Samuel Lee Brisco, Jr. et al., Plaintiffs-Appellants,
U.S. Restoration & Remodeling, Inc. et al., Defendants-Appellees. [Kevin J. O'Brien et al., Appellants],
from the Franklin County Court of Common Pleas No. 12CV-2577
O'Brien & Associates Co., L.PA., Kevin J.
O'Brien, and Jeffrey A. Catri, for appellants.
Jeffrey A. Catri.
Tyack Law Firm Co., L.PA., James P. Tyack, and Holly B.
Cline, for appellees.
1} Plaintiffs-appellants Samuel Lee Brisco, Jr. and
Ruth A. Brisco ("plaintiffs"), and appellants,
Kevin J. O'Brien and Jeffrey A. Catri
("plaintiffs' counsel" and when combined with
plaintiffs, "appellants"),  appeal the January 16, 2018
decision and judgment entry of the Franklin County Court of
Common Pleas adopting the magistrate's decision awarding
sanctions to defendants-appellees, U.S. Restoration &
Remodeling, Inc., Joshua Kanode, Daniel L. Sechriest, and
Karen T. Chumley (collectively, "appellees"). For
the following reasons, we affirm.
Facts and Procedural History
2} This appeal follows our September 1, 2015
decision in Brisco v. U.S. Restoration & Remodeling,
Inc., 10th Dist. No. 14AP-533, 2015-Ohio-3567. As we
thoroughly discussed the factual and procedural history of
this matter in our prior decision, we adopt such discussion
here. See Brisco at ¶ 2-7. In our decision, we
found the trial court did not abuse its discretion by
striking plaintiffs' memorandum contra appellees'
motion for summary judgment. Next, we found the trial court
did not err by granting summary judgment in favor of
appellees because plaintiffs failed to respond, by affidavit
or as otherwise provided under Civ.R. 56, with specific facts
demonstrating a genuine issue of material fact remained for
trial. Finally, we found that, because appellees' motion
for sanctions demonstrated arguable merit by alleging
frivolous conduct within the meaning of R.C. 2323.51(A)(2)(a)
and such motion did not on its face reveal the lack of a
triable issue, the trial court erred by denying
appellees' motion without either holding a hearing or
making factual findings. As a result, we affirmed in part and
reversed in part the judgment of the trial court and remanded
for the limited purpose of conducting a hearing to determine
whether sanctions were appropriate.
3} On remand from this court, on March 10, 2016, the
trial court held a hearing on appellees' motion for
sanctions. On the same date as the hearing, plaintiffs filed
a document "giv[ing] notice" to the trial court
that they were refiling two documents: (1) their July 9, 2013
memorandum contra appellees' motion for summary judgment,
which had been stricken by the trial court on July 26, 2013,
and (2) their August 28, 2013 motion to reconsider the trial
court's July 26, 2013 decision granting summary judgment
in favor of appellees, which had been denied by the trial
court on January 15, 2014. In the filing, appellants urged
the trial court to consider the documents in making its
determination on appellees' motion for sanctions. On
March 18, 2016, appellees filed a motion to strike
appellants' March 10, 2016 filing. On March 25, 2016,
Samuel L. Brisco, Jr. filed a memo contra appellees'
motion for sanctions.
4} On April 26, 2016, the trial court filed a
decision and entry granting appellees' motion for
sanctions, granting appellees' March 18, 2016 motion to
strike plaintiffs' March 10, 2016 filing, and sua sponte
striking Brisco, Jr.'s March 25, 2016 memo contra
appellees' motion for sanctions. On October 26, 2017, a
magistrate appointed by the trial court filed a decision
following a hearing finding appellees were entitled to
recover from plaintiffs' counsel reasonable attorney fees
in the amount of $43, 262.50, in addition to expert witness
fees in the amount of $2, 275.00, for a total of $45, 537.50.
On January 16, 2018, the trial court filed a decision and
judgment entry adopting the magistrate's October 26, 2017
Assignments of Error
5} Appellants appeal and assign the following four
assignments of error for our review:
I. BRISCO TIMELY FILED HIS MEMO CONTRA
DEFENDANT-APPELLEE'S [sic] MOTION FOR SUMMARY JUDGMENT ON
JUNE 7, 2013 BUT THE CLERK'S ELECTRONIC FILING SYSTEM
OVERWROTE IT; BRISCO WAS IMPROPERLY DEFAULTED AND DENIED DUE
II. THE RECORD DOES NOT SUPPORT AN AWARD OF SANCTIONS AGAINST
PLAINTIFF-APPELLANT'S COUNSEL; THED [sic] TRIAL COURT
ABUSED ITS DISCRETION IN SANCTIONING O'BRIEN AND CATRI.
III.THE TRIAL COURT FAILED TO HAVE THE HEARING REQUIRED BY
SECTION 2323.51(B), R.C.
IV. IN OHIO, A CREDITOR IS NOT PERMITTED TO RECOVER ATTORNEY
FEES INCURRED IN CONNECTION WITH A DEBT COLLECTION SUIT
INVOLVING PERSONAL, FAMILY OR HOUSEHOLD DEBT UNDER
GIONIS AND FOSTER; THE TRIAL COURT ERRED IN
AWARDING ATTORNEY FEES TO USRRR.
First Assignment of Error-Memorandum Contra Appellees'
Motion for Summary Judgment
6} In their first assignment of error, appellants
assert they timely filed a memorandum contra appellees'
motion for summary judgment, but the electronic filing system
improperly failed to docket the filing. We previously
addressed appellants' contention in Brisco, in
which we stated:
[D]efendants filed their motion for summary judgment on May
10, 2013. Plaintiffs sought and received leave to file an
untimely response on or before June 7, 2013. Despite
receiving an extension of time to file two weeks after the
time limit required by Loc.R. 21.01, the record reflects that
plaintiffs did not file their memorandum contra until July 9,
2013, approximately one month after the extended deadline,
without seeking additional leave of court. Plaintiffs assert
that they did ...