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Peto v. Ruschak

Court of Appeals of Ohio, Ninth District, Summit

December 29, 2017

JOHN PETO Appellant/Cross-Appellee
v.
JIM RUSCHAK, et al. Appellees/Cross-Appellants

         APPEAL FROM JUDGMENT ENTERED IN THE STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 2013 CVI 2305

          JUNE E. RICKEY, Attorney at Law, for Appellant/Cross-Appellee.

          JAMES T. STIMLER, Attorney at Law, for Appellee/Cross-Appellants.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO, JUDGE.

         {¶1} Jim Ruschak, Progressive Realty Associates of Ohio, Inc. ("Progressive Realty"), and Brett A. Slagle appeal the March 21, 2016, order of the Stow Municipal Court. We dismiss for lack of subject matter jurisdiction.

         I.

         {¶2} On September 11, 2013, John Peto filed a complaint against Jim Ruschak, Progressive Realty, and Brett A. Slagle, alleging breach of contract, breach of fiduciary duty, and fraud, stemming from the potential sale of a condominium from Mr. Peto to Mr. Slagle. Mr. Ruschak and Progressive Realty were identified as Mr. Slagle's realtors, and the complaint alleged fraud against all three of the defendants. A hearing was held before the magistrate in October 2013, resulting in a decision in favor of the defendants. In December 2013, the trial court supplemented the magistrate's decision, overruled Mr. Peto's objection, and awarded judgment in favor of the defendants.

         {¶3} On January 17, 2014, Mr. Ruschak and Progressive Realty filed "defendants' motion for an award of reasonable attorney's fees against plaintiff and plaintiffs counsel." The motion states:

Although Defendant Slagle did not participate in engaging the Stimler Law Office to pursue this Motion for An Award of Attorney Fees for economic reasons, the Court may nonetheless assess against Attorney [June] Rickey and Plaintiff Peto and make an award to Defendant Slagle as a party to the civil action who was adversely affected by their frivolous conduct under [R.C.] 2323.51 because Defendant Slagle has incurred reasonable attorney's fees for the trial before the Magistrate and the preparation of the Defendants' Brief In Support Of Magistrate's Decision in conjunction with Defendants Ruschak and Progressive.

         We note that Attorney Stimler had represented Mr. Slagle throughout the matter. The motion also specifically requested that the trial court "award Defendants Ruschak, Progressive and Slagle money damages against Plaintiff Peto and Attorney Rickey * * *."

         {¶4} The order of the trial court entered on November 10, 2014, which granted the motion, provided: "Based on the above, plaintiff and plaintiffs counsel engaged in frivolous conduct under [R.C.] 2323.51. Further, the court finds plaintiff and plaintiffs counsel willfully violated [Civ.R.] 11, in that they did not have good grounds to support the complaint or objections." The trial court awarded "attorney fees in the amount of $11, 280.00 and reasonable expenses of expert services in the amount of $2, 349.00 against plaintiff and plaintiffs counsel." The order does not specify that the award is made in favor of a particular defendant or particular defendants, nor does it identify the defendants by name. Rather, the order repeatedly refers to the "defendants."

         {¶5} An appeal of the November 2014 order was heard by this Court, and by an entry dated December 31, 2015, we reversed the trial court in part, concluding that "just because Mr. Peto lost at trial on his breach of contract and breach of fiduciary claims does not mean that he willfully violated Rule 11 or engaged in frivolous conduct under Section 2323.51." With regard to his fraud claim, we remanded the case to the trial court "to consider the amount Mr. Peto should be sanctioned for improperly alleging fraud in his complaint."

         {¶6} Upon remand, the trial court held a hearing on March 18, 2016, a transcript of which is not before this Court. By an order dated March 21, 2016, the trial court awarded "the defendant attorney fees in the amount of $4, 649.91 and reasonable expenses of expert services in the amount of $783.00 against the plaintiff for the reasons set forth on the court's official record." Mr. Ruschak, Mr. Slagle, and Progressive Realty subsequently filed a motion asking the trial court to correct the award to reflect that it was in favor of the "defendants" (plural) and against both "plaintiff and plaintiffs ...


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