Bachman v. Durrani , 2021 Ohio 4073 ( 2021 )

[Cite as Bachman v. Durrani, 2021-Ohio-4073.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
GAYLE BACHMAN, et al., : APPEAL NO. C-190514
TRIAL NO. A-1601237
Plaintiffs, :
VS. : O P I N I O N.
ABUBAKAR ATIQ DURRANI, M.D., et :
al.,
:
Defendants,
:
and
:
THE CHRIST HOSPITAL,
:
Defendant-Appellee,
:
vs.
:
THE DETERS LAW FIRM,
:
FRED JOHNSON, ESQ.,
:
and
:
BENJAMIN MARAAN II, ESQ.,
:
Appellants.
:
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 17, 2021
OHIO FIRST DISTRICT COURT OF APPEALS
The Deters Law Firm Co. II, P.A., James F. Maus, Alex Petraglia and Robert A.
Winter, Jr., for Appellants,
Dinsmore & Shohl LLP, Jennifer Orr Mitchell, Matthew S. Arend and R. Samuel
Gilley, for Defendant-Appellee.
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BERGERON, Presiding Judge.
{¶1} We don’t let a party file multiple suits against the same defendant in
the same court for the same injury at the same time. And just reciting that
proposition answers the question of why. Nevertheless, in this latest scene from a
medical malpractice epic, counsel for Gayle Bachman violated that basic rule, filing a
consolidated action against defendant-appellee The Christ Hospital (“TCH”) joining
the claims of multiple plaintiffs who already had cases pending against TCH for the
same claims (worse yet, some of these claims had already been dismissed in favor of
TCH). Upon learning of the duplicative action, TCH alerted the lawyers to this
procedural snafu and requested that they dismiss the second, duplicative action.
These entreaties fell on deaf ears, as counsel forced TCH to wage a two-front battle
over several years—defending the individual actions as well as the duplicative
consolidated action. After never receiving a satisfactory answer as to why counsel
compelled these wasteful efforts, the trial court levied sanctions against them. On
appeal, after delving into the record of this procedural adventure, we have no
hesitation in affirming its judgment.
I.
{¶2} The trial court sanctioned appellants The Deters Law Firm, Fred
Johnson, Esq., and Benjamin Maraan II, Esq., (collectively, “Counsel”). The first
chapter of this odyssey began in 2014 when Counsel joined 36 former patients of Dr.
Abubakar Atiq Durrani in an action against Cincinnati Children’s Hospital Medical
Center (“CCHMC”), captioned Bachman v. Durrani. In drafting the complaint,
however, Counsel included nine plaintiffs with pending lawsuits involving the same
claim against CCHMC, in the same forum. Making matters worse, the court had
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already dismissed with prejudice the identical claims of two of the plaintiffs, Carla
Greissman and Kevin Hunley. Shortly after receiving the complaint, CCHMC’s
attorney alerted Counsel to the pleading deficiencies and the frivolity of the
complaint. Counsel conceded that one plaintiff—Andrew Carr—should be dismissed
from the lawsuit as duplicative. But other than that one acknowledgment, Counsel
refused to take any action in response to CCHMC’s inquiry and instead rebuked
CCHMC for having the temerity to broach the subject.
{¶3} Sensing no forthcoming voluntary agreement on this issue, CCHMC
moved to dismiss the “legally frivolous lawsuit.” The motion chronicled efforts by
Counsel to file inappropriate pleadings and stall the progress of numerous cases with
this type of conduct, all of which multiplied the cost of litigation. Instead of
defending the propriety of the litigation, Counsel voluntarily dismissed the suit in
2015—the exact action CCHMC wanted in the first place.
{¶4} The next chapter in our journey began about a year later, in 2016.
Despite CCHMC’s previous warnings, Counsel refiled the exact same joint complaint
with the exact same 36 plaintiffs. Counsel made one change of note—adding TCH as
a defendant in addition to CCHMC. By this point in time, TCH had been embroiled
in Durrani-related litigation in a multitude of suits brought by Counsel for quite
some time. Imagine TCH’s surprise when it reviewed this consolidated action to
discover that 28 of the plaintiffs had pending individual lawsuits against TCH
alleging the same cause of action, three others had their cases previously dismissed
with prejudice, and the remaining five had previously dismissed actions without
timely refiling. TCH accordingly advised Counsel of the frivolousness of the filing,
requesting dismissal of the joint lawsuit in order to avoid unnecessary motion
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practice. The next day, CCHMC chimed in, reiterating its concerns from the original
filing the previous year. Counsel was unmoved—they refused to dismiss the action
despite the failure to explain how the matter could be independently maintained.
{¶5} In the ensuing 16 months, various opposing counsel notified Counsel
on at least three separate occasions that the complaint was frivolous and duplicative.
Yet Counsel refused to budge, forcing TCH and CCHMC to move forward and defend
against the Bachman action while they simultaneously defended the myriad
individual suits. During this process, the trial court dismissed on the merits many
additional individual cases against TCH. As case after case was dismissed, one might
have suspected that this would have caused Counsel to reevaluate their position on
the second, duplicative action. Not so.
{¶6} TCH accordingly filed a motion to dismiss and CCHMC filed for
judgment on the pleadings, both of which raised the specter of sanctions against
Counsel for refusing to voluntarily dismiss. The trial court, also seemingly perplexed
about why it was being forced to referee duplicative claims, emailed Counsel for an
explanation of “how Plaintiffs expect to proceed on these separate actions that are
joined in this one complaint.” The court advised Counsel that all of these plaintiffs
had identical cases pending (or already dismissed), marking yet another occasion in
which this flaw was raised to Counsel’s attention. In response, Counsel
acknowledged that even though “it’s the same claim as their main cases,” they did
not want to dismiss and preferred to have the cases consolidated. Three days later,
Counsel did indeed file a single-sentence motion to consolidate followed by a motion
to amend the complaint to add a RICO claim. The trial court swiftly denied those
motions while granting TCH’s motion to dismiss and CCHMC’s motion for judgment
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on the pleadings. Counsel never bothered to file a response to TCH’s motion to
dismiss.
{¶7} Shortly after, in December of 2018, TCH and CCHMC moved for
sanctions against Counsel. CCHMC subsequently entered settlement negotiations
and apparently resolved the matters pending against it, so it exited the stage in
Bachman. The trial court ultimately awarded TCH sanctions in the amount of
$54,630 for frivolous conduct under R.C. 2323.51 and Ohio Rule of Civil Procedure
11. Undeterred by this ruling, Counsel continued to appeal the trial court’s denial of
the motion to consolidate (although they paradoxically failed to appeal the
dismissal). At oral arguments in front of this court, Counsel informed us that all of
the individual actions against TCH had already been decided on the merits and
conceded that the matter was moot. Thus, we dismissed the appeal as moot—almost
five years after TCH first asked Counsel to dismiss the action precisely because the
individual suits rendered the joint complaint duplicative.
II.
{¶8} In their first assignment of error, Counsel insists the trial court abused
its discretion by granting TCH’s motion for sanctions because the court should have
consolidated the cases. But before we dive into this analysis, we must clarify that the
trial court imposed sanctions under both R.C. 2323.51 and Civ.R. 11, but in this
appeal, Counsel limit their challenge to R.C. 2323.51, essentially disregarding the
Civ.R. 11 aspect of that determination. Why does this matter? A law firm is generally
not responsible for an award of fees under Civ.R. 11, which is limited to the attorneys
signing the offending documents. Civ.R. 11 (“The signature of an attorney or pro
se party constitutes a certificate by the attorney or party that the attorney or party
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has read the document; that to the best of the attorney’s or party’s knowledge,
information, and belief there is good ground to support it; and that it is not
interposed for delay.”); Riley v. Langer, 95 Ohio App.3d 151, 162-163, 642 N.E.2d 1(1st Dist.1994) (comparing former analogous section to Federal Rule of Civil
Procedure 11 in finding that liability under Civ.R. 11 can be imposed on a signing
attorney only in his or her individual capacity, not on the attorney's firm). But firms,
as well as individual lawyers, can be liable for such fees under R.C. 2323.51.
{¶9} Although the trial court found that Matthew Hammer violated Civ.R.
11 by initially filing the offensive pleadings and motions, Mr. Hammer never
appealed. Therefore, we do not consider any issues in this appeal concerning his
conduct. Similarly, the court found that Mr. Johnson and Mr. Maraan ratified and
continued the wrongful litigation in subsequently-filed documents, but despite
appealing, neither of these individuals contests the Civ.R. 11 sanction against them (it
turns out that Mr. Johnson is deceased now). As a result, we affirm the trial court’s
Civ.R. 11 decision against the individual attorneys for failure to advance any specific
argument or assignment of error on that issue. See App.R. 16(A). We limit the
balance of our analysis to the frivolous conduct determination.
{¶10} Under R.C. 2323.51(A)(2)(a)(ii), conduct is frivolous and unwarranted
if no reasonable attorney would have brought the action in light of existing law.
Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857, ¶ 31 (1st
Dist.). If a court “determine[s] that reasonable inquiry by a party’s counsel of record
should reveal the inadequacy of a claim, a finding that the counsel of record has
engaged in frivolous conduct is justified, as is an award * * * to any party adversely
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affected by the frivolous conduct.” Ron Scheiderer & Assocs. v. London, 81 Ohio
St.3d 94, 97-98, 689 N.E.2d 552 (1998). As relevant here, conduct is frivolous when
it: (1) “serves merely to harass or maliciously injure another party to the civil action
or appeal or is for another improper purpose, including, but not limited to, causing
unnecessary delay or a needless increase in the cost of litigation,” or (2) “[i]t is not
warranted under existing law, cannot be supported by a good faith argument for an
extension, modification, or reversal of existing law, or cannot be supported by a good
faith argument for the establishment of new law.” R.C. 2323.51(A)(2)(a)(i) and (ii).
A motion for sanctions requires the trial court to consider whether any party has
been adversely affected by the frivolous conduct of another party. Riston at ¶ 17.
Because the issue of whether the complaint was unwarranted and legally groundless
pursuant to R.C. 2323.51(A)(2)(a)(ii) involves a question of law, we review that
portion de novo. Id. at ¶ 21.
{¶11} In their brief, Counsel frames the issue at hand as whether filing for
consolidation was sanctionable conduct under R.C. 2323.51. Counsel believes that
granting the motion to consolidate would have alleviated any concerns about
duplicative litigation, and thus they imagine vindication on consolidation as their
ticket out of sanctions. But this argument rests on a misapprehension of the basis of
the trial court’s sanctions award. The trial court sanctioned Counsel for willfully
resisting dismissal of the duplicative suit long after being made aware of the
problem, not for filing the motion to consolidate. Therefore, even if the
consolidation motion were meritorious, it would not absolve Counsel of their
sanctionable conduct.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} Hampered by that misplaced perspective, Counsel effectively miss the
forest for the trees in this appeal, as they never muster a substantive defense as to
why they filed multiple lawsuits against the same parties for the same harm. Ohio
law “abhors a multiplicity of suits,” a long-standing tenet prohibiting Counsel from
harassing TCH with multiple actions for the same claims. See State ex rel. Maxwell
v. Schneider, 103 Ohio St. 492, 496, 134 N.E. 443 (1921) (“[T]he law * * * will not
permit a defendant to be harassed and oppressed by two actions for the same cause
where plaintiff has a complete remedy by one of them.”); State ex rel. Miller v. Court
of Common Pleas, 151 Ohio St. 397, 400, 86 N.E.2d 464 (1949) (“It is well settled
that the pendency of an action for the identical cause and between the same parties
as in a subsequent action is ground for the dismissal of the latter.”). And
undoubtedly, frivolous conduct under Ohio law encompasses Counsel’s conduct at
issue here—bringing the same claims against the same parties after having been
previously unsuccessful. See State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-
Ohio-5350, 957 N.E.2d 19, ¶ 17 (“A court does not abuse its discretion in determining
that a party’s conduct in repeatedly relitigating an issue after first raising it
unsuccessfully constituted frivolous conduct under R.C. 2323.51.”).
{¶13} The closest Counsel comes to mounting a substantive defense is to
point to State ex rel. Consortium for Economic & Community. Dev. for Hough Ward
7 v. Russo, 151 Ohio St.3d 129, 2017-Ohio-8133, 86 N.E.3d 327. There, the Ohio
Supreme Court considered the jurisdiction priority rule when two cases are pending
in the same court before different judges. Id. at ¶ 6. But the two lawsuits involved
different claims (quiet title in one, tax foreclosure in another), different parties (the
contesting owners in one, taxing agency versus property and others in the second),
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and ended up on the desk of two different judges. Id. at ¶ 4. The Supreme Court
recognized that in such a situation, consolidation before the same judge constitutes a
proper procedural path, but this is little more than a garden-variety situation that
could benefit from consolidation. See id. at ¶ 10. That situation bears little
resemblance to this case, where Counsel copied and pasted identical causes of
actions involving identical parties for the same harm into a consolidated complaint
that duplicated the already-pending actions.
{¶14} Furthermore, Counsel’s shifting explanations for why they could not
dismiss the joint complaint resulted in the trial court’s assessment that their efforts
were designed to harass and inflict needless fees on TCH pursuant to
R.C. 2323.51(A)(2)(a)(i). Because this portion of the analysis involves factual
determinations, we accord the trial court deference and review these findings for an
abuse of discretion. Riston, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857,
at ¶ 22 (“[T]he abuse-of-discretion standard is appropriate when reviewing a trial
court’s determination of whether a party has engaged in conduct merely to harass or
maliciously injure another, an issue that necessarily involves factual
considerations”). Abuse of discretion occurs when “a court exercis[es] its judgment,
in an unwarranted way, in regard to a matter over which it has discretionary
authority.” Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304, ¶ 35. We would
be hard-pressed to conclude the trial court abused its discretion after Counsel
vacillated between various justifications for the consolidated action—all of which
crumbled under scrutiny.
{¶15} First, Counsel assured the trial court that they needed to file the
consolidated action quickly to avoid any statute of repose or limitations bar. But this
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makes no sense given that Counsel had already filed individual cases against TCH for
all of the plaintiffs (and it had previously filed the same action against CCHMC but
dismissed it). In other words, no clock was ticking that needed to be stopped.
Counsel also complained that dismissing the complaint for the second time would
violate Civ.R. 41’s double-dismissal rule, resulting in a judgment on the merits. But
this strikes us as a problem of Counsel’s own creation, albeit one that they could have
extricated themselves from by requesting an order to dismiss without prejudice from
the trial court or a stipulation in similar vein from TCH. Regardless, even if those
concerns were legitimate, Counsel cannot defend (nor do they attempt to) the
prosecution of the Bachman case with respect to individuals whose cases were
resolved on the merits in favor of TCH. In their reply brief before this court, Counsel
concedes that at least 15 individuals of those named in the consolidated complaint
had their individual cases dismissed, and confesses “erring” in this regard by
pursuing the duplicative litigation against TCH.
{¶16} This means that the consolidation idea, ill-fated from the start, could
never have been effectuated based on the dismissals of the individual actions. After
all, a court cannot join two things unless they both exist. Proper consolidation
requires the court to first consider whether two pending actions present common
issues, an impossible task when one of the claims has been dismissed.
See Waterman v. Kitrick, 60 Ohio App.3d 7, 14, 572 N.E.2d 250 (10th Dist.1990); see
also Parkstone Capital Partners v. City of Salon, 8th Dist. Cuyahoga No. 99241,
2013-Ohio-3149, ¶ 17 (holding that in cases of voluntary dismissal, the second case
no longer exists and any motion to consolidate is rendered moot). This further
reinforces the impropriety of the consolidation appeal in this case, which subjected
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TCH to needless expense and delay, only to have Counsel admit that the matter was
moot when we gathered for oral argument.
{¶17} Even if we could excuse the initial filing of this duplicative action, no
reasonable attorney would have declined to dismiss this case when confronted with
the facts and record at hand. Counsel had multiple opportunities to do the right
thing (and were reminded of that option on several occasions), but instead they
perpetuated this matter as long as possible, inflicting as much damage as they could
on TCH and the judicial system. We accordingly overrule Counsel’s first assignment
of error.
{¶18} In their second assignment of error, Counsel contest the amount of
the sanctions award, focusing on two line-items: (1) fees incurred by TCH during
appeal (about $9,585), and (2) fees incurred by TCH in connection with an
unsuccessful removal to federal court (about $6,323). We review the amount of
sanctions under an abuse of discretion standard. Pitcher v. Waldman, 1st Dist.
Hamilton No. C-160245, 2016-Ohio-5491, ¶ 16.
{¶19} Regarding fees incurred during appeal, Counsel incorrectly declares
that only the appellate court may award such fees. To be sure, appellate courts enjoy
the power to award fees and costs under the Ohio Rules of Appellate Procedure.
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.”). But this is not the exclusive path to fees, notwithstanding Counsel’s
reliance on Tessler v. Ayer, 108 Ohio App.3d 47, 669 N.E.2d 891 (1st Dist.1995),
ostensibly for the notion that only appellate courts can impose sanctions for
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appellate proceedings. We see two things wrong with this premise. First, we never
held in Tessler that appellate sanctions fall within the exclusive purview of appellate
courts; to the contrary, we simply imposed sanctions pursuant to App.R. 23. Tessler
at 57. Second, after we decided Tessler, the General Assembly amended R.C. 2323.51
in 1996 to now expressly allow for “reasonable expenses incurred in connection with
the civil action or appeal.” (Emphasis added.) R.C. 2323.51(B)(1). By statute, the
trial court possessed discretionary authority to award sanctions for fees incurred in
the appeal of this frivolous action. We see nothing to cast doubt on the court’s
exercise of discretion on this record.
{¶20} Finally, Counsel claims that TCH should not recover fees expended in
an unsuccessful attempt to remove the case to federal court. Because the federal
court remanded the matter, Counsel concludes that such a determination bars any
fee recovery in connection with removal. But this places too narrow a limit on the
scope of the frivolous conduct statute. The 1996 amendment to R.C. 2323.51
broadened the permissible fees from only those “necessitated by the frivolous
conduct” to now include all “reasonable expenses incurred in connection with the
civil action or appeal.” R.C. 2323.51(B)(1); Helfrich v. Madison, 5th Dist. Licking No.
2011-CA-89, 2012-Ohio-3701, ¶ 49 (“ ‘The amendment to the statute clearly removed
the requirement that fees be necessitated by the frivolous conduct, and replaced it
with language allowing a party to recover attorney’s fees ‘reasonably incurred’ by a
party in a civil action.’ ”), quoting Mid-Ohio Mechanical v. Eisenmann Corp., 5th
Dist. Guernsey Nos. 07 CA 000035 and 08 CA 00012, 2009-Ohio-5804, ¶ 157. The
statute does not limit awarded fees to successful filings and Counsel provided no
authority to the contrary. Mid-Ohio Mechanical at ¶ 158 (“R.C. 2323.51 [does] not
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limit the award of fees to those incurred as a result of appellant’s filings only, but
allow[s] an award of fees ‘incurred in connection with the civil action.’ ”), quoting
Neubauer v. Ohio Remcon, Inc., 10th Dist. Franklin No. 05AP-946, 2006-Ohio-1481,
¶ 50. The relevant question on this issue is whether the removal to federal court
represented a reasonable expense incurred in defending the civil action, not whether
TCH ultimately prevailed on the issue. Here, parallel Durrani litigation proceedings
confirm the removal related to the underlying frivolous civil action.
{¶21} TCH and CCHMC removed Bachman in April of 2016. At that time,
and at the request of Counsel, all of the cases involving Dr. Durrani were in the
process of being assigned to a particular judge, who anticipated convening a
“massive group trial” with a multitude of plaintiffs (far exceeding 100) that would
last six months to a year. As a result, the Bachman filing potentially created a mass
action as defined in 28 U.S.C. 1332(d)(11). That a federal judge disagreed with that
maneuver does not end our analysis.
{¶22} Much to the contrary, as explained above, TCH gave Counsel multiple
opportunities to dismiss this suit. When Counsel demurred, TCH was entitled to
defend the case as appropriate. Second-guessing TCH’s litigation strategy after the
fact only penalizes it. Even when a matter is frivolous, it often consumes a fair
amount of resources to obtain judgment in one’s favor, particularly if the lawyers
involved resort to measures that drag the case out well beyond its shelf life. Based on
the totality of this record, including the opportunities for Counsel to avoid all of the
fees involved and the lack of any legitimate justifications for their actions, we find
that the trial court acted within its discretion in holding that the removal fees were
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reasonably incurred in defense of this action. We accordingly overrule Counsel’s
second assignment of error.
* * *
{¶23} In light of the foregoing analysis, we overrule both assignments of
error and affirm the judgment of the trial court.
Judgment affirmed.
CROUSE and BOCK, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion
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