Shaffer v. Jones , 2017 Ohio 7730 ( 2017 )

[Cite as Shaffer v. Jones, 2017-Ohio-7730.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
PETER SCHAFFER, : APPEAL NO. C-160684
TRIAL NO. A-1303707
Plaintiff-Appellee, :
vs. : O P I N I O N.
ADAM JONES, :
Defendant, :
and :
AARON CUDWORTH, :
THOMAS URBANSKI, :
and :
KATHLEEN URBANSKI, :
Proposed Intervenors-
Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 22, 2017
Peter Schaffer, pro se,
Weltman, Weinberg & Reis, Co., L.P.A., and David S. Brown, for Proposed
Intervenors-Appellants.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Presiding Judge.
{¶1} Proposed intervenors-appellants, Aaron Cudworth, Thomas Urbanski,
and Kathleen Urbanski, challenge the trial court’s August 3, 2016 order denying their
motion to intervene in this action to confirm an arbitration award initiated by plaintiff-
appellee Peter Schaffer. Schaffer is the lawyer and registered agent for defendant Adam
Jones, a professional football player employed by the Cincinnati Bengals. The proposed
intervenors and Schaffer are each judgment creditors of Jones. They sought
intervention in Schaffer’s action arguing that the judgment for Schaffer in this case is
void, and that Jones’ cooperation with Schaffer, or failure to contest the validity of the
judgment here, resulted in the preference of Schaffer’s judgment ahead of all other valid
claims including those of the proposed intervenors. Because the proposed intervenors
did not accompany their motion to intervene with a pleading as required by Civ.R.
24(C), we affirm the trial court’s denial of their motion to intervene.
Jones’ Multiple Judgment Creditors
{¶2} In the summer of 2012, the proposed intervenors obtained judgments
totaling over $14 million against Jones in a Nevada court for intentional infliction of
emotional distress. The judgments were transferred to municipal courts in Cleveland,
Ohio for execution in late 2012 and 2013.
{¶3} Since 2012, Schaffer has negotiated Jones’ football contracts and
provided other services to Jones. On April 23, 2013, Schaffer obtained an arbitration
award in the amount of $113,250 against Jones for fees related to Jones’ 2012-2013
player contract with the Bengals, as well as for repayment of a personal loan to Jones
for $7,500. In May 2013, Schaffer commenced this action to confirm the arbitration
award.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} In July and August 2013, the proposed intervenors filed garnishments
of Jones’ personal earnings naming the Bengals as garnishee. On September 27, 2013,
the trial court confirmed Schaffer’s arbitration award and Schaffer filed for
garnishment of Jones’ earnings, also naming the Bengals as garnishee. The proposed
intervenors filed second and third garnishments.
{¶5} In 2014, Schaffer obtained a second arbitration award against Jones for
contract fees for $220,750. Schaffer filed a motion to amend the judgment in this case.
The trial court quickly granted the motion and in October 2014 issued an order of
continuous distributions. In November 2015, Schaffer obtained a third arbitration
award against Jones for agent fees. On Schaffer’s motion, the trial court again amended
the judgment to include this award. Schaffer obtained a fourth arbitration award in
March 2016 which was also added to an amended judgment. The proposed intervenors
claimed that Schaffer’s initial judgment had ballooned to over $1.1 million by December
2015.
{¶6} Since Jones had multiple judgment creditors throughout this period,
each parties’ garnishment—the proposed intervenors’ and Schaffer’s—was subject to a
stacking order under R.C. 2716.041(D). According to the statute, each party enjoyed its
182-day turn to receive a portion of Jones’ personal earnings, often as high as $25,000
per week. Schaffer claims that the proposed intervenors have collected nearly
$600,000 in garnishment since 2013 and continued to share in the garnished funds
during their stacking periods.
{¶7} The proposed intervenors filed a declaratory-judgment action with
another judge of the common pleas court. In the case numbered A-1603512, they
sought a preliminary and permanent injunction against the confirmation of the
arbitration awards in this case. The proposed intervenors alleged that Schaffer’s careful
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OHIO FIRST DISTRICT COURT OF APPEALS
manipulation of Jones’ personal earnings during the 16-week football season and the
timing of Jones’ multimillion dollar signing bonuses had served to irreparably harm
their interests. They also alleged that the trial court’s continuous amendment of its
judgment in this case was not authorized by law and was void. The court denied the
injunctive relief and the proposed intervenors dismissed their action.
{¶8} On June 30, 2016, the proposed intervenors moved the trial court to
intervene in this action pursuant to Civ.R. 24(A)(2). Claiming an interest in “any
funds” garnished from Jones’ personal earnings, they argued that Schaffer and Jones
colluded to minimize the funds available for their garnishment, and that the trial court
was without authority to continuously reopen and amend its judgment. While the
proposed intervenors’ motion was supported by a lengthy memorandum, it was not
accompanied by a pleading as required by Civ.R. 24(C).
{¶9} After receiving memoranda in support of and opposition to the motion
and after entertaining thorough oral argument, the trial court denied the motion to
intervene. This appeal ensued.
The Trial Court’s Denial of the Motion to Intervene Is a Final Order
{¶10} Because an appellate court’s jurisdiction is limited to review of final
judgments or orders, we must determine our jurisdiction to proceed before reaching
the merits of any appeal. See Ohio Constitution, Article IV, Section 3(B)(2); see also
R.C. 2505.03(A); State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d
543, 544, 684 N.E.2d 72 (1997). An order that is entered in a special proceeding and
that affects a substantial right is a final appealable order under R.C. 2505.02(B)(2).
{¶11} The underlying action in this case is Shaffer’s complaint for
confirmation of an arbitration award brought under R.C. 2711.09. See Walters v.
Enrichment Ctr. of Wishing Well, Inc., 78 Ohio St.3d 118, 121-122, 676 N.E.2d 8904
OHIO FIRST DISTRICT COURT OF APPEALS
(1997). Proceedings set forth in R.C. Chapter 2711 are special proceedings because they
were not recognized at common law or equity and were legislatively provided for in
1953 by the Ohio Arbitration Act, R.C. 2711.01 et seq. See Kelm v. Kelm, 93 Ohio
App.3d 686, 691, 639 N.E.2d 842 (10th Dist.1994); see also MBNA Am. Bank, N.A. v.
Anthony, 5th Dist. Tuscarawas No. 05AP090059, 2006-Ohio-2032, ¶ 12. Thus the trial
court’s order denying the proposed intervenors’ motion was an order entered in a
special proceeding under R.C. 2505.02(A)(2). See Buyer’s First Realty, Inc. v.
Cleveland Area Bd. of Realtors, 139 Ohio App.3d 772, 782, 745 N.E.2d 1069 (8th
Dist.2000); see also Ockrant v. Ry. Supply & Mfg. Co., 111 Ohio App. 276, 278, 165
N.E.2d 233 (1st Dist.1960); Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Emps.,
AFL-CIO v. Cent. State Univ., 16 Ohio App.3d 84, 474 N.E.2d 647 (2d Dist.1984).
{¶12} A motion to intervene is a right recognized by Civ.R. 24, the denial of
which ordinarily affects a party’s substantial right to intervene and is immediately
appealable. See R.C. 2505.02(A)(1). But the denial of a motion to intervene does not
affect a substantial right “when the purpose for which intervention was sought may be
litigated in another action.” Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514,
2007-Ohio-607, 861 N.E.2d 519, ¶ 37 (construing finality under R.C. 2505.02(B)(1) for
an order that determines the action and prevents a judgment).
{¶13} By contrast, here, the proposed intervenors’ attempt to assume the
rights of parties to this action constitutes the sole means by which they can attack the
judgments entered in Schaffer’s award-confirmation complaint. They are not seeking
simply a modification of their garnishment rights by means of R.C. 2716.041 or
2716.09, or a third-party claim under R.C. 2329.84. Rather, the essence of their motion
is that Schaffer and Jones colluded to minimize the funds available for their
garnishment, and that the trial court is without authority to continuously reopen and
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OHIO FIRST DISTRICT COURT OF APPEALS
amend its judgment. The proposed intervenors cannot attempt to review, invalidate, or
reverse the trial court’s previously adjudicated orders and judgments in this action by
resort to other actions such as a declaratory-judgment action. See Lingo v. State, 138
Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, paragraph one of the syllabus.
Because the proposed intervenors’ motion to intervene constituted the sole means
available to secure the rights they seek, the trial court’s denial of the motion affected a
substantial right. See Southside Community Dev. Corp. v. Levin, 116 Ohio St.3d 1209,
2007-Ohio-6665, 878 N.E.2d 1048, ¶ 8. Thus, the trial court’s order denying the
proposed intervenors’ motion is a final appealable order under R.C. 2505.02(B)(2).
The Motion to Intervene is not Accompanied by a Pleading
{¶14} In a single assignment of error, proposed intervenors claim that the trial
court erred in denying their motion to intervene. They argue that they had properly
claimed an interest relating to the transaction involved in Schaffer’s award-
confirmation complaint, that Schaffer’s garnishment of Jones’ personal earnings would
impair and impede their ability to protect their interests as judgment creditors of Jones,
and that their motion to intervene was timely. Schaffer argues, inter alia, that because
the proposed intervenors failed to observe the requirement of Civ.R. 24(C) to attach a
pleading to their motion, the motion was properly denied. We agree.
{¶15} We review the trial court’s denial of a motion to intervene under an
abuse-of-discretion standard. State ex rel. Merrill v. Ohio Dept. of Natural Resources,
130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41, citing State ex rel. First New
Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 503, 696 N.E.2d 1058 (1998), fn.
1. The term “abuse of discretion” connotes more than an error in judgment. See
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). To abuse its
discretion, a court must have acted unreasonably, arbitrarily, or unconscionably. See
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OHIO FIRST DISTRICT COURT OF APPEALS
Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). The
proposed intervenors do not argue that the trial court’s actions were arbitrary or
unconscionable. Thus if the court’s exercise of its discretion exhibits a sound reasoning
process that supports its decision, this court will not disturb its determination. See
AAAA Ents., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d 157,
161, 553 N.E.2d 597 (1990).
{¶16} Civ.R. 24(C) provides that:
A person desiring to intervene shall serve a motion to intervene
upon the parties as provided in Civ.R. 5. The motion and any
supporting memorandum shall state the grounds for intervention and
shall be accompanied by a pleading, as defined in Civ.R. 7(A), setting
forth the claim or defense for which intervention is sought. The same
procedure shall be followed when a statute of this state gives a right to
intervene.
(Emphasis added.)
{¶17} The prior version of Civ.R. 24(C) also required that a motion to
intervene be accompanied by a pleading, but did not cite to Civ.R. 7(A). In 1999, Civ.R.
24(C) was amended, and the reference to Civ.R. 7(A) was added “to clarify that the
‘pleading’ to be filed with a motion to intervene requires more than just a
memorandum in support of the motion to intervene.” 1999 Staff Note, Civ.R. 24(C).
Pursuant to Civ.R. 7(A):
There shall be a complaint and an answer; a reply to a
counterclaim denominated as such; an answer to a cross-claim, if the
answer contains a cross-claim; a third-party complaint, if a person
who was not an original party is summoned under the provisions
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OHIO FIRST DISTRICT COURT OF APPEALS
of Civ.R. 14; and a third-party answer, if a third-party complaint is
served. No other pleading shall be allowed, except that the court may
order a reply to an answer or a third-party answer.
{¶18} The pleading requirement is “logical, as the applicant is asking to be
made a party to the existing action.” 1 Baldwin’s Ohio Practice, Civil Practice, Section
24:26 (2016). When a motion to intervene is not accompanied by a pleading, as
required by Civ.R. 24(C), the motion should be denied. State ex rel. Sawicki v. Court of
Common Pleas of Lucas Cty., 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶
21-22; see State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106, 2003-Ohio-2506, 789
N.E.2d 203, fn. 1.
{¶19} Here the proposed intervenors did not accompany their motion with a
pleading as defined in Civ.R. 7(A). They had asserted below that attaching a pleading
was “not required,” and was “unnecessary and redundant” where one seeks
intervention to vacate the judgment below. They note that Ohio courts have tacitly
acknowledged the procedure they attempted here: post-judgment intervention along
with a motion to vacate under Civ.R. 60(B). See Millers v. Kasnett, 2015-Ohio-298, 26
N.E.3d 915 (8th Dist.); see also Pliable Veneers, Inc. v. Omni Store Fixtures Corp., 6th
Dist. Lucas No. L-96-145, 1997 WL 276214 (May 23, 1997); Nicholas v. State Farm Ins.,
11th Dist. Trumbull No. 99-T-0030, 2000 WL 757355, *4 (June 9, 2000).1 We
disagree.
{¶20} First, we note that a Civ.R. 60(B) motion for relief from judgment is not
a pleading as enumerated in Civ.R. 7(A). And the proposed intervenors have failed to
accompany their motion to intervene even with a proposed Civ.R. 60(B) motion.
1 We note that this court has also affirmed a trial court’s granting of a motion to intervene and a
Civ.R. 60(B) motion. See Pfeiffer v. State Farm Mut. Ins. Co., 1st Dist. Hamilton No. C-050683,
2006-Ohio-5074. But as in the cases cited by the proposed intervenors, we did not discuss the
Civ.R. 24(C) pleading requirement.
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OHIO FIRST DISTRICT COURT OF APPEALS
Second, and more importantly, none of the cases advanced by proposed intervenors
contain any mention of Civ.R. 24(C) much less an express statement that the pleading
requirement is optional when the intervenor seeks ultimately to file a motion for relief
from judgment. We are unwilling to ignore the express requirements placed on an
intervenor by the Ohio Supreme Court and Civ.R. 24(C). See Yemma v. Reed, 7th Dist.
Mahoning No. 16 MA 0015, 2017-Ohio-1015, ¶ 46-47 (Upholding trial court’s denial of
motion to intervene in a tax foreclosure action where intervenor who ultimately sought
relief from the foreclosure decree failed to attach a pleading to his motion to
intervene.).
{¶21} Since the proposed intervenors’ motion to intervene was not
accompanied by a pleading as described in Civ.R. 7(A), the trial court’s denial of their
motion was not an abuse of discretion, as the denial was supported by a sound
reasoning process. See Civ.R. 24(C); see also State ex rel. Sawicki, 121 Ohio St.3d 507,
2009-Ohio-1523, 905 N.E.2d 1192, at ¶ 21-22; AAAA Ents., Inc., 50 Ohio St.3d at 161,
553 N.E.2d 597. The assignment of error is overruled.
{¶22} Therefore, the trial court’s August 3, 2016 order denying the proposed
intervenors’ motion to intervene is affirmed.
Judgment affirmed.
M YERS and M ILLER , JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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