[Cite as Mitchell v. Babickas, 2018-Ohio-383.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105294




                                   LUANN MITCHELL
                                                       PLAINTIFF-APPELLANT

                                                 vs.


                            AUSRA BABICKAS, ET AL.
                                                       DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-15-847533

        BEFORE: Kilbane, J., E.A. Gallagher, A.J., and Jones, J.

        RELEASED AND JOURNALIZED:                      February 1, 2018
APPELLANT

Luann Mitchell
375 Balmoral Drive
Richmond Heights, Ohio 44143



ATTORNEYS FOR APPELLEES

For Ausra Babickas

David P. Stadler
Paul Morway
Ankuda, Stadler & Moeller, L.T.D.
1120 Oswald Centre
1100 Superior Avenue, East
Cleveland, Ohio 44114

For E.G. Systems, Inc.

Michael Charlillo
Ulmer & Berne, L.L.P.
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113

Sean T. Needham
101 West Prospect Avenue, Suite 1400
Cleveland, Ohio 41157

For Scotts Lawn Service

Brian D. Sullivan
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115
MARY EILEEN KILBANE, J.:

       {¶1} Plaintiff-appellant, Luann Mitchell (“Mitchell”), pro se, appeals from the

trial court’s decision granting summary judgment in favor of defendant-appellee, E.G.

Systems, Inc., d.b.a. Scotts Lawn Service (“Scotts”) and finding Mitchell to be a

vexatious litigator.1 For the reasons set forth below, we affirm.

       {¶2} The instant appeal arises from the third complaint Mitchell has brought,

individually or on behalf of LAME, Inc., against Scotts and her neighbor,

defendant-appellee, Ausra Babickas (“Babickas”), for damages Mitchell alleges to have

sustained when Scotts allegedly trespassed on residential property located at 375

Balmoral Drive in Richmond Heights, Ohio, and negligently spread chemicals and

fertilizer that destroyed the lawn and shrubbery.

       {¶3} The facts and underlying procedure of this appeal has been set forth by this

court in LAME, Inc. v. E.G. Sys., Inc., 8th Dist. Cuyahoga No. 101566, 2015-Ohio-686, as

follows:

       On April 18, 2012, LAME filed a complaint against Scott[s] for damages
       incurred when Scott[s] allegedly trespassed on residential property located
       at 375 Balmoral Drive in Richmond Heights, Ohio, and negligently spread
       chemicals and fertilizer that destroyed the lawn and shrubbery. Scott[s]
       filed an answer denying the allegations and asserting that LAME lacked
       standing to maintain the action. Additionally, on January 11, 2013,
       counsel for Scott sent a letter to LAME’s counsel advising that LAME was
       not the legal or equitable owner of the Balmoral Drive property as

       1Mitchell  was admitted to practice law in the state of Ohio in 1983, but as of
the date of this opinion, her license is under suspension.
evidenced by a judgment in earlier court proceedings involving LAME, and
that LAME therefore lacked standing to pursue the action. Two weeks
later, LAME voluntarily dismissed its complaint.

Nevertheless, on August 14, 2013, LAME filed a second complaint against
Scott[s], asserting the same claims relating to Scott[s] alleged trespass and
negligent action regarding the Balmoral Drive property. Scott[s] filed an
answer in which it again asserted that LAME lacked standing to pursue the
action. Additionally, on September 4, 2013, counsel for Scott[s] sent
LAME’s counsel a letter again advising that LAME did not hold valid title
to the Balmoral Drive property and requesting immediate dismissal of the
complaint. LAME did not respond to the letter and did not dismiss its
complaint, but instead continued to litigate its claims.

On March 5, 2014, three months before the scheduled trial date, LAME
filed a motion to amend its complaint, seeking to add Luann Mitchell as a
new-party plaintiff. Scott[s] filed a brief in opposition to LAME’s
motion. Subsequently, Scott[s] filed a motion for summary judgment in
which it argued that it was entitled to judgment as a matter of law because
(1) LAME lacked standing to pursue its claims because it had no ownership
interest in the Balmoral Drive property; and (2) even if she were joined as a
party, Mitchell lacked standing and was estopped from pursuing any claims
against Scott[s].

As support for its summary judgment motion, Scott[s] offered the following
evidence. On July 31, 1989, the Balmoral Drive property was conveyed to
Mitchell via warranty deed. On June 13, 2005, Western Reserve Area
Agency on Aging (“WRAAA”) filed a post-judgment motion for attorney
fees against Mitchell in Cuyahoga County Probate Court, based on
Mitchell’s frivolous commencement and prosecution since 2002 of an
action against WRAAA. On December 30, 2005, while the motion for fees
was pending and in an apparent effort to avoid execution against the
property, Mitchell tried to transfer the Balmoral Drive property via quit
claim deed to LAME. On November 30, 2006, the probate court granted
the motion for attorney fees and entered judgment against Mitchell in the
amount of $32,154.79 plus post-judgment interest at the statutory rate. The
judgment was subsequently reduced to a lien on the property.

In 2009, WRAAA filed a complaint for declaratory judgment, fraudulent
transfer, and foreclosure of judgment lien against Mitchell and LAME.
Western Reserve Area Agency on Aging v. Mitchell, Cuyahoga C.P. No.
CV-09-694799 (Apr. 19, 2013). Among other claims, WRAAA sought a
declaratory judgment that the quit claim deed filed on December 30, 2005,
purporting to transfer the Balmoral Drive property from Mitchell to LAME
was void and therefore ineffective to transfer any interest to LAME, and a
decree of foreclosure based upon its judgment lien.

On January 31, 2011, a magistrate in the foreclosure case issued a
magistrate’s decision granting judgment to WRAAA on its count for
declaratory judgment. Specifically, the magistrate’s decision stated that
“LAME, Inc. was not, and isnot, a legal entity capable of holding legal
title or of being served.” The decision found that LAME, Inc. was nothing
more than a trade name, and the name had not been filed until February 19,
2010, well after the attempted transfer by quit claim deed. The decision
further found that “[e]ven if LAME, Inc. had been a valid trade name when
the quit claim deed was recorded, it was not, and never has been, an entity
capable of holding title to real property.” Accordingly, the magistrate ruled
that “the quit claim deed purporting to transfer Mitchell’s interest to LAME
is void and ineffective to transfer any interest in the property.” The
decision also granted judgment to WRAAA on its claim for foreclosure on
the Balmoral Drive property. The trial court adopted the magistrate’s
decision on April 19, 2013, and subsequently ordered the marshaling of
liens and sale of the property.

Throughout the foreclosure proceedings, Mitchell claimed that she had no
ownership interest in the property and that LAME held exclusive title such
that WRAAA had no right in foreclosure. But presumably sensing the loss
of the property, on June 24, 2013, Mitchell filed a voluntary petition in
bankruptcy under Chapter7 in the United States Bankruptcy Court for the
Northern District of Ohio. In re: Mitchell, N.D. Ohio Case No.
13-14494-aih. On Schedule A of the bankruptcy petition, Mitchell
represented for the first time that she held fee simple title to the Balmoral
Drive property. She included the property on Schedule C of the petition
seeking a homestead exemption under R.C. 2329.66(A)(1). Notably, the
petition did not schedule any claim or cause of action against Scott[s].

An order of discharge was entered in the bankruptcy case on October 2,
2013. Subsequently, on April 30, 2014, Mitchell secured the homestead
exemption on the property. In the interim, LAME had filed the two
complaints against Scott[s] regarding the Balmoral Drive property.

On May 2, 2014, the trial court in this case issued a judgment entry and
opinion denying LAME’s motion to amend the complaint to add Mitchell as
the real party in interest, and granting Scott[s’] motion for summary
       judgment. The trial court found that LAME’s motion to amend was filed
       after the close of discovery, three months prior to trial, and almost two years
       after the filing of the original complaint. Accordingly, the trial court ruled
       that under Civ.R. 17, LAME’s motion was untimelyand allowing
       amendment would cause substantial hardship to Scott[s].

       With respect to Scott[s’] motion for summary judgment, the trial court
       noted that the magistrate’s decision entered on January 31, 2011, in the
       foreclosure case specifically found that LAME “was not and is not a legal
       entity capable of holding legal title or of being served,” and that the trial
       court in that case had subsequently adopted the magistrate’s decision.
       Accordingly, the trial court found that “[i]t has been previously determined,
       and no issue of fact remains, that LAME never received legal or equitable
       title in the property. LAME, therefore, has no interest in claims asserted
       against Scott[s].” The trial court therefore granted Scott[s’] motion for
       summary judgment.

Id. at ¶ 2-11.

       {¶4} On appeal, LAME argued that the trial court erred in denying its motion for

leave to amend its complaint and in granting Scotts’ motion for summary judgment. We

held that the trial court did not abuse its discretion in finding LAME’s motion to amend

untimely and prejudicial to Scotts’ ability to defend the case because “LAME knew it

lacked standing but waited to try to amend until the eve of trial.” Id. at ¶ 19. We further

held that the trial court properly granted Scotts’ motion for summary judgment as LAME

lacked standing to pursue any claims against Scotts and reasonable minds could only

conclude that Scotts was entitled to judgment as a matter of law. Id. at ¶ 22.

       {¶5} We also acknowledged that even if Mitchell were joined as a party, she is

not the real party in interest. We stated that

       [t]he moment Mitchell filed her petition in the bankruptcy case, any and all
       claims, whether asserted or unasserted, became the property of the
       bankruptcy estate. Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705, 83
       L.Ed.2d 649, fn. 12 (1985); In re Cottrell, 876 F.2d 540, 542 (6th
       Cir.1989). The bankruptcy trustee is the representative of the estate, with
       the capacity to sue or be sued. 11 U.S.C. §323 (2014). Thus, the
       bankruptcy trustee, not Mitchell, has exclusive authority to maintain a cause
       of action against Scott[s]. Moreover, because Mitchell did not disclose any
       claim against Scott[s] in her bankruptcy petition, she is estopped from
       pursuing them in this action. Bruck Mfg. Co. v. Mason, 84 Ohio App.3d
       398, 616 N.E.2d 1168 (8th Dist.1992) (longstanding bankruptcy tenet
       requires a debtor to disclose any litigation likely to arise in a
       non-bankruptcy context; failure to do so triggers equitable estoppel,
       operating against a subsequent attempt to prosecute the claim).

Id. at ¶ 23.

       {¶6} Following our decision, Mitchell filed a third action (the current action)
against Scotts in June 2015, raising the same allegations as the previous two complaints.
Mitchell also included a negligence claim against Babickas. In response to Mitchell’s
pro se complaint, Scotts filed an answer and a counterclaim seeking a declaration that
Mitchell is a vexatious litigator. Babickas filed a motion for judgment on the pleadings,
which was granted by the trial court in October 2015. Scotts moved for summary
judgment on Mitchell’s claims. The trial court granted the motion, relying on our
opinion in LAME, Inc. and 11 U.S.C. 541. In light of the trial court’s rulings, the only
claim remaining was Scotts’ counterclaim (vexatious litigator) against Mitchell.

       {¶7} Scotts moved for summary judgment on its counterclaim in September 2015

which was unopposed by Mitchell. In November 2015, the trial court granted Scotts’

motion, finding Mitchell to be a vexatious litigator. The court, under the authority

prescribed in R.C. 2323.52, imposed the following restrictions against Mitchell:

       Mitchell is prohibited from instituting legal proceedings in the court of
       claims, a court of common pleas, municipal or county court without first
       obtaining leave of the court. This order shall remain effective for a period
       of 6 months from the date of this judgment. * * * [T]he clerk of court shall
       send a certified copy of this order to the Supreme Court for publication as
       dictated by [R.C.2323.52(H)].

       {¶8} It is from this order that Mitchell appeals, raising the following four

assignments of error for review, which shall be discussed out of order for ease of analysis.
                                 Assignment of Error One

       The trial court erred by relying on federal bankruptcy filings, [Mitchell’s]
       conduct as a licensed attorney while representing her clients, and the
       conduct of [her former attorney] to conclude that [Mitchell] qualified as a
       vexatious litigator in violation of [R.C. 2323.52(A)(3)].

                                 Assignment of Error Two

       The trial court erred in holding that the [Sean] Needham affidavit satisfied
       [Civ.R. 56(E)] of the Ohio Rules of Civil Procedure.

                                Assignment of Error Three

       The trial court erred to the prejudice of [Mitchell] when it failed to act upon
       [Mitchell’s] notice and ensure that she received service of all recorded
       filings in compliance with due process of law.

                                 Assignment of Error Four

       The denial of [Mitchell’s] motion to hold the case in abeyance based on her
       pregnancy illness was an abuse of the trial court’s discretion and had a
       prejudicial effect on [Mitchell.]

                                          Service

       {¶9} In the third assignment of error, Mitchell argues the court erred when it

failed to act upon her notice that she did not receive proper notice of any of Scotts’

filings, including Scotts’ motion for summary judgment on its vexatious litigator

counterclaim. As a result, she contends that she was not able to file a timely brief in

opposition.

       {¶10} We note that where a party follows the Ohio Civil Rules governing service

of process, there is a presumption that service is proper unless the other party rebuts this

presumption with sufficient evidence of nonservice. (Citations omitted.) McWilliams v.
Schumacher, 8th Dist. Cuyahoga Nos. 98188, 98288, 98390, 98423, 2013-Ohio-29, ¶

49-50, citing Rafalski v. Oates, 17 Ohio App.3d 65, 66, 477 N.E.2d 1212 (8th Dist.1984),

and PFG Ventures, L.P. v. King, 8th Dist. No. 95352, 2011-Ohio-1248, ¶ 4 (the “motion

for summary judgment contained a certificate of service as required by Civ.R. 5(D) and

there is no evidence that the motion had been returned indicating failure of delivery, so

there is a rebuttable presumption of proper service.”) In order to rebut the presumption

of proper service, the other party must produce evidentiary-quality information

demonstrating that he or she did not receive service. Thompson v. Bayer, 5th Dist.

Fairfield No. 2011-CA-00007, 2011-Ohio-5897, ¶ 23.

      {¶11} In the instant case, Scotts’ motion for summary judgment contained a

certificate of service as required by Civ.R. 5(D). There is no evidence in the record that

the motion had been returned to Scotts indicating failure of delivery. Accordingly, there

is a rebuttable presumption of proper service, and Mitchell did not rebut this presumption

by producing evidentiary-quality information demonstrating she did not receive service of

the motion.

      {¶12} Therefore, the third assignment of error is overruled.

                                   Summary Judgment

      {¶13} In the first and second assignment of error, Mitchell challenges the trial

court’s ruling in favor of Scotts’ motion for summary judgment.

      {¶14} We review an appeal from summary judgment under a de novo standard of

review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671
N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706

N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367,

369-370, 1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme Court set forth the

appropriate test as follows:

       Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is
       no genuine issue of material fact, (2) the moving party is entitled to
       judgment as a matter of law, and (3) reasonable minds can come to but one
       conclusion and that conclusion is adverse to the nonmoving party, said party
       being entitled to have the evidence construed most strongly in his favor.
       Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, 653
       N.E.2d 1196, paragraph three of the syllabus. The party moving for
       summary judgment bears the burden of showing that there is no genuine
       issue of material fact and that it is entitled to judgment as a matter of law.
       Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d
       264.

       {¶15} Once the moving party satisfies its burden, the nonmoving party “may not

rest upon the mere allegations or denials of the party’s pleadings, but the party’s response,

by affidavit or as otherwise provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio

St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of

the nonmoving party.           Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359,

1992-Ohio-95, 604 N.E.2d 138.

       {¶16} Mitchell argues that the trial court considered matters outside the purview of

R.C. 2323.52. She further argues the affidavit by Sean Needham, which was attached to

Scotts’ motion for summary judgment, was unauthenticated and not based on personal

knowledge. However, as stated above, Mitchell did not file a brief in opposition to
Scotts’ motion for summary judgment. Therefore, these arguments are made for the first

time on appeal.    Since these arguments were not before the trial court, we cannot

consider them here for the first time. Wallace v. Spitzer Motor City, Inc., 8th Dist.

Cuyahoga Nos. 63413 and 63538, 1993 Ohio App. LEXIS 3912, *7 (Aug. 12, 1993).

Furthermore, the failure to move to strike or otherwise object to documentary evidence

submitted by a party in support of, or in opposition to, a motion for summary judgment

waives any error in considering that evidence under Civ.R. 56(C). Home Bank, F.S.B. v.

Papadelis, 8th Dist. Cuyahoga Nos. 87527, 87528, 87529, and 87530, 2006-Ohio-5453, ¶

31, citing Stegawski v. Cleveland Anesthesia Group, Inc., 37 Ohio App.3d 78, 83, 523

N.E.2d 902 (8th Dist.1987).

       {¶17} Notwithstanding Mitchell’s lack of response to Scotts’ motion for summary

judgment, Scotts is not entitled to summary judgment absent proof that such judgment is,

pursuant to Civ.R. 56(C), appropriate. Wallace at *3-5 (Aug. 12, 1993), citing Morris v.

Ohio Cas. Ins. Co., 35 Ohio St.3d 45, 517 N.E.2d 904 (1988).

       {¶18} In the instant case, a review of the evidence submitted by Scotts

demonstrates that Mitchell is a vexatious litigator. A “vexatious litigator” is

       any person who has habitually, persistently, and without reasonable grounds
       engaged in vexatious conduct in a civil action or actions, whether in the
       court of claims or in a court of appeals, court of common pleas, municipal
       court, or county court, whether the person or another person instituted the
       civil action or actions, and whether the vexatious conduct was against the
       same party or against different parties in the civil action or actions.
R.C. 2323.52(A)(3). This definition includes a person who is authorized to practice law

in this state and is representing or has represented his or herself pro se in the civil action.

Id.

       {¶19} “Vexatious conduct” includes a party’s civil-action conduct that “(a) * * *

obviously serves merely to harass or maliciously injure another party to the civil action”

or that “(b) * * * is not warranted under existing law and cannot be supported by a good

faith argument for an extension, modification, or reversal of existing law” or that is “(c) *

* * imposed solely for delay.” R.C. 2323.52(A)(2). “Conduct” includes filing a civil

action or asserting a claim, defense, or other position. R.C. 2323.51(A)(1)(a).

       {¶20} As the Ohio Supreme Court stated in Mayer v. Bristow, 91 Ohio St.3d 3,

740 N.E.2d 656 (2000):

       The purpose of the vexatious litigator statute is clear. It seeks to prevent
       abuse of the system by those persons who persistently and habitually file
       lawsuits without reasonable grounds and/or otherwise engage in frivolous
       conduct in the trial courts of this state. Such conduct clogs the court
       dockets, results in increased costs, and oftentimes is a waste of judicial
       resources — resources that are supported by the taxpayers of this state.
       The unreasonable burden placed upon courts by such baseless litigation
       prevents the speedy consideration of proper litigation.

Id. at 13, quoting Cent. State Transit Auth. v. Timson, 132 Ohio App.3d 41, 50, 724

N.E.2d 458 (10th Dist.1998).

       {¶21} The evidence submitted to the trial court clearly demonstrated a pattern of

conduct engaged in by Mitchell designed to harass Scotts. Mitchell filed or caused to be

filed three separate actions against Scotts all based upon identical facts. Mitchell insisted

on continuing to force Scotts to incur time and expense defending these actions, despite
this court determining that both her claims and the claims of her company, LAME, were

without merit. LAME.

          {¶22} This evidence, when construed most strongly in Mitchell’s favor, leads

reasonable minds to one conclusion, and that conclusion is adverse to Mitchell.

Therefore, we find that the trial court properly granted summary judgment in favor of

Scotts.

          {¶23} Accordingly, the first and second assignments of error are overruled.

                               Motion to Hold Case in Abeyance

          {¶24} In the fourth assignment of error, Mitchell argues the trial court abused its

discretion when it denied her Civ.R. 6(B)(2) motion to hold the case in abeyance because

of her pregnancy illness.

          {¶25} In granting or denying motions to hold case in abeyance under Civ.R.

6(B)(2), trial courts have broad discretion, and the trial court’s decision will not be

disturbed absent an abuse of that discretion. State ex rel. Lindenschmidt v. Butler Cty.

Bd. of Commrs., 72 Ohio St.3d 464, 465, 650 N.E.2d 1343 (1995). Specifically, the trial

court must evaluate all the surrounding facts and circumstances and must be mindful that

cases should be decided, where possible, on the merits rather than on procedural grounds.

 Lindenschmidt at 466, citing Marion Prod. Credit Assn. v. Cochran, 40 Ohio St.3d 265,

271, 533 N.E.2d 325 (1988).

          {¶26} Here, the trial court properly considered all the surrounding circumstances:

Mitchell’s prior conduct as a licensed attorney, the disciplinary sanctions levied against
her, and her conduct as a pro se litigant. Based on the foregoing, the trial court properly

exercised its discretion in proceeding with the case.

       {¶27} Therefore, the fourth assignment of error is overruled.

       {¶28} Judgment is affirmed.

       It is ordered that appellees recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


MARY EILEEN KILBANE, JUDGE

EILEEN A. GALLAGHER, A.J., and
LARRY A. JONES, SR., J., CONCUR
