COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69003, 69005, 69006 : RICHARD TEICHMAN, ET AL. : : : JOURNAL ENTRY Plaintiff-Appellant : : and v. : : OPINION SCOTT WELTMAN, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 2, 1996 CHARACTER OF PROCEEDING: Civil appeals from Common Pleas Court Case No. CV-262453, CV-282335, and CV-283243 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: RICHARD TEICHMAN, pro se MARVIN HERSCH, ESQ. 4997 Broadway Avenue 1589 Warrensville Road Cleveland, Ohio 44127 South Euclid, Ohio 44121 SCOTT WELTMAN, ESQ. 323 Lakeside Avenue W. Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: This is a consolidated appeal in which plaintiff-appellant, Richard Teichman, appeals from the lower court judgments which dismissed his six separate cases filed against defendants- appellees, Marvin Hersch, the law firm of Weltman, Weinberg and Associates, Scott Weltman, and John Doe, the professional liability insurance carriers of Marvin Hersch. Throughout this litigation, Teichman has proceeded pro se. In dismissing four of the cases, the lower court sanctioned Teichman and awarded substantial damages to defendants. This morass of litigation has resulted from Teichman's inexpert attempt to shoot holes in the advice and legal representation of his attorneys, as well as decisions of the court. Not only does Teichman miss the mark, he wounds himself in the process. On appeal, Teichman raises four assignments of error, which appear to raise the following issues: (1) whether Teichman's right to a trial by jury was violated, (2) whether the lower court erred by consolidating four of the cases, and (3) whether the lower court's judgment dismissing all four of the cases and sanctioning appellant was in error. For the following reasons, the judgment of the lower court is affirmed. From the materials submitted in these cases, the following record can be pieced together. Hersch represented Teichman in four separate matters. Teichman was first involved in a dispute - 3 - with FST Construction in 1988. Believing the settlement negotiated by his attorney Thomas Kelly was inadequate, Teichman rejected the proposed settlement, fired Kelly, and retained Hersch as his attorney. After a trial, and an appellate decision, FST was found to owe Teichman $7,000.00. Teichman represented to FST's attorneys that he had fired his attorney and obtained the $7,000.00 directly from FST. Teichman next was involved in a dispute with Kordiac Plumbing. After Kordiac performed $240.56 worth of work for him, Teichman refused to pay Kordiac. He again hired Hersch to defend him in the suit brought by Kordiac. Teichman wanted to counterclaim for $250,000.00. After a jury trial, Kordiac obtained a judgment for $327.18. Teichman has not paid this judgment. American Piping also sued Teichman. After firing his first attorney, Teichman hired Hersch. A referee entered judgment in favor of American Piping in the amount of $2,774.63. Teichman has not paid this judgment. Hersch also represented Teichman when the City of Cleveland wanted to demolish a building Teichman owned. Hersch was successful in preventing its demolition. In 1990, Hersch brought an action in Shaker Heights Municipal Court against Teichman to collect unpaid attorney's fees. The court entered judgment in favor of Hersch and against Teichman in the amount of $6,029.52. This judgment has not been satisfied. Hersch turned to the law firm of Weltman, Weinberg & - 4 - Associates to help collect the judgment. Weltman began sending letters to Teichman seeking to enforce the judgment. In response to this action by Weltman, Teichman filed multiple lawsuits against Hersch and the Weltman law firm, which cases form the basis of the instant appeal. The first case, No. 262453, alleged malpractice on the part of Hersch in representing Teichman. The second case, No. 265551, alleged that Hersch committed fraud by failing in his fiduciary duty to Teichman. In the third case, No. 266601, Teichman charged Hersch libeled him in the pleadings filed in the first two cases. The fourth case, No. 282335, alleged coercion and extortion on the part of Hersch and Weltman, Weinberg & Associates. The fifth case, No. 282874, was a "complaint in tort action" alleging frivolous conduct. In the sixth case, No. 283243, Teichman refiled the complaint in malpractice from the first case, No. 262453. In the second and third cases separate judges granted defendant's motions to dismiss. The first, fourth, fifth, and sixth cases were consolidated. A third judge granted defendant's motion to dismiss these cases on April 18, 1995. As part of the judgment the lower court (1) sanctioned Teichman in the amount of $8,950.00, (2) found Teichman in contempt based on a false poverty affidavit and fined him $500.00, and (3) awarded compensatory and punitive damages to defendant in the amount of $57,450.00. In the judgment entry, the court additionally stated as follows: - 5 - The Court further finds that in October of 1994, and also on prior occasions, plaintiff, Richard Teichman, mailed, distributed and otherwise published untruthful, defamatory material which was embarrassing and damaging to defendants. Plaintiff distributed such defamatory material to Cuyahoga County District Attorney [sic] (Prosecutor), Cleveland Police Department, Ohio Attorney General, City of Cleveland Councilman, Bar Associations, Better Business Bureau, Legal Aid, television, radio stations and newspapers. Accordingly, it is appropriate that a temporary restraining order be issued without bond and that the same ultimately be recorded as a permanent injunction restraining the defendants [sic] from publishing defamatory material against these named defendants and from filing subsequent causes of action against them. Teichman has separately appealed all three of these dismissals to this court, Case Nos. 69003, 69005, and 69006. These appeals have been consolidated for this review. Teichman states four assignments of error. The first assignment follows: I. THE TRIAL COURT ERRED IN THIS MATER BY DEPRIVING THE APPELLANT OF ONE OF HIS AND EVERY CITIZENS MOST SACRED, BASIC AND INALIENABLE RIGHTS: THAT IS "TRIAL BY JURY". THE TRIAL COURT, BY IT'S ACTION, VIOLATED THE PROVISIONS SET FORTH IN THE 5TH, AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION, FOR A TRIAL BY A JURY OF PEERS, THE CONSTITUTION OF THE STATE OF OHIO O CONST I 5 RIGHT OF TRIAL BY JURY, CIV R 38 JURY TRIAL OF RIGHT (A) RIGHT PRESERVED, CIV R 38 JURY TRIAL OF RIGHT (B) DEMAND, CIV R 39 TRIAL BY JURY OR BY THE COURT (A), AND CIV R 42 CONSOLIDATION; SEPARATE TRIALS (B) TRIALS. TITLE 23, COMMON PLEAS COURT 2311.04 TRIAL OF ISSUES BY COURT OR JURY. [sic throughout.] In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, syllabus. Any right to trial by jury is rendered moot by a dismissal under Civ.R. 12(B)(6). Winkle v. Southdown, Inc. - 6 - (Sept. 3, 1993), Greene App. No. 92-CA-107, unreported. Moreover, principles requiring generous construction of pro se filings do not require courts to conjure up questions never squarely asked or construct full-blown claims from convoluted reasoning to avoid dismissal for failure to state a claim upon which relief could be granted. State ex rel. Karmasu v. Tate (1992), 83 Ohio App.3d 199. In the case at bar, the court properly dismissed each of the complaints. Case No. 282335 was captioned as a complaint in extortion and coercion. In this complaint plaintiff sought civil damages for "extortion" as defined under the criminal code because the defendant sent one letter concerning collection. Because his conclusions are unsupported, they are not sufficient to withstand a motion to dismiss. State ex rel. Hickman v. Capots (1989), 45 Ohio St.3d 324. Case No. 262453, captioned as a complaint in malpractice against his former attorney Marvin Hersch, alleged malpractice in the handling of legal matters in 1990. This complaint was filed on December 8, 1993, well outside the one-year statute of limitations for legal malpractice claim. R.C. 2305.11. A court may dismiss a complaint under Civ.R. 12(B)(6) on statute of limitations grounds when it is obvious from the face of the complaint. Steiner v. Steiner (1993), 85 Ohio App.3d 513. The statute begins to run upon the termination of the attorney-client relationship for that transaction or when there is a cognizable event whereby the client discovers or should have discovered that - 7 - his injury was related to his attorney's act or non-act and the client is put on notice of a need to pursue his possible remedies against the attorney, whichever occurs later. Zimmie v. Calfee, Halter & Griswold (1989), 43 Ohio St.3d 54, paragraph one of the syllabus. Plaintiff's complaint in Case No. 262453 was filed on December 8, 1993. Defendant subsequently filed a "Motion To Dismiss, Or In The Alternative, For Summary Judgment, With 1 Interrogatories Attached." Attached to defendant's motion was a pleading plaintiff filed in a municipal court case which stated as follows: "Due to plaintiff's [Marvin Hersch] ineptness and unprofessional concern regarding the American Piping control case, the defendant [Teichman] was forced to expend considerable money and time and retain other counsel to rectify the matter." This pleading, originally filed in Cleveland Municipal Court on June 25, 1991, establishes that plaintiff was on notice of any alleged malpractice by Hersch. Because plaintiff's complaint in Case No. 262453 was filed more than a year after that date, the lower court properly granted judgment for defendants. In Case No. 265551, plaintiff alleged that the defendant committed three torts of fraud against defendant. Again, plaintiff did not state any specific facts regarding these 1 Generally, notice to the nonmoving party is required when a trial court sua sponte converts a motion to dismiss into a motion for summary judgment. Notice is not required to grant summary judgment, however, if defendant has also moved "in the alternative," for summary judgment. Applegate v. Fund for Constitutional Govt. (1990), 70 Ohio App.3d 813. - 8 - alleged torts. Dismissal is proper when the complaint fails to plead specific facts. State ex rel. Fain v. Summit Cty. Adult Probation Dept. (1995), 71 Ohio St.3d 658. Case No. 283243 is the refiling of the complaint in malpractice after it was disposed with prejudice. A party cannot refile a case dismissed with prejudice. In Case No. 2828274, plaintiff lists four criminal sections of the Ohio Revised Code and claims plaintiff is entitled to money damages for the violations of these code sections. Again, because plaintiff states no facts in this complaint, the dismissal was proper. Fain, supra. In Case No. 266601, plaintiff averred that he was entitled to damages for libellous statements made by the defendants when they answered his complaint in Case No. 262453. A cause of action for libel, however, cannot be maintained for a statement made in a written pleading. Surace v. Wuliger (1986), 25 Ohio St.3d 229. Accordingly, the lower court did not err in dismissing the six cases filed by plaintiff. The first assignment of error is overruled. Defendant's second and third assignments contest the consolidation of these cases. These two assignments, which will be addressed together, state as follows: II. THE TRIAL COURT ERRED IN IT'S [sic] CONSOLIDATION OF THIS CASE PURSUANT TO CIVIL RULE 42(A) AND 42(B). PURSUANT TO CIV R 42(A) AND CIV R 42(B) THE APPELLANT WAS DENIED A "HEARING" PRIOR TO CONSOLIDATION AS REQUIRED BY THESE TWO RULES. THEREFORE THE APPELLANT WAS NOT AFFORDED DUE PROCESS WHICH HE IS ENTITLED TO. - 9 - THEREFORE THE RULING OF THE LOWER COURT IN THIS CASE SHOULD BE REVERSED AND THE APPELLANT GIVEN REMEDIAL STATUS. III. THE TRIAL COURT ERRED TWICE IN DENYING THE APPELLANT DUE PROCESS OF LAW PURSUANT TO CIV R (42A) AND CIV R (42B). ONE ERROR CONCERNS THE FRAUDULENT MOTION OF THE APPELLEE FILED ON 1-30-95 TO CONSOLIDATE CASE NO.'S 282335, 282874, AND 283243. THEN THE OTHER ERROR OCCURED[sic] WHEN THE APPELLEE FILED ANOTHER FRAUDULENT MOTION TO CONSOLIDATE CASE NO.'S 262453 AND 282335 ON 2-28-95. WHEREAS BOTH MOTIONS BEING FRAUDULENT [sic] THEY SHOULD HAVE BEEN RULED ILLEGAL AND THEREFORE INADMISSABLE BY THE COURT. THEREFORE, PURSUANT TO THE MIRANDA RULE AND APP R 18 (NOTE 5) ANY JUDICIAL ACTION SUBSEQUENT TO THE MOTIONS, BASED ON THE MOTIONS, ARE ALSO ILLEGAL, INADMISSABLE AND UNENFORCEABLE. PURSUANT TO CIV R 60 (B)(3) EXTRINSIC FRAUD DEMANDS RELIEF FROM JUDGMENT. (SEE APPENDIX CIV R 60). Ohio Civil Rule 42(A) permits a court to consolidate actions involving a common question of law or fact in order to avoid unnecessary costs or delay. The decision whether or not to order consolidation lies within the sound discretion of the lower court. BancOhio Natl. Bank v. Schiesswohl (1988), 51 Ohio App.3d 130; Fair v. School Employees Retirement System (1975), 44 Ohio App.2d 115. In the case at bar, the lower court did not abuse its discretion by consolidating the cases. All the cases concerned plaintiff's attempts to sue the defendants after they tried to collect a $6,000 judgment. All the cases contained the same parties and stemmed from the same basic facts. Accordingly, plaintiff's second and third assignments are overruled. IV. THE TRIAL COURT ERRED IN SEVERAL RESPECTS REGARDING IT'S [sic] JUDGMENT ENTRY FILED ON 4-20-95 CONCERNING CASE NO. 262453. - 10 - In this assignment, defendant argues that there are unspecified errors in the record. App.R. 12(A)(2), which precludes this court from searching for such unspecified error, states as follows: (2) The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A). See also, North Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App.3d 342; State v. Gibson (Nov. 21, 1991), Cuyahoga App. No. 59541, unreported. Accordingly, this assignment of error is overruled. Judgment affirmed. - 11 - 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. LEO M. SPELLACY, C.J., and DYKE, 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 .