[Cite as Harris v. Rossi, 2018-Ohio-4573.]




                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


FRED HARRIS, et al.,                            :       OPINION

                 Plaintiffs-Appellants/         :
                 Cross-Appellees,
                                                :       CASE NO. 2017-T-0045
        - vs -
                                                :
MICHAEL D. ROSSI, et al.,
                                                :

                 Defendants-Appellees/          :
                 Cross-Appellants.



Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CV
00836.

Judgment: Affirmed.


Antonio S. Nicholson, 3552 Northcliffe Road, Cleveland Heights, OH 44118; and Eric
L. Foster, The Law Firm of McDonald Foster, LLC, 28501 Lakeshore Boulevard, Unit
55, Euclid, OH 44132 (For Plaintiffs-Appellants/Cross-Appellees).

Randil J. Rudloff, Guarnieri & Secrest, P.L.L., 151 East Market Street, P.O. Box 4270,
Warren, OH 44482 (For Defendants-Appellees/Cross-Appellants).



THOMAS R. WRIGHT, P.J.



        {¶1}     Appellant/cross-appellee, Forest Glen Properties, LLC, appeals the trial

court’s decision entering summary judgment in favor of appellees/cross-appellants

Michael D. Rossi and Guarnieri & Secrest, PLL (collectively Rossi).         Rossi cross-
appeals from the judgment entry granting summary judgment as well as the trial court’s

decision overruling Rossi’s motion for sanctions. We affirm.

       {¶2}   This is the second time this case has been before us. The first appeal

concerned an award of attorney fees following the voluntary dismissal of the complaint.

Harris v. Rossi, 11th Dist. Trumbull No. 2016-T-0014, 2016-Ohio-7163. We explained

the procedural history in the prior case:

       {¶3}   “In 2005, [Fred] Harris contacted Rossi to pursue an action on behalf of

Forest Glen Properties, LLC against the United States Department of Housing and

Urban Development. [Rossi] filed the action in the federal court of claims on behalf of

Forest Glen Properties, LLC. The case was ultimately dismissed in 2013 based on lack

of subject matter jurisdiction. Harris was not a party plaintiff, but was one of two member

owners of Forest. Harris advised Rossi that he wanted to appeal, but the time to appeal

had passed.

       {¶4}   “In July 2014, Harris and Forest filed a malpractice suit against [Rossi]

based on their alleged failure to timely notify appellants of the dismissal and their right

to appeal. The malpractice complaint also asserted a breach of fiduciary duty claim.

       {¶5}   “[Rossi] moved for summary judgment against Harris only arguing

that Harris was not its client, and as such, he had no cause of action. [Rossi] did not

argue that Forest lacked capacity to sue in Ohio in its summary judgment motion or in

its supplemental motion for summary judgment. [Harris and Forest] eventually

responded to the summary judgment motion and subsequently voluntarily dismissed the

lawsuit without prejudice before the trial court addressed the merits of Rossi’s motions.

       {¶6}   “[Rossi] moved for attorney fees under Civ.R. 11 and R.C. 2323.51. The

trial court magistrate held a hearing and awarded attorney fees and costs under R.C.

                                            2
2323.51 only.      She found Harris, Forest and their counsel jointly and severally

responsible for Rossi’s fees and costs.” Id. at ¶2-5.

       {¶7}    Harris and Forest refiled their complaint before we issued our decision in

the prior appeal, and this appeal arises from the refiled case.

       {¶8}    Fred Harris and Forest Glen Properties, LLC refiled their complaint in the

Cuyahoga County Court of Common Pleas in April of 2016 alleging legal malpractice,

breach of fiduciary duties, and breach of contract. The refiled case was transferred to

the Trumbull County Court of Common Pleas pursuant to Rossi’s motion to transfer

based on improper venue.

       {¶9}    Following the transfer, Rossi moved the court for an order requiring Harris,

Forest, and their attorney to pay costs and expenses associated with its motion to

transfer.

       {¶10} We issued our decision on September 30, 2016 affirming in part and

reversing in part the trial court’s award of attorney fees in Rossi’s favor based on the

frivolous conduct of Harris, Forest, and their attorney at the time. Id. at ¶60.

       {¶11} Thereafter, in the present case, Fred Harris voluntarily dismissed his

claims only.

       {¶12} On December 21, 2016, the trial court granted Rossi’s request to amend

its answer instanter to include the affirmative defense that Forest Glen Properties LLC

lacked the legal capacity to file suit in Ohio because its Delaware articles of

incorporation had been canceled.        This action was also in response to our prior

decision.

       {¶13} Rossi subsequently moved for summary judgment on statute of limitations

grounds alleging that Forest’s first suit was a nullity because it lacked capacity to file its

                                              3
first lawsuit, and as such, it did not have the one-year right to refile under statute.

Accordingly, Rossi claims the statute of limitations ran.

       {¶14} Rossi filed a separate motion for summary judgment arguing that Forest

cannot prove its claims because Forest did not identify an expert witness before the

expiration of the trial court’s expert witness deadline. Thus, without an expert, Rossi

claims that Forest cannot show that a breach occurred or that but for Rossi’s

negligence, Forest would have been successful in its underlying case.

       {¶15} On April 19, 2017, the trial court granted summary judgment in Rossi’s

favor based on Forest’s lack of evidence establishing breach and proximate cause and

overruled Rossi’s motion based on statute of limitations. Both parties appeal.

       {¶16} Forest raises one assigned error:

       {¶17} “The trial court erred by granting Respondents’ motion for summary

judgment on the basis that: (1) Appellant was required to present expert testimony that

an attorney has a duty to preserve a client’s appellate rights, and (2) Appellant needed

‘further information’ other than statements of Respondent Michael D. Rossi to establish

it would have prevailed on the underlying case.”

       {¶18} Appellate courts review decisions awarding summary judgment de novo.

Northeast Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188,

191, 699 N.E.2d 534 (8th Dist.1997). We review the trial court's decision independently

and without deference, pursuant to the standards in Civ.R. 56(C). Brown v. Scioto Cty.

Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993)

       {¶19} Summary judgment is appropriate when (1) no genuine issue as to any

material   fact   exists;   (2)   the   party   moving   for summary judgment is   entitled

to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of

                                                4
the nonmoving party, reasonable minds can reach only one conclusion adverse to the

nonmoving party. Holliman v. Allstate Ins. Co., 86 Ohio St.3d 414, 415, 715 N.E.2d 532

(1999).    The initial burden is on the moving party to set forth specific facts

demonstrating that no issue of material fact exists and the moving party is entitled

to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292–293, 662

N.E.2d 264 (1996). If the movant meets this burden, the burden shifts to the nonmoving

party to establish that a genuine issue of material fact exists for trial. Id.

       {¶20} A “material fact” for summary judgment depends on the type of the claim

being litigated. Hoyt, Inc. v. Gordon & Assocs., Inc., 104 Ohio App.3d 598, 603, 662

N.E.2d 1088 (8th Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-

248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

       {¶21} “To establish a cause of action for legal malpractice based on negligent

representation, a plaintiff must show (1) that the attorney owed a duty or obligation to

the plaintiff, (2) that there was a breach of that duty or obligation and that the attorney

failed to conform to the standard required by law, and (3) that there is a causal

connection between the conduct complained of and the resulting damage or loss.”

Vahila v. Hall, 77 Ohio St.3d 421, 674 N.E.2d 1164, syllabus (1997); Ratonel v. Roetzel

& Andress, L.P.A., 147 Ohio St.3d 485, 2016-Ohio-8013, 67 N.E.3d 775, ¶6.

       {¶22} It is undisputed that Rossi and Guarnari & Secrest represented Forest in

its claim against HUD. It is likewise undisputed that Attorney Rossi and his firm did not

receive from the clerk of courts a copy of the dismissal of Forest’s complaint against

HUD, and as such, it neither appealed nor notified Forest of the dismissal within the

time to appeal.




                                               5
      {¶23} In their motion for summary judgment captioned “proximate cause,” Rossi

relies solely on Forest’s lack of an expert and the passage of the trial court’s expert

deadline. This motion raises two grounds for summary judgment. Rossi argues that

absent an expert, Forest cannot establish the standard of care and as such, cannot

show that a breach occurred. Rossi also argues that without an expert, Forest cannot

establish that it would have been successful on the merits of its appeal from the

dismissal of its complaint against HUD.

      {¶24} The trial court agreed with both arguments. It granted summary judgment

in Rossi’s favor, finding Forest lacked evidence establishing standard of care and

breach, holding that “[w]hile Plaintiff summarily asserts that Defendants negligently

failed to ‘police’ the Court of Claims docket, this Court cannot find under these

circumstances that Defendants acted negligent as a matter of law, nor could an average

juror, without expert testimony, infer that a reasonable attorney in a similar situation

would have acted differently than Defendants.”

      {¶25} As for Rossi’s proximate cause argument, the trial court held:

      {¶26} “[T]here is virtually no information before this Court regarding the

underlying case or the likelihood that Plaintiff would have prevailed on appeal. While

Plaintiff has submitted a letter in which Defendant Rossi suggested that both he and

opposing counsel in the underlying case believed Plaintiff would prevail on at least part

of its claim, the letter predates the decision of the Court of Claims, which apparently

believed otherwise * * *. Absent further information regarding the underlying case, this

Court can find no support for Plaintiff’s claim that it would have obtained a better

outcome but for Defendants’ negligence and thus suffered damages * * *.”




                                           6
       {¶27} “In order to prove that a defendant breached a legal duty, a plaintiff must

first demonstrate the standard of care from which the legal duty arises.” Brunstetter v.

Keating, 11th Dist. Trumbull No. 2002-T-0057, 2003-Ohio-3270, ¶19.

       {¶28} As stated, each of Forest’s claims stem from Rossi’s failure to notify

Forest about the dismissal of its complaint by the federal court of claims or its failure to

timely appeal the dismissal. Forest’s claimed damages for each of its claims is the

adverse judgment against it, i.e., the dismissal of its complaint against HUD by the

federal court of claims.

       {¶29} Expert testimony is required to support allegations of legal malpractice in

most cases. Id. at ¶16. The only exceptions are when the alleged negligent act is

within the ordinary knowledge of a layperson or is so clear to constitute negligence as a

matter of law. Id. citing Bloom v. Dieckmann, 11 Ohio App.3d 202, 203, 464 N.E.2d 187

(1983).

       {¶30} Here, Rossi neither filed an appeal within the time to do so nor did Rossi

notify his client within the time to appeal.     However, Rossi confirms that he never

received notice from the federal court of claims clerk of the adverse judgment against

his client. Instead, Rossi learned about the dismissal of Forest’s lawsuit only after

checking the court’s docket and only after the time during which to appeal had expired.

These facts are unchallenged.

       {¶31} In response to Rossi’s summary judgment motion, Forest provides three

reasons why it believes it does not need an expert witness to testify on its behalf. First,

Forest claims that an attorney’s failure to notify a client within the time to appeal and the

failure to timely appeal an adverse judgment within the time to do so, constitutes

apparent negligence within the ordinary knowledge of a layperson.               Forest also

                                             7
contends that Rossi essentially admitted that his conduct was erroneous, and as such,

no expert witness is needed. Finally, Forest argues that Rossi’s negligence was so

clear to constitute negligence as a matter of law, and as such, no expert was required.

       {¶32} We disagree with Forest’s contention that Rossi admitted that his conduct

was erroneous, and as such, it did not need an expert to establish the applicable

standard of care and subsequent breach.           Contrary to Forest’s argument, Attorney

Rossi testified that he did not commit malpractice. He stated on cross-examination:

       {¶33} “Q       You did testify that you believed that there was no malpractice

committed?

       {¶34} “A That is correct.

       {¶35} “* * *

       {¶36} “A The complaint was dismissed.

       {¶37} “* * *

       {¶38} “Q Okay. And was there any amount of time in which that you could have

appealed that decision?

       {¶39} “A I think it was 30 days

       {¶40} “Q Okay. And did you appeal that decision?

       {¶41} “A No.

       {¶42} “Q Why not?

       {¶43} “A I never got notice it was dismissed. The clerk never sent me the final

judgment notice. I didn’t know it was dismissed probably for months. * * * And then I

thought, * * * the appeal time runs when you’re notified of the case disposition. And

sure enough, there’s a rule in the Court of Claims that says no, that’s no defense. So

that when I realized that it couldn’t be appealed * * *.

                                              8
       {¶44} “* * *

       {¶45} “Q Mr. Rossi, did you ever refer to the docket throughout the case?

       {¶46} “* * *

       {¶47} “Q There must have been some type of electronic docket to refer to. Or

did you call the clerk to see if it had been ruled upon?

       {¶48} “A No. I expected the clerk to do his job.”

       {¶49} Although Attorney Rossi testified that he missed the deadline to file an

appeal, he did not admit that he committed malpractice. Rossi likewise did not state

that his conduct fell below the applicable standard of care for an attorney in his

situation. Thus, Forest’s contention that it established the applicable standard of care

and breach via Rossi’s admission lacks merit.

       {¶50} Notwithstanding, we agree with Forest’s third contention that Rossi’s

alleged negligence was so clear to constitute negligence as a matter of law, and as

such, no expert was required to establish the applicable standard of care and breach.

Parties have a duty to check the docket. Landmark Am., Inc. v. Jeries, 11th Dist. Lake

No. 2009-L-009, 2009-Ohio-6709, ¶28; Maynard v. Maynard, 8th Dist. Cuyahoga No.

43642, 1982 WL 2340 (Feb. 11, 1982) (appellant “was duty bound to keep abreast of

the docket entries”); In re Adoption of J.H., 9th Dist. Lorain No. 06CA008902, 2006-

Ohio-5957, ¶8 (noting that it is “well established that the parties to the case have

a duty to keep apprised of the progress of the case on the docket”). Thus, if a party has

a legal duty to check the docket, that duty likewise extends to an attorney representing

a party in pending litigation. Holschuh v. Newcomb, 11th Dist. Trumbull No. 2010-T-

0129, 2011-Ohio-6205, ¶20, citing Thomas v. Target Stores, 11th Dist. Geauga No.

2009-G-2906, 2010-Ohio-1158, at ¶21.

                                             9
      {¶51} “‘“The duty of an attorney to his client is to ‘* * * exercise the knowledge,

skill, and ability ordinarily possessed and exercised by members of the legal profession

similarly situated, and to be ordinarily and reasonably diligent, careful, and prudent in

discharging the duties he has assumed.’”’ Yates v. Brown, 185 Ohio App.3d 742, 2010-

Ohio-35, 925 N.E.2d 669, ¶ 17 (9th Dist.), quoting Palmer v. Westmeyer, 48 Ohio

App.3d 296, 298, 549 N.E.2d 1202 (6th Dist.1988), quoting 67 Ohio Jurisprudence 3d,

Malpractice, Section 9, at 16 (1986).    Rule of Professional Conduct 1.3 states that

‘[a] lawyer shall act with reasonable diligence and promptness in representing a client.’

A comment to this rule explains that ‘[d]elay and neglect are inconsistent with

a lawyer’s duty of diligence, undermine public confidence, and may prejudice a client’s

cause. Reasonable diligence and promptness are expected of a lawyer in handling all

client matters and will be evaluated in light of all relevant circumstances.       * * *’

Comment 3, Prof.Cond.R. 1.3. Given these conduct standards, it follows that

‘“attorneys are expected to keep themselves advised of the progress of their cases.’”

Yoder v. Thorpe, 10th Dist. Franklin No. 07AP–225, 2007-Ohio-5866, 2007 WL

3197394, ¶13, quoting Metcalf v. Ohio State Univ. Hosp., 2 Ohio App.3d 166, 168, 441

N.E.2d 299 (10th Dist.1981); Glick v. Glick, 133 Ohio App.3d 821, 832, 729 N.E.2d

1244 (8th Dist.1999) (quoting the same).” McCarty v. Pedraza, 2d Dist. Clark No. 2013-

CA-42, 2014-Ohio-3262, 17 N.E.3d 71, ¶8.

      {¶52} In Estate of Hards v. Walton, 8th Dist. Cuyahoga No. 93185, 2010-Ohio-

3596, the Eighth District noted two out-of-state cases in which a missed statute of

limitations was sufficient to constitute legal malpractice as a matter of law: “Kohler v.

Woollen, Brown & Hawkins (1973), 115 Ill.App.3d 455, 460, 304 N.E.2d 677 (holding

attorneys liable for malpractice for missing wrongful death filing deadline); Stanski v.

                                           10
Ezersky (App.1994), 621 N.Y.S.2d 18, 19, 210 A.D.2d 186 (finding negligent as matter

of law attorney's missing of medical malpractice filing deadline).” Id. at ¶11.

       {¶53} Here, Rossi’s failure to keep himself apprised of the status of the case and

missing a decision dismissing the case within the time to appeal is akin to an attorney

failing to file a lawsuit within the applicable statute of limitations. Thus, we agree that an

expert was not necessary as to standard of care and breach. McCarty v. Pedraza,

supra, at ¶13.      Upon construing the evidence most strongly in Forest’s favor,

reasonable minds may conclude that Rossi had a duty to check the docket and

breached it. Accordingly, the trial court erred holding otherwise.

       {¶54} Notwithstanding this error, Rossi also sought and was granted summary

judgment based on Forest’s lack of expert and consequential inability to establish the

success of its appeal and underlying case.

       {¶55} When proximate cause is in dispute, the merits of the malpractice case

often depend on the merits of the underlying case and require a plaintiff to prove the

merits of the underlying claim.      Eastminster Presbytery v. Stark & Knoll, 9th Dist.

Summit No. 25623, 2012-Ohio-900, ¶6, citing Vahila, supra, at 427-428.             However,

proving the “case within a case” is not required in every case. Id.

       {¶56} “[T]he requirement of causation often dictates that the merits of the

malpractice action depend upon the merits of the underlying case. Naturally, a plaintiff

in a legal malpractice action may be required, depending on the situation, to provide

some evidence of the merits of the underlying claim. * * * However, we cannot endorse

a blanket proposition that requires a plaintiff to prove, in every instance, that he or she

would have been successful in the underlying matter. Such a requirement would be




                                             11
unjust, making any recovery virtually impossible for those who truly have a meritorious

legal malpractice claim.” Id.

       {¶57} The Vahilas’ legal malpractice action arose following the law firm’s

representation of them in several civil matters, the representation of Terry Vahila with

respect to certain criminal charges, and the firm’s representation of Terry during an

Ohio Department of Insurance investigation. The Vahilas claimed damages as the result

of the firm’s negligent representations in the various civil, criminal, and administrative

matters. They also asserted claims for emotional distress and a loss of consortium. Id.

at 422.

       {¶58} The Supreme Court in Vahila reversed summary judgment in the law

firm’s favor despite the lack of evidence establishing that the Vahilas would have been

successful on the underlying claim. It held the case-within-a-case doctrine did not apply

because the alleged cause of the damages flowing from the malpractice in Vahila was

not success on the merits of Terry’s criminal case, but counsel’s failure to advise the

Vahilas about the implications of Terry’s criminal conviction elsewhere. Id. at 427.

       {¶59} In Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 119

Ohio St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173, ¶17-18, the Supreme Court further

explained,

       {¶60} “in holding that not every malpractice case will require that the plaintiff

establish that he would have succeeded in the underlying matter, the Vahila court

necessarily implied that there are some cases in which the plaintiff must so establish.

This is one such case.




                                           12
       {¶61} “Here, appellees' sole theory for recovery is that if the underlying matter

had been tried to conclusion, they would have received a more favorable outcome than

they obtained in the settlement.” (Emphasis sic.) Id.

       {¶62} The court in Environmental Network contrasted the case before it with the

facts in Vahila:

       {¶63} “[U]nlike the plaintiffs in Vahila, who sustained losses regardless of

whether their underlying case was meritorious, appellees here could recover only if they

could prove that they would have succeeded in the underlying case and that the

judgment would have been better than the terms of the settlement. Thus, the theory of

this malpractice case places the merits of the underlying litigation directly at issue

because it stands to reason that in order to prove causation and damages, appellees

must establish that appellant's actions resulted in settling the case for less than

appellees would have received had the matter gone to trial.” (Emphasis added.) Id. at

¶18.

       {¶64} As stated, each of Forest’s claims stem from Rossi’s failure to notify

Forest about the dismissal of its complaint by the federal court of claims, or its failure to

timely appeal the dismissal. Forest’s claimed damages for each of its claims is the

adverse judgment against it.      As in Environmental Network, the theory of Forest’s

malpractice against Rossi depends on the merits of its appeal as well as the merits of

the underlying claim against HUD.

       {¶65} Notwithstanding, Forest did not intend to present an independent expert

witness to establish the merits of its appeal from the dismissal or to show the underlying

merits of its court of claims case against HUD. Instead, Forest relied solely on a letter

drafted by Attorney Rossi to Forest in August of 2008 in which Rossi sets forth his

                                             13
opinion regarding the merits of the underlying claims. Rossi details a discussion with

the attorney representing HUD and their unofficial “agreement” as to the merits of

Forest’s claims. It states in part,

       {¶66} “We agreed in part that the Court would probably find in our favor on the

first period and against us on the third period. Regarding the second period, I submitted

that HUD offered the Receivers a contract and that, despite the absence of a signed

contract, the Receivers performed, i.e., the housing was provided. [Attorney] McGriff

countered that we never certified our applications for payment, a contract condition; that

we weren’t even close to meeting HUD’s already-low standards of living; and that such

constituted a material breach of our presumed contract, thereby excusing HUD’s

performance thereunder.”

       {¶67} Thus, Forest intends to use Rossi to testify to establish the merits of

Forest’s claims, thereby eliminating the need for an independent expert of its own. As

Forest argues, we agree that this letter coupled with Rossi’s testimony is some

evidence creating a genuine issue of fact as to the merits of Forest’s underlying claim

against HUD.

       {¶68} However, Forest fails to direct the trial court or this court to any evidence

in the record showing it would have been successful in its appeal from dismissal by the

court of claims. Absent evidence showing that Forest’s appeal from the dismissal of its

claims against HUD had merit, the potential success of its underlying claims against

HUD are of no consequence. Accordingly, summary judgment was properly entered in

Rossi’s favor as a matter of law. Forest’s sole assigned error lacks merit.

       {¶69} Rossi asserts two assignments of error in their cross-appeal:




                                           14
       {¶70} “[1.] The trial court erred in denying appellee-cross-appellants’ motion for

attorney fees as sanctions under R.C. 2323.51(A)(II) and (III) and Ohio Civ.R. 3(C)

based upon appellant intentionally refiling a legal malpractice action in Cuyahoga

County, Ohio, a place of improper venue.

       {¶71} “[2.] The trial court erred in denying appellees-cross-appellants motion for

summary judgment on the basis that appellants’ claims were barred by 2305.11(A).”

       {¶72} Because we find that summary judgment was proper under Forest’s sole

assigned error, Rossi’s second assigned error that alleges that summary judgment was

warranted on an alternative basis is moot. App.R. 12(A)(1)(c); In re Stapler, 107 Ohio

App.3d 528, 532, 669 N.E.2d 77 (8th Dist.1995).

       {¶73} Rossi argues in their first assigned error that the trial court abused its

discretion in failing to award attorney fees as sanctions under R.C. 2323.51 because

Forest intentionally refiled its complaint in the wrong county, which constitutes frivolous

conduct.

       {¶74} Rossi moved the trial court for an order requiring Harris, Forest, and their

attorney to pay costs and expenses pursuant to R.C. 2323.51 and Civ.R. 11, not Civ.R.

3. Rossi does not lodge error on appeal based on Civ.R. 11, and as such, we do not

address it.

       {¶75} The standard of review employed by an appellate court when reviewing

rulings on R.C. 2323.51 motions varies and is contingent upon the basis for the trial

court's decision. Groves v. Groves, 10th Dist. Franklin No. 09AP-1107, 2010-Ohio-

4515, 2010 WL 3722641, ¶18, abrogated on other grounds by Jacobson v. Kaforey, 149

Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203. Here, our standard of review is mixed

since Rossi alleged that the conduct was designed merely to harass or maliciously

                                            15
injure Rossi. Crooks v. Consolidated Stores Corp., 10th Dist. Franklin No. 98AP-83,

1999 WL 52981, *3-4 (Feb. 4, 1999).

      {¶76} The trial court's initial decision that Forest’s conduct was not frivolous in

this case was a factual determination, which we will not disturb where the trial court's

findings are supported by competent, credible evidence. Id. However, upon finding

frivolous conduct, the decision to assess a penalty for frivolous conduct lies within the

trial court's discretion, and as such, we review the trial court’s decision not to impose

sanctions for an abuse of discretion. Stevenson v. Bernard, 11th Dist. Lake No. 2006-L-

096, 2007-Ohio-3192, 2007 WL 1810487, ¶39; State ex rel. DiFranco v. South Euclid,

144 Ohio St.3d 571, 2015-Ohio-4915, 45 N.E.3d 987, ¶13.

      {¶77} “‘[T]he term “abuse of discretion” is one of art, connoting judgment

exercised by a court, which does not comport with reason or the record.’ State v.

Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-2089, 2009 WL 1177050, ¶ 30,

citing State v. Ferranto, 112 Ohio St. 667, 676–678, 148 N.E. 362 (1925). ‘* * * where

the issue on review has been confined to the discretion of the trial court, the mere fact

that the reviewing court would have reached a different result is not enough, without

more, to find error.’ [State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, 2010

WL 1731784,] ¶67.” Ivancic v. Enos, 11th Dist. Lake No. 2011-L-050, 2012-Ohio-3639,

978 N.E.2d 927, ¶70.

      {¶78} Thus, absent a clear abuse of discretion, i.e., a finding that the trial court

failed “to exercise sound, reasonable, and legal decision-making[,]” we must affirm. Id.

      {¶79} R.C. 2323.51(B)(1) provides:

      {¶80} “[A]ny party adversely affected by frivolous conduct may file a motion for

an award of court costs, reasonable attorney's fees, and other reasonable expenses

                                           16
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 * * *.”

       {¶81} Rossi claims that the conduct here was frivolous as defined in R.C.

2323.51(A)(2)(a)(i), which defines “frivolous conduct,” in part, as:

       {¶82} “(a) Conduct of [a] party to a civil action, * * * that satisfies any of the

following:

       {¶83} “(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.”

       {¶84} As stated, Fred Harris and Forest Glen Properties, LLC refiled their

complaint in the Cuyahoga County Court of Common Pleas after voluntarily dismissing

their complaint that was pending in the Trumbull County Court of Common Pleas. The

refiled case was eventually transferred to the Trumbull County Court of Common Pleas

on May 13, 2016 following Rossi’s motion to transfer based on improper venue.

       {¶85} Rossi then moved the trial court for an order requiring Harris, Forest, and

their attorney to pay costs and expenses associated with Rossi’s motion to transfer.

       {¶86} At the hearing, Rossi established that the instant action was refiled in the

Cuyahoga County Court of Common Pleas, which is none of the counties identified in

Civ.R. 3(B)(1)-(11) as the proper venue.

       {¶87} The testimony at the motion for sanctions hearing reveals that Forest and

Fred Harris had different counsel in their prior case and appeal, and that Attorney

Antonio Nicholson represented them at the time the case was refiled.               Nicholson

testified that he was aware that the lawsuit he was filing was a refiled lawsuit that had

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previously been pending in Trumbull County, Ohio. And at the time of his refiling the

complaint in Cuyahoga County, Nicholson was aware that the defendant resided in and

had his principal place of business in Trumbull County.       In response to discovery,

Nicholson advised that he refiled the suit in Cuyahoga County for the plaintiff’s

convenience since Harris lived there.

        {¶88} However, Nicholson testified that the alleged malpractice that forms the

basis for Forest’s complaint arose via a lawsuit that was filed and dismissed by a federal

court in Cuyahoga County.        Nicholson explained that the malpractice occurred in

Cuyahoga County because that was where Rossi failed to file the appeal. But upon

being advised that the United States Court of Federal Claims is located in Washington,

D.C., Nicholson retracted his statement that the HUD complaint had been filed and

dismissed in a Cuyahoga County federal court.

        {¶89} Thereafter, Nicholson still felt that filing suit in Cuyahoga County was

acceptable since Fred Harris signed the attorney-client representation agreement in

Cuyahoga County.

        {¶90} Based on the foregoing, we find competent, credible evidence supporting

the trial court’s decision finding that Forest did not refile the suit in Cuyahoga County

“merely to harass or maliciously injure” or for “another improper purpose, including, but

not limited to, causing unnecessary delay or a needless increase in the cost of

litigation.”   R.C. 2323.51(A)(2)(a)(i).   Moreover, because improper venue is an

affirmative defense that is waived if not raised, we are reluctant to find that even the

intentional filing of a complaint in the wrong venue constitutes frivolous conduct. Civ.R.

12(H)(1).




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         {¶91} In light of its no frivolous conduct finding, the trial court’s decision not to

award sanctions comports with reason and the record.

         {¶92} Rossi also argues that the trial court erred in holding that Rossi should

have sought its fees and costs from the transferor court, the Cuyahoga County Court of

Common Pleas. As Rossi contends, the magistrate alternatively concludes that Rossi

should have sought its costs and attorney fees from the Cuyahoga County Court of

Common Pleas, and that it declines to extend R.C. 2323.51 and Civ.R. 11 to cover

Rossi’s allegations. The magistrate cites Welfare Fin. Corp. v. Burd, 4th Dist. Lawrence

No. 1410, 1980 WL 351070, *1 (Aug. 6, 1980), for the proposition that Civ.R. 3(C)(2)

authorizes only the transferor court, not the transferee court, to award costs and

attorney fees following a motion to transfer based on improper venue. Because Rossi

did not move for fees under Civ.R. 3(C), the trial court’s findings are inconsequential

dicta.

         {¶93} Notwithstanding, Civ.R. 3(C)(2) states:

         {¶94} “When an action is transferred to a county which is proper, the court may

assess costs, including reasonable attorney fees, to the time of transfer against the

party who commenced the action in a county other than stated to be proper in division

(B) of this rule.”

         {¶95} We agree with Rossi’s argument that a plain reading of Civ.R. 3(C)(2)

permits either the transferee or transferor court to assess fees and costs. This finding is

consistent with the Tenth District Court of Appeals. State ex rel. Paul v. Ohio State

Racing Com'n, 60 Ohio App.3d 112, 574 N.E.2d 587 (10th Dist.1989), paragraph two of

the syllabus; Northwestern Ohio Bldg. & Const. Trades Council v. Conrad, 10th Dist.

Franklin No. 98AP-1287, 2000 WL 64303, *6 (Jan. 27, 2000), reversed on other

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grounds by Northwestern Ohio Bldg. & Constr. Trades Council v. Conrad, 92 Ohio St.3d

282, 2001-Ohio-190, 750 N.E.2d 130. Thus, the trial court erred as a matter of law

upon finding that Rossi could not recover fees from it under Civ.R. 3, but instead should

have sought its fees and costs from the Cuyahoga County Court of Common Pleas.

       {¶96} However, Rossi’s motion sought sanctions under Civ.R. 11 or R.C.

2323.51 as sanctions for frivolous conduct. For reasons unbeknownst, they did not

move for fees under Civ.R. 3(C)(2) and this issue is waived. Quick v. Jenkins, 7th Dist.

Columbiana No. 13 CO 4, 2013-Ohio-4371, ¶27 citing Litva v. Richmond, 172 Ohio

App.3d 349, 2007–Ohio–3499, 874 N.E.2d 1243, ¶18 (7th Dist.). Thus, the trial court’s

erroneous holding that Civ.R. 3(C)(2) provided Rossi an avenue of relief only in

Cuyahoga County was of no consequence and did not result in prejudice. And because

its decision finding no frivolous conduct is supported by competent, credible evidence

and not an abuse of discretion, Rossi’s first assigned error lacks merit and is overruled.

       {¶97} The trial court’s decisions are affirmed.



CYNTHIA WESTCOTT RICE, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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