COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69948, 70198 : ALBERT C. NOZIK, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and v. : : OPINION MICHAEL A. SANSON, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 24, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-279029 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: ALBERT C. NOZIK, ESQ. JEROME M. ELLERIN, ESQ. 7833 Lake Shore Blvd. 1000 Erieview Tower Mentor-on-the-Lake, Ohio 44060 1301 East 9th Street Cleveland, Ohio 44114 MICHAEL A. SANSON, ESQ. 1640 Standard Bldg. Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Plaintiffs-appellants, Albert C. Nozik and Eleanor S. McDonald, appeal from the judgment of the trial court which granted summary judgment in favor of defendants-appellees, Michael A. Sanson and Jerome E. Ellerin. Plaintiffs also contest the trial court's imposition of sanctions against them. Plaintiffs were found in contempt in Lake County for accepting attorney's fees regarding the receivership of Mentor Lagoons. During the pendency of plaintiffs' appeal and before plaintiffs obtained a stay of execution, defendants tried to execute on this contempt judgment by, first, filing a judgment lien against plaintiffs in Lake County and, second, filing a garnishment against plaintiffs in Mentor Municipal Court. Thereafter, plaintiffs filed the first case against defendants in Cuyahoga County Common Pleas Court, Case No. 275700, which alleged the filing of the judgment lien was improper and malicious. Judgment was granted to defendants, and this decision was affirmed by this court. Two days after Case No. 275700 was dismissed, plaintiffs filed a second complaint (Case No. 279029, the subject of the appeal herein), which alleged the filing of the judgment lien and the garnishment was improper and malicious. Because the doctrine of res judicata bars all claims that have been or could have been raised in a prior case, plaintiffs are barred from litigating the claims of an improper garnishment, which could have been raised - 3 - in the first complaint. For the following reasons, the decision of the trial court is affirmed. The tortured procedural history of this case follows: On June 8, 1994 in Lake County, plaintiffs herein, were found in civil contempt of a prior court order and ordered to return $684,167 within 30 days of judgment. Plaintiffs herein, as the attorneys for a receivership, were under a temporary restraining order to prevent them from receiving attorney fees. Sara B. Nozik, et al. v. Mentor Lagoons, Inc., et al., Lake County Common Pleas Court, Case No. 90-CV-000633. When plaintiffs herein appealed this contempt judgment, the Eleventh District, on July 14, 1994, granted a stay of execution of the judgment on the condition that the appellants post a $200,000 surety bond. This bond was not filed until September 6, 1994. On July 19, 1994, defendants herein filed a judgment lien in Lake County against Albert C. Nozik and Eleanor McDonald. This was the first attempt to execute on the contempt judgment. On August 18, 1994 defendants filed a garnishment in Mentor Municipal Court. This garnishment was a second attempt to execute on the contempt judgment. After defendants dismissed this second action in the fall of 1994, the municipal court on October 28, 1994, awarded sanctions to the plaintiffs because "[c]learly only the Receiver is authorized to receive the money and therefore is the only one who can issue the execution." - 4 - On August 19, 1994, plaintiffs filed the first complaint against defendants in Cuyahoga County Common Pleas Court, Case No. 275700. This complaint alleged that "[t]he filing of said lien was false and malicious, with the intent of disparaging and defaming the property of the plaintiffs and the titles thereto, resulting in plaintiffs' special damage." (Paragraph 5 of Plaintiffs' complaint, Case No. 275700.) On October 18, 1994, the trial court, granting defendants' motion, dismissed this first case with prejudice. On November 23, 1994, the trial court imposed sanctions against plaintiffs. Both of these decisions were affirmed by this court. Albert C. Nozik v. Michael A. Sanson (June 8, 1995), Cuyahoga App. No. 68150, unreported (dismissal); Albert C. Nozik v. Michael A. Sanson (June 8, 1995), Cuyahoga App. No. 68269, unreported (sanctions). On October 20, 1994, two days after the trial court dismissed the original complaint, plaintiffs filed another complaint against these same defendants. This second complaint, Case No. 279029, is the subject of the appeal herein. This case was transferred to the trial judge who had presided over the 1 first case. Once again, this complaint alleged that defendants should be prevented from filing a judgment lien against plaintiffs, because defendants did not possess a valid judgment against plaintiffs. This second complaint also alleged that the 1 . Case No. 275700 was assigned to and disposed of by Judge Michael J. Corrigan. Case No. 279029 was assigned to Judge Calabrese, who dismissed the case. At his hearing on sanctions, Judge Calabrese vacated his dismissal and transferred the case to Judge Corrigan. - 5 - filing of the garnishment in Mentor Municipal Court was 2 improper. On October 2, 1995, the Eleventh District reversed the original Lake County contempt action. The appellate court found that the temporary restraining order that had apparently been violated had expired. (Defendants herein argue that the judgment lien was properly filed because the contempt action had not yet been reversed.) During the pendency of the case at bar, the trial court set a pretrial date for December 20, 1995. On October 26, 1995, defendants filed a motion for summary judgment and a motion for sanctions. On November 8, 1995, plaintiffs filed a motion to continue the pretrial. Thereafter, on November 21, 1995, the trial court (1) granted defendants' motion for summary judgment, (2) changed the December 20, 1995 pretrial to a hearing on defendants' motion for sanctions, and (3) denied plaintiffs' November 8, 1995 motion to continue the December 20, 1995 hearing. No one representing the plaintiffs attended the December 20, 1995 sanctions hearing. Ordering the plaintiffs to pay attorney fees to defendants in the amount of $7,237.50, the trial court explained as follows: 2 The garnishment was in fact improperly filed. Dalheim, the receiver, did not authorize the garnishment and defendants herein dismissed this garnishment. After the dismissal, the Mentor Municipal Court granted attorney's fees to Albert Nozik because Sanson and Ellerin had no authority to file a garnishment. - 6 - *** Plaintiffs' conduct in filing the New Case, while at the same time filing an Appeal of the dismissal, with prejudice, of the Prior Case, constituted frivolous conduct pursuant to the provisions of Ohio Revised Code 2323.51. Plaintiffs' conduct in filing the New Case served to harass the Defendants and was not warranted under existing law. (Trial Court Findings of Fact at 3.) Plaintiffs timely appealed raising five assignments of error. The first states as follows: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MOTION FOR SANCTIONS. In the first assignment, plaintiffs argue the trial court erred by granting summary judgment for defendants. The court explained that the claims raised by plaintiffs' complaint were barred by the doctrine of res judicata. The Ohio Supreme Court recently reiterated the standard for summary judgment as follows: 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 conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385. The doctrine of res judicata provides that "[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, syllabus. In other words, a final judgment or decree between the parties in litigation is conclusive as to all claims which were or might - 7 - have been litigated in the first lawsuit. Rogers v. Whitehall (1986), 25 Ohio St.3d 67,69. Therefore, "res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it." National Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, at 62. The Supreme Court explained the rationale for this rule. Now what is the effect of their lack of diligence and the resulting dismissal by the Court of Appeals? Paragraph four of the syllabus in the case of Pollock v. Cohen, 32 Ohio St., 514, states: "Where a case is brought a second time on the same record, by petition in error, all questions on such record will be deemed settled by the first adjudication. This rule extends not only to questions actually presented, but to all questions existing on the record that might have been presented for adjudication in the first petition in error. In such case the second petition in error should be dismissed." (Emphasis added.) * * * The reasoning in such cases is that a party should have his day in court, and that that day should conclude the matter. A party is bound then to present his entire cause and he is foreclosed from later attempting to reopen the cause as to issues which were or could have been presented. Anderson v. Richards (1962), 173 Ohio St. 50, 53. Plaintiffs themselves recognized the similarity between Case Nos. 275700 and 279029. On the case designation sheet which accompanied the filing of Case No. 279029, plaintiffs checked the box "yes" in response to the question "Has this case previously been filed and dismissed?" More telling is the statement plaintiffs made in their "Combined Motions For Continuance And Relief From Judgment (Civ.R. 60(B))": In Case No. 275700, Nozik, et. al. v. Sanson, et. al., filed in this court upon a complaint involving the same parties and issues, his Honor, Judge Michael - 8 - Corrigan, granted summary judgment against the plaintiffs without a hearing or deposition, with sanctions for attorney fees in the amount of $3,037.00. Therefore, any adjudication on these same issues would be res judicata. The imposition of attorney fees or penalties already ordered and paid would constitute double jeopardy. Both complaints attack defendants' attempt to enforce a judgment against plaintiffs. Both complaints allege that defendants did not have a valid judgment against plaintiffs that would enable them to file a Judgment Lien and Garnishment Proceedings against plaintiffs. The first complaint states: 4. The filing of said lien was maliciously caused, with the intention of injuring the plaintiff, and was knowingly false, and made without probable cause. The second complaint states: The participating defendants herein had no authority nor any reasonable belief to file a judgment lien upon the defendants' property without a judgment recorded in their names. The second complaint does add the additional defendant, Attorney James Ellerin; however, no claims are made against Ellerin in the complaint. The primary difference between the first and second complaint is the fact that the first complaint attacks just the lien, whereas the second complaint attacks the lien and the garnishment. Both the lien and the garnishment were filed by defendants herein as attempts to enforce the contempt judgment. Therefore, because the doctrine of res judicata provides that a final judgment is conclusive to all claims which were or could have been litigated in the first lawsuit, the issue in the case - 9 - sub judice is whether the claim that the garnishment was improperly filed could have been raised in the first complaint. Plaintiffs could have contested the garnishment in the first complaint. The first complaint was filed on August 19, 1994. The garnishment was filed against Nozik on the day before, August 18, 1994. Additionally, plaintiffs had two months to amend their first complaint to add the garnishment claim. Plaintiffs argue they have stated a claim for relief because the original contempt action was reversed. However, the U.S. Supreme Court has held that res judicata still applies even though a prior judgment may have been wrong or rested on a principle subsequently overruled elsewhere. Federated Department Stores, Inc., v. Moitie (1981), 452 U.S. 394. The Court stated as follows: A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948); Cromwell v. County of Sac, 94 U.S. 351, 352-353, 24 L.Ed. 195 (1877). Nor are the res judicata consequences of a final, unappealed judgment on the merits altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case. Angel v. Bullington, 330 U.S. 183, 187, 67 S.Ct. 657, 659, 91 L.Ed. 832 (1947); Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct 317, 84 L.Ed. 329 (1940); Wilson's Executor v. Deen, 121 U.S. 525, 534, 7 S.Ct. 1004, 1007, 30 L.Ed. 980 (1887). As this Court explained in Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 325, 47 S.Ct. 600, 604, 71 L.Ed. 1069 (1927), an "erroneous conclusion" reached by the court in the first suit does not deprive the defendants in the second action "of their right to rely upon the plea of res judicata .... A judgment merely voidable because based upon an erroneous view of the law is not open to collateral attack, but can be corrected only by a direct review and not by bringing - 10 - another action upon the same cause [of action]." We have observed that "[t]he indulgence of a contrary view would result in creating elements of uncertainty and confusion and in undermining the conclusive character of judgments, consequences which it was the very purpose of the doctrine of res judicata to avert." Reed v. Allen, 286 U.S. 191, 201, 52 S.Ct. 532, 534, 76 L.Ed. 1054 (1932). Id. at 398. In the case at bar, therefore, the doctrine of res judicata bars plaintiff's second cause of action. Because plaintiffs could have raised the garnishment issue in the first complaint, which was dismissed and the dismissal affirmed, plaintiffs were precluded from filing the second complaint. Accordingly, the first assignment is overruled. Plaintiffs' second assignment states as follows: II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND AN ABUSE OF PROCESS IN SETTING THE HEARING FOR SANCTIONS MORE THAN 21 DAYS AFTER THE DATE OF FILING OF THE JUDGMENT ENTRY IS IN VIOLATION OF R.C. 2323.51(B)(2) AND RELIEVES THE TRIAL COURT OF JURISDICTION. In this assignment, plaintiffs argue that the trial court erred by holding a hearing on the motion for sanctions more that twenty-one days after the date of the judgment entry. Defendants' motion for sanctions was filed on October 26, 1995; defendants' motion for summary judgment was granted on November 21, 1995; a hearing on the motion for sanctions was held on December 10, 1995; and on January 18, 1996 sanctions were granted. Revised Code 2323.51(B)(1) states as follows: (B)(1) Subject to divisions (B)(2) and (3), (C), and (D) of this section, at any time prior to the commencement of the trial in a civil action or within - 11 - twenty-one days after the entry of judgment in a civil action, the court may award reasonable attorney's fees to any party to that action adversely affected by frivolous conduct. The award may be assessed as provided in division (B)(4) of this section. In Justice v. Lutheran Social Serv. of Cent. Ohio (1992), 79 Ohio App.3d 439, 444, the Tenth District provided a very practical analysis of this rule: There is no indication that the General Assembly intended the twenty-one-day period to be a jurisdictional limitation on the trial court's power to award attorney fees. Furthermore, in these days of crowded courts and congested dockets, it is unreasonable to expect a trial court to hold a hearing and rule on a motion for attorney fees within twenty- one days of receiving the motion. While prompt rulings on motions are always desirable we do not think the legislature intended that motions for attorney fees should be placed ahead of other more pressing matters on the court's docket. The Tenth District Court, citing the Ohio Supreme Court, then invoked the principle that "[w]hen construing statutory language," courts "must avoid ridiculous or absurd results. In re Little Printing Co. (1983), 4 Ohio St.3d 214, 216." Basing its decision on this principle, the court held that R.C. 2323.51 requires that only a motion for sanctions be filed within twenty- one days of judgment; the hearing and ruling on the sanctions motion, however, may be held after the twenty-one-day period has passed. We concur with the Tenth District Court's reasoning and its interpretation of the statute. In the case at bar, since the motion for sanctions was filed before the judgment, the filing requisite of R.C. 2323.51 was satisfied. Accordingly, the trial court had jurisdiction to rule on the motion and did not err by - 12 - holding the sanctions hearing--or by awarding sanctions--more than twenty-one days after the summary judgment entry. III. THE TRIAL COURT ERRED IN GRANTING JUDGMENT TO DEFENDANTS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment, defendant argues that the decision to impose sanctions was against the manifest weight of the evidence. Civil judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, syllabus. In the case sub judice, the trial court, imposing sanctions against plaintiffs, found that, Plaintiffs' conduct in filing the New Case, while at the same time filing an Appeal of the dismissal, with prejudice of the Prior Case, constituted frivolous conduct pursuant to the provisions of Ohio Revised Code [Section] 2323.51. Plaintiffs' conduct in filing the New Case served to harass the Defendants and was not warranted under existing case law. This judgment was supported by competent, credible evidence. At the hearing in the lower court, defendants presented evidence that plaintiffs filed this action against defendants on October 20, 1994, two days after the first case was dismissed. Plaintiffs acknowledged, furthermore, the similarity between the two actions. The amount of sanctions, $7,237.50, moreover, was not against the manifest weight of the evidence, because the award was supported by testimony regarding the amount of work performed - 13 - by defense counsel as well as their hourly rate. Accordingly, this assignment is overruled. IV. THE TRIAL COURT ERRED IN IMPOSING UPON PLAINTIFFS CRUEL AND UNUSUAL PUNISHMENT AND ABUSE OF PROCESS, IN VIOLATION OF PLAINTIFFS' INALIENABLE CONSTITUTIONAL ENTITLEMENTS; ABUSE OF DISCRETION AND PRONOUNCED BIAS. In this assignment, plaintiffs argue that the trial court violated Plaintiffs' constitutional rights by denying plaintiffs' motion for a continuance and proceeding to hold a hearing and ordering sanctions without plaintiffs present. This assignment is meritless. The trial court's decision whether or not to grant a motion for a continuance is reviewed under an abuse of discretion standard. State v. Burke (1995), 73 Ohio St.3d 399. In the case at bar, it cannot be said that the court abused its discretion in not continuing the sanctions hearing. Defendants argue that plaintiffs did not file a motion to continue the sanctions hearing. This is not entirely true. As stated supra, the trial court originally, on October 17, 1995, set a pretrial date for December 20, 1995. The court stated that this date was not subject to change. On November 8, 1995, plaintiffs moved to continue this hearing. Thereafter, on November 21, 1995, the trial court (1) granted summary judgment for defendants, (2) changed the December 20, 1995 pretrial to a hearing on defendants' motion for sanctions, and (3) denied plaintiffs' motion to continue the December 20, 1995 hearing. Defendants are correct that plaintiffs did not move to continue this sanctions hearing; but plaintiffs had previously moved to continue the pretrial scheduled for December 20, 1995. In this - 14 - motion, plaintiffs argued that a continuance was necessary because they had arranged to take their annual vacation from December 1, 1995 until January 7, 1995. The trial court's denial of the motion to continue was not an abuse of discretion. The court denied this motion a month before the date of the hearing. A month was ample time for plaintiffs to make alternate arrangements, that is, by changing their schedule or finding an attorney to represent them at the hearing. Accordingly, this assignment is overruled. Judgment affirmed. - 15 - 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. PORTER, P.J., CONCURS; DYKE, J., CONCURS IN JUDGMENT ONLY. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .