COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 67682, 68212 : KEVIN CHILDS : : : JOURNAL ENTRY Plaintiff-Appellee (67682) : & Plaintiff-Appellant (68212) : and : -vs- : OPINION : JEFFREY PAPOTNIK, ET AL. : : : Defendant-Appellant (67682) : & Defendant-Appellee (68212) : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 3, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-039361 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant and Plaintiff-Appellant: and Defendant-Appellee: THOMAS E. O'TOOLE, ESQ. ROBERT G. QUANDT, ESQ. 55 Public Square Quandt, Giffels & Buck Co. 1300 Illuminating Building 800 Leader Building Cleveland, Ohio 44113 Cleveland, Ohio 44114 - 2 - KARPINSKI, J.: These consolidated appeals arise from an insurance coverage dispute following a tort judgment. Specifically, they occur in a supplemental proceeding against the insurance carrier of a homeowner. New party defendant Buckeye Union Insurance Company ("Buckeye") appeals from an order of the trial court granting summary judgment and imposing liability against Buckeye for the tort judgment. Plaintiff Kevin Childs appeals from the denial of his motion for sanctions against Buckeye. Childs commenced this matter on February 17, 1982, by filing a personal injury complaint in the trial court against two defendants, viz., Jeffrey and Steve Papotnik. Childs' complaint alleged Jeffrey Papotnik "willfully and wantonly" shot him in the abdomen on February 21, 1981, with a firearm belonging to 1/ Jeffrey's father, Steve Papotnik . Childs subsequently filed an amended complaint which added a claim that Jeffrey Papotnik negligently discharged the firearm which he had obtained through the negligence of Steve Papotnik. The record demonstrates the matter proceeded to a jury trial against both defendants in May, 1987. The trial court entered orders (1) dismissing the complaint against Steve Papotnik, and (2) recording the general jury verdict in favor of Childs against Jeffrey Papotnik in the amount of $25,000 on June 2, 1987. The 1/ This opinion uses the name "Steve" although the elder Papotnik is sometimes referred to in the record as "Steven" or "Stefan." - 3 - jury's general verdict did not state whether the jury's determination was based on Jeffrey Papotnik's negligence or intentional conduct. The trial court, however, subsequently entered judgment on the jury verdict on June 23, 1987, as follows: The jury in this action having on the 29th day of May, 1987, rendered a verdict in favor of plaintiff Kevin Childs in the sum of Twenty-Five Thousand Dollars ($25,000) against defendant Jeffrey Papotnik based upon his negligence and who was a resident at the time in the home of his father, Steven Papotnik, located at 1216 East 61st Street, Cleveland, Ohio. Judgment is hereby rendered in favor of plaintiff Kevin Childs against defendant Jeffrey Papotnik for Twenty-Five Thousand Dollars ($25,000) and costs of this action. The record demonstrates that no direct appeal was taken from this June 23, 1987, judgment (the "Negligence Judgment Entry"). Childs subsequently filed his first supplemental complaint in the trial court approximately two and one-half years thereafter on January 22, 1990. Childs' supplemental complaint named Buckeye, Steve Papotnik's insurance carrier, as a new party defendant and sought to obtain payment of the $25,000 judgment from Buckeye under a liability insurance policy issued to Steve Papotnik. The supplemental complaint was assigned to the same trial judge who presided over the prior trial, but contained the wrong insurance policy number. Childs subsequently filed a "Motion for Voluntary Dismissal" of his supplemental complaint in the trial court on October 12, 1990, which dismissal was signed and journalized by the trial judge on October 15, 1990. - 4 - On the same day, October 15, 1990, Buckeye filed its first motion to vacate the June 23, 1987, judgment entry awarding Childs $25,000 in damages based on Jeffrey Papotnik's "negligence." Following a hearing in an order journalized December 7, 1990, the trial judge who presided over the prior trial denied Buckeye's motion to vacate the Negligence Judgment Entry. No appeal was taken from the denial of Buckeye's first motion to vacate. Childs subsequently filed a second supplemental complaint in the trial court approximately two years thereafter on February 26, 1992. The second supplemental complaint was assigned to a new trial judge. Buckeye filed a motion to dismiss the supplemental complaint for lack of prosecution or, in the alternative, a second motion to vacate the June 23, 1987, Negligence Judgment Entry. In an order journalized March 12, 1993, the second trial judge denied Buckeye's motion to dismiss the second supplemental complaint or to vacate the prior Negligence Judgment Entry. Childs thereafter filed a motion for summary judgment against Buckeye on his supplemental complaint. Buckeye opposed Childs' motion for summary judgment and filed a cross-motion for summary judgment on the sole ground that the June 23, 1987, Negligence Judgment Entry had been obtained by fraud on the court. Following a reply brief by Childs, the trial court granted Childs' motion for summary judgment in an order journalized July 6, 1994. Buckeye appealed this order (appellate - 5 - Case No. 67682). This court of appeals remanded the matter to the trial court to specify the damages awarded against Buckeye. The trial court awarded $25,000 in damages against Buckeye in an order journalized August 25, 1994. Childs filed a motion for sanctions against Buckeye in the trial court on September 8, 1994. This motion sought to recover attorney fees against Buckeye based on defense of the second supplemental complaint and alleged discovery abuses. Following a hearing in an order journalized November 3, 1994, the trial court denied Childs' motion for attorney fees. Childs filed a notice of appeal from the order denying his motion for sanctions (Court of Appeals Case No. 68212). This court of appeals consolidated the two appeals for hearing and disposition. Buckeye's sole assignment of error in Case No. 67682 follows: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR THE PLAINTIFF ON HIS SUPPLEMENTAL COMPLAINT AND IN DENYING THIS DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT BECAUSE NO COVERAGE APPLIES TO THE UNDERLYING JUDGMENT. Buckeye's sole assignment of error lacks merit. Buckeye argues the trial court improperly denied its motion for summary judgment and erroneously granted summary judgment for Childs. Based on our review of the record, Buckeye has failed to show any error. - 6 - R.C. 3929.06 governs direct actions against insurance carriers following judgments against their insureds and provides, in pertinent part, as follows: Upon recovery of a final judgment against any firm, person, or corporation by any person, including administrators and executors, for loss or damage on account of bodily injury or death *** if the defendant in such action was insured against loss or damage at the time when the right of action arose, the judgment creditor or the successor in interest is entitled to have the insurance money provided for in the contract of insurance between the insurance company and the defendant applied to the satisfaction of the judgment. If the judgment is not satisfied within thirty days after it is rendered, the judgment creditor or successor in interest, to reach and apply the insurance money to the satisfaction of the judgment, may file a supplemental petition in the action in which said judgment was rendered, in which the insurer is made a new party defendant in said action, and whereon service of summons upon the insurer shall be made and returned as in the commencement of an action at law. Thereafter the action shall proceed as to the insurer as in an original action. Childs' motion for summary judgment sought to have Buckeye satisfy the $25,000 judgment against Jeffrey Papotnik pursuant to R.C. 3929.06 and was supported by the June 23, 1987, Negligence Judgment Entry, the insurance policy issued by Buckeye, and other documents from the action. As noted above, the June 23, 1987, Negligence Judgment Entry awarded Childs $25,000 in damages against Jeffrey Papotnik "based upon his negligence and [sic] who was a resident at the time in the home of his father, Steven Papotnik." Section I of the insurance policy issued by Buckeye provides the following coverage: I. COVERAGE L--PERSONAL LIABILITY - 7 - The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence ***. Buckeye did not dispute that (1) Jeffrey Papotnik qualified as an "insured" under Section IV(a) of the policy since he resided in the household of the named insured, Steve Papotnik, or (2) Childs suffered "bodily injury" within the scope of Section VII of the policy. Buckeye's brief in opposition and cross-motion for summary judgment, however, challenged the June 23, 1987, Negligence Judgment Entry for a third time and argued the policy excluded coverage for the incident since it did not constitute an "occurrence." The term "occurrence" is defined in Section IX of the policy, and excludes coverage for intentional acts, as follows: 'occurrence' means an accident, including continuous repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured. (Emphasis added). Buckeye argued the jury made no finding of "negligence" in the prior trial and that through fraud upon the court the finding of negligence was improperly added to the June 23, 1987, journal entry. Buckeye's brief was supported by an unnotarized affidavit of counsel which purported to authenticate various exhibits, including a journal entry of Jeffrey Papotnik's conviction for felonious assault in a criminal case and documents from the civil action. - 8 - Based on our review of the record, Buckeye has failed to demonstrate the trial court improperly granted summary judgment for Childs. It is well established that the doctrine of res judicata precludes the relitigation of issues that were raised or could have been raised in prior proceedings. Dawson v. Udelsen (1987), 37 Ohio App.3d 141; Brick Processors, Inc. v. Culbertson (1981), 2 Ohio App.3d 478. Buckeye challenged the validity of the June 23, 1987, Negligence Judgment Entry on two separate occasions prior to Childs' motion for summary judgment. Buckeye's two motions to vacate the June 23, 1987, Negligence Judgment Entry were denied, first by the original trial judge, and then by a judge subsequently assigned to the case. Buckeye's attempt to relitigate the validity of the June 23, 1987, Negligence Judgment Entry for a third time in connection with the cross-motions for summary judgment is unavailing. Buckeye contends it had not previously litigated whether Childs' use of the June 23, 1987, Negligence Judgment Entry constituted a "fraud on the court." However, even if Buckeye had not previously alleged "fraud on the court" as it contends, the claim should have been raised earlier since the record demonstrates that all the facts giving rise to the claim occurred before Buckeye's first motion to vacate. Dawson v. Udelsen, supra at 142-143. Buckeye was made a party to the action and should have appealed from the denial of its first motion to vacate. The trial court's determination concerning the validity of the June 23, 1987, Negligence Judgment Entry reciting that Childs' injury - 9 - resulted from Jeffrey Papotnik's "negligence" was conclusively resolved at that time. The purpose of the doctrine of res judicata is to prevent endless litigation as in this case, which spans over twelve years. Buckeye's remaining arguments to circumvent the June 23, 1987, Negligence Judgment Entry and avoid summary judgment lack merit. First, Buckeye presented absolutely no evidence that Jeffrey Papotnik intended to injure Childs and, therefore, was not entitled to summary judgment in its favor based on Jeffrey Papotnik's conviction for felonious assault. Nationwide Mut. Ins. Co. v. Machniak (1991), 74 Ohio App.3d 638. Moreover, Buckeye waived any claim concerning the timeliness of Child's supplemental complaint by failing to raise the argument in its summary judgment brief filed in the trial court. Maust v. Meyers Products, Inc. (1989), 64 Ohio App.3d 310, 313-314. Accordingly, Buckeye's sole assignment of error in Court of Appeals Case No. 67682 is overruled. Childs' sole "argument" in Court of Appeals Case No. 68212 follows: PLAINTIFF IS ENTITLED TO AN AWARD OF ATTORNEY FEES INCURRED SUBSEQUENT TO THE DECEMBER 5, 1990 ORDER DENYING BUCKEYE UNION'S MOTION FOR RELIEF FROM JUDGMENT. Childs' sole "argument" lacks merit. Childs contends the trial court improperly denied his motion for sanctions against Buckeye. It is well established, however, that a reviewing court will not reverse a trial court's deter- mination concerning the award of sanctions absent an abuse of - 10 - discretion. Toth v. Toth (1994), 94 Ohio App.3d 561. The record demonstrates the trial court conducted a consolidated hearing on Childs' post-trial motions for prejudgment interest and for attorney fees. Childs presented almost no evidence concerning his motion for attorney fees. One court of appeals has recognized, contrary to Childs' argument, that the re-assertion of a previously litigated claim or defense does not, by itself and standing alone, constitute frivolous conduct as a matter of law. White v. Soo (1989), 65 Ohio App.3d 731. Under the circumstances, Childs has failed to demonstrate the trial court abused its discretion by denying his motion for attorney fees in this case. Accordingly, Childs' sole argument is overruled. The judgment of the trial court is hereby affirmed in its entirety. Judgment accordingly. - 11 - It is ordered that appellee(s) recover of appellant(s) 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. PATTON, C.J., and DAVID T. MATIA, J., CONCUR. DIANE KARPINSKI 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 journalization, at which time it will become the judgment and .