 [Cite as Namenyi v. Tomasello, 2014-Ohio-4509.]



                          IN THE COURT OF APPEALS OF OHIO
                             SECOND APPELLATE DISTRICT
                                   GREENE COUNTY

 PAMELA E. NAMENYI, et al.

         Plaintiffs-Appellees

 v.

 JAC TOMASELLO

         Defendant-Appellee


 Appellate Case No.      2013-CA-75

 Trial Court Case Nos. 2012-CVG-1350
                        2012-CVH-1304

 (Civil Appeal from
 (Municipal Court)
                                               ...........

                                              OPINION

                              Rendered on the 10th day of October, 2014.

                                               ...........

DOUGLAS D. BRANNON, Atty. Reg. No. 0076603, CARIN E. BIGLEY, Atty. Reg. No. 0090231,
130 West Second Street, Suite 900, Dayton, Ohio 45402
      Attorneys for Plaintiffs-Appellees

DAVID GREER, Atty. Reg. No. 009090, 6 North Main Street, Suite 400, Dayton, Ohio 45402
     Attorney for Defendant-Appellee

JACK HARRISON, 2222 Powers Lane, Dayton, Ohio 45440
     Defendant-Appellant-Pro Se

                                              .............

WELBAUM, J.
                                                                                          2




       {¶ 1}           Appellant, attorney Jack Harrison, appeals pro se from the judgment of the

Xenia Municipal Court finding he violated Civ.R. 11 and R.C. 2323.51 as a result of filing

frivolous claims for damages on behalf of his client, Jac Tomasello. For the reasons outlined

below, the judgment of the trial court will be affirmed.



                                Facts and Course of Proceedings

       {¶ 2}    Harrison appeared as legal counsel for Tomasello in the middle of two

consolidated landlord/tenant cases pending in the Xenia Municipal Court. Both cases involved a

May 2012 lease agreement between Tomasello and Pamela and Emanuel Namenyi, in which the

Namenyis agreed to rent Tomasello a piece of residential real property, including a horse barn, in

exchange for monthly rental payments.

       {¶ 3}    The first case arising from the lease agreement–Case No. 12 CVH 1304–was

initiated by Tomasello on November 20, 2012.           On that date, Tomasello filed a pro se

application to deposit his rental payments with the Clerk of Courts due to the Namenyis allegedly

failing their duties as landlords under R.C. 5321.

       {¶ 4}    The second case arising from the lease agreement–Case No. 12 CVG 1350–was

initiated by the Namenyis, who on December 4, 2012, filed a forcible entry and detainer action

and an action for damages against Tomasello. In the complaint, the Namenyis alleged that

Tomasello failed to timely pay his monthly rent and that they served Tomasello with a statutory

notice to leave the premises on November 18, 2012.

       {¶ 5}    On January 3, 2013, the two cases were consolidated for trial purposes.
                                                                                           3


Thereafter, on January 23, 2013, Tomasello filed a pro se motion to dismiss the Namenyis’

complaint under Case No. 12 CVG 1350. The same day, Tomasello also filed a pro se pleading

under Case No. 12 CVH 1304 titled “Tenant’s Complaints to Landlord,” which alleged that the

Namenyis breached the terms of the lease agreement.          Specifically, Tomasello alleged the

Namenyis: (1) failed to provide him possession of the property on the agreed upon move in date;

(2) left two of their horses on the premises; (3) kept two dilapidated boats, numerous pieces of

farm equipment, tools, and other household items on the property; (4) took hay from the property

that belonged to him; (5) failed to disclose problems with the property, such as flooding and

rodent infestation; (6) failed to reimburse him for repairs he made to the property; and (7) failed

to meet their maintenance and repair obligations. In addition, Tomasello requested the court to

consider damages for retaliatory eviction, but did not allege any actual damages or provide a

basis for the claim.

       {¶ 6}    Both cases were heard at a bench trial on April 9, 2013. At that time, Tomasello

was no longer appearing pro se, but was represented by attorney Griff Nowicki. Following trial,

the trial court issued a written decision under Case No. 12 CVH 1304 denying Tomasello’s

application to deposit rent with the Clerk of Court. In so holding, the trial court found that

Tomasello had failed to establish the Namenyis were in violation of any of their duties as

landlords under R.C. 5321.04 that would justify depositing rent with the court. The court also

issued a written decision under Case No. 12 CVG 1350 finding that Tomasello breached the lease

agreement by failing to timely make his November 2012 rental payment. Accordingly, the trial

court ordered restitution of the premises to the Namenyis, and a damages hearing was scheduled

for June 18, 2013.
                                                                                          4


       {¶ 7}    On June 18, 2013, the trial court permitted attorney Nowicki to withdraw as

counsel for Tomasello. As a result, the damages hearing was continued. Approximately two

months later, Harrison substituted as counsel for Tomasello. On August 27, 2013, Harrison filed

a motion for damages on Tomasello’s behalf alleging for the first time that the Namenyis owed

him $99,274.32 in damages resulting from: (1) retaliatory eviction; (2) breach of contract; (3)

loss of consortium; and (4) loss of his security deposit.

       {¶ 8}    Under his claim alleging retaliatory eviction, Harrison argued that Tomasello

incurred significant costs for lodging, boarding horses, packing, moving, storage, and travel as a

result of being evicted from the Namenyis’ property. As it relates to Tomasello’s breach of

contract claim, Harrison alleged the same basic arguments that Tomasello had previously raised

as part of his January 23, 2013 pro se pleading in Case No. 12 CVH 1304. The loss of

consortium claim was based on allegations that the delay in taking possession of the property

caused bickering and arguing between Tomasello and his fiancé, Joan Malinoski. With respect

to Tomasello’s security deposit claim, Harrison argued that the Namenyis had failed to refund or

notify by itemization any charges or deductions from the security deposit as required by R.C.

5321.16. To that end, Harrison argued Tomasello was entitled to a refund of his $2,800 security

deposit and also attorney fees in the amount of $5,000.

       {¶ 9}    On August, 28, 2013, the trial court issued a written decision on the motion for

damages. In its decision, the trial court determined that Tomasello’s breach of contract and

retaliatory eviction claims were barred by res judicata, because those claims were resolved by the

court’s April 10, 2013 decision, in which the court found that Tomasello breached the parties’

rental agreement and granted restitution in favor of the Namenyis. The trial court further held
                                                                                         5


that the loss of consortium claim failed because it was not available in a contract case and also

because Malinoski was not Tomasello’s spouse. However, the trial court permitted the security

deposit refund claim to proceed, because the court determined that the claim was not ripe for

consideration until after the court had granted the eviction.

       {¶ 10} Following the trial court’s decision on the motion for damages, on September 3,

2013, the Namenyis filed a motion for sanctions under Civ.R. 11 and R.C. 2323.51 on grounds

that Harrison filed unreasonable and meritless claims for damages on behalf of Tomasello. The

next day, attorney David Greer substituted as counsel for Tomasello due to Harrison suffering

from a medical condition. The damages and sanctions hearing eventually went forward on

October 11, 2013. Although given notice of the hearing, Harrison did not attend the hearing nor

file any memorandum in opposition to the motion for sanctions.

       {¶ 11} On November 8, 2013, the trial court issued a written decision detailing the

complex procedural history of the case and setting forth its factual findings and conclusions of

law. The court concluded, in part, that the motion for damages Harrison filed on behalf of

Tomasello was made in bad faith, frivolous, and subject to sanctions under Civ.R. 11 and R.C.

2323.51. The trial court explained that:

               The filing involved claims for “Retaliatory Eviction” (the Court had

       previously awarded a writ of restitution effective April 22, 2013), “Breach of

       Contract” (the Court had previously ruled that Mr. Tomasello himself had

       breached the parties’ contract by its DECISION; ENTRY AND ORDER filed

       April 10, 2013), and “Loss of Consortium” (the record is absolutely void of any

       evidence to support this claim). These three claims were totally without merit
                                                                                             6


       and could not be supported by evidence at hearing. By both the subjective bad

       faith standard of Civ.R. 11 and the objective standard of ORC 2323.51, the court

       finds attorney Harrison’s conduct in filing his claims against the Namenyis on

       August 27, 2013, was frivolous and not in good faith. [Note: The Court allowed

       one claim in said filing to proceed, to wit: the handling by the Namenyis of the

       security deposit of $2,800. This fact does not negate the fact that overall, the

       filing was frivolous and in bad faith. * * *.]

               The Court finds that the Namenyis incurred additional attorney fees by

       attorney Harrison’s frivolous, bad faith filing and awards reasonable attorney fees

       against attorney Harrison individually (not against Mr. Tomasello) in the amount

       of $1,375.

Decision Entry & Order (Nov. 8, 2013), Xenia Municipal Court Case Nos. 12 CVG 1350, 12

CVH 1304, p. 18-19, ¶ D.

       {¶ 12} Harrison appeals from the trial court’s judgment finding that three of the

damages claims he asserted on behalf of Tomasello were without good grounds and frivolous.

Harrison has raised two assignments of error for our review, and for purposes of convenience, we

will address both of his assignments of error together.



                               Assignments of Error Nos. I and II

       {¶ 13} Instead of presenting a statement of his assignments of error as required by

App.R. 16, Harrison denominated his First Assignment of Error as “Frivolous Filing” and his

Second Assignment of Error as “Bad Faith.” We construe the arguments in his appellate brief as
                                                                                             7


challenging the trial court’s judgment finding the claims for loss of consortium, breach of

contract, and retaliatory eviction to be without good grounds and frivolous in violation of Civ.R.

11 and R.C. 2323.51. In addition, Harrison challenges the trial court’s imposition of sanctions.

          {¶ 14} “The imposition of a sanction under Civ. R. 11 requires a determination that the

attorney filing the pleading: (1) has read the pleading; (2) harbors good grounds to support it to

the best of his or her knowledge, information, and belief; and (3) did not file it for the purposes of

delay.”     (Citation omitted.)   Natl. Check Bur. v. Patel, 2d Dist. Montgomery No. 21051,

2005-Ohio-6679, ¶ 14. “If any one of these requirements is not satisfied, the trial court must

then determine whether ‘the violation was “willful” as opposed to merely negligent.’ ” Ponder

v. Kamienski, 9th Dist. Summit No. 23270, 2007-Ohio-5035, ¶ 36, quoting Ceol v. Zion Indus.,

Inc., 81 Ohio App.3d 286, 290, 610 N.E.2d 1076 (9th Dist.1992). “If the trial court finds that

the violation was willful, it may impose an appropriate sanction.” (Citation omitted.) Id.

          {¶ 15} In contrast, the imposition of sanctions under R.C. 2323.51 requires a finding of

frivolous conduct. Specifically, R.C. 2323.51(B)(1) provides, in pertinent part, that:

          [A]t any time not more than thirty days after the entry of final judgment in a civil

          action or appeal, any party adversely affected by frivolous conduct may file a

          motion for an award of court costs, reasonable attorney’s fees, and other

          reasonable expenses incurred in connection with the civil action or appeal. The

          court may assess and make an award to any party to the civil action or appeal who

          was adversely affected by frivolous conduct * * *.

          {¶ 16} Prior to awarding damages under R.C. 2323.51, the trial court must hold a

hearing “to determine whether particular conduct was frivolous, to determine, if the conduct was
                                                                                             8


frivolous, whether any party was adversely affected by it, and to determine, if an award is to be

made, the amount of that award [.]” R.C. 2323.51(B)(2)(a). “[W]e note that ‘[t]he finding of

frivolous conduct under R.C. 2323.51 is determined without reference to what the individual

knew or believed.’ ” Mitchell v. Mid-Ohio Emergency Servs., L.L.C., 10th Dist. Franklin No.

10AP-374, 2010-Ohio-6350, ¶ 25, quoting Bikkani v. Lee, 8th Dist. Cuyahoga No. 89312,

2008-Ohio-3130, ¶ 22. (Other citation omitted.)

       {¶ 17} “Frivolous conduct” is the conduct of a party to a civil action or of the party’s

counsel that satisfies any of the following four criteria:

       (i) It obviously serves merely to harass or maliciously injure another party to the

       civil action or appeal or is for another improper purpose, including, but not

       limited to, causing unnecessary delay or a needless increase in the cost of

       litigation.

       (ii) It 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.

       (iii) The conduct consists of allegations or other factual contentions that have no

       evidentiary support or, if specifically so identified, are not likely to have

       evidentiary support after a reasonable opportunity for further investigation or

       discovery.

       (iv) The conduct consists of denials or factual contentions that are not warranted

       by the evidence or, if specifically so identified, are not reasonably based on a lack

       of information or belief.
                                                                                           9


R.C. 2323.51(A)(2)(a)(i)-(iv).

       {¶ 18} This Court has previously noted “that the frivolous conduct implicated by R.C.

2323.51(A)(2)(ii) involves proceeding on a legal theory which is wholly unwarranted in law.”

State Auto Mut. Ins. Co. v. Tatone, 2d Dist. Montgomery No. 21753, 2007-Ohio-4726, ¶ 8.

“Whether a claim is warranted under existing law is an objective consideration.” (Citations

omitted.) Hickman v. Murray, 2d Dist. Montgomery No. CA 15030, 1996 WL 125916, *5 (Mar.

22, 1996). The test is “whether no reasonable lawyer would have brought the action in light of

the existing law. In other words, a claim is frivolous if it is absolutely clear under the existing

law that no reasonable lawyer could argue the claim.” Id.

       {¶ 19} “[N]o single standard of review applies in R.C. 2323.51 cases.” Wiltberger v.

Davis, 110 Ohio App.3d 46, 51, 673 N.E.2d 628 (10th Dist.1996). When the question regarding

what constitutes frivolous conduct calls for a legal determination, such as whether a claim is

warranted under existing law, an appellate court is to review the frivolous conduct determination

de novo, without reference to the trial court’s decision. Natl. Check Bur., 2d Dist. Montgomery

No. 21051, 2005-Ohio-6679 at ¶ 10; accord Riverview Health Inst., L.L.C. v. Kral, 2d Dist.

Montgomery No. 24931, 2012-Ohio-3502, ¶ 33. “Similarly, whether a party has good grounds

to assert a claim under Civ.R. 11 also involves a legal determination, subject to a de novo

standard of review.” (Citation omitted.) ABN AMRO Mtge. Grp., Inc. v. Evans, 8th Dist.

Cuyahoga No. 98777, 2013-Ohio-1557, ¶ 14.

       {¶ 20} “In contrast, if there is no disputed issue of law and the question is factual, we

apply an abuse of discretion standard of review.” Riverview Health Inst., L.L.C. at ¶ 33, citing

Natl. Check Bur. at ¶ 11. Likewise, if the trial court determines that a violation under R.C.
                                                                                            10


2323.51 or Civ.R. 11 exists, the trial court’s imposition of sanctions for said violation will not be

disturbed absent an abuse of discretion. State ex rel. Fant v. Sykes, 29 Ohio St.3d 65, 505

N.E.2d 966 (1987); Lewis v. Powers, 2d Dist. Montgomery No. 15461, 1997 WL 335563, *4

(June 13, 1997).

       {¶ 21} In this case, after holding a sanctions and damages hearing, the trial court

determined that the loss of consortium, breach of contract, and retaliatory eviction claims raised

in the motion for damages were frivolous and made in bad faith, because they were totally

without merit and could not be supported by evidence at the hearing. The trial court did not

include a detailed discussion concerning its findings, but its decision implies that it found the

breach of contract and retaliatory eviction claims to be unwarranted under existing law, and the

loss of consortium claim to be without any supporting evidence. Accordingly, the inquiry in this

case is one of both fact and law.

       {¶ 22} After reviewing the record, we conclude that the trial court did not err in finding

the loss of consortium claim involving Tomasello and Malinoski, his fiancé, to be without any

supporting evidence. Loss of consortium “ ‘is a right which grows out of marriage, is incident to

marriage, and cannot exist without marriage.         Because it is a marital right, the right of

consortium is not conferred upon partners to extramarital cohabitation.’ ” Reygaert v. Palmer,

2d Dist. Montgomery No. 9296, 1986 WL 1340, *4 (Jan. 29, 1986), quoting Haas v. Lewis, 8

Ohio App.3d 136, 137, 456 N.E.2d 512 (10th Dist.1982). In the motion for damages, Harrison

specifically referred to Tomasello’s fiancé and alleged damages for loss of consortium. Since

there was admittedly no marital relationship, there was indeed no evidence to support the loss of

consortium claim, and Harrison had absolutely no grounds to assert it. Accordingly, the claim
                                                                                            11


was clearly frivolous under R.C. 2323.51.

       {¶ 23} We also conclude that the breach of contract claim was frivolous due to being

unwarranted under existing law on res judicata grounds. “ ‘[R]es judicata precludes a party from

relitigating issues already decided by a court or raising matters that the party should have brought

in a prior action.’ ”       SunTrust Bank v. Wagshul, 2d Dist. Montgomery No. 25567,

2013-Ohio-3931, ¶ 8, quoting Am. Tax Funding, L.L.C. v. Whitlow, 2d Dist. Montgomery No.

24559, 2012-Ohio-3839, ¶ 9. Pursuant to R.C. 1923.03 forcible entry and detainer judgments do

not bar a tenant from bringing a later action between the same parties growing out of the same

subject matter; however, such judgments do bar “relitigation of issues that were actually and

necessarily decided in the [forcible entry and detainer] action.” (Citations omitted.) Great

Lakes Mall, Inc. v. Deli Table, 11th Dist. Lake No. 93-L-154, 1994 WL 587559, *2 (Sept. 16,

1994); Marous/Church, LLC v. Stanich, 11th Dist. Lake No. 2000-L-188, 2001 WL 1561107, *2

(Dec. 7, 2001).

       {¶ 24} Here, the breach of contract claim had been raised and ruled upon prior to

Harrison filing the motion for damages, as Tomasello raised the same basic claim in his January

23, 2013 pro se filing in Case No. 2012 CVH 1304. Following trial, the trial court issued

written decisions finding that Tomasello was in breach of the lease agreement and that he failed

to establish the Namenyis breached their obligations as landlords.          Because the breach of

contract issue was actually and necessarily ruled upon after trial, res judicata barred it from being

relitigated during the damages proceeding.       Accordingly, the claim was unwarranted under

existing law and thus frivolous.

       {¶ 25} As for the retaliatory eviction claim, we note that the trial court determined in its
                                                                                            12


August 28, 2013 decision on the motion for damages, as well as in its November 8, 2013 decision

on the motion for sanctions, that res judicata barred the claim from being raised in the motion for

damages, because the court had previously found the Namenyis’s eviction request to be proper

and awarded the Namenyis restitution of the premises in the forcible entry and detainer action.

The trial court’s conclusion is correct if the issue of retaliatory eviction was litigated and decided

during the forcible entry and detainer action. See Great Lakes Mall, Inc. at *2; Marous/Church,

LLC at *2 (“a forcible entry and detainer action bars relitigation of issues that were actually and

necessarily decided in the former action”); see also Reck v. Whalen, 114 Ohio App.3d 16, 19-20,

682 N.E.2d 721 (2d Dist.1996) (finding that an evicted tenant’s counterclaim alleging retaliatory

eviction was protected from the doctrine of res judicata because the trial court made no express

finding whether there was a retaliatory eviction during the forcible entry and detainer

proceedings).

       {¶ 26} In this case, we cannot determine from the record whether the issue of retaliatory

eviction was litigated and decided upon during the forcible entry and detainer action. The trial

court did not discuss retaliatory eviction in its written decision granting restitution of the

premises to the Namenyis, and Harrison failed to file a transcript of the April 9, 2013 forcible

entry and detainer trial. In Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384

(1980) the Supreme Court of Ohio stated that:

       The duty to provide a transcript for appellate review falls upon the appellant. This

       is necessarily so because an appellant bears the burden of showing error by

       reference to matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d 162,

       372 N.E.2d 1355. This principle is recognized in App.R. 9(B), which provides,
                                                                                          13


       in part, that “ * * * the appellant shall in writing order from the reporter a

       complete transcript or a transcript of such parts of the proceedings not already on

       file as he deems necessary for inclusion in the record * * *.” When portions of

       the transcript necessary for resolution of assigned errors are omitted from the

       record, the reviewing court has nothing to pass upon and thus, as to those assigned

       errors, the court has no choice but to presume the validity of the lower court’s

       proceedings, and affirm.

Knapp at 199.

       {¶ 27} Here, Harrison failed his duty to provide a transcript for appellate review that is

necessary for determining whether he was barred from raising the retaliatory eviction claim in the

motion for damages. Accordingly, we must presume the validity of the trial court’s decision

finding that the claim was barred as a result of the previous forcible entry and detainer judgment.

Based on this finding, we conclude the retaliatory eviction claim raised in the motion for

damages was unwarranted under existing law and thus frivolous.

       {¶ 28} In finding Harrison’s conduct frivolous, it is unnecessary to discuss whether his

conduct was also a violation of Civ.R. 11, as sanctions are already appropriate under R.C.

2323.51.

       {¶ 29} With respect to the imposition of sanctions, we note that no recording of the

sanctions hearing was made, thus leaving no transcript for review. Additionally, Harrison

failed to file an acceptable alternative statement of the evidence or proceedings as permitted by

App.R. 9(C). By failing to file an acceptable alternative to a transcript, Harrison has failed his

burden of showing error by reference to matters in the record.          Without an App.R. 9(C)
                                                                                          14


statement, it is impossible for us to address whether the trial court abused its discretion in

imposing sanctions in the amount of $1,375. Accordingly, we must presume the regularity of

the proceedings and find that the trial court did not abuse its discretion. See Beer v. Beer, 10th

Dist. Franklin No. 04AP-93, 2004-Ohio-4559, ¶ 9 ("absent a transcript, or some acceptable

alternative, pursuant to App.R. 9(C), we are guided by the presumption that the decision of the

trial court is correct"); Palmer v. Palmer, 5th Dist. Licking No. 92-CA-36, 1992 WL 396314, *1

(Dec. 21, 1992) (finding it is impossible to conclude whether the trial court abused its discretion

in ordering Appellant to pay $800 because appellant failed to file a transcript of the proceedings

or a statement of the evidence as permitted by App.R. 9(C) ).

        {¶ 30} Harrison’s First and Second Assignments of Error are overruled.



                                           Conclusion

        {¶ 31}    Having overruled both of Harrison’s assignments of error, the judgment of the

trial court is affirmed.



                                         .............

HALL, J., concurs.

FROELICH, P.J., concurring:

        {¶ 32} In Reygaert v. Palmer, 2d Dist. Montgomery No. 9296, 1986 WL 1340 (Jan. 29,

1986), we acknowledged that “some affianced couples may establish as deep and significant a

relationship as a married couple.”      Id. at *4.   While Reygaert did “not abrogate Ohio’s

well-settled rule that only a married individual has standing to sue for loss of consortium,” Judge
                                                                                         15


Brogan found “strong logic” in case law which expanded the rule in certain situations. Id. at *4.

See also Aloni, Deprivative Recognition, 61 UCLA L.Rev. 1276 (2014), for a more current

analysis of the issue.

        {¶ 33} I agree that any “change in Ohio law based upon such circumstances may not be

made by this Court,” Reygaert at *4. I would not necessarily hold that making a loss of

consortium claim for a fiancé is per se frivolous in a case drafted to make its way to the Supreme

Court; this is not such a case.

        {¶ 34} The fact that the security deposit claim was continued or that the loss of

consortium claim could arguably be “supported by the good faith argument for the establishment

of new law,” R.C. 2323.51(A)(2)(a)(i), does not mean that the trial court abused its discretion in

finding a violation of R.C. 2323.51 for the claims of retaliatory eviction and/or breach of

contract. R.C. 2323.51(A)(1)(a) defines “conduct” as “the assertion of a claim, defense, or other

position in connection with a civil action. . . .” It does not require that the entire pleading or

motion or that all the claims be frivolous as that is defined in R.C. 2323.51(A)(2).

        {¶ 35} Further, I agree with the majority that the amount of the sanctions cannot be

successfully challenged on this record.

                                            ..........

Copies mailed to:

Douglas D. Brannon
Carin E. Bigley
David Greer
Jack Harrison
Hon. Michael K. Murry
