[Cite as Vasquez v. Ezanidis, 2013-Ohio-2850.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

DOUGLAS E. VASQUEZ                                  JUDGES:
                                                    Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                          Hon. William B. Hoffman, J.
                                                    Hon. Sheila G. Farmer, J.
-vs-
                                                    Case No. 12-CA-108
PETER EZANIDIS, ESQ., ET AL.

        Defendants-Appellants                       OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Fairfield County Court of
                                                 Common Pleas, Case No. 11 CV 75


JUDGMENT:                                        Affirmed


DATE OF JUDGMENT ENTRY:                          June 26, 2013


APPEARANCES:


For Plaintiff-Appellee                           For Defendants-Appellants


DANIEL J. FRUTH                                  RICK E. MARSH
Stebelton, Aranda & Snider                       Lane, Alton & Horst, LLC
A Legal Professional Asosciation                 Two Miranova Place, Suite 500
109 N. Broad Street, Suite 200                   Columbus, Ohio 43215-7052
P.O. Box 130
Lancaster, Ohio 43130-0130
Fairfield County, Case No. 12-CA-108                                                   2

Hoffman, J.


      {¶1}     Defendants-appellants Peter Ezandis, et al. appeal the September 5, 2012

Agreed Judgment Entry entered by the Fairfield County Court of Common Pleas, which

granted judgment in favor of plaintiff-appellee Douglas E. Vasquez and against

Appellants in the amount of $100,000.

                           STATEMENT OF THE FACTS AND CASE

      {¶2}     Appellants Peter Ezanidis and Jeffrey Donnellon are attorneys, licensed to

practice in the State of Ohio. Donnellon & Ezanidis, LLC is their legal professional

corporation.

      {¶3}     On February 10, 2009, Virginia Zapf filed a complaint for divorce against

her husband, Appellee herein. In addition to the complaint, Zapf filed a motion and

affidavit in support, seeking the issuance of a temporary restraining order against

Appellee. The trial court issued a reciprocal temporary restraining order on the same

day. The TRO prohibited, inter alia, the following:

               Neither party shall change the beneficiary or beneficiaries of any

      life insurance policies, or the payable on death beneficiaries or joint and

      survivorship ownership of any tax deferred savings plans, pension plans,

      retirement plans, certificates of deposits, savings accounts, stock or

      brokerage accounts or other such intangible assets owned by either or

      both parties, whether marital or non-marital. Judgment Entry/Restraining

      Order at para. 5.

      {¶4}     Pursuant to its terms, the TRO was immediately effective upon Zapf and

would be effective upon Appellee upon service.         Zapf’s attorney, Darren McNair,
Fairfield County, Case No. 12-CA-108                                                   3


prepared the Judgment Entry/Restraining Order, and signed an attestation the Order

was identical to that required by Local R. 9.3.

       {¶5}   On March 4, 2009, Zapf executed a request to change the primary

beneficiaries of her life insurance policy to her parents, Tom and Nikki Zapf (“the Elder

Zapfs”). Appellee was the named beneficiary under the policy. Attorney Stephen Dodd

sent the request to AIG Insurance via telefax on March 5, 2009. Appellee did not file an

answer or any other responsive pleading in the divorce proceeding as Zapf died on

March 10, 2009, prior to any service of process upon Appellee.

       {¶6}   The Elder Zapfs filed a declaratory judgment action, seeking the allocation

of rights under Zapf’s life insurance policy issued by AIG Insurance. Appellee and AIG

were named defendants. The dispute focused on whether the March 4, 2009 change of

beneficiary designation form effectively changed Zapf’s beneficiary from Appellee to the

Elder Zapfs. AIG interpled $150,000, the money owing under the life insurance policy,

and was dismissed from the action. On July 30, 2009, Appellee hired Appellants to

represent him in the declaratory judgment action. Appellants entered an appearance on

Appellee’s behalf.

       {¶7}   The declaratory judgment action was settled with Appellee receiving a

gross settlement of $10,000. Appellants were paid their 40% contingent fee from that

amount. From their initial involvement in the declaratory action, Appellants were aware

of the divorce proceeding as such matter was mentioned in the Elder Zapfs’ complaint.

Further, at the time of the settlement, Appellant Ezanidis was aware a TRO had been

issued by the trial court therein. Attorney Ezanidis was not, however, aware of the

contents of the TRO or that such was binding on Zapf. Appellants did not raise the TRO
Fairfield County, Case No. 12-CA-108                                                    4


as a defense, affirmative defense, cross-claim, counterclaim, third party complaint of

otherwise present a claim against Zapf’s estate within the statutory timeframe.

Appellants never advised Appellee prior to settlement of the legal impact of the TRO on

the declaratory action.

       {¶8}   On January 19, 2011, Appellee filed a complaint against Appellants Peter

Ezanidis, Jeffrey Donnellon, and Donnellon & Ezanidis, LLC, alleging professional

malpractice and breach of contract.      Appellants filed a timely Answer.     The parties

submitted a Stipulation of Facts to the trial court on May 31, 2011. Appellants filed a

motion for summary judgment on June 30, 2011, which the trial court overruled via

Entry filed August 19, 2011.

       {¶9}   Following discovery and depositions, the parties submitted a Stipulation to

the trial court on May 1, 2012, which read, in pertinent part:

              The parties hereto have agreed that this matter will be resolved in

       the following manner.

              . . . [T]he question to be decided by the Court . . .is whether or not,

       at the time the change of beneficiary form was executed by Virginia Zapf

       on March 4, 2009, was the change of beneficiary legally effective due to

       the state of the domestic relations case at that time.       If it was legally

       effective, should [Appellants] have been subject to a constructive trust for

       the benefit of [Appellee]?

       {¶10} The parties resolved all material factual disputes except for the two

questions set forth in the May 1, 2012 Stipulation, supra. The parties filed motions for

summary judgment in support of their respective positions. Via Entry Resolving Issue of
Fairfield County, Case No. 12-CA-108                                                      5


Law Presented by Stipulation filed August 9, 2012, the trial court answered the

proposed questions in Appellee’s favor, and denied Appellants’ motion for summary

judgment. The parties submitted an Agreed Judgment Entry on September 5, 2012,

which granted judgment in favor of Appellee and awarded him $100,000.

      {¶11} It is from the September 5, 2012 Agreed Judgment Entry, the August 9,

2012 Entry Resolving Issue of Law, and the August 19, 2011 Entry overruling

Appellants’ first motion for summary judgment Appellants appeal, raising as error:

      {¶12} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

CONCLUDING THAT THE TRO WAS VALID WHERE IT FAILED TO COMPLY WITH

OHIO RULE OF CIVIL PROCEDURE 75(I)(2).

      {¶13} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

CONCLUDING THAT THE TRO WAS VALID WHERE THE ACTION WAS NEVER

COMMENCED.”

                                                I

      {¶14} In their first assignment of error, Appellants maintain the trial court erred in

concluding the TRO was valid as such order did not comply with Civ. R. 75(I)(2).

      {¶15} Civ. R. 75(I) provides, in toto:

             (1) Restraining order: exclusion. The provisions of Civ. R. 65(A)

      shall not apply in divorce, annulment, or legal separation actions.

             (2) Restraining order: grounds, procedure. When it is made to

      appear to the court by affidavit of a party sworn to absolutely that a party

      is about to dispose of or encumber property, or any part thereof of

      property, so as to defeat another party in obtaining an equitable division of
Fairfield County, Case No. 12-CA-108                                                        6


         marital property, a distributive award, or spousal or other support, or that a

         party to the action or a child of any party is about to suffer physical abuse,

         annoyance, or bodily injury by the other party, the court may allow a

         temporary restraining order, with or without bond, to prevent that action. A

         temporary restraining order may be issued without notice and shall remain

         in force during the pendency of the action unless the court or magistrate

         otherwise orders.

         {¶16} Appellants submit, pursuant to Civ. R. 75(I)(2), a trial court may issue a

TRO only after a party has requested such relief and has filed an affidavit in support.

Appellants contend the trial court issued the February 10, 2009 TRO sua sponte

pursuant to Fairfield Local Rule 9.3. According to Appellants, Fairfield Loc. R. 9.3,

which permits a trial court to issue a sua sponte reciprocal restraining order, is in conflict

with Civ. R. 75(I)(2), and the Civil Rule must prevail. Appellants conclude the February

10, 2009 TRO was invalid because Appellee did not seek a TRO pursuant to Civ. R.

75(I)(2); therefore, the TRO had no effect on the actions of Zapf or Appellee during the

divorce proceedings and Zapf was free to change the beneficiary of her life insurance.

         {¶17} In the May 31, 2011 Stipulation of Facts, the parties stipulated Zapf filed a

motion seeking a temporary restraining order with a supporting affidavit on the same

day she filed her complaint for divorce. Pursuant to Fairfield Loc. R. 9.3, the trial court

issued     a   reciprocal    restraining   order.   The   February    10,   2009   Judgment

Entry/Restraining Order was prepared and signed by Zapf’s attorney. The TRO was

reciprocal in nature. Zapf was aware of the terms of the TRO and was bound by its

terms when the order was filed. Despite the TRO prohibiting such, Zapf filed a change
Fairfield County, Case No. 12-CA-108                                                      7


of beneficiary form with AIG.      We conclude Zapf violated the terms of the TRO;

therefore, the change of beneficiary was void.

       {¶18} Appellants’ first assignment of error is overruled.

                                                 II

       {¶19} In their second assignment of error, Appellants assert the trial court erred

in concluding the TRO was valid as service was never perfected upon Appellee.

Appellants explain because Appellee was never served, the action had not commenced

pursuant to Civ. R. 3(A) and the trial court did not have jurisdiction over the matter.

       {¶20} Civ. R. 3(A) provides: “A civil action is commenced by filing a complaint

with the court, if service is obtained within one year from such filing upon a named

defendant, or upon an incorrectly named defendant whose name is later corrected

pursuant to Civ.R. 15(C), or upon a defendant identified by a fictitious name whose

name is later corrected pursuant to Civ.R. 15(D).”

       {¶21} In the instant action, the divorce proceeding was not terminated due to

noncompliance with Civ. R. 3(A). Rather, the divorce proceeding was terminated due to

the death of Zapf. Zapf invoked the jurisdiction of the trial court. She filed the divorce

complaint, motioned for the TRO and requested Appellee be served. However, Zapf

died prior to Appellee being served. Zapf’s death ended the divorce proceeding by

operation of law. We find Civ. R. 3(A) does not serve to invalidate the TRO under these

circumstances.

       {¶22} Appellants’ second assignment of error is overruled.
Fairfield County, Case No. 12-CA-108                                                  8


      {¶23} The judgment of the Fairfield County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur

                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                          HON. W. SCOTT GWIN


                                          ___________________________________
                                          HON. SHEILA G. FARMER
Fairfield County, Case No. 12-CA-108                                             9


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


DOUGLAS E. VASQUEZ                         :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
PETER EZANIDIS, ESQ., ET AL.               :
                                           :
       Defendants-Appellants               :         Case No. 12-CA-108


       For the reasons stated in our accompanying Opinion, the judgment of the

Fairfield County Court of Common Pleas is affirmed. Costs to Appellants.




                                           ___________________________________
                                           HON. WILLIAM B. HOFFMAN


                                           ___________________________________
                                           HON. W. SCOTT GWIN


                                           ___________________________________
                                           HON. SHEILA G. FARMER
