Carter v. Durden ( 2017 )

[Cite as Carter v. Durden, 2017-Ohio-738.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103127
MICHAEL CARTER
PLAINTIFF
vs.
CORNELIUS DURDEN
DEFENDANT-APPELLEE
[Appeal by Bruce A. Brown, Third-Party Defendant]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cleveland Municipal Court, Housing Division
Case No. 2014-CVG763
BEFORE: Blackmon, J., E.A. Gallagher, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: March 2, 2017
-i-
FOR APPELLANT
Bruce A. Brown, pro se
6075 Penfield Lane
Solon, Ohio 44139
FOR APPELLEE
Cornelius Durden, pro se
961 Evangeline Road
Cleveland, Ohio 44110
Nicholas A. Colabianchi
5725 Broadway Avenue
Cleveland, Ohio 44127
PATRICIA ANN BLACKMON, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. Bruce A. Brown (“Brown”) appeals pro se from the
municipal court’s judgment entry granting $117,000 against him and in favor of Cornelius
Durden (“Durden”). Brown assigns the following sole error for our review:
I. The Supreme Court of Ohio has exclusive jurisdiction over the
unauthorized practice of law.
{¶2} Having reviewed the record and pertinent law, we affirm the court’s
decision. The apposite facts follow.
{¶3} In May 2011, Durden paid Brown $9,000 “to help him negotiate with the
county concerning taxes” relating to a foreclosure action against Durden. Brown took no
action on Durden’s behalf, and in August 2013, Michael Carter (“Carter”) purchased
Durden’s property at a tax foreclosure sale. In January 2014, Carter initiated eviction
proceedings against Durden in the Cleveland Municipal Court, Housing Division.
{¶4} On October 1, 2014, Durden filed a third-party complaint against Brown
alleging fraud, breach of contract, promissory estoppel, unjust enrichment, and quiet title.
Brown, acting pro se, filed an answer summarily denying all allegations and raising the
following affirmative defenses: the third-party complaint “fails to state a claim upon
which relief can be granted” and “is barred by the Third-Party Plaintiff’s own acts and
omissions.” According to the docket, Brown’s answer is the only appearance or filing he
made in the case.
{¶5} On May 11, 2015, the court adopted the magistrate’s decision finding in
favor of Durden on the fraud claim. Although there is no transcript,1 the magistrate’s
decision states that the court held a hearing on April 29, 2015. Brown claims that he did
not attend this hearing because he was incarcerated. The magistrate’s decision
concluded, in pertinent part, the following:
Durden is entitled to recover damages from Bruce Brown for fraud. Brown
intentionally misrepresented to Durden that he was an attorney and would
work on Durden’s behalf concerning taxes owed to the county. Brown * *
* took no action on Durden’s behalf. Instead, he continued to lie to
Durden until he was uncovered because of a criminal action filed against
him.
{¶6} The court awarded Durden $17,000 in compensatory damages and, after
finding that “Brown’s fraud was malicious,” $100,000 in punitive damages. It is from
this order that Brown appeals.
{¶7} Brown’s argument is that the Ohio Supreme Court has exclusive
jurisdiction over the “unauthorized practice of law” under R.C. 4705.07(A)(3). “Only
the supreme court may make a determination that any person has committed the
unauthorized practice of law in violation of division (A)(3) of this section.” R.C.
4705.07(B)(2).
1
The housing court issued a postjudgment journal entry on August 9, 2016, which states as
follows: Brown “wrote a letter to the Court dated July 19, 2016 asking for a transcript of the April 29,
2015 default hearing on the claim of Cornelius Durden against him. The hearing was not transcribed
by a court reporter and the court did not make an audio recording of the hearing, necessitating an
App.R. 9(C) statement.” Upon review, we find that Brown failed to file an App.R. 9(C) statement.
{¶8} We first note that Brown did not raise this argument in the lower court.
“[T]he fundamental rule is that an appellate court will not consider any error which could
have been brought to the trial court’s attention, and hence avoided or otherwise
corrected.” Schade v. Carnegie Body Co., 70 Ohio St. 2d 207, 210, 436 N.E.2d 1001
(1982). Nonetheless, in the interest of justice, we review Brown’s appeal on the merits.
{¶9} “[A] party may not raise any error on appeal regarding a finding of fact or
conclusion of law by a magistrate, unless he has timely objected to that finding or
conclusion.” Gee How Oak Tin Assn. v. Chang Yick, 8th Dist. Cuyahoga No. 89228,
2007-Ohio-6199, ¶ 18. Brown did not object to the magistrate’s decision in the case at
hand; therefore, he has waived his right to appeal the magistrate’s findings and
conclusions.
{¶10} “The unauthorized practice of law consists of rendering legal services for
another by any person not admitted to practice law in Ohio * * * and includes
representation by a nonattorney who advises, counsels, or negotiates on behalf of an
individual or business in the attempt to resolve a collection claim between debtors and
creditors.” Ohio State Bar Assn. v. Kolodner, 103 Ohio St. 3d 504, 2001-Ohio-5581,
8107 N.E.2d 25, ¶ 15.
{¶11} In the case at hand, the court found that “Brown never took any action on
behalf of [Durden].” Additionally, the court concluded that Brown engaged in fraud.
The court did not find factually, nor did it conclude legally, that Brown engaged in the
unauthorized practice of law. Upon review of the magistrate’s findings of fact, which we
must accept as true absent the filing of objections, we find no error. There was no claim
for the unauthorized practice of law and the court did not make a determination that
Brown committed the unauthorized practice of law in violation of R.C. 4705.07.
{¶12} Accordingly, Brown’s sole assigned error is overruled, and the court’s
judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cleveland Municipal Court,
Housing Division 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.
PATRICIA ANN BLACKMON, JUDGE
EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR