COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73458 COLLEEN CUSICK : ACCELERATED DOCKET : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : NORTH COAST FAMILY : OPINION FOUNDATION, ET AL. : : Defendants-Appellees : PER CURIAM Date of Announcement of Decision: JULY 2, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 292640 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellant: ROBERT T. LYNCH, ESQ. 423 Statler Office Tower E. 12th and Euclid Avenue Cleveland, Ohio 44115 For Defendants-Appellees: NICHOLAS PHILLIPS, ESQ. 7530 Lucerne Drive Suite 200 Middleburg Hts., Ohio 44130 -2- PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Plaintiff-appellant Colleen Cusick appeals from the decision of the trial court denying plaintiff's Civ.R. 60(B) motion for relief from the summary judgment entered in favor of North Coast Family Foundation ("NCFF") and its principals, Michael and Charles Misja. We find no merit to this appeal and affirm the judgment below. NCFF operates psychological counseling centers. Plaintiff Cusick began working part-time at NCFF on July 9, 1992, as a children's counselor. After three days, NCFF learned from a third party that Ms. Cusick was being investigated for allegations of child molestation. She was suspended pending the outcome of these investigations which were conducted by authorities in Richland County. In late September 1992, the investigations were completed and she was cleared of any criminal charges. NCFF offered to reinstate Ms. Cusick in October 1992 at a different office in a position primarily involving the counseling of adults. She rejected the offer and brought this action for wrongful discharge on August 23, 1993. Ms. Cusick conducted a partial deposition of Michael Misja in April 1994. In May 1994, defendants filed a motion for summary judgment. Ms. Cusick received an extension of time to respond to the motion because she needed more time to complete discovery. -3- However, she made no further attempt to conduct discovery and voluntarily dismissed that action on July 26, 1994. Plaintiff re-filed her action on July 21, 1995 adding violation of public policy as an additional theory of liability. On December 28, 1995, defendants again filed a motion for summary judgment supported by Ms. Cusick's own deposition testimony and written employment contract. Plaintiff conducted no discovery, but on January 31, 1996 she requested a ninety-day extension of time to respond to the summary judgment motion claiming that she needed to obtain discovery and an expert report. The trial court granted her motion and ordered that her brief in opposition to summary judgment be filed no later than May 7, 1996. Ms. Cusick did not attempt to schedule any discovery until March 25, 1996. A deposition of Michael Misja was taken on May 2, 1996, as requested by Ms. Cusick's counsel. Those depositions were not completed on that date. Although plaintiff had until May 7, 1996 to file her opposition to the summary judgment motion, she did not file a motion pursuant to Civ.R. 37 seeking to compel discovery, nor did she file a Civ.R. 56(F) motion requesting time to complete her discovery before responding to the summary judgment motion. On May 22, 1996, the trial court granted defendants' motion for summary judgment without any opposition by Ms. Cusick. Plaintiff filed a motion for reinstatement, or in the alternative, motion for a new trial, but failed to support it with any evidentiary material demonstrating that her discovery efforts had been impeded or that she had a meritorious claim to pursue if -4- relief from the summary judgment had been granted. The trial court denied her motion and the matter was appealed to this Court. On February 13, 1997, this Court affirmed the trial court's action holding that summary judgment was properly granted and plaintiff's motion for reinstatement or a new trial were without merit even if considered to be a poorly articulated Civ.R. 60(B) motion. Cusick v. North Coast Family Foundation (Feb. 13, 1997), Cuyahoga App. No. 70845, unreported. (Cusick I). No appeal was taken to the Supreme Court. Notwithstanding the Court of Appeals decision, on May 8, 1997, Ms. Cusick filed a motion for relief from judgment based upon the same grounds as contained in her prior motion for reinstatement, again claiming that the defendants had impeded her discovery efforts. In her brief in support of her motion for relief from judgment, she attempted to correct her previous failure to support her motion for reinstatement with evidentiary materials or allegations of the existence of a meritorious claim, but she again failed to provide any evidence demonstrating the existence of a meritorious claim. On October 7, 1997, the trial court denied her motion based on the principle of res judicata, because the same issue had been previously decided in ruling upon her motion for reinstatement, and that decision had been affirmed by this Court in Cusick I. Plaintiff appeals from that ruling and assigns the following errors: -5- I. TRIAL COURT ERRED TO PREJUDICE OF APPELLANT WHEN IT FAILED TO GRANT RELIEF FROM JUDGMENT PURSUANT TO RULE 60(B). II. THE TRIAL COURT ERRED TO PREJUDICE OF APPELLANT BY FAILING TO GRANT RELIEF FROM JUDGMENT PURSUANT TO RULE 60(B) ON THE GROUND THAT AN ALLEGED NEGLECT BY APPELLANT CONSTITUTED AT MOST EXCUSABLE NEGLECT. III. TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FAILING TO FOLLOW THE GUIDANCE OF THE EIGHTH DISTRICT COURT OF APPEALS AS TO FILING OF ITS 60(B) MOTION IN THE TRIAL COURT. We will address these assignments of error together because they all relate to whether the trial court properly denied relief from judgment under Civ.R. 60(B). Ms. Cusick filed her motion for relief from judgment based upon the same grounds asserted in her previous motion for reinstatement. This is fatal to her claim. Since the motion for relief from judgment sought to re-litigate the identical issues which had been previously decided by the trial court and affirmed by this Court in Cusick I, her claims are barred by res judicata. On her first appeal, this Court treated her motion for reinstatement as a motion for relief from judgment and stated at 4- 5: Even construed as a poorly articulated Civ.R. 60(B) motion for relief from judgment, appellant's alternative motions fail. Appellant urges this court to reverse and remand because her failure to timely respond to appellees' motion for summary judgment constituted excusable neglect. However, Civ.R. 60(B) clearly requires that the movant demonstrate to the trial court: 1) that the party has a meritorious defense or claim to present if relief is granted; 2) that one of the grounds under Civ.R. 60(B)(1) through (5) exists; and, 3) that the motion is timely. -6- Thompson v. Wing (1994), 70 Ohio St.3d 176, 178, 637 N.E.2d 917, citing, GTE Automatic Elec. v. ARC Indus., Inc. (1976), 47 Ohio St.2d 146. Appellant's motions to the trial court fail to allege, much less demonstrate, a meritorious defense or claim. Accordingly, the trial court properly denied the alternative motions and we overrule appellant's second assignment of error. Judgment affirmed. Under the principle of res judicata, a party who has once been denied relief from judgment may not thereafter obtain such relief by filing another motion based upon grounds which were or could have been raised in the prior motion. Brick Processors v. Culbertson(1981), 2 Ohio App.3d 478, 479; Brothers Printing Co. v. Zachowski (Aug. 26, 1993), Cuyahoga App. No. 64917, unreported at 1; Madorsky v. Madorsky (Sept. 27, 1990), Cuyahoga App. No. 57517, unreported at 2. After a motion seeking relief from judgment has been denied for failure to allege a meritorious claim, a party cannot correct that failure by filing another similar motion. McCann v. City of Lakewood (1994), 95 Ohio App.3d 226 at 236-37. Likewise, after a motion seeking relief from judgment has been denied because it was not supported with affidavits, a party cannot obtain relief from judgment by filing a second motion with affidavits. Dawson v. Udelson (1987), 37 Ohio App.3d 141, 142-43. In the case herein, plaintiff's second motion was based on the same facts and same grounds, and could have been raised through appropriate means in the first motion. The trial court therefore properly denied Ms. Cusick's motion for relief from judgment as barred by res judicata and we affirm that decision. -7- Although courts of appeal are generally lenient in determining that there have been reasonable grounds for an appeal, this case is a conspicuous exception to the general rule. Despite the fact that the trial court's opinion and order denying Ms. Cusick's motion for relief from judgment made it abundantly clear that her motion was meritless and barred by the doctrine of res judicata, she has filed this appeal in an attempt to re-argue the same issues decided in her prior appeal in Cusick I. In fact, the greater part of her appellant's brief filed in this case is identical to the appellant's brief she filed in the prior case. However, her brief does not even address the issue of res judicata, which was the primary basis for the trial court's decision. She has based her motion for relief from judgment and the appeal in this case upon the totally unfounded claim that this Court's opinion in Cusick I authorized her to continue this case by re-litigating previously decided issues. She also states on page 12 of her appellant's brief that unless this Court remands this case to the trial court, counsel for both sides will be continually mired in a hopeless swearing contest, apparently indicating that she intends to continue attempting to pursue this case in the trial court even if this Court affirms the appealed order. Pursuant to App.R. 23, if a court of appeals shall determine that an appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee including attorney fees and costs. This is a matter within our discretion. Talbott v. Fountas(1984), 16 Ohio App.3d 226. A frivolous appeal is one that -8- presents no reasonable question for review. Panis Montco Landfill Co. v. Jefferson Twp. Zoning Comm. (1993), 85 Ohio App.3d 494; Taylor v. Franklin Nursing Home (1996), 112 Ohio App.3d 27,32. As this Court in Nwabara v. Willacy (May 6, 1994), Cuyahoga App. No. 65450, unreported at 13 held: Sanctions under App.R. 23 serve two vital functions: they compensate the non-appealing party for the expense of having to defend a spurious appeal, and, by deterring frivolity, they help preserve the appellate calendar for cases truly worthy of consideration. This appeal is frivolous as it is basically a rehashing of arguments raised both in the trial court below and in the former appeal. See, Cf. Tessler v. Ayer (1995), 108 Ohio App.3d 47, 58; In re Estate Hollingsworth (1989), 58 Ohio App.3d 14,16. The appeal presents no reasonable question for review. Therefore, pursuant to App.R.23, we find the instant appeal frivolous and order the appellant to pay the reasonable expense of appellees, including attorney fees and costs. Appellees may submit evidence by way of affidavit regarding the costs, including attorney fees, incurred in this appeal, within seven days of the judgment entry herein. Appellant may submit counter affidavits concerning the amount of reasonable attorney fees and costs within 14 days after judgment is entered herein. This Court will then determine the amount to be assessed against the appellant. Assignments of Error I, II and III are overruled. Judgment affirmed. -9- It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were not reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. JAMES M. PORTER, PRESIDING JUDGE ANN DYKE, JUDGE MICHAEL J. CORRIGAN, 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 of decision by the .