[Cite as Crown Chrysler Jeep, Inc. v. Boulware, 2015-Ohio-5084.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Crown Chrysler Jeep, Inc.,                            :

                Plaintiff-Appellee,                   :

v.                                                    :

Michael L. Boulware,                                  :                No. 15AP-162
                                                                    (C.P.C. No. 13CV-9718)
                Defendant/Third-Party                 :
                Plaintiff-Appellant,                               (REGULAR CALENDAR)
                                                      :
Chrysler Group, LLC,
n.k.a. FCA US LLC,                                    :

                Third-Party Defendant-                :
                Appellee.
                                                      :


                                           D E C I S I O N

                                   Rendered on December 8, 2015


                Chris L. Soon, for appellant.

                Sutter O'Connell, and John R. Conley, for Chrysler
                Group, LLC.

                  APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant/third-party plaintiff-appellant, Michael L. Boulware, appeals
from a decision and entry of the Franklin County Court of Common Pleas granting the
motion for summary judgment of third-party defendant-appellee, Chrysler Group, LLC,
n.k.a. FCA US LLC ("Chrysler"). Boulware additionally appeals from a decision and entry
overruling his objections to the magistrate's decision granting Chrysler's motion for
sanctions, as well as from a judgment entry of the trial court entering judgment, following
No. 15AP-162                                                                              2


a jury trial, for plaintiff-appellee, Crown Chrysler Jeep, Inc. ("Crown"). For the following
reasons, we affirm.
I. Facts and Procedural History
       {¶ 2} By way of background, this case involves two separate lawsuits filed in the
trial court. On November 9, 2011, Boulware filed a complaint against Chrysler and Crown
asserting various causes of action arising from the sale and subsequent servicing of a
vehicle Boulware purchased from Crown ("the first lawsuit").          In the first lawsuit,
Boulware alleged Chrysler breached express and implied warranties, engaged in unfair
and deceptive practices, and violated Ohio's Lemon Law. Further, Boulware alleged in the
complaint of the first lawsuit that Crown engaged in unfair and deceptive acts regarding
the sale of the vehicle.
       {¶ 3} On December 19, 2011, Chrysler filed a motion to stay and compel
arbitration pursuant to an arbitration agreement attached to Boulware's purchase
agreement for the vehicle. On February 1, 2012, Boulware voluntarily dismissed all claims
against Crown, and on February 10, 2012, the trial court granted Chrysler's motion and
issued a decision and entry staying the matter and compelling arbitration. More than six
months later, Boulware filed a motion for reconsideration of the trial court's February 10,
2012 decision and entry.
       {¶ 4} In a November 21, 2013 decision and entry, the trial court denied
Boulware's motion for reconsideration, reasoning that because the February 10, 2012
decision and entry was a final, appealable order and because the Ohio Rules of Civil
Procedure do not provide for a motion for reconsideration after the issuance of a final,
appealable order, Boulware's motion for reconsideration was a nullity. As such, the trial
court determined it could not consider Boulware's motion for reconsideration. Boulware
then filed a notice of appeal on December 20, 2013, purporting to appeal from both the
February 10, 2012 and November 21, 2013 entries.          Following Chrysler's motion to
dismiss the appeal as untimely, this court dismissed the appeal for lack of jurisdiction.
Boulware v. Chrysler Group, L.L.C., 10th Dist. No. 13AP-1061, 2014-Ohio-3398. In
dismissing the appeal, we noted Boulware filed his notice of appeal nearly two years from
the trial court's issuance of its February 10, 2012 final, appealable order, and his appeal
from that decision and entry was thus untimely. Id. at ¶ 12. Further, we concluded that
No. 15AP-162                                                                             3


because Boulware's motion for reconsideration sought reconsideration of the February 10,
2012, which was a final, appealable order, the trial court's subsequent decision and entry
denying Boulware's motion for reconsideration was also a nullity and, thus, was a not a
final, appealable order. Id. at ¶ 13.
       {¶ 5} Before Boulware filed his notice of appeal in the first lawsuit, Crown
initiated the instant action ("the second lawsuit"). On August 29, 2013, Crown filed a
complaint against Boulware asserting claims for trespass and unjust enrichment. The
complaint alleged Boulware purchased a used vehicle from Crown on April 8, 2011 and,
subsequently, after becoming dissatisfied with the vehicle, drove the vehicle to Crown and
abandoned the vehicle on Crown's premises sometime between April 8, 2011 and
December 1, 2011. Boulware filed an answer on September 25, 2013. Subsequently, on
October 23, 2013, Boulware filed a third-party complaint against Chrysler asserting
causes of action for a violation of Ohio's Lemon Law, unfair and deceptive acts, and
breach of contract.
       {¶ 6} Chrysler filed a Civ.R. 12(B)(6) motion to dismiss Boulware's third-party
complaint on November 25, 2013, asserting the affirmative defense of res judicata bars
Boulware's Lemon Law claim and further asserting Boulware's claims of unfair and
deceptive acts and breach of contract are not legally cognizable causes of action. Because
Chrysler's motion to dismiss presented matters outside the pleading, the trial court issued
a December 10, 2013 order converting Chrysler's motion to dismiss into a motion for
summary judgment. Chrysler then filed additional briefing and exhibits in support for its
newly converted motion for summary judgment, including an affidavit of John Robert
Conley, Chrysler's attorney in the first lawsuit Boulware filed.        Boulware filed a
memorandum in opposition to Chrysler's motion for summary judgment on January 7,
2014, and Chrysler filed a reply on January 13, 2014.
       {¶ 7} In a March 19, 2014 decision and entry, the trial court granted Chrysler's
motion for summary judgment, concluding res judicata bars Boulware's third-party claim
against Chrysler. Following the trial court's decision and entry granting its motion for
summary judgment, Chrysler then filed a motion for an award of court costs, attorney
fees, and expenses, as well as a motion for sanctions pursuant to Civ.R. 11. Boulware filed
a memorandum in opposition to Chrysler's motion for sanctions, and Boulware
No. 15AP-162                                                                              4


additionally filed his own motion requesting sanctions against Chrysler. The trial court
conducted a hearing on both motions on July 11, 2014.
       {¶ 8} Before the trial court ruled on the motions for sanctions, Boulware filed, on
September 21, 2014, a Civ.R. 60 motion for relief from judgment in which he stated he
had voluntarily dismissed his remaining claims still pending in the first lawsuit. Chrysler
opposed the Civ.R. 60 motion in a September 25, 2014 memorandum in opposition. The
trial court has not ruled on this motion.
       {¶ 9} In a December 10, 2014 decision, the magistrate denied Boulware's motion
for sanctions and granted Chrysler's motion for sanctions, awarding Chrysler $2,500 in
attorney fees and expenses as sanctions for frivolous conduct. Chrysler filed objections to
the magistrate's decision on December 23, 2014, arguing the amount of sanctions was too
low and instead asking the trial court to award the entire requested amount of $15,674.
Boulware also filed objections to the magistrate's decision, asking the trial court to deny
Chrysler's request for sanctions and grant his request for sanctions. In a March 5, 2015
decision and entry, the trial court overruled both Chrysler's and Boulware's objections to
the magistrate's decision and adopted the magistrate's recommendation.
       {¶ 10} Meanwhile, on July 7, 2014, Crown filed a motion for summary judgment
on its claims of trespass and unjust enrichment against Boulware. Boulware filed a
memorandum in opposition on July 31, 2014. Subsequently, on August 4, 2014, Boulware
filed his own motion for summary judgment against Crown, and Crown opposed the
motion in an August 7, 2014 memorandum contra. The case ultimately proceeded to a
jury trial, and on October 16, 2014, the jury returned a verdict in favor of Boulware on the
trespass claim and a verdict in favor of Crown on the unjust enrichment claim, awarding
Crown $1 in damages. The trial court journalized the jury's verdict in a March 5, 2015
judgment entry.
       {¶ 11} Boulware now timely appeals from the trial court's decision and entry
granting summary judgment to Chrysler, the decision and entry granting Chrysler's
motion for sanctions, and the judgment entry journalizing the jury's verdict in favor of
Crown.
II. Assignments of Error
       {¶ 12} Boulware assigns the following errors for our review:
No. 15AP-162                                                                             5


               [1.] The trial court erred in entering summary judgment in
               favor of third party defendant Chrysler Group LLC.

               [2.] The trial court erred in failing to grant relief from
               judgment pursuant to Civ.R. 60(B)(4).

               [3.] The trial court erred in failing to provide requested jury
               instructions and excluding trial references to the Ohio
               "Lemon Law".

               [4.] The trial court erred adopting the magistrate's decision
               [regarding] award sanctions for frivolous conduct.

III. First Assignment of Error – Summary Judgment
      {¶ 13} In his first assignment of error, Boulware argues the trial court erred in
granting Chrysler's motion for summary judgment. More specifically, Boulware argues
the trial court erred in determining res judicata bars his third-party complaint against
Chrysler.
      {¶ 14} An appellate court reviews summary judgment under a de novo standard.
Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio
Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994).           Summary judgment is
appropriate only when the moving party demonstrates (1) no genuine issue of material
fact exists, (2) the moving party is entitled to judgment as a matter of law, and
(3) reasonable minds could come to but one conclusion and that conclusion is adverse to
the party against whom the motion for summary judgment is made, that party being
entitled to have the evidence most strongly construed in its favor. Civ.R. 56(C); State ex
rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997).
      {¶ 15} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280,
293 (1996). However, the moving party cannot discharge its initial burden under this rule
with a conclusory assertion that the nonmoving party has no evidence to prove its case;
the moving party must specifically point to evidence of the type listed in Civ.R. 56(C)
affirmatively demonstrating that the nonmoving party has no evidence to support the
nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the
No. 15AP-162                                                                              6


moving party discharges its initial burden, summary judgment is appropriate if the
nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56,
with specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at
430; Civ.R. 56(E).
       {¶ 16} In granting Chrysler's motion for summary judgment, the trial court
determined that the order granting a stay pending arbitration issued in the first lawsuit
was a final order, and, as such, res judicata operated to bar Boulware's claims against
Chrysler that Boulware alleged in his third-party complaint in the second lawsuit.
       {¶ 17} " '[A] final judgment or decree rendered upon the merits, without fraud or
collusion, by a court of competent jurisdiction is conclusive of rights, questions and facts
in issue as to the parties and their privies, and is a complete bar to any subsequent action
on the same claim or cause of action between the parties or those in privity with them.' "
State ex rel. Schneider v. Bd. of Edn. of the N. Olmsted City School Dist., 39 Ohio St.3d
281, 281-82 (1988), quoting Johnson's Island, Inc. v. Bd. of Twp. Trustees, 69 Ohio St.2d
241, 243 (1982). "Application of the doctrine of res judicata does not depend on whether
the original claim explored all possible theories of relief." James v. Haydocy Automotive,
10th Dist. No. 09AP-1066, 2010-Ohio-2562, ¶ 18, citing Hamrick v. DaimlerChrysler
Motors, 9th Dist. No. 03CA008371, 2004-Ohio-3415, ¶ 13, citing Brown v. Dayton, 89
Ohio St.3d 245, 248 (2000). "Rather, 'a valid, final judgment upon the merits of the case
bars any subsequent action "based upon any claim arising out of the transaction or
occurrence that was the subject matter of the previous action." ' " Id., quoting Hamrick at
¶ 13, quoting Grava v. Parkman Twp., 73 Ohio St.3d 379, 382 (1995).
       {¶ 18} " 'The doctrine of res judicata encompasses the two related concepts of
claim preclusion, also known as res judicata or estoppel by judgment, and issue
preclusion, also known as collateral estoppel.' " State ex rel. Schachter v. Ohio Pub.
Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-1704, ¶ 27, quoting O'Nesti v.
DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, ¶ 6. "Claim preclusion
prevents subsequent actions, by the same parties or their privies, based upon any claim
arising out of a transaction that was the subject matter of a previous action." Id. "The
previous action is conclusive for all claims that were or that could have been litigated in
the first action." Id.
No. 15AP-162                                                                                7


       {¶ 19} Issue preclusion, the corollary doctrine, provides that when an issue of fact
was fairly, fully, and necessarily litigated and determined in a prior action, that same issue
of fact "may not be drawn into question in a subsequent action between the same parties
or their privies." Swihart v. Ohio Adult Parole Auth., 10th Dist. No. 08AP-222, 2008-
Ohio-6420, ¶ 18, citing State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 97
Ohio St.3d 269, 2002-Ohio-6322, ¶ 16. Issue preclusion applies whether the causes of
action in two actions are different or identical. Id., citing Stacy at ¶ 16.
       {¶ 20} The trial court determined that the order in the first lawsuit compelling
arbitration was a final order. Further, the trial court determined that the claims in
Boulware's third-party complaint in the second lawsuit stemmed from the same set of
operative facts, the issues and claims were or should have been raised in the first lawsuit,
and the issues were deemed arbitrable. For those reasons, the trial court concluded res
judicata bars Boulware "from attempting to subvert [the judge's ruling in the first lawsuit]
by litigating claims that must be arbitrated." (Mar. 19, 2014 Decision and Entry, 6.)
       {¶ 21} Boulware argues the trial court erred in determining res judicata operates to
bar his third-party complaint because the decision in the first lawsuit staying proceedings
and compelling arbitration, although it was a final order, was not a decision "on the
merits." Stated another way, Boulware argues that because the trial court did not reach
the actual merits of his Lemon Law and related claims against Chrysler, and because
Chrysler has yet to participate in arbitration proceedings to Boulware's satisfaction, there
has never been a decision "on the merits" necessary for res judicata to bar his third-party
complaint. In support of his argument, Boulware relies on language from the Supreme
Court of Ohio's decision in Council of Smaller Ents. v. Gates, McDonald & Co., 80 Ohio
St.3d 661 (1998). In Council of Smaller Enterprises, the Supreme Court stated " 'in
deciding whether the parties have agreed to submit a particular grievance to arbitration, a
court is not to rule on the potential merits of the underlying claims.' " Id. at 666, quoting
AT&T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 649 (1986).
Boulware seems to argue that an order compelling arbitration can never be a final
decision on the merits because Council of Smaller Enterprises directs that a court cannot
reach the merits of the underlying claims.
No. 15AP-162                                                                              8


       {¶ 22} Boulware's argument is unpersuasive. Though he is correct that a trial
court, in staying proceedings and compelling arbitration, does not reach the merits of the
underlying claim, he is incorrect that an order compelling arbitration is not a decision on
the merits sufficient for res judicata to bar a subsequent attempt to litigate those same
claims. Significantly, the "merits" of the order compelling arbitration in the first lawsuit
are the determinations as to which claims are subject to the arbitration agreement and
whether Chrysler is subject to the arbitration agreement. As we noted above, Boulware
did not timely appeal the order compelling arbitration in the first lawsuit and that
decision was final. Because the claims Boulware asserted against Chrysler in the third-
party complaint are either restatements of the same claims he asserted in the first lawsuit
or are claims arising out of the same transaction or occurrence as those in the first
lawsuit, res judicata operates to bar those claims in the second lawsuit.
       {¶ 23} This court has previously considered a similar issue in two related cases. In
Pyle v. Wells Fargo Fin., 10th Dist. No. 05AP-644, 2005-Ohio-6478 ("Pyle I"), Pyle
appealed from the trial court's decision and entry granting the appellee's motion to stay
proceedings pending arbitration pursuant to two separate arbitration agreements. Pyle
argued on appeal that the trial court wrongly determined that the arbitration agreements
were valid and thus wrongly determined the claims were subject to arbitration, but this
court affirmed, finding the trial court did not abuse its discretion in staying proceedings
pending arbitration. Pyle I at ¶ 25.    Subsequently, in State ex rel. Pyle v. Bessey, 10th
Dist. No. 05AP-394, 2006-Ohio-2047 ("Pyle II"), Pyle commenced an original action
requesting this court issues writs of mandamus and procedendo ordering the judge in
Pyle I to order discovery and conduct a hearing on whether an enforceable arbitration
agreement exists between the parties in Pyle I. In adopting the magistrate's decision sua
sponte dismissing Pyle's complaint, this court noted "collateral estoppel bars relitigation
of issues that previously were actually and necessarily determined by a court of competent
jurisdiction, whether or not the parties agree with that court's determination." Pyle II at
¶ 3. We concluded that this court's decision in Pyle I "constitutes res judicata relative to
the within matter inasmuch as [Pyle] is seeking, by way of mandamus and procedendo, to
compel [the trial court in Pyle I] to hear the matter on the merits and permit discovery."
Pyle II at ¶ 12.
No. 15AP-162                                                                                 9


       {¶ 24} Here, as in Pyle II, Boulware is attempting to collaterally attack an issue
that was already determined in his first lawsuit: namely, that the claims he asserts against
Chrysler are subject to arbitration. Though Boulware is not challenging the legitimacy of
the arbitration agreement in the second lawsuit, his third-party complaint against
Chrysler is an attempt to avoid the consequences of the final decision rendered in the first
lawsuit determining Boulware's claim was subject to arbitration. See Heller v. Pre-Paid
Legal Servs., Inc., 9th Dist. No. 26376, 2013-Ohio-680, ¶ 22 (trial court determined it
lacked subject-matter jurisdiction over claims and dismissed based on an underlying
finding that an arbitration clause was valid and enforceable, and because no party
appealed the trial court's dismissal, "irrespective of whether that dismissal was legally
correct, that determination, and the determination of any issues on which the dismissal
was premised, have been conclusively determined and may not be relitigated") (emphasis
added). Because Boulware did not timely appeal from the final order in the first lawsuit
compelling arbitration, he is collaterally estopped from attempting to assert the merits of
his claims against Chrysler in the second lawsuit since the final order in the first lawsuit
necessarily determined that his claims are subject to arbitration.
       {¶ 25} Thus, we agree with the trial court that res judicata operates to bar
Boulware's third-party complaint against Chrysler, and the trial court did not err in
granting Chrysler's motion for summary judgment.              We overrule Boulware's first
assignment of error.
IV. Second Assignment of Error – Civ.R. 60(B)
       {¶ 26} In his second assignment of error, Boulware argues the trial court erred
when it failed to grant Boulware's Civ.R. 60 motion for relief from judgment.
       {¶ 27} Initially, we note that the trial court never ruled on Boulware's Civ.R. 60(B)
motion for relief from judgment. "Ordinarily, any pending motions the trial court does
not expressly rule on when it renders a final judgment in a case will be deemed to have
been implicitly overruled." Am. Business Mtge. Servs., Inc. v. Barclay, 10th Dist. No.
04AP-68, 2004-Ohio-6725, ¶ 8, citing Maust v. Palmer, 94 Ohio App.3d 764 (10th
Dist.1994). With respect to Civ.R. 60(B) motions, however, this court has determined
that a trial court's failure to rule on a properly filed Civ.R. 60(B) motion is not an implicit
denial of that motion; instead, an appellate court lacks jurisdiction to consider the merits
No. 15AP-162                                                                                10


of the Civ.R. 60(B) motion until a timely appeal from the trial court's determination of
such a motion. Duncan v. Capital S. Community Urban Redevelopment Corp., 10th Dist.
No. 02AP-653, 2003-Ohio-1273, ¶ 19. However, a party may seek Civ.R. 60(B) relief only
from a final judgment. Chitwood v. Zurich Am. Ins. Co., 10th Dist. No. 04AP-173, 2004-
Ohio-6718, ¶ 9, citing Jarrett v. Dayton Osteopathic Hosp., Inc., 20 Ohio St.3d 77, 78
(1985). Before the issuance of a final judgment in this case, the trial court's decision and
entry granting Chrysler's motion for summary judgment was an interlocutory order, and
Boulware filed his Civ.R. 60(B) motion for relief from judgment before the issuance of a
final judgment. Thus, "[a] Civ.R. 60(B) motion for relief from such an interlocutory order
will be properly taken by the trial court as a motion for reconsideration." Id., citing Buck-
Durell Creative Dept., Inc. v. Imaging Power, Inc., 10th Dist. No. 02AP-281, 2002-Ohio-
5908, ¶ 16. Accordingly, we construe the trial court's failure to rule on Boulware's motion
as an implicit denial of a motion for reconsideration.
       {¶ 28} An appellate court reviewing a trial court's decision on a motion for
reconsideration of a grant or denial of summary judgment applies a de novo standard of
review. Hogrefe v. Mercy St. Vincent Med. Ctr., 6th Dist. No. L-13-1265, 2014-Ohio-
2687, ¶ 38, citing D.I.C.E., Inc. v. State Farm Ins. Co., 6th Dist. No. L-11-1006, 2012-
Ohio-1563, ¶ 55, citing Dunn v. N. Star Resources, Inc., 8th Dist. No. 79455, 2002-Ohio-
4570, ¶ 10. "Thus, we 'afford no deference to the trial court's decision and independently
review the record in the light most favorable to the non-movant to determine whether
summary judgment is appropriate.' " Id., quoting Dunn at ¶ 10.
       {¶ 29} In his motion for reconsideration, Boulware argued that his voluntary
dismissal of his remaining claims in the first lawsuit effectively dissolved the rulings in the
first lawsuit, and as such, those rulings could not have had a res judicata effect on the
second lawsuit. See State ex rel. Engelhart v. Russo, 131 Ohio St.3d 137, 2012-Ohio-47,
¶ 23 (stating "[t]he notice of voluntary dismissal is self-executing and completely
terminates the possibility of further action on the merits of the case upon its mere filing,
without the necessity of court intervention"). Thus, Boulware sought reconsideration of
the trial court's grant of summary judgment to Chrysler in the second lawsuit on the
grounds that his voluntary dismissal had nullified the order compelling arbitration in the
first lawsuit.
No. 15AP-162                                                                              11


       {¶ 30} Notwithstanding his failure to timely appeal in the first lawsuit, Boulware
argues that even if res judicata should apply to bar his third-party complaint, his
subsequent voluntary dismissal of his remaining claims in the first lawsuit overcomes any
potential res judicata effect of rulings made during the pendency of that case. Boulware
relies on the Supreme Court's decision in Denham v. New Carlisle, 86 Ohio St.3d 594
(1999) for the proposition that a voluntary dismissal "leave[s] the parties as if no action
had been brought." Denham at 596. Again, Boulware's argument misunderstands the
applicable law. Though he is correct that a voluntary dismissal dissolves interlocutory
decisions, the trial court's decision compelling arbitration in the first lawsuit was a final
order, not an interlocutory order. Boulware's subsequent voluntary dismissal of his
remaining claims in that lawsuit does not render the final order determining Boulware's
claims were subject to arbitration any less final.
       {¶ 31} A voluntary dismissal does not operate to nullify a final order.           See
Denlinger v. Columbus, 10th Dist. No. 00AP-315 (Dec. 7, 2000) (concluding a voluntary
dismissal did not operate to dissolve a previous final order, stating even though the
"voluntary dismissal purported to dismiss the entire action and all claims, the notice had
no effect on those claims already subject to final judgment"). The trial court properly
granted Chrysler's motion for summary judgment based on res judicata, and Boulware's
subsequent voluntary dismissal of his claims in the first lawsuit did not create a genuine
issue of material fact on Boulware's motion for reconsideration as res judicata still
applied. Thus, the trial court did not err in implicitly denying Boulware's motion for
reconsideration. We overrule Boulware's second assignment of error.
V. Third Assignment of Error – Lemon Law
       {¶ 32} In his third assignment of error, Boulware argues the trial court erred when
it ruled Boulware could not present any evidence related to his Lemon Law claim against
Chrysler. Boulware further argues the trial court erred when it refused to provide his
requested jury instructions including an instruction on Ohio's Lemon Law.
       {¶ 33} In Boulware's amended notice of appeal, filed March 10, 2015, he provides
notice of his intention to appeal from the trial court's decision and entry granting
summary judgment and from the trial court's failure to grant Civ.R. 60(B) relief from
judgment. Boulware then states in his amended notice of appeal:
No. 15AP-162                                                                              12


               [Boulware] also believes it was error for the Trial Court to
               deny specific jury instructions, and argument regarding
               defense of [Crown's] claims herein on the basis of the New
               Non-conforming Motor Vehicle ("Lemon Law") provisions of
               the Ohio Consumer Sales Practices Act. However, in light of
               the jury verdicts returned herein there is no practical reason
               to demand appellate review of that issue unless [Crown] also
               pursues appeal of this matter.

Crown has not filed a cross-appeal or a responsive brief in this appeal. However, in
Boulware's merit brief, filed after his notice of appeal, Boulware assigns as error the trial
court's failure to provide requested jury instructions and the trial court's exclusion of
evidence related to his Lemon Law claim. Boulware again addresses the merits of this
issue in his reply brief. Because Boulware assigned these issues as error, we will address
the merits.
       A. Exclusion of Evidence
       {¶ 34} A trial court has broad discretion over the admission or exclusion of
evidence, and a reviewing court generally will not reverse an evidentiary ruling absent an
abuse of discretion that materially prejudices the affected party.       Andrew v. Power
Marketing Direct, Inc., 10th Dist. No. 11AP-603, 2012-Ohio-4371, ¶ 73, citing State v.
Issa, 93 Ohio St.3d 49, 64 (2001); State v. Barnes, 94 Ohio St.3d 21, 23 (2002) (noting a
trial court abuses its discretion when it acts "unreasonably, arbitrarily, or
unconscionably").
       {¶ 35} Boulware argues the trial court erred when it excluded from evidence any
reference to Ohio's Lemon Law. However, Boulware concedes in his brief that "it can
hardly be said that the exclusion of references to the Ohio Lemon Law's provisions * * *
was significantly damaging to Mr. Boulware's interests in opposing Crown's claims
against him." (Boulware Brief, 32-33.) Thus, Boulware does not argue that the trial
court's evidentiary ruling in this regard materially prejudiced him. Moreover, Boulware's
argument in this regard is premised on his earlier argument that the trial court
erroneously granted summary judgment to Chrysler.              Because we have already
determined in our resolution of Boulware's first assignment of error that the trial court
did not err in granting summary judgment to Chrysler on Boulware's third-party claims,
we conclude the trial court did not err in excluding from evidence in the trial between
No. 15AP-162                                                                               13


Crown and Boulware any reference to Boulware's Lemon Law claim against Chrysler. The
trial between Crown and Boulware involved only the causes of action of trespass and
unjust enrichment, and the trial court did not abuse its discretion in excluding any
references to Ohio's Lemon Law on the basis that the references to Ohio's Lemon Law had
no relevance to the immediate causes of action.
       B. Jury Instructions
       {¶ 36} Boulware further argues the trial court erred in not providing his requested
jury instructions containing information regarding Ohio's Lemon Law. "Ordinarily, a trial
court should give requested jury instructions if they are correct statements of the law
applicable to the facts in the case and reasonable minds might reach the conclusions
sought by the instruction." Ball v. Stark, 10th Dist. No. 11AP-177, 2013-Ohio-106, ¶ 23,
citing Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591 (1991). The evidence
presented in the case must support the jury instructions given as " '[i]t is well established
that the trial court will not instruct the jury where there is no evidence to support an
issue.' " Id., quoting Murphy at 591. Additionally, a trial court may refuse to give a jury
instruction that is redundant. Id., citing Bostic v. Connor, 37 Ohio St.3d 144 (1988),
paragraph two of the syllabus.
       {¶ 37} An appellate court considers the jury charge as a whole to determine
whether the charge misled the jury in a manner that affected the appealing party's
substantial rights. Ball at ¶ 24, citing Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93
(1995), and Columbus Steel Castings Co. v. Alliance Castings Co., L.L.C., 10th Dist. No.
11AP-351, 2011-Ohio-6826, ¶ 15. The trial court has discretion to decide to give or refuse a
particular instruction, and an appellate court will not disturb that decision absent an
abuse of discretion. Columbus Steel Castings Co. at ¶ 15; Eastman v. Stanley Works, 180
Ohio App.3d 844, 2009-Ohio-634, ¶ 49 (10th Dist.).
       {¶ 38} Here, having already determined the trial court did not abuse its discretion
in excluding from evidence the references and questioning related to Ohio's Lemon Law,
we conclude the trial court similarly did not abuse its discretion in not instructing the jury
on Ohio's Lemon Law. The trial between Boulware and Crown did not involve a Lemon
Law claim; the trial involved only claims of trespass and unjust enrichment. Because the
No. 15AP-162                                                                                  14


requested instructions were not applicable to the law of the case, the trial court had no
obligation to provide the instructions.
       {¶ 39} Having concluded the trial court did not abuse its discretion either in
excluding references to Ohio's Lemon Law during the trial or in refusing to instruct the
jury on Ohio's Lemon Law, we overrule Boulware's third assignment of error.
VI. Fourth Assignment of Error – Sanctions
       {¶ 40} In his fourth and final assignment of error, Boulware argues the trial court
erred in granting Chrysler's motion for sanctions and in denying his own motion for
sanctions.
       {¶ 41} Under R.C. 2323.51(B)(1), a court may award court costs, reasonable
attorney fees, and other reasonable expenses to any party in a civil action that is adversely
affected by an opponent's frivolous conduct. When considering a motion for such an
award, the court must hold a hearing to determine whether the alleged conduct was
frivolous, whether any party was adversely affected by it, and the amount of award that
will cover the additional costs incurred. Bennett v. Martin, 10th Dist. No. 13AP-99, 2013-
Ohio-5445, ¶ 17. For purposes of R.C. 2323.51(A)(1)(a), "conduct" includes "[t]he filing of
a civil action, the assertion of a claim, defense, or other position in connection with a civil
action, the filing of a pleading, motion, or other paper in a civil action * * * or the taking of
any other action in connection with a civil action." "Frivolous conduct," as defined in R.C.
2323.51(A)(2)(a)(ii), includes conduct that "is not warranted under existing law, cannot
be supported by a good faith argument for an extension, modification, or reversal of
existing law, or cannot be supported by a good faith argument for the establishment of
new law."
       {¶ 42} An appellate court's review of an award of sanctions under R.C. 2323.51
involves mixed questions of law and fact. Wiltberger v. Davis, 110 Ohio App.3d 46, 51
(10th Dist.1996). Determining whether conduct is not warranted under existing law and
cannot be supported by a good-faith argument for an extension, modification or reversal
of existing law is a legal question which we review de novo without deference to the
judgment of the trial court. Lable & Co. v. Flowers, 104 Ohio App.3d 227, 233 (9th
Dist.1995); Wiltberger at 51-52. When a trial court has found the existence of frivolous
No. 15AP-162                                                                                15


conduct, we review the trial court's decision of whether or not to assess a penalty under an
abuse of discretion standard. Id. at 52.
       {¶ 43} Boulware argues the trial court erred in finding his conduct of filing his
third-party complaint against Chrysler to be frivolous conduct, again arguing that the trial
court erroneously determined that res judicata operated to bar the claims he asserted in
his third-party complaint.
       {¶ 44} In our disposition of Boulware's first two assignments of error, we have
affirmed the trial court's conclusion that the doctrine of res judicata bars Boulware's
third-party claims against Chrysler. This court has previously deemed a party's conduct
in filing a claim clearly barred by res judicata to satisfy the definition of frivolous conduct
set forth in R.C. 2323.51(A)(2)(a)(ii). Dehlendorf v. Ritchey, 10th Dist. No. 12AP-87,
2012-Ohio-5193, ¶ 27 (affirming the trial court's award of sanctions and noting that "[i]n
prior cases of this court, sanctions have been awarded where a party ignores or fails to
investigate the doctrine of res judicata"); Stuller v. Price, 10th Dist. No. 03AP-30, 2003-
Ohio-6826, ¶ 21 (affirming the trial court's finding of frivolous conduct and finding that
"had appellant's attorneys undertaken a reasonable inquiry as to the applicable law, they
should have determined that appellant's claims were clearly barred by the doctrine of res
judicata"); Sain v. Roo, 10th Dist. No. 01AP-360 (Oct. 23, 2001) (concluding the "filing of
appellants' 1998 action was so clearly barred by res judicata that appellants had no
objective basis to believe it was not so barred").
       {¶ 45} We agree with the trial court's determination that Boulware's third-party
complaint was not warranted under existing law. Chrysler correctly asserted the doctrine
of res judicata from the earliest opportunity, yet Boulware continued to try to find a way
to "subvert" the finality of the decision compelling arbitration in the first lawsuit.
(Decision and entry overruling Boulware's objections to magistrate's decision, 2.) Again,
as we have noted throughout this decision, Boulware's voluntary dismissal of his
remaining claims in the first lawsuit did not dissolve the finality of the order compelling
arbitration.
       {¶ 46} Boulware further argues the amount of the award was not reasonable, but
he does not articulate how the trial court abused its discretion in determining the amount
of the award other than repeatedly asserting that the trial court erroneously determined
No. 15AP-162                                                                          16


that res judicata barred his third-party complaint. Having reviewed the record and
finding no abuse of discretion in the amount of the sanctions award, we find Boulware's
argument unpersuasive. We, therefore, overrule Boulware's fourth and final assignment
of error.
VII. Disposition
       {¶ 47} Based on the foregoing reasons, the trial court did not err in granting
Chrysler's motion for summary judgment, in implicitly denying Boulware's motion for
reconsideration, in excluding references to Ohio's Lemon Law during trial, in refusing to
instruct the jury on Ohio's Lemon Law, or in granting Chrysler's motion for sanctions.
Having overruled Boulware's four assignments of error, we affirm the judgment of the
Franklin County Court of Common Pleas.
                                                                    Judgment affirmed.

                           KLATT and HORTON, JJ., concur.
