[Cite as Marcellino v. Geauga Humane Soc., 2019-Ohio-2093.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     GEAUGA COUNTY, OHIO


 BIANCA MARCELLINO,                                    :      OPINION

                   Plaintiff-Appellant,                :
                                                              CASE NO. 2018-G-0180
         - vs -                                        :

 GEAUGA HUMANE SOCIETY,                                :

                   Defendant-Appellee.                 :


 Civil Appeal from the Chardon Municipal Court, Case No. 2018 CVH 560.

 Judgment: Affirmed.


 Gregory Charles Sasse, Gregory C. Sasse, LLC, 6642 Silvermound Drive, P.O. Box 941,
 Mentor, OH 44060 (For Plaintiff-Appellant).

 Todd C. Hicks, Brandon D.R. Dynes, and Bridey Matheney, Thrasher, Dinsmore &
 Dolan, LPA, 100 Seventh Avenue, Suite 150, Chardon, OH 44024 (For Defendant-
 Appellee).



TIMOTHY P. CANNON, J.

        {¶1}      This case is before us on the notice of appeal filed by Bianca Marcellino

from the Chardon Municipal Court’s denial of her motion for relief from judgment and

award of attorney fees to appellee, Geauga Humane Society. The judgment is affirmed.

        {¶2}      On July 17, 2018, Marcellino filed a Complaint for Replevin in the Chardon

Municipal Court. Marcellino requested the Municipal Court enter an order requiring the

Geauga Humane Society to return two horses it seized from Marcellino by warrant.
Marcellino alleged the warrant was issued upon a fraudulent affidavit that contained

numerous misstatements of material facts, without which there existed no probable cause

to believe a crime was being committed. Thus, Marcellino alleged her two horses had

been unlawfully seized and remained in the possession of the Geauga Humane Society.

      {¶3}   Marcellino simultaneously filed a “Motion for Immediate Return of Horses

Due to the Danger of Irreparable Harm.” In the motion, Marcellino stated that “the issue

of safe-guarding the health of the horses” had also been raised in the Probate Division of

the Geauga County Court of Common Pleas, pursuant to her Complaint to vacate the

appointment of Christian Courtwright as Humane Officer. In that case, Marcellino stated,

she had agreed the Geauga Humane Society would continue to maintain custody of the

horses so long as their care was monitored by her veterinarian, Dr. Baugher. Marcellino

alleged the following had since occurred in the Probate Court case:

             The question has not been resolved as Geauga Humane Society has
             drafted a proposed agreed order that contravenes the spirit and the
             letter of Plaintiff’s understanding of what was to have been a consent
             order safeguarding the horses. More importantly, the proposed
             order violates the Order drafted by [the Probate Court magistrate]
             memorializing the agreement as presented to her in open court
             regarding the monitoring of the care of the horses by Dr. Baugher. *
             * * Geauga Humane Society, among other things, is not permitting
             Dr. Baugher to monitor the care of the horses. Their proposed order
             provides only a single visit by Dr. Baugher with use of the information
             obtained in that visit confined solely to the Probate case, not to
             assuring the well-being of the horses. Dr. Baugher must have on-
             going contact to monitor the animals’ care.

             In other words, Geauga Humane Society is not treating the
             agreement between itself and Bianca Marcellino as a means to
             secure the on-going well being of the horses, but as a means to
             conceal the on-going condition of the horses from their owner. This
             stance apparently is taken at the behest of Geauga Humane
             Society’s “contract prosecutors,” even though the relevant question
             at the heart of an accusation of animal neglect or abuse is the




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              condition of the animal at the time of seizure, not its condition one
              month or more later.

              Additionally, Geauga Humane Society’s “contract prosecutors” have
              not honored Marcellino’s discovery demand in a timely manner. This
              conduct demonstrates “bad faith.” * * * Indeed, the conduct of all
              persons associated with Geauga Humane Society is strongly
              indicative of bad faith, which causes an even more urgent need to
              return the horses to their owner.

       {¶4}   On July 20, 2018, the Geauga Humane Society filed a request for a hearing

in the Municipal Court replevin action, pursuant to R.C. 2737.04, in which it disputed

Marcellino’s claim for possession of the two horses. It maintained that the Probate Court

case, in which Marcellino “alleged similar (if not identical) claims,” remained pending and

was currently under a magistrate’s order issued July 12, 2018, a copy of which was

attached to the request for hearing. The Probate Court’s magistrate’s order, in relevant

part, held the following:

              The [Probate] Court addressed Defendants’ claim that this Court
              lacks jurisdiction to issue the injunctive relief that [Marcellino] is
              seeking. The Court finds that it has jurisdiction over the above-
              captioned matter pursuant to Ohio Revised Code §2101.24(C) * * *.
              The Court finds that its plenary power to dispose of the above-
              captioned matter is not expressly limited or denied by another section
              of the Revised Code.

              ***

              The Court then addressed [Marcellino’s] Motion for Emergency
              Temporary Restraining Order. The Parties reached an agreement
              for a temporary order to safeguard the horses during the pendency
              of the above-captioned matter. Pursuant to the agreement of the
              Parties, it is therefore Ordered that: (1) the horses shall continue to
              remain at their current location; (2) the current location of the horses
              shall remain confidential; and (3) Dr. Baugher shall be permitted to
              monitor the care of the horses in conjunction with Dr. Sauder.

              Due to the fact that the Parties have reached an agreement
              regarding a temporary order to safeguard the horses during the
              pendency of the above-captioned matter, [Marcellino’s] Motion for



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              Emergency Temporary Restraining Order is dismissed without
              prejudice.

              A Preliminary Injunction Hearing is hereby scheduled for July 31,
              2018 at 9:00 a.m.

The Geauga Humane Society suggested Marcellino’s Complaint for Replevin in the

Municipal Court was an attempt to circumvent the Probate Court magistrate’s order that

the horses remain in the custody of Geauga Humane Society by attempting to “forum

shop” for a more favorable decision from another court.

       {¶5}   On July 24, 2018, Marcellino filed a reply to Geauga Humane Society’s

request for a hearing, in which she also requested the Municipal Court “schedule a prompt

hearing” in the matter.

       {¶6}   One day prior, on July 23, 2018, the Municipal Court had already issued a

scheduling order for a motion hearing to be held July 30, 2018.

       {¶7}   Marcellino and her counsel failed to appear at the July 30, 2018 hearing.

       {¶8}   On July 31, 2018, the Municipal Court entered judgment, dismissing

Marcellino’s Complaint for Replevin without prejudice and denying as moot her “Motion

for Immediate Return of Horses.” The Municipal Court found that jurisdiction remained in

the Probate Court, in which related matters were pending, and that filing the Complaint

for Replevin was “forum shopping.”

       {¶9}   Marcellino did not notice an appeal from the dismissal of her complaint.

       {¶10} On August 6, 2018, the Geauga Humane Society filed a motion for attorney

fees in the Municipal Court. It alleged that Marcellino’s counsel willfully violated Civ.R.

11 when he signed the Complaint for Replevin and that Marcellino and/or her counsel

had engaged in frivolous conduct, as provided in R.C. 2323.51.




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       {¶11} Marcellino filed a memorandum in opposition on August 17, 2018. The filing

also contained a motion for relief from judgment, pursuant to Civ.R. 60(B)(1) and (5), on

the grounds of excusable neglect, the circumstances of which Marcellino alleged were

“substantial”: “For cause, Plaintiff states that neither she nor her counsel appeared at the

hearing scheduled for and held on July 30, 2018, and that their lack of appearance

resulted solely from the fact that Notice of the hearing time and date, although duly

recorded on the Court’s docket as issued and mailed on July 23, 2018, never was

received by Plaintiff’s counsel.” The motion further stated that “[t]he circumstances

existing within Counsel’s practice, in addition to the fact that the Court’s hearing notice

apparently was misdirected, constitute a situation that is unlikely to be duplicated and was

such a perfect storm that, only through luck would Counsel have avoided the necessity

for the current Motion.”

       {¶12} The Geauga Humane Society responded in opposition.

       {¶13} A hearing was held on the motion for attorney fees and the motion for relief

from judgment on September 24, 2018. Testimony was heard, and other evidence was

presented.

       {¶14} On September 25, 2018, the Municipal Court entered an order denying

Marcellino’s motion for relief from judgment, stating: “The Court deemed the filing of this

complaint as forum shopping, and it was dismissed as jurisdiction remained in the

Geauga County Probate Court at the time of filing. This case was not dismissed for a

non-appearance of any parties.”




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       {¶15} In the same order, the Municipal Court granted the Geauga Humane

Society’s motion for attorney fees: “Defendant is awarded attorney’s fees from Plaintiff in

the amount of $1,952.50.”

       {¶16} Marcellino filed a timely notice of appeal from the September 25, 2018 order

and presents one assignment of error: “It was an abuse of discretion for the Municipal

Court to dismiss the Replevin Complaint and to award attorneys’ fees for its filing.” She

presents two issues for review:

              [1.] Is the filing of an action for Replevin seeking the return of animals
              that were wrongfully seized by a humane agent when another action
              in another Court also could order the return of the same animals,
              improper such that the Replevin must be dismissed and attorney’s
              fees awarded to the Replevin defendants?

              [2.] Can attorneys fees be awarded absent a finding of actual malice
              and an award of punitive damages?

       {¶17} In her first issue presented for review, Marcellino asserts it was improper

for the Municipal Court to dismiss her replevin action.

       {¶18} At oral argument, the Geauga Humane Society asserted, for the first time,

that this court does not have jurisdiction to consider this issue. It argued the denial of

Marcellino’s Civ.R. 60(B) motion is not a final, appealable order because the Municipal

Court dismissed the replevin action “without prejudice.”        See Civ.R. 41(B)(4)(a) (an

involuntary dismissal for lack of jurisdiction operates as a failure other than on the merits);

Thomas v. Target Stores, 11th Dist. Geauga No. 2009-G-2906, 2010-Ohio-1158, ¶18 (a

dismissal without prejudice is not generally a final, appealable order because, in most

cases, a party may refile or amend a complaint). The Geauga Humane Society has not

filed a motion to dismiss the appeal, in whole or in part. Thus, Marcellino has not been

afforded an opportunity to respond to this assertion. We do not find, however, that this



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court is unambiguously without jurisdiction to consider the issue. It is arguable that the

dismissal, which was based on attempted forum shopping and jurisdictional priority,

affected a substantial right in the action that in effect determined the action and prevented

a judgment.     See R.C. 2505.02(B)(1).       We therefore labor under the defensible

assumption that we have jurisdiction to consider the issue.

       {¶19} The result, however, is no more beneficial to Marcellino. Her arguments

are not properly raised in an appeal from the denial of a Civ.R. 60(B) motion for relief from

judgment. In fact, Marcellino neglects to acknowledge that the instant appeal was taken

from the denial of her collateral attack rather than directly from the dismissal of her

complaint.

       {¶20} A Civ.R. 60(B) motion cannot be used as a substitute for a direct appeal,

nor can an appeal from the denial of a Civ.R. 60(B) motion raise issues that should have

been brought in a direct appeal from the final judgment. Bank of Am. N.A. v. Kuchta, 141

Ohio St.3d 75, 2014-Ohio-4275, ¶15 (citation omitted) (Civ.R. 60(B) “does not exist to

allow a party to obtain relief from his or her own choice to forgo an appeal from an adverse

decision”); U.S. Bank Natl. Assn. v. Bartlett, 11th Dist. Lake No. 2018-L-023, 2018-Ohio-

4082, ¶16, citing College Hills Assn. v. TT Group, LLC, 11th Dist. Lake No. 2014-L-016,

2015-Ohio-1406, ¶20 (when a party fails to file a direct appeal from a final judgment, it is

improper to use an appeal from a 60(B) denial as a substitute).

       {¶21} Therefore, Marcellino’s first issue for review is not well taken.

       {¶22} Marcellino next asserts the Municipal Court abused its discretion in

awarding attorney’s fees without finding actual malice or any basis upon which to award




                                             7
punitive damages. The motion for attorney’s fees was brought, and granted, pursuant to

Civ.R. 11 and R.C. 2323.51.

       {¶23} Civ.R. 11 provides, in pertinent part:

               Every pleading, motion, or other document of a party represented by
               an attorney shall be signed by at least one attorney of record * * *. *
               * * The signature of an attorney or pro se party constitutes a
               certificate by the attorney or party that the attorney or party has read
               the document; that to the best of the attorney’s or party’s knowledge,
               information, and belief there is good ground to support it; and that it
               is not interposed for delay. If a document is not signed or is signed
               with intent to defeat the purpose of this rule, it may be stricken as
               sham and false and the action may proceed as though the document
               had not been served. For a willful violation of this rule, an attorney or
               pro se party, upon motion of a party or upon the court’s own motion,
               may be subjected to appropriate action, including an award to the
               opposing party of expenses and reasonable attorney fees incurred
               in bringing any motion under this rule. Similar action may be taken if
               scandalous or indecent matter is inserted. [Emphasis added.]

       {¶24} Pursuant to R.C. 2323.51(B)(1), “at 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, as provided in division (B)(4) of

this section.” Id. R.C. 2323.51(B)(4) provides that the award “may be made against a

party, the party’s counsel of record, or both.”

       {¶25} “Frivolous conduct” is defined, in relevant part, as conduct of a party to a

civil action that satisfies any of the following:

               (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.



                                                8
              (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.

R.C. 2323.51(A)(2)(a).

       {¶26} “Unlike Civ.R. 11, R.C. 2323.51 does not require a showing that the

individual willfully engaged in frivolous conduct. R.C. 2323.51 uses an objective standard

in determining whether sanctions may be imposed for frivolous conduct.” Keith-Harper v.

Lake Hosp. Sys., Inc., 11th Dist. Lake No. 2015-L-137, 2017-Ohio-7361, ¶16 (internal

citations omitted). “Thus, a finding of frivolous conduct under R.C. 2323.51 is decided

without inquiry as to what the individual knew or believed, and instead asks whether a

reasonable lawyer would have filed the action or continued to pursue the claims in light

of existing law or facts in a particular case.” Id. (citations omitted).

       {¶27} Further, neither Civ.R. 11 nor R.C. 2323.51 requires a finding of actual

malice or an award of punitive damages before an award of attorney fees may be made

against a party or a party’s counsel of record.

       {¶28} An order of replevin from the Municipal Court would have been in direct

conflict with even Marcellino’s version of the parties’ agreement in the Probate Court and

an interference with the Probate Court’s jurisdictional priority. See John Weenink & Sons

Co. v. Court of Common Pleas of Cuyahoga Cty., 150 Ohio St. 349 (1948), paragraph



                                               9
three of the syllabus (“When a court of competent jurisdiction acquires jurisdiction of the

subject matter of an action, its authority continues until the matter is completely and finally

disposed of, and no court of co-ordinate jurisdiction is at liberty to interfere with its

proceedings.”). Thus, the attempt to invoke the Municipal Court’s jurisdiction in these

circumstances was not reasonable.

       {¶29} Marcellino has not demonstrated the Municipal Court abused its discretion

in awarding attorney fees to Geauga Humane Society.

       {¶30} Marcellino’s second issue presented for review is not well taken, and her

sole assignment of error is without merit.

       {¶31} The judgment of the Chardon Municipal Court is hereby affirmed.



CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.




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