COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68953 : JOSEPH CASALICCHIO, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION : RENATO CONTIPELLI : : Defendant-Appellee : : DATE OF ANNOUNCEMENT APRIL 4, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Cleveland Municipal Court Case No. 93-CVF-8372 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: PAUL MANCINO, JR., ESQ. WAYNE F. BENOS, ESQ. 75 Public Square Benos, Cummings, Mann & Valenti Suite 1016 Bulkley Bldg., Suite 800 Cleveland, Ohio 44113-2098 1501 Euclid Avenue Cleveland, Ohio 44115 -2- PATRICIA ANN BLACKMON, J.: Joseph Casalicchio, plaintiff-appellant, appeals a Cleveland Municipal Court's dismissal of his complaint against Renato Contipelli, defendant-appellee. Casalicchio assigns the following five errors for our review: I. THE COURT COMMITTED PREJUDICIAL ERROR IN DISMISSING WITH PREJUDICE PLAINTIFF'S COMPLAINT AFTER DENYING A CONTINUANCE BECAUSE OF A CONFLICT IN COURT HEARINGS AND WHICH TRIAL WAS SCHEDULED CONTRARY TO THE RULES OF THE CLEVELAND MUNICIPAL COURT. II. PLAINTIFF AND HIS COUNSEL WERE UNCONSTITUTIONALLY SANCTIONED BY THE CLEVELAND MUNICIPAL COURT FOR EXERCISING A CONSTITUTIONAL RIGHT. III. APPELLANTS WERE DENIED DUE PROCESS OF LAW WHERE THE COURT PROCEEDED TO MAKE FINDINGS WITHOUT THE BENEFIT OF A HEARING WHERE SWORN TESTIMONY WAS TAKEN. IV. THE COURT COMMITTED PREJUDICIAL ERROR IN AWARDING SANCTIONS FOR FRIVOLOUS CONDUCT. V. THE COURT COMMITTED PREJUDICIAL ERROR IN AWARDING ATTORNEY FEES AND PARALEGAL FEES BASED ON A MATHEMATICAL CALCULATION. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On April 14, 1993, Casalicchio filed a complaint against Renato Contipelli seeking to recover $1200 in loans. On June 23, 1993, Contipelli filed a motion to dismiss the action. Contipelli filed interrogatories and a Request for Admissions. Both remained unanswered, and on July 6, 1993, he requested the court accept his requested Admissions as a part of the records. On July 9, 1993, -3- Casalicchio's attorney, Paul Mancino, moved the court for an additional 30 days to respond to Contipelli's interrogatories and requests for admissions. Mancino said he was under the impression that the trial court had dismissed Casalicchio's complaint on June 1 25, 1993. Contipelli opposed the extension of time, arguing that Mancino purposely failed to respond to his discovery requests in a timely manner. The extension was granted and Casalicchio served his responses to Contipelli's discovery requests on July 29, 1993. On August 9, 1993, Contipelli filed a motion for sanctions for frivolous conduct under R.C. 2323.51(A)(2). On October 1, 1993, Casalicchio filed a motion for leave to file an amended complaint. The trial court granted the motion on December 7, 1993 and on December 7, 1993, Casalicchio filed his amended complaint. On April 12, 1994, the trial court set the case for trial on May 4, 1994. On April 20, 1994, Casalicchio filed a motion to continue the trial because his trial counsel was scheduled to appear at a hearing in a domestic relations case on that date. Contipelli did not object to the continuance and advised the court of four dates on which he could not appear. The continuance was granted on April 29, 1994, and the trial court ordered the case rescheduled on the next available date. On April 29, 1994, the court set the trial for May 9, 1994. On May 4, 1994, Casalicchio again filed for a continuance asserting that his trial 1 The record does not contain the June 25, 1993 journal entry of dismissal but does contain a July 1, 1993 journal entry vacating the "entry of June 25, 1993" and setting the case for a hearing on the merits. -4- counsel was scheduled to appear before the Sixth Circuit Court of Appeals in Cincinnati on that date. Attached to the motion was a March 1, 1994 notice of oral argument from the Sixth Circuit Court of Appeals. On May 9, 1994, the trial court issued the following journal entry. Plaintiff's motion for continuance denied. Case called. Defendant in court. Plaintiff not in court. The complaint of the plaintiff is hereby dismissed with prejudice at plaintiff's cost. The court reserves ruling on defendant's motion for sanctions. Casalicchio's motion for reconsideration was denied on June 1, 1994. On July 20, 1994 and again on July 26, 1994, Contipelli moved for a hearing on his motion for sanctions. The court's docket indicated that the case was set for hearing on August 15, 1994. On August 15, 1994, the court heard oral argument on the motion and ordered the parties to produce the original checks and documents involved in the case. On January 9, 1995, at a second hearing, the court advised the parties that it would review the file and advise them of its decision. In an order journalized on March 31, 1995, the trial court awarded $4870.75 in sanctions to Contipelli. This appeal followed. In his first assignment of error, Casalicchio argues the trial court erred in dismissing his complaint after denying his attorney a continuance. Under C.P.Sup.R. 7(A), the decision to grant a continuance is within the discretion of the trial court. The court may grant a continuance for good cause shown. M.C. Sup.R. 16(B) provides as follows: -5- When a continuance is requested for the reason that counsel is scheduled to appear in another case assigned for trial on the same date in the same or another trial court of this state, the case that was first set for trial shall have priority and shall be tried on the date assigned. *** Except as provided in division (B)(2) of this rule, the granting of any other request for continuance of a scheduled trial is matter within the discretion of the trial court. A trial court has discretion to deny an untimely request for a continuance based on counsel's conflicting trial dates. Wheaton Industries, Inc. v. Fashion Two Twenty, Inc. (11th Dist. 1993), No. 90-P-2185. A motion for a continuance due to conflicting trial assignment dates is not timely unless it is made within a reasonable time after his case is set for trial. Alex N. Sill Co. v. Fazio (1981), 2 Ohio App.3d 65. Casalicchio argues because he was scheduled for a trial in another court on the date set for hearing in this case, he was entitled to a continuance. We disagree. The trial court had already given Casalicchio a continuance of the original May 4, 1994 date. Contipelli did not object to the continuance and informed the trial court on several dates on which he had prior commitments. In his request for continuation of the May 4, 1994 trial date, Casalicchio did not inform the trial court that he had a prior trial commitment on May 9, 1994. The letter attached to his second motion for continuance revealed that the argument before the Sixth Circuit Court of Appeals was scheduled on March 1, 1994. Accordingly, Casalicchio's attorney was aware of the date at the time he requested his first continuance and could have informed the -6- trial court that he would not be available on that date. In light of Casalicchio's attorney's inability to appear on the originally scheduled trial date, it was not unreasonable for the trial court to deny him a second continuance caused by another scheduling conflict. We conclude the trial court did not abuse its discretion in denying the continuance. The record indicates Casalicchio did not appear at the May 9, 1994 trial date despite the fact that his motion for continuance had not been granted. Accordingly, the trial court properly dismissed Casalicchio's complaint. Casalicchio's first assignment of error is without merit. In his second assignment of error, Casalicchio argues the trial court erred in sanctioning him for not filing his claim in small claims court. Casalicchio asserts the order of sanctions violated his constitutional right to have a remedy by due course of law. We disagree. In its findings of fact, the trial court stated: Plaintiff did not file the suit in Small Claims Court, although the jurisdiction limit of Small Claims Court is $800.00 in excess of Plaintiff's claim, and Small Claims Court provides an inexpensive and expeditious forum for claims of money owed under $2000.00. At no time did the trial court state that Casalicchio's failure to file in Small Claims Court was the reason for its award of sanctions. On the contrary, the court concluded the evidence presented at the sanctions hearing established that Casalicchio and his trial counsel knew or should have known that the conduct of the litigation was "frivolous and calculated to cause Defendant harm by -7- unnecessarily enduring legal expense as a form of harassment." We find no evidence that Casalicchio's choice of a forum served as the basis for the trial court's sanctions award. Accordingly, we overruled Casalicchio's second assignment of error. Casalicchio next argues the court denied him due process by making findings of fact without taking sworn testimony. He argues the trial court's failure to conduct a hearing constitutes a denial of his due process rights. However, in this case, the trial court did conduct a hearing. Both parties appeared at the hearing and orally argued before the trial court. Although the record does not contain a transcript of the hearing, it does contain an agreed statement of proceedings submitted by Casalicchio and signed by the trial court indicating that both parties argued before the trial court and submitted original checks and documents to the trial court. The agreed statement of proceedings makes no mention of any attempt by Casalicchio to submit additional evidence and there is no indication that the trial court precluded him from presenting such evidence. Accordingly, we conclude Casalicchio's due process rights were not denied. Casalicchio's third assignment of error is without merit. In his fourth assignment of error, Casalicchio argues the court erred in awarding sanctions for frivolous conduct. R.C. 2323.51 defines frivolous conduct as follows: "Frivolous conduct" means conduct of a party to a civil action or of his counsel of record that satisfies either of the following: (a) it obviously serves merely to harass or maliciously injure another party to the civil -8- action or (b) it is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law. Casalicchio argues the checks to cash written by Contipelli constituted written contracts in which Contipelli promised to pay Casalicchio certain sums of money. In support of his argument, he cites Lagonda Nat'l Bank v. Portner (1889), 46 Ohio St. 381,383. However, in Lagonda, the plaintiff bank, as owner of a check by endorsement, brought suit against Portner as drawer of the check. The check in question was made payable to a third party, Caldwell. The issue before the court was whether the check was void under a statute which provided that "promises, agreements, notes, bills, bonds, or other contracts" were void if their consideration was money won or lost at gambling. In a preliminary discussion about whether a check was covered by the statute, the court stated that "a check is at least a contract, for it imports an agreement upon the part of the drawer to pay it if on presentment to the drawee it is not paid, and due notice is given him of such non-payment." Casalicchio argues the check evidences an agreement by the drawer to pay the payee upon presentment and notice of dishonor. However, in this case, the check was made payable to cash. A check made out to cash is payable to the bearer, who can be anyone. There can be no meeting of the minds on such a check because the drawer has no way of knowing who will present the check for payment. Accordingly, we reject Casalicchio's argument that the checks were -9- contracts subject to the fifteen year statute of limitations set forth in R.C. 2305.06. Because Casalicchio's claim was not supported by existing law or by a good faith argument for an extension, modification or reversal of existing law, the trial court correctly awarded sanctions against Casalicchio for frivolous conduct. In his final assignment of error, Casalicchio argues the court erred in its award of attorney fees. Casalicchio argues the fees charged by Contipelli's attorney were unreasonable. We disagree. In its findings of fact and conclusions of law, the trial court found as follows: Defendant's counsel established that the unavoidable legal expense of Defendant's defense based on a complete and accurate billing of Defendant's counsel's diligent efforts on behalf of Defendant were $4870.75 at reasonable attorney and paralegal rates of $95.00 per hour and $55.00 per hour respectively. The Court finds that Defendant's counsel bill was well documented and consistent with professional standards in the community. In its notes on the parties' oral argument, the trial court wrote that Contipelli had incurred legal expenses of $4785.75 due to Casalicchio's lawsuit. This note suggests the trial court heard evidence on the issue of attorney fees at the hearing on August 15, 1994. Absent a transcript evidencing the contrary, we must presume regularity in the proceedings below. Judgment affirmed. -10- It is ordered that Appellee recover of Appellants his 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 Cleveland Municipal 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. DAVID T. MATIA, J., and JOHN T. PATTON, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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- .