Brown v. Carlton Harley-Davidson, Inc. , 2013 Ohio 4047 ( 2013 )


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  • [Cite as Brown v. Carlton Harley-Davidson, Inc., 
    2013-Ohio-4047
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 99761
    BRUCE ANDREW BROWN, ET AL.
    PLAINTIFFS-APPELLEES
    vs.
    CARLTON HARLEY-DAVIDSON, INC., ET AL.
    DEFENDANTS-APPELLANTS
    JUDGMENT:
    REVERSED AND REMANDED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-780833
    BEFORE: Boyle, P.J., Rocco, J., and E.A. Gallagher, J.
    RELEASED AND JOURNALIZED: September 19, 2013
    ATTORNEYS FOR APPELLANTS
    John R. Conley
    Christina J. Marshall
    Lawrence A. Sutter
    Sutter O’Connell
    3600 Erieview Tower
    1301 East 9th Street
    Cleveland, Ohio 44114
    ATTORNEYS FOR APPELLEES
    Bruce Andrew Brown, pro se
    B. Andrew Brown & Associates, L.L.C.
    820 West Superior Avenue
    Suite 840
    Cleveland, Ohio 44113
    Robert Smith, III
    75 Public Square
    Suite 1111
    Cleveland, Ohio 44113
    MARY J. BOYLE, P.J.:
    {¶1} Defendants-appellants, Carlton Harley-Davidson, Inc., and Jane Carlton
    (“Carlton”) (collectively “appellants”), appeal the judgment of the Cuyahoga County
    Court of Common Pleas that granted the Civ.R. 12(B)(6) motion to dismiss of
    plaintiffs-appellees, Bruce Andrew Brown (“Brown”) and B. Andrew Brown &
    Associates, L.L.C. (“BABLLC”) (collectively “appellees”).        After a careful review of
    the record and relevant case law, we reverse the judgment of the trial court.
    I. Factual and Procedural History
    {¶2} Since April 2010, appellees have filed three separate and overlapping
    complaints in the common pleas court that named appellants as defendants. The first suit
    filed by appellees against appellants was captioned Bruce Andrew Brown v. Suzanne
    Charlton, et al., Cuyahoga C.P. No. CV-724016 (filed Apr. 13, 2010). The claims set
    forth in the first suit stemmed from the allegedly improper sale of a 2008
    Harley-Davidson motorcycle to Carlton Harley-Davidson, Inc.                The complaint
    specifically alleged that Carlton acted in concert with Brown’s former wife, Suzanne
    Charlton, and wantonly, recklessly, and negligently tendered the proceeds from the sale of
    the motorcycle to his former wife instead of to BABLLC, the titled and legal owner of the
    motorcycle.
    {¶3} On September 8, 2010, appellants filed a motion for summary judgment
    asserting res judicata as a bar to appellees’ complaint, which was granted by the trial
    court on February 4, 2011. However, on appeal, this court reversed the judgment of the
    trial court, concluding that the doctrine of res judicata did not apply and that issues of
    material fact remained as to whether Brown’s former wife could act under the authority of
    Brown’s power of attorney to sell the motorcycle because it was the property of
    BABLLC. Brown v. Charlton, 8th Dist. Cuyahoga No. 96430, 
    2011-Ohio-4958
    , ¶ 15.
    Further, this court found that it was unclear and disputed as to whom the check proceeds
    should have been made payable. 
    Id.
    {¶4} While CV-724016 was on appeal to the Ohio Supreme Court, appellees
    inappropriately filed a second complaint in the common pleas court on October 5, 2011,
    which was designated Cuyahoga C.P. No. CV-766002.               In their second complaint,
    appellees again named appellants as defendants and set forth allegations rooted in the
    same transaction at issue in the first complaint.
    {¶5} Once CV-724016 was remanded to the trial court, appellants moved for
    consolidation of the first and second complaints, so as not to be forced to defend against
    the same lawsuit in two separate courts. The relevant trial courts agreed, and the cases
    were consolidated on February 17, 2012. After a thorough review of the facts and
    circumstances of these consolidated cases, the trial court determined that Brown, in his
    personal capacity, lacked standing to assert any of the causes of actions set forth in either
    complaint. As such, by April 17, 2012, the trial court had dismissed all claims brought
    against appellants by Brown in his personal capacity.1
    The remaining claims brought by BABLLC proceeded to trial on December 12, 2012.   At
    1
    the conclusion of the trial, the jury found in favor of appellants.
    {¶6} Nevertheless, on April 19, 2012, appellees filed a third complaint in the
    common pleas court, which was designated Cuyahoga C.P. No. CV-780833. In their third
    complaint, appellees again attempted to set forth causes of action rooted in the same
    transaction on which the first two complaints were premised. In response to the filing of
    CV-780833, appellants filed a counterclaim requesting the trial court to designate
    appellees as vexatious litigators and award appellants appropriate relief, including
    attorney fees.
    {¶7} On June 5, 2012, appellees filed a motion to dismiss appellants’ counterclaim
    pursuant to Civ.R. 12(B)(6), arguing that the counterclaim failed to state a cognizable
    claim. While appellees’ motion to dismiss was pending, appellants filed a motion for
    partial judgment on the pleadings, arguing again that Brown lacked standing to assert any
    of the causes of action set forth in the third complaint. On August 31, 2012, the trial
    court granted appellants’ motion for partial judgment on the pleadings and dismissed all
    claims brought by Brown in his personal capacity.         As a result of the trial court’s
    judgment, appellees’ only remaining claims in CV-780833 were those asserted by
    BABLLC.          On September 17, 2012, BABLLC filed a voluntary dismissal of all
    remaining claims.
    {¶8} On March 20, 2013, the trial court granted appellees’ motion to dismiss
    appellants’ counterclaim stating,
    [appellees’] motion to dismiss for failure to state a claim for which relief
    can be granted, is granted because [appellants] failed to state allegations in
    their counterclaim which satisfy the statutory requirements of R.C. 2323.52.
    * * * This matter is hereby dismissed with prejudice.
    {¶9} Appellants now bring this timely appeal, raising one assignment of error for
    review:
    I. The trial court committed reversible error in granting plaintiffs/appellees’
    Civ.R. 12(B)(6) Motion to Dismiss for Failure to State a Claim, after
    appellants sufficiently pled their counterclaim for vexatious litigation,
    pursuant to Ohio Revised Code 2323.52.
    II. Law and Analysis
    {¶10} In their sole assignment of error, appellants argue that the trial court
    committed reversible error in granting appellees’ Civ.R. 12(B)(6) motion to dismiss for
    failure to state a claim.
    A. Civ.R. 12(B)(6)
    {¶11} When reviewing a judgment on a Civ.R. 12(B)(6) motion to dismiss for
    failure to state a claim upon which relief can be granted, an appellate court’s standard of
    review is de novo. Perrysburg Twp. v. Rossford, 
    103 Ohio St.3d 79
    , 
    2004-Ohio-4362
    ,
    
    814 N.E.2d 44
    , ¶ 5.
    {¶12} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim is procedural
    and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of
    Commrs., 
    65 Ohio St.3d 545
    , 548, 
    605 N.E.2d 378
     (1992), citing Assn. for the Defense of
    the Washington Local School Dist. v. Kiger, 
    42 Ohio St.3d 116
    , 117, 
    537 N.E.2d 1292
    (1989). A trial court must presume all factual allegations contained in the complaint to
    be true and must make all reasonable inferences in favor of the nonmoving party.
    Garofalo v. Chicago Title Ins. Co., 
    104 Ohio App.3d 95
    , 104, 
    661 N.E.2d 218
     (8th
    Dist.1995), citing Perez v. Cleveland, 
    66 Ohio St.3d 397
    , 
    613 N.E.2d 199
     (1993);
    Mitchell v. Lawson Milk Co., 
    40 Ohio St.3d 190
    , 
    532 N.E.2d 753
     (1988); Phung v. Waste
    Mgt., Inc., 
    23 Ohio St.3d 100
    , 
    491 N.E.2d 1114
     (1986).
    {¶13} Thus, in order for a court to grant a motion to dismiss for failure to state a
    claim, it must appear “beyond a doubt that the plaintiff can prove no set of facts in
    support of his claim which would entitle him to relief.” (Citations omitted in original.)
    O’Brien v. Univ. Community Tenants Union, Inc., 
    42 Ohio St.2d 242
    , 245, 
    327 N.E.2d 753
     (1975).
    B. Vexatious Litigator Statute
    {¶14} Ohio’s vexatious litigator statute, codified under R.C. 2323.52, expressly
    creates a cause of action by which
    a person * * * who has defended against habitual and persistent vexatious
    conduct * * * may commence a civil action in a court of common pleas with
    jurisdiction over the person who allegedly engaged in the habitual and
    persistent vexatious conduct to have that person declared a vexatious
    litigator.
    R.C. 2323.52(B).
    {¶15} Before a court can designate a person a vexatious litigator, it must find that
    person has
    habitually, persistently, and without reasonable grounds engaged in
    vexatious conduct in a civil action or actions, * * * whether the person or
    another person instituted the civil action or actions, and whether the
    vexatious conduct was against the same party or against different parties in
    the civil action or actions.
    R.C. 2323.52(A)(3).
    {¶16} “Vexatious conduct” means conduct of a party in a civil action that satisfies
    any of the following:
    (a) The conduct obviously serves merely to harass or maliciously injure
    another party to the civil action.
    (b) The conduct is not warranted under existing law and cannot be
    supported by a good faith argument for an extension, modification, or
    reversal of existing law.
    (c) The conduct is imposed solely for delay.
    R.C. 2323.52(A)(2).
    The purpose of the vexatious litigator statute is clear. It seeks to prevent
    abuse of the system by those persons who persistently and habitually file
    lawsuits without reasonable grounds and/or otherwise engage in frivolous
    conduct in the trial courts of this state. Such conduct clogs the court
    dockets, results in increased costs, and oftentimes is a waste of judicial
    resources — resources that are supported by the taxpayers of this state.
    The unreasonable burden placed upon courts by such baseless litigation
    prevents the speedy consideration of proper litigation.
    Mayer v. Bristow, 
    91 Ohio St.3d 3
    , 13, 
    740 N.E.2d 656
     (2000), quoting Cent. Ohio
    Transit Auth. v. Timson, 
    132 Ohio App.3d 41
    , 50, 
    724 N.E.2d 458
     (10th Dist.1998).
    {¶17} Applying a de novo standard of review, we turn to the critical issue on
    appeal — whether appellants’ counterclaim stated a claim upon which relief can be
    granted.
    C. Allegations of the Counterclaim
    {¶18} In this case, we find that the trial court erred in dismissing appellants’
    counterclaim pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief
    could be granted. Our review of the complaint reveals that appellants set forth the basis
    of their allegations of vexatious litigation by outlining the procedural history of the
    multiple overlapping lawsuits filed against them by appellees since April 2010.
    Specifically, the counterclaim highlights appellees’ act of filing the second complaint
    while the first complaint was still pending and filing the third complaint just two days
    after the trial court dismissed Brown in his personal capacity for lack of standing. In
    addressing the express elements of R.C. 2323.52, appellants’ counterclaim alleged the
    following:
    26. Bruce Andrew Brown and B. Andrew Brown & Associates
    LLC habitually, persistently and without reasonable grounds engaged in
    vexatious conduct in civil actions * * * filed against Jane Carlton and
    Carlton Harley-Davidson.
    27. Mr. Brown’s conduct obviously serves to harass or maliciously
    injure * * * Jane Carlton and Carlton Harley-Davidson.
    28. Mr. Brown’s conduct is not warranted under existing law and
    cannot be supported by a good faith argument for extension, modification,
    or reversal of existing law.
    29. * * * Jane Carlton and Carlton Harley-Davidson * * * have
    suffered severe mental anguish and distress.
    30. [Jane Carlton and Carlton Harley-Davidson] were forced to go
    through with the expensive, cumbersome, and troubling process of
    defending themselves in a lawsuit, brought for no other purpose than to
    continually harass, intimidate, and cause emotional distress * * *.
    {¶19} We note that the pleadings also set forth numerous examples of Brown’s
    vexatious conduct against unrelated parties in Ohio civil and criminal trial courts,
    appellate courts, and federal courts. However, those portions of the counterclaim do not
    impact our analysis of whether appellees’ conduct against appellants constituted
    vexatious litigation.
    {¶20} Nevertheless, accepting appellants’ allegations as true, and making all
    reasonable inferences in favor of appellants, we find that the counterclaim presented a set
    of facts that could result in a ruling in appellants’ favor. Contrary to the trial court’s
    finding, the complaint sets forth the elements of a vexatious litigator, as defined under
    R.C. 2323.52, and presents facts, i.e., appellees’ series of repetitive, and allegedly
    unwarranted, complaints filed against appellants, to demonstrate that those elements were
    met in this case. Accordingly, appellant’s complaint was sufficient to withstand a Civ.R.
    12(B)(6) motion.
    {¶21} We again emphasize that in our analysis we are obligated to presume the
    truth of all facts alleged in the complaint. Thus, we note that our holding here does not,
    in any manner, express our view with respect to the merits of appellants’ counterclaim,
    but only expresses our view that the Civ.R. 12(B)(6) dismissal was improper.
    {¶22} Based on the foregoing reasons, we sustain appellants’ assignment of error,
    reverse the trial court’s judgment, and remand for further proceedings necessary to
    address the substantive merits of the appellant’s vexatious litigation claim.
    {¶23} This cause is reversed and remanded to the lower court for further
    proceedings consistent with this opinion.
    It is ordered that appellants recover of said appellees 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.
    MARY J. BOYLE, PRESIDING JUDGE
    KENNETH A. ROCCO, J., and
    EILEEN A. GALLAGHER, J., CONCUR