[Cite as Baldwin v. Cusma, 2014-Ohio-5418.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                      JUDGES:
CHAD R. BALDWIN                               :       Hon. William B. Hoffman, P.J.
                                              :       Hon. W. Scott Gwin, J.
                       Plaintiff-Appellant    :       Hon. Patricia A. Delaney, J.
                                              :
-vs-                                          :
                                              :       Case No. 2014CA00075
PATRICK CUSMA                                 :
                                              :
                    Defendant-Appellee        :       OPINION




CHARACTER OF PROCEEDING:                          Civil appeal from the Stark County Court of
                                                  Common Pleas, Case No.
                                                  2011-CV-01944



JUDGMENT:                                         Affirmed




DATE OF JUDGMENT ENTRY:                           December 8, 2014

APPEARANCES:

For Plaintiff-Appellant                           For Defendant-Appellee

CHAD R. BALDWIN                                   PATRICK CUSMA
P.O. Box 691813                                   702 Courtyard Centre
Orlando, FL 32868-1813                            116 Cleveland Ave. N.W.
                                                  Canton, OH 44702
[Cite as Baldwin v. Cusma, 2014-Ohio-5418.]


Gwin, J.,

       {¶1}     Plaintiff-appellant Chad Baldwin appeals from the April 16, 2014, Order of

the Stark County Court of Common Pleas rendering judgment in favor of Plaintiff-

Appellant against Defendant-Appellee in the amount of $54.10.

                              STATEMENT OF THE FACTS AND CASE

       {¶2}     The facts and case as set forth in the previous appeals in this matter are

as follows:

       {¶3}     On July 15, 2005, the Stark County Grand Jury indicted appellant on one

count of grand theft in violation of R.C. 2913.02. The indictment alleged as a continuous

course of conduct from May 1, 2004 through January 14, 2005, appellant purposefully

deprived his employer, Midwest Direct, of money in excess of $5,000.00 but less than

$100,000.00. Appellant processed credit card charge backs from the business account

to his personal credit card. Appellant admitted to the credit card charge backs

contending he was owed the monies as wage reimbursements.

       {¶4}     A jury trial commenced on January 9, 2006. The jury found appellant guilty

as charged. By Judgment Entry filed February 17, 2006, the trial court sentenced

appellant to sixteen months in prison, but granted judicial release on April 17, 2006.

       {¶5}     On July 9, 2007, this Court affirmed appellant's conviction in State v.

Baldwin, 5th Dist. Stark App. No. 2006CA00076, 2007-Ohio-3511.

       {¶6}     Subsequent to his criminal conviction, appellant filed a lawsuit against his

employer in the Federal District Court, Northern District of Ohio, alleging Midwest Direct

violated Federal wage laws and claiming monies owed for back wages. The parties

subsequently settled the lawsuit.
Stark County, Case No. 2014CA00075                                                        3


      {¶7}    On November 18, 2008, appellant filed a motion for a new trial with the

trial court alleging newly discovered evidence. Specifically, appellant asserted newly

discovered evidence in the settlement of the federal lawsuit relative to his wage claims

and inconsistent testimony of prior fellow employees in that lawsuit and his criminal trial.

On June 15, 2009, the trial court, via Judgment Entry, denied appellant's motion for a

new trial.

      {¶8}    Appellant then appealed. Pursuant to an Opinion filed on July 6, 2010 in

State v. Baldwin, 5th Dist. Stark No. 2009-CA-00186, 2010-Ohio-3189, this Court

affirmed the judgment of the trial court.

      {¶9}    Appellant filed a second motion for new trial alleging newly discovered

evidence and misconduct on the part of a witness for the State. The trial court overruled

the motion for new trial. This Court, on June 27, 2011, again affirmed the trial court's

denial of the motion for new trial in State v. Baldwin, 5th Dist. Stark No. 2010-CA-00330,

2011-Ohio-3205.

      {¶10}   On June 24, 2011, appellant had filed the legal malpractice case that is

the subject of this appeal against appellee, who had represented him. Appellant, in his

complaint, alleged that appellee had failed to attach “new evidence/sales records” to

appellant’s motion for a new trial even though the motion had indicated that they were

attached. Appellant further alleged, in part, that appellee then charged appellant to

appeal from the denial of such motion and to submit the new evidence as promised, but

that appellee failed to do so. Appellant sought to be compensated for fees paid for the

motion for a new trial and fees and costs paid for the subsequent two appeals, among

other damages.
Stark County, Case No. 2014CA00075                                                      4


      {¶11}   On July 20, 2011, appellee filed an answer and counterclaim. Appellee, in

his counterclaim, alleged that appellant had knowingly made fraudulent statements in

his complaint, that appellant had acted in bad faith and was a vexatious litigator, and

that appellant owed him over $1,000.00 on an account. Appellant filed an answer to the

counterclaim on August 17, 2011.

      {¶12}   Subsequently, on September 28, 2011, appellee filed a Motion for

Summary Judgment. On October 11, 2011, the trial court filed an order setting forth

dates. The trial court, in the same, ordered that appellant identify his expert witness by

December 2, 2011 and appellee by December 24, 2011.

      {¶13}   Appellant, on October 28, 2011, filed a “Motion to Deny Defendant’s

Motion for Summary Judgment, Motion to Dismiss Defendant’s Counterclaim and

Motion to Summary Judgment.”

      {¶14}   On November 30, 2011, appellant filed a motion seeking an extension of

time within which to identify expert witnesses. Appellee, on November 30, 2011, filed a

reply to appellant’s memorandum in opposition to appellee’s Motion for Summary

Judgment and a response to appellant’s Motion for Summary Judgment. In addition, on

December 9, 2011, appellee filed a motion opposing appellant’s motion for an extension

of time within which to identify expert witnesses. Appellee, in such motion, requested

that the trial court hold in abeyance ruling on appellant’s motion to extend time until

appellee knew if appellant as going to comply with discovery by December 8, 2011.

Pursuant to a Judgment Entry filed on December 13, 2011, the trial court granted such

motion.

      {¶15}   On December 23, 2011, appellee identified his expert witnesses.
Stark County, Case No. 2014CA00075                                                      5


      {¶16}   After a hearing on January 6, 2012 at which appellant participated by

telephone, the trial court, as memorialized in an Order filed on January 10, 2012, stated

that appellant had not retained or identified an expert witness.

      {¶17}   As memorialized in an Order filed on January 23, 2012, the trial court

granted appellee’s Motion for Summary Judgment while denying that filed by appellant.

The trial court, in its Order, found that appellant’s legal malpractice claim against

appellee was barred by the one year statute of limitations contained in R.C. 2305.11(A).

The trial court noted that appellant had submitted both his own affidavit and that from

another attorney stating that appellee had ended his attorney-client relationship with

appellant on May 1, 2010 and that appellant had failed to submit his own affidavit to

refute such evidence.     The trial court further stated, in relevant part, as follows:

“Moreover, while the Court does not reach [appellee’s] second argument that the sales

records, even if they had been attached, would not have lead to a successful motion to

a new trial, the Court notes that the issue is not within the common knowledge of the lay

person, and expert testimony would be required to establish this point.” The trial court

noted that appellant had not offered any expert testimony and had failed to name an

expert witness within the deadline established by the Court. The trial court noted that it

could dismiss appellant’s complaint as a discovery sanction for failure to identify or

name a witness. Finally, the trial court noted that appellant, to the extent that he was

seeking summary judgment with respect to appellee’s counterclaims, had not supported

his Motion for Summary Judgment with any Civ.R. 56(C) evidence.

      {¶18}   In response to the trial court’s order, appellant filed a Motion for

Reconsideration on February 13, 2012, arguing that he did offer evidence in opposition
Stark County, Case No. 2014CA00075                                                       6


to appellee’s claim that the attorney-client relationship ended on May 1, 2010. Appellee

filed a motion in opposition to the same on February 21, 2012. Via an Order filed on

February 24, 2012, the trial court vacated its January 23, 2012 Order to the extent that it

granted summary judgment to appellee on the basis that appellant’s claim was barred

by the one year statute of limitations, but granted appellee’s Motion for Summary

Judgment. The trial court again found that appellant had no expert witness testimony to

support his motion. The trial court also dismissed appellant’s claims as a sanction for

failing to comply with the court’s directives.

        {¶19}   Appellant, on March 15, 2012, filed another Motion for Reconsideration,

arguing that he had identified an expert witness by December 2, 2011. Attached to such

motion were copies of checks dated March 8, 2012 and March 14, 2012 to an attorney

that contained the notations that they were retainers. The trial court denied such motion

on May 16, 2012. Appellant then filed another Motion for Reconsideration on May 29,

2012.    After the trial court denied such motion and ordered that appellant was not

permitted to file additional Motions for Reconsideration of its May 16, 2012 Order,

appellant appealed. This Court, pursuant to a Judgment Entry filed on August 30, 2012

in Case No. 2012-CA-00129, dismissed the appeal for lack of a final appealable order.

        {¶20}   After his appeal was dismissed, appellant, on September 14, 2012, filed a

“Motion to Re-Open Plaintiff’s Complaint.” Appellant, in his motion, argued that he had

identified his expert witness on November 30, 2011. Appellant submitted the affidavit of

Attorney Greg Roeby stating that he had been aware of appellant’s complaint against

appellee since February of 2009 and that he received a retainer for expert witness fees

from appellant in March of 2012. Pursuant to an Order filed on October 1, 2012, the trial
Stark County, Case No. 2014CA00075                                                          7


court denied such motion. In addition, the trial court found that appellee was entitled to

summary judgment on additional grounds. The trial court, in its Order, stated, in relevant

part, as follows:

      {¶21}   “In his motion for summary judgment, Cusma submitted the judgment of

the Fifth District Court of Appeals, State of Ohio v. Chad Baldwin, 2001-Ohio-3205,

wherein the Appellate Court directly addressed Baldwin’s claim that had Cusma

attached the sales records to the motion for new trial, then the motion would have been

successful. The Appellate Court stated ‘we find nothing in the documents appellant

attached to his motions that would justify a new trial, even if the documents were taken

at face value.’ Id at ¶28.

      {¶22}   “This argument in Cusma’s summary judgment motion speaks to the

application of collateral estoppel or issue preclusion. Cusma has previously raised this

affirmative defense in his answer. In order for collateral estoppel to apply, it must be

shown that the fact or issue “(1) was actually and directly litigated in the prior action, (2)

was passed upon and determined by a court of competent jurisdiction, and (3) when the

party against whom collateral estoppel is asserted was a party in privity with a party to

the prior action.” New Winchester Gardens, Ltd. v. Franklin County Bd. Of Revision

(1997), 80 Ohio St.3d. 36, 41.

      {¶23}   “The question of the whether attaching the sales records to the motion for

new trial would have lead to a better result was placed directly at issue by Baldwin

himself in his second, pro se motion for reconsideration. The issue was litigated and

actually decided against Baldwin by a court of competent jurisdiction. As a party who
Stark County, Case No. 2014CA00075                                                         8


had a full and fair opportunity to litigate the issue in previous action, Baldwin is bound by

the Appellate Court’s previous determination.

      {¶24}   “Accordingly, the Court finds that Baldwin is precluded from claiming that

attaching the sales records to the first motion for a new trial would have lead to a better

result. As such, Baldwin cannot prove Cusma’s failure to attach records proximately

caused him damages.        Cusma is therefore entitled to summary judgment on this

alternative ground.”

      {¶25}   Appellant, on October 19, 2012, filed another Motion to Reopen.

Appellant, in such motion, argued that he had a separate malpractice claim of $54.10

and that the “sales records” had no relevance to such claim. Appellant argued that such

claim was based on appellee’s error in omitting the required Judgment Entry with the

docketing statement filed with his first appeal (Case No. 2009CA00015). Appellant

noted that his appeal in such case was dismissed as a result and that he incurred

$54.10 in damages as a result. Appellant, in a filing with the trial court, had asked for a

refund of $54.10 in court costs associated with such appeal.

      {¶26}   On October 26, 2012, appellant appealed from the trial court’s October 1,

2012 Order.     Pursuant to a Judgment filed on January 11, 2013 in Case No.

2012CA00197, this Court dismissed appellant’s appeal for want of jurisdiction, finding

that there was no final appealable order.

      {¶27}   Thereafter, on February 1, 2013, appellee filed a Motion to Strike both of

appellant’s Motions to Re-Open. On June 28, 2013, appellee filed a Notice of Dismissal,

voluntarily dismissing his claims against appellant without prejudice.
Stark County, Case No. 2014CA00075                                                     9


      {¶28} Appellant appealed from the trial court’s January 23, 2012, February 24,

2012 and October 1, 2012 Orders. In its March 10, 2014, Opinion, this Court affirmed

the trial court’s decision granting summary judgment in favor of Appellee on all of

Appellant’s claims with the exception of a claim for $54.10 in damages separate from

the sales records issue, which did not require expert witness testimony.

      {¶29}   Upon remand, the trial court found that “[a]ll issues raised in this case

have been resolved by the March 10, 2014 decision of the Court of Appeals except the

claim of Plaintiff for $54.10 in one cause of action.” Based on this Court’s mandate, the

trial court entered judgment in favor of Appellant against Appellee in the amount of

$54.10.

      {¶30} Appellant now appeals, raising the following errors for review:

                                ASSIGNMENTS OF ERROR

      {¶31} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

REFUSING TO DISQUALIFY AND RECUSE ITSELF AFTER BEING SHOWN TO BE

REPEATEDLY BIASED IN FAVOR OF DEFENDANT/APPELLEE.

      {¶32} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

AWARDING       $54.10   IN   DAMAGES      TO    APPELLANT      AND     THEN    CLOSED

APPELLANT'S COMPLAINT WITHOUT ALLOWING DISCOVERY, DUE PROCESS

AND JURY TRIAL ON THE REMAINING DAMAGES DIRECTLY RELATED TO THE

$54.10, "CAUSE AND EFFECT". ie) COURT COSTS, ATTORNEY FEES, LIQUIDATE

DAMAGES, PUNITIVE DAMAGES ... ETC.” [sic]
Stark County, Case No. 2014CA00075                                                      10


                                                I.

      {¶33} In his first assignment of error, Appellant argues that the trial court abused

its discretion by refusing to disqualify and recuse itself. We disagree.

      {¶34}   “The Chief Justice of the Supreme Court of Ohio, or his designee, has

exclusive jurisdiction to determine a claim that a common pleas judge is biased or

prejudiced.” Jones v. Billingham, 105 Ohio App.3d 8, 11, 663 N.E.2d 657 (2d

Dist.1995), citing Section 5(C), Article IV, Ohio Constitution; Adkins v. Adkins, 43 Ohio

App.3d 95, 539 N.E.2d 686 (4th Dist.1988).

      {¶35}   R.C. §2701.03 provides the exclusive means by which a litigant can assert

that a common pleas judge is biased or prejudiced. Id. R.C. §2701.03(A) provides:

              If a judge of the court of common pleas allegedly is interested in a

              proceeding pending before the court, allegedly is related to or has a

              bias or prejudice for or against a party to a proceeding pending

              before the court or a party's counsel, or allegedly otherwise is

              disqualified to preside in a proceeding pending before the court,

              any party to the proceeding or the party's counsel may file an

              affidavit of disqualification with the clerk of the supreme court in

              accordance with division (B) of this section.

      {¶36}   An appellate court lacks the authority to pass upon the disqualification of a

common pleas court judge or to void the judgment of a trial court on that basis. State v.

Ramos, 88 Ohio App.3d 394, 398, 623 N.E.2d 1336 (9th Dist.1993).

      {¶37}   We are without the authority to determine whether the trial court judge was

biased or should have recused himself in this case. If Appellant believed the trial court
Stark County, Case No. 2014CA00075                                                   11


judge should have recused himself, their remedy was to file an affidavit of

disqualification with the clerk of the Ohio Supreme Court.

      {¶38}   Appellant’s first assignment of error is overruled.

                                                II.

      {¶39}   In his second assignment of error, Appellant argues that the trial court

abused its discretion by entering judgment in this matter in favor of Appellant without

allowing discovery, due process and a jury trial on the remaining damages related to the

$54.10 judgment. We disagree.

      {¶40}   Upon review, we find that this Court’s prior Opinion filed March 10, 2014,

affirmed the trial court’s decision granting summary judgment on all issues except

Appellant’s claim for $54.10. Upon remand, the trial court rendered judgment in favor of

Appellant in the sum of $54.10. We therefore find the arguments raised by Appellant in

this assignment of error are barred by the doctrine of res judicata. Res judicata is

defined as “[a] valid, final judgment rendered upon the merits bars all subsequent

actions based upon any claim arising out of the transaction or occurrence that was the

subject matter of the previous action.” Grava v. Parkman Twp., 73 Ohio St.3d 379,

1995-Ohio-331, syllabus.

      {¶41}   Appellant’s second assignment of error is overruled.
Stark County, Case No. 2014CA00075                                                12


      {¶42}    Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.


By: Gwin, J.

Hoffman, P.J. and

Delaney, J. concur.
