COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67044 : ANN L. BELL : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : GLENN V. BELL, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT MARCH 16, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 234979 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES GLENN V. BELL and MICHAEL A. SHORE, ESQ. LARRY I. MADORSKY: 23200 Chagrin Blvd. Beachwood, Ohio 44122 MICHAEL A. PARTLOW, ESQ. Morganstern, Macadams & Devito Co., Burgess Building Suite 400, 1406 West Sixth St. FOR DEFENDANT-APPELLEE Cleveland, Ohio 44113 VIRGINIA A. BELL: JOHN A. DEMER, ESQ. 1215 Superior Ave. Suite 410 Cleveland, Ohio 44114 -2- PATRICIA ANN BLACKMON, J: Ann Bell, plaintiff-appellant, appeals the decision of the trial court granting summary judgment in favor of Larry I. Madorsky, defendant-appellee, on Bell's claims of tortious conduct, civil conspiracy, and abuse of process. Ann Bell assigns the following error for our review: THE TRIAL COURT'S DECISION TO GRANT THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT- APPELLEE LARRY I. MADORSKY CONSTITUTES REVERSIBLE ERROR. Larry Madorsky files the following cross-assignment of error for our review: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT ON THE BASIS THAT THE APPELLANT'S CLAIMS ARE NOT BARRED BY THE DOCTRINE OF COLLATERAL ESTOPPEL. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. This action arises out of a divorce proceeding between Ann Bell and Glenn Bell, defendants-appellees, in which Madorsky represented Glenn Bell. Ann Bell filed this action against Glenn Bell, Madorsky, and Virginia Bell, defendants-appellees. Virginia Bell was married to Glenn Bell during the pendency of post-decree proceedings. The facts of this case involve the resolution of post-decree motions in the divorce proceedings. On December 30, 1988, James M. Wilsman represented Glenn Bell in the divorce proceeding and informed Ann Bell's counsel that -3- Glenn Bell had been terminated by his employer, Manfredi Motor Transit Company. On March 14, 1989, William K. McCarter represented Glenn Bell, and filed a motion to modify child support and alimony. In the attached affidavit, Glenn Bell represented he had been terminated from employment with Manfredi effective January 6, 1989. On May 19, 1989, McCarter sent a letter to plaintiff's counsel in an attempt to settle the motion to modify, and reiterated that Glenn Bell had lost his employment with Manfredi. On January 26, 1990, the first motion to modify was settled, and Madorsky was attorney of record for Glenn Bell. On August 8, 1991, Madorsky filed the second motion to modify child support on behalf of Glenn and Virginia Bell, and subsequently, represented Virginia Bell at a deposition. In deposition, Virginia Bell testified she was the owner of the Hacienda Mexican Restaurant, and her husband, Glenn Bell, had no financial stake in the venture. According to her testimony, Glenn Bell merely assisted her with planning and negotiating with contractors and architects. However, in several documents involving the design and construction of the restaurant, Glenn Bell represented himself to be the owner. A "telecopy cover letter" from the architect for the restaurant to Mark Silberman reveals Silberman represented the restaurant. In an action filed by a contractor against the restaurant and Glenn and Virginia Bell, Silberman filed an answer -4- on behalf of all of the defendants. Silberman and Madorsky had law 1 offices at the same address. On December 19, 1991, counsel for Ann Bell deposed personnel from Manfredi, and learned Glenn was not terminated in 1988, but was employed at the company until March 31, 1991 when he voluntarily quit. They also learned Glenn Bell made arrangements to be an independent contractor for Manfredi after he quit and to be paid through MGM Financial Services, Inc. Madorsky averred he had no personal knowledge of Glenn Bell's employment status with Manfredi, his income, or involvement with the Hacienda Mexican Restaurant and MGM Financial, Inc. He further averred he never refused to execute a deed relinquishing Glenn and Virginia Bell's interest in the former marital residence of Glenn and Ann Bell. In a deposition, Virginia Bell testified she caused the delay in the execution of the deed. She did not sign the deed because Ann Bell refused to sign Glenn Bell's income tax papers. As a consequence of Glenn Bell's misrepresenting his income and financial resources, he was convicted of two counts of perjury in Lake County Common Pleas Court. 1 A reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter. State v. Ishmail (1978), 54 Ohio St.2d 402 at paragraph one of the syllabus. Furthermore, an exhibit attached to an appellate brief cannot be considered as part of the record on appeal. Middletown v. Allen (1989), 63 Ohio App.3d 443, 449. Counsel for Ann Bell attached a document to her brief purportedly to show Madorsky and Silberman were law partners. Because the document was neither a part of the trial court's proceeding, nor filed under App.R. 9, it is not part of the record on appeal. -5- Ann Bell filed the civil action sub judice seeking to recover from Glenn and Virginia Bell, and Madorsky for tortious conduct, civil conspiracy, and abuse of process. The defendants moved for summary judgment. Summary judgment was granted in part and denied in part to Glenn and Virginia Bell and their cases are still pending in the trial court. Summary judgment was granted in favor of Madorsky on all claims, the case was certified under Civ.R. 54(B), and this appeal followed. The sole issue before this court is whether the trial court erred in granting summary judgment in favor of Larry Madorsky. Ann Bell reasons summary judgment should have been denied because her first amended complaint states three valid causes of action; tortious conduct, civil conspiracy, and abuse of process, and they are supported by the evidence. Although Ann Bell argues the merits of the evidence against Glenn and Virginia Bell, the only judgment on appeal is the summary judgment granted in favor of Madorsky. The standard of review for an appeal from summary judgment is plenary. This court applies the same test as the trial court, which test is set forth in Civ.R. 56, and we evaluate the record according to Civ.R. 56. Civ.R. 56 specifically provides before summary judgment may be granted it must be determined that: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclu- sion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. -6- Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmovant. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. Under Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. Ann Bell argues count one of her complaint for tortious conduct states a valid cause of action supported by the evidence presented in opposition to summary judgment. We disagree. "Tortious conduct" is a term of art used to describe a wrongful act or a tort. See Black's Law Dictionary (6 Ed.1990) 2 1489. Id. Any act or omission, whether intentional, reckless, or negligent may constitute "tortious conduct." See Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 100, fn 3. Thus, "tortious conduct" is not, in and of itself, a particular cause of action. 2 In Black's Law Dictionary, supra, "Tortious" has been defined as "Wrongful; of the nature of a tort. The word 'tortious' is used throughout the Restatement, (Second) of Torts, to denote the fact that conduct whether of act or omission is of such character as to subject the actor to liability, under the principles of the law of torts. (Section 6). To establish 'tortious act' plaintiff must prove not only existence of actionable wrong, but also that damages resulted therefrom." (Citations omitted.) -7- In viewing Ann Bell's first cause of action, and the Civ.R. 12(B)(6) issues raised in a motion to dismiss before the trial court, it is clear that the action titled "tortious conduct" is one for fraud. The elements of fraud are as follows: "(a) a represen- tation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance." E.g., Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69 at paragraph two of the syllabus. Ann Bell argues that Madorsky had knowledge of the misrepresentations of Glenn Bell, because he represented Glenn Bell in the divorce action and his law partner, Mark Silberman represented Glenn and Virginia Bell in their business transactions. We disagree. This court cannot infer that an attorney had knowledge of his client's misrepresentations in an affidavit merely because there is an attorney client relationship; an attorney has the right to assume his client is telling the truth. See State v. Reker (May 6, 1994), Montgomery App. No. 92-CR-2530, unreported, citing Still v. Lockhart (C.A. 8, 1990), 915 F.2d 342. Madorsky filed a motion to modify on behalf of Glenn Bell. In the attached affidavit, Glenn Bell represented he had lost his job, -8- and had no source of income, which turned out to be false. Madorsky had a right to assume that Glenn Bell was telling him the truth about losing his job. Thus, knowledge that Glenn Bell's affidavit was false cannot be inferred from the attorney client relationship. There is some evidence Madorsky and Mark Silberman shared office space. Silberman represented Glenn and Virginia Bell and their business venture, the Hacienda Mexican Restaurant. Nonetheless, there is no evidence Madorsky knew the extent of Glenn Bell's involvement in the business affairs of Virginia Bell, nor is there any evidence Madorsky knew the extent or the details of the services Silberman performed for Glenn and Virginia Bell. While Glenn Bell may have committed fraud in the motion to modify, there is no evidence Madorsky was a part of it. Ann Bell also argues she was injured because Madorsky continually thwarted discovery during the course of the divorce proceeding. We disagree. This court has held that the failure of an adversary to disclose facts during the course of discovery cannot serve as the basis of a fraud claim absent reasonable reliance. Mitchell v. Whitaker (1986), 33 Ohio App.3d 170, 172. Delay tactics may be grounds for relief under Civ.R. 60(B) and sanctions under Civ.R. 11, but they do not justify liability for fraud absent reasonable reliance. Id. The evidence now before this court clearly demonstrates Ann Bell did not rely on any delay tactics in the course of the domestic relations proceedings. Her counsel filed motions to -9- compel and for sanctions and followed those proceedings to their disposition. Thus, there was no reliance, and therefore, no fraud. Ann Bell argues count three of her complaint for abuse of process states a valid cause of action supported by the evidence presented in opposition to summary judgment. We disagree. The Supreme Court of Ohio has held the elements of abuse of process are: "(1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process." Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A. (1994), 68 Ohio St.3d 294, 298. Under the second element of abuse of process, "there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions." Prosser & Keeton, The Law of Torts (5 Ed.1984) 898, quoted in Yaklevich at 298. An action will only be deemed "ulterior" if it was filed merely as a means of compelling an act on the part of the plaintiff which the trial court could not order. Frank Robb v. Chagrin Lagoons Yacht Club, Inc. (Aug. 19, 1994), Lake App.No. 93-L-064, unreported. In the case sub judice, there is no evidence Madorsky had an ulterior purpose in representing Glenn and Virginia Bell. Ann Bell alleges the ulterior purpose in the defendant's harassment was to get her to discontinue attempting to enforce her rights under the divorce decree. While the allegation that Madorsky participated in -10- this harassment demonstrates bad faith, issues involving Glenn Bell's child support and alimony obligations are within the jurisdiction of the Domestic Relations Court. Ulterior purpose contemplates something outside the purview of the trial court. Issues involving child support and alimony are clearly within the purview of the domestic relations court and do not demonstrate an ulterior purpose. Accordingly, we find no evidentiary support for Ann Bell's abuse of process claim against Larry Madorsky. Ann Bell argues count two of her complaint for civil conspiracy states a valid cause of action supported by the evidence presented in opposition to summary judgment. We disagree. "In Ohio, a civil conspiracy consists of the following: (1) a malicious combination; (2) two or more persons; (3) injury to person or property; and (4) existence of an unlawful act independent from the actual conspiracy." Universal Coach, Inc. v. New York City Transit Auth., Inc. (1993), 90 Ohio App.3d 284, 292. Because we find insufficient evidence of fraud and abuse of process on the part of Madorsky, there is no basis for civil conspiracy. Absent these underlying claims, there is no independent unlawful act to support a claim for civil conspiracy against Madorsky. After a careful review of the evidence presented for and against summary judgment, reasonable minds could only reach the conclusion that there is insufficient evidence to support claims for fraud, abuse of process, and civil conspiracy against Larry I. -11- Madorsky. Accordingly, summary judgment was properly granted in favor of Madorsky. In his cross-assignment of error, Madorsky argues Ann Bell's claims against him are barred by the doctrine of collateral estoppel. Because we find summary judgment was properly granted in favor of Madorsky on the merits, this cross-assignment of error is moot. Judgment affirmed. -12- It is ordered that Appellees recover of Appellant their 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. Exceptions. JAMES D. SWEENEY, P.J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .