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Brisco v. U.S. Restoration & Remodeling, Inc.

Court of Appeals of Ohio, Tenth District

December 24, 2019

Samuel Lee Brisco, Jr. et al., Plaintiffs-Appellants,
v.
U.S. Restoration & Remodeling, Inc. et al., Defendants-Appellees. [Kevin J. O'Brien et al., Appellants],

          APPEAL from the Franklin County Court of Common Pleas No. 12CV-2577

         On brief:

          Kevin O'Brien & Associates Co., L.PA., Kevin J. O'Brien, and Jeffrey A. Catri, for appellants.

Argued:

          Jeffrey A. Catri.

         On brief:

          The Tyack Law Firm Co., L.PA., James P. Tyack, and Holly B. Cline, for appellees.

         Argued: .

          James P. Tyack.

          DECISION

          DORRIAN, J.

         {¶ 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"), [1] 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.

         I. 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 decision.

         II. 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 PROCESS.
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.

         III. 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 ...

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