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Adams v. Pitorak & Coenen Investments Ltd.

Court of Appeals of Ohio, Eleventh District

September 23, 2013

KENNETH J. ADAMS, Plaintiff-Appellee,
v.
PITORAK & COENEN INVESTMENTS, LTD., et al., Defendant-Appellant, JAMES A. SENNETT, Appellee.

Civil Appeal from the Geauga County Court of Common Pleas, Case No. 08 M 000868.

Kenneth J. Adams, pro se, (Plaintiff-Appellee).

G. Michael Curtin, Curtin & Kemtz, LLP, (For Defendant-Appellant).

Richard C. Alkire and Dean C. Nieding, Richard C. Alkire Co., LPA, Rockside Woods Boulevard, Independence, OH (For Appellee).

OPINION

TIMOTHY P. CANNON, P.J.

(¶1} Appellant, Pitorak & Coenen Investments, Ltd. ("Pitorak & Coenen"), appeals the judgment of the Geauga County Court of Common Pleas dismissing appellant's R.C. 2323.51 motion for sanctions against appellee, James A. Sennett, the attorney for appellee, Kenneth J. Adams. The issue before this court is whether the trial court erred in finding appellant's R.C. 2325.51 motion untimely. Based on the following, we affirm.

(¶2} This case has a protracted procedural history which is detailed in our prior opinions. See Adams v. Pitorak & Coenen Invests., Ltd., 11 th Dist. Geauga Nos. 2009-G-2931 & 2009-G-2940, 2010-Ohio-3359. In Adams v. Pitorak & Coenen Invests., Ltd., 11th Dist. Geauga No. 2011-G-3019, 2012-Ohio-3015, this court entered final judgment in favor of Pitorak & Coenen. We found that, "[b]ased on the law of each respective claim and the evidence presented, the trial court erred in failing to grant Pitorak and Coenen's request for a directed verdict." Id. at ¶77.

(¶3} Upon remand, Pitorak & Coenen filed a motion for sanctions, pursuant to R.C. 2323.51, on July 30, 2012. This motion sought sanctions against Attorney Sennett for filing an action where "(1) the action was not warranted under existing law or under an argument to establish new law; (2) the suit consisted of allegations and/or factual contentions that had no evidentiary support; and (3) factual contentions alleged in the Complaint were not warranted by the evidence." These allegations were based on the fact that Adams sought compensation for damage to real property that he allegedly did not own during the relevant time.

(¶4} Thereafter, Pitorak & Coenen filed three additional R.C. 2323.51 motions: one on October 3, 2012, and two on December 5, 2012. These three motions reiterated the aforementioned conduct.

(¶5} The trial court denied Pitorak & Coenen's post-appeal sanctions motions as untimely. The trial court stated:

In this case, defendants argue a final appealable order was not issued until the Court of Appeals reversed this Court or until the Ohio Supreme Court declined review. This is incorrect. Final judgment was entered in this case on March 8, 2011. Defendants' first R.C. 2323.51 motion was filed on July 30, 2012, substantially more than 30 days after the final judgment.

(¶6} Appellant filed a timely appeal and asserts the following assignment of error for our consideration:

(¶7} "The trial court erred when it denied Defendant-Appellant's Motion for Sanctions pursuant to R.C. § 2323.51 based upon its opinion that Defendant-Appellant's motion was not filed within 30 days of final judgment as set forth in R.C. § 2323.51."

(¶8} On appeal, appellant argues the trial court misapplied the definition of "final judgment" as used in R.C. 2323.51. Specifically, appellant claims the motion for frivolous conduct was within the 30-day filing limit of R.C. 2323.51 because the final judgment occurred when this court issued its decision on June 29, 2012. Although appellant filed four separate sanctions motions, the only one this court must consider is the first post-appeal sanctions motion, filed July ...


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