have recognized that an order for prejudgment attachment is a final, appealable order which appellate courts have jurisdiction to review. See, e.g., Slabaugh v. Slabaugh, 5th Dist. Stark No. 2005-Ohio-00134, 2006-Ohio-1496, ¶ 34; John H. Spencer, Inc. v. Baker & Hostetler, 38 Ohio App.3d 117, 118 (1st Dist.1987); see also William Watson & Co. v. Sullivan, 5 Ohio St. 42, 43-44 (1855) (recognizing attachment proceedings as special proceedings affecting a substantial right). Because Bressi here wishes to substantively challenge the terms of the February 21, 2014 order of attachment, he was required to file a timely notice of appeal pursuant to
JAMES BRESSI’S ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DR. BRESSI RELIEF PURSUANT TO [CIV.R.] 60(B) FROM ITS ENTRY OF PREJUDGMENT ATTACHMENT.
{¶11} Bressi argues that the trial court erred by denying his motion for relief from judgment pursuant to
{¶12} “The decision to grant or deny a motion to vacate pursuant to
{¶13}
On motion and upon such terms as are just, 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 (whether heretofore denominated intrinsic or extrinsic), 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. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
{¶14} To prevail on a
(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
Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief areCiv.R. 60(B)(1) , (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken.
GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus.
{¶15} “The requirements of
{¶16} Before a trial court can reach the merits of a motion for relief from judgment under
{¶17} This Court recognized above that an order of attachment is a final, appealable order from which a party may appeal. “The movant must allege new grounds for
{¶18} In this case, Bressi argues that he has a meritorious defense solely because he denies the allegations in the plaintiffs’ complaint. However, “[m]ere general denials in an answer do not allege a meritorious defense for
{¶19} As for grounds, Bressi argues that the trial court erred by failing to grant his motion for relief from the February 21, 2014 attachment order pursuant to
{¶20} This Court agrees with the trial court’s conclusion that Bressi’s acquittals do not constitute new evidence which render the attachment order inequitable pursuant to either
JAMES BRESSI’S ASSIGNMENT OF ERROR IV
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DR. BRESSI’S MOTION TO DISCHARGE THE ORDER OF PREJUDGMENT ATTACHMENT.
{¶21} Bressi argues that the trial court erred by denying his motion to discharge the order of prejudgment attachment. This Court disagrees.
{¶22}
{¶23}
{¶24}
{¶25} The trial court issued its order of attachment relevant to Bressi upon finding grounds pursuant to
{¶26} In denying the motion to discharge, the trial court relied in part on the testimony at a hearing on the motion of another patient who described her experience wherein Bressi placed her hand on his penis while treating her. According to the trial court, that patient-witness did not testify at Bressi’s criminal trial.
{¶27} In support of his initial motion to discharge, Bressi submitted the affidavit of his wife in which she averred that she posted her husband’s bond using money from a bank account in her sole name, as well as money loaned by her brother-in-law. At the hearing on the ownership of certain assets, only Bressi’s wife testified. She testified that she posted her husband’s $100,000.00 bond using both borrowed money ($42,000.00) and money in a checking account in her sole name ($58,000.00). However, she admitted that the money in her checking
{¶28} This argument merely challenged the nature of the property attached, rather than whether the attachment was “wrongfully obtained” in that there was no probable cause to support one of the grounds for attachment enumerated in
{¶29} In his second motion to discharge, which the trial court apparently considered as a supplement to the first, Bressi argued that there were no longer grounds pursuant to
{¶30} On appeal, Bressi argues that the evidence adduced at the hearing on the plaintiffs’ motion for an order of attachment was not credible. Again, Bressi is barred from raising this type of challenge as he should have timely appealed the February 21, 2014 attachment order if he believed the order was against the manifest weight of the evidence.
{¶31} Moreover, to the extent that Bressi argues that the trial court should not have relied on the testimony of the patient who testified at the hearing on his motion to discharge, we note that he has not provided this Court with a transcript of that hearing. It is the duty of the
When portions of the transcript which are necessary to resolve assignments of error are not included in the record on appeal, the reviewing court has no choice but to presume the validity of the [trial] court’s proceedings, and affirm.
(Internal quotations omitted.) Diehl v. Frost Tile & Marble, Inc., 9th Dist. Summit No. 22700, 2005-Ohio-6456, ¶ 5, quoting Cuyahoga Falls v. James, 9th Dist. Summit No. 21119, 2003-Ohio-531, ¶ 9, quoting Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). In the absence of a transcript, we must presume regularity because this Court is unable to assess the credibility of the witness or verify Bressi’s assertions that his attorney had not received notice of the hearing and did not attend.
{¶32} Finally, Bressi also alleges that, given his acquittal on 26 of 27 criminal charges, the Grand Jury’s finding of probable cause can no longer substantiate grounds for the order of attachment pursuant to
{¶33} Bressi’s fourth assignment of error is overruled.
ANNETTE CONSENTINO-BRESSI’S ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED GRANTING PREJUDGMENT ATTACHMENT OF ASSETS BELONGING TO ANNETTE CONSENTINO-BRESSI. THE TRIAL COURT HAD NO JURISDICTION TO SEIZE HER ASSETS AND ORDER THEM HELD BY PLAINTIFF’S COUNSEL UNTIL THE CONCLUSION OF THE CIVIL CASES AGAINST DEFENDANT JAMES P. BRESSI AND SUMMIT PAIN SPECIALISTS ET. AL.
{¶34} Ms. Consentino-Bressi argues that the trial court erred by ordering, in the civil case against her husband, prejudgment attachment of assets that belonged to her. Because Ms. Consentino-Bressi lacks standing to appeal the trial court’s judgment, this Court dismisses her appeal.
{¶35}
III.
{¶36} This Court lacks jurisdiction to address the merits of Bressi’s first and second assignments of error. His third and fourth assignments of error are overruled. In regard to appellate case number 27635, the judgment of the Summit County Court of Common Pleas is
Judgment in case number 27635 affirmed; and appeal in case number 27638 dismissed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
SCHAFER, J.
CONCUR.
MICHAEL OCKERMAN and EMILY R. YODER, Attorneys at Law, for Appellant.
JOHN R. IRWIN, Attorney at Law, for Appellant.
SCOTT RILLEY, Attorney at Law, for Appellant.
JENNIFER L. HAMEY and DAVID C. PERDUK, Attorneys at Law, for Appellees.
LAWRENCE J. SCANLON and MICHAEL ELLIOTT, Attorneys at Law, for Appellees.