Tabbaa v. Lexpro, L.L.C. , 2020 Ohio 5514 ( 2020 )

[Cite as Tabbaa v. Lexpro, L.L.C., 2020-Ohio-5514.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MOHAMMAD TABBAA, :
Plaintiff-Appellant, :
Nos. 109690 and 109691
v. :
LEXPRO, L.L.C., ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 3, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-926735
Appearances:
Michael Drain, for appellant.
RaslanPLA & Company, L.L.C., Erika Molnar, and Nadia
R. Zaiem for appellee Lexpro, L.L.C.
Law Office of David Ledman and David Ledman for
appellees Lila and Fares Raslan.
SEAN C. GALLAGHER, J.:
Mohammad Tabbaa appeals the dismissal of his declaratory
judgment action advanced against Lexpro, L.L.C. (“Lexpro”), and Lila and Fares
Raslan (“Raslans”). For the following reasons, we affirm.
In 2008, two judgments were entered against Tabbaa and the Raslans
in separate actions in the Cuyahoga County Court of Common Pleas — Natl. City
Bank v. Kay Properties L.L.C., et al., Cuyahoga C.P. No. CV-08-677951 (Dec. 3,
2008), and Natl. City Bank v. Luna M. Tabbaa, et al., Cuyahoga C.P. No. CV-08-
676689 (Dec. 3, 2008) — both of which were based on an outstanding mortgage
debt totaling nearly $800,000. The resulting judgments were ultimately assigned
to Lexpro sometime in 2011, and the pertinent judgment liens were filed in 2012.
According to the allegations in the complaint, Lexpro released the Raslans from the
judgment debt shortly thereafter, although that fact is disputed, and Lexpro
proceeded to execute on the judgment as against Tabbaa. Lexpro has been pursuing
“extraterritorial collections measures outside the United States against property or
properties believed to belong to [Tabbaa] in Jordan” in order to satisfy the
outstanding judgments that were entered jointly and severally against Tabbaa and
the Raslans.
Tabbaa initiated the underlying action seeking a declaration that
Lexpro’s attempts to execute on the judgment liens were illegal because Lexpro is
currently attempting to execute on property not located in Ohio or, in the
alternative, because the judgments had become dormant under Ohio law — despite
the alleged fact that Lexpro is actively engaging in proceedings in aid of execution.
R.C. 2329.07(B) (a judgment becomes dormant unless a proceeding in aid of
execution is commenced or ongoing); 62 Ohio Jurisprudence 3d, Judgments,
Section 137 (providing an example that a judgment entered in another state was not
dormant when the judgment creditor filed a judgment lien and writ of execution in
Ohio within five years of the judgment). In addition, Tabbaa claimed that because
Lexpro allegedly released the Raslans from their debt, it was required to release
Tabbaa from his portion as well, and therefore, the proceedings in aid of execution
were invalid.1 And finally, Tabbaa sought a declaration that he had the right of
contribution from the Raslans should he be forced to pay any portion of the
judgment in excess of his rightful share. In separate entries, the trial court dismissed
all claims under Civ.R. 12(B)(6), which provides for a dismissal of allegations for the
failure to state a claim upon which relief can be granted. This timely appeal
followed.
In this appeal, Tabbaa argues that the trial court erred by granting the
motion to dismiss under Civ.R. 12(B)(6) because affirmative defenses, such as the
statute of frauds, cannot be tested through a motion to dismiss and the facts of the
1 It appears that Tabbaa is confusing full satisfaction of a judgment with a release
based on partial payment. In general, “[s]atisfaction of a judgment against one of several
obligors is a bar to an action against the others for the same debt or obligation.” 63 Ohio
Jurisprudence, Judgments, Section 582; see also In re Miamisburg Train Derailment
Litigation, 132 Ohio App. 3d 571, 582, 725 N.E.2d 738 (2d Dist.1999). However, the
general rule is dependent upon the judgment being satisfied in full. Until the judgment
has been satisfied, the judgment creditor may execute upon the judgment. There are no
allegations that the judgment has been satisfied such to release Tabbaa from any liability.
complaint must be accepted in the light most favorable to the plaintiff. Tabbaa also
asks this court to recognize that the two judgments issued in separate cases were
dormant because more than five years had passed, and thus, the trial court erred in
dismissing the action for declaratory relief. Tabbaa’s arguments are misplaced.
There are no affirmative defenses being raised, especially one related to the statute
of frauds that would be irrelevant to the collection of a judgment debt. And because
Tabbaa’s complaint alleges the existence of an ongoing proceeding to attach
property in satisfaction of the judgments assigned to Lexpro, it cannot be concluded
that the judgments have become dormant. R.C. 2329.07(B) (a judgment becomes
dormant unless a proceeding in aid of execution is commenced or ongoing). The
more pertinent question in this case is whether the trial court has authority to grant
the declaratory relief sought — an issue that Tabbaa has largely avoided.
“A declaratory judgment action is a creature of statute” as set forth
under Revised Code Sections 2721.01 through 2721.15. Galloway v. Horkulic, 7th
Dist. Jefferson No. 02 JE 52, 2003-Ohio-5145, ¶ 21. R.C. 2721.03 expressly provides
as follows:
A person interested under a deed, will, written contract, or other
writing constituting a contract * * * may have determined any question
of construction or validity arising under the instrument,
constitutional provision, statute, rule, ordinance, resolution, contract,
or franchise and obtain a declaration of rights, status, or other legal
relations under it.
(Emphasis added.) Id.; Freedom Rd. Found. v. Ohio Dept. of Liquor Control, 80
Ohio St. 3d 202, 204, 1997-Ohio-346, 685 N.E.2d 522. A court may declare such
rights, status, or other legal relations whether or not further relief could be claimed.
R.C. 2721.02(A). Declaratory relief is merely in the alternative to other remedies.
Swander Ditch Landowners’ Assn. v. Joint Bd. of Huron & Seneca Cty. Commrs.,
51 Ohio St. 3d 131, 135, 554 N.E.2d 1324 (1990) (concluding that a declaratory action
will not be considered where another remedy exists). In order to properly plead a
complaint seeking declaratory relief, the plaintiff must demonstrate that (1) the
action is within the scope of the Declaratory Judgment Act; (2) a justiciable
controversy exists between adverse parties; and (3) speedy relief is necessary to
preserve rights that may otherwise be impaired. Freedom Rd. Found. at 204. A
complaint seeking declaratory relief under R.C. Chapter 2721 must be dismissed
where it does not meet any of those requirements. Horkulic at ¶ 24; State ex rel.
Ford v. Ruehlman, 149 Ohio St. 3d 34, 2016-Ohio-3529, 73 N.E.3d 396, ¶ 76 (a
declaration of venue is not within the scope of the declaratory judgment statute).
In this case, Tabbaa’s request for declaratory relief against Lexpro is
improper. Essentially, Tabbaa is seeking to invalidate proceedings in aid of
execution that are ongoing in another jurisdiction, according to the allegations of
the complaint. Such a request is beyond the scope of the Declaratory Judgment Act.
None of the allegations in the complaint against Lexpro seek a determination as to
the construction or validity of an “instrument, constitutional provision, statute, rule,
ordinance, resolution, contract, or franchise” and fails to include any request to
“obtain a declaration of rights, status, or other legal relations under” a “deed, will,
written contract, or other writing constituting a contract” as authorized under R.C.
2721.03. See, e.g., Lima Mem. Hosp. v. Dardio, 3d Dist. Allen No. 1-95-38, 1995
Ohio App. LEXIS 4809, 1 (Oct. 18, 1995) (declaratory judgment action instituted to
challenge the constitutionality of the statute under which a proceeding in
garnishment was ongoing). Instead, Tabbaa sought a declaration to invalidate
extraterritorial proceedings to execute on property located in another country that
were initiated based on judgment liens filed in separate proceedings. In essence,
Tabbaa is attempting to collaterally challenge the final judgment rendered in
separate cases and the ensuing attempts to execute upon such judgments.
It is well settled that “[c]ollateral attacks of final judgments are
disfavored and succeed only in limited situations—fraud or lack of jurisdiction.”
Wymsylo v. Bartec, Inc., 132 Ohio St. 3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 34,
citing Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St. 3d 375, 2007-Ohio-
5024, 875 N.E.2d 550, ¶ 22-23. A declaratory judgment action filed under R.C.
Chapter 2721 cannot be used to collaterally attack the validity of the judgment
rendered by another court. Tabbaa’s requested relief — seeking to declare the
judgment lien to be invalid based on the dormancy of the judgment or to attack the
execution proceedings that have occurred outside of Ohio — is an impermissible,
collateral attack on another court’s proceedings and judgments. Further, because
Tabbaa’s action against Lexpro is not within the scope of the Declaratory Judgment
Act, the trial court did not err in dismissing the complaint as against Lexpro.
And finally, with respect to the claims advanced against the Raslans,
Tabbaa has not asserted facts demonstrating the existence of a justiciable
controversy that exists between the adverse parties. The sole allegation against the
Raslans in the complaint is limited to a declaration that Tabbaa be granted a right
to contribution from the Raslans “in the event any property of [Tabbaa’s] is
attached” by Lexpro. (Emphasis added.) Generally in Ohio, a “claim is not ripe if it
depends on ‘future events that may not occur as anticipated, or may not occur at
all.’” Kalnasy v. MetroHealth Med. Ctr., 8th Dist. Cuyahoga No. 90211, 2008-Ohio-
3035, ¶ 5, quoting Texas v. U.S., 523 U.S. 296, 140 L.Ed.2d. 406, 118 S. Ct. 1257
(1998); State v. Loving, 180 Ohio App. 3d 424, 2009-Ohio-15, 905 N.E.2d 1234, ¶ 4
(10th Dist.); see also Keller v. Columbus, 100 Ohio St. 3d 192, 2003-Ohio-5599, 797
N.E.2d 964, ¶ 26 (declaratory judgment action is not well pleaded when it relies on
the allegation of a future event that may never occur). The allegations in the
complaint are contingent on the possibility of a future event that may never occur.
There are no allegations that Tabbaa has paid any portion of the judgment, much
less more than his share of the judgment entered against him and the Raslans. A
declaratory judgment action cannot be used to obtain a judgment that is advisory in
nature or based on an abstract question or a hypothetical statement of facts. Bilyeu
v. Motorists Mut. Ins. Co., 36 Ohio St. 2d 35, 37, 303 N.E.2d 871 (1973).
The allegations against the Raslans are limited to the existence of a
potential controversy should Tabbaa pay more than his share of the judgment debts.
That event may or may not occur. Tabbaa claims that his property in Jordan is in
the process of being seized, but none of the allegations in the complaint demonstrate
that the property has been seized and is in excess of his share of the judgment debt.
Accordingly, that allegation is insufficient to create a justiciable controversy for the
purposes of properly pleading the claim for declaratory relief against the Raslans.
The trial court did not err in dismissing the declaratory relief action as against the
Raslans.
Having resolved the merits of the appeal, we must briefly address the
request for sanctions accompanying Lexpro’s appellate briefing in accordance with
App.R. 23 and Loc.App.R. 23(A). An appeal is frivolous if it presents no reasonable
question for review, is prosecuted for delay, harassment, or any other improper
purpose. Cleveland v. FOP, 2017-Ohio-9174, 103 N.E.3d 235, ¶ 31 (8th Dist.), citing
State v. G.D., 8th Dist. Cuyahoga Nos. 104317 and 104328, 2016-Ohio-814, ¶ 258;
Loc.App.R. 23(A). Further, and although Loc.App.R. 23 provides for the award of
sanctions upon the finding of frivolity, before awarding sanctions we “must consider
‘whether the attorney or pro se party who signed the document: (1) read it; (2) to the
best of his knowledge, had good grounds for filing it; and (3) did not file it for the
purpose of delaying the proceedings’” or for some other nefarious purpose.
E. Cleveland v. Dailey, 8th Dist. Cuyahoga No. 108873, 2019-Ohio-4267, ¶ 15, citing
State ex rel. Bristow v. Baxter, 6th Dist. Erie Nos. E-17-060, E-17-067, and E-17-
070, 2018-Ohio-1973, ¶ 25, and Bergman v. Genoa Banking Co., 6th Dist. Ottawa
No. OT-14-019, 2015-Ohio-2797, ¶ 33. Thus, it has been concluded that under
Loc.App.R. 23, “[s]anctions are proper only for willful, bad faith violations of Civ.R.
11—not merely negligent ones.” Id., citing State ex rel. Bardwell v. Cuyahoga Cty.
Bd. of Commrs., 127 Ohio St. 3d 202, 2010-Ohio-5073, 937 N.E.2d 1274, ¶ 8;
Gallagher v. AMVETS, 6th Dist. Erie No. E-09-008, 2009-Ohio-6348, ¶ 33.
Lexpro contends that Tabbaa’s appeal is not reasonably grounded in
fact because he and his attorney were aware of the ongoing litigation in Jordan for
over eight years. Lexpro also argues that there is no good faith basis in law from
which to appeal the trial court’s decision and that executing on judgments in foreign
jurisdictions is permissible. It is claimed that Tabbaa’s current appeal is meant to
delay the proceedings that are occurring in Jordan meant to attach and sell certain
real property in an effort to collect on the outstanding judgment. Even if we were
inclined to agree with Lexpro’s position on the issue of frivolity, there is no willful
misconduct apparent from the record. Tabbaa attempted to challenge the
collections proceedings through a declaratory judgment action. Although we have
concluded that such an action is beyond the scope of the Declaratory Judgment Act,
Lexpro has not provided any citations to authority directly refuting Tabbaa’s claims.
Instead, Lexpro’s brief addresses the merits of Tabbaa’s appellate arguments.
Accordingly, even if we concluded that Tabbaa’s legal arguments were misguided
and legally incorrect, none of the arguments rise to the level of frivolity, much less
accompanied with the requisite willful misconduct. The motion for sanctions is
denied.
The decision of the trial court is affirmed.
It is ordered that appellees recover from appellant 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.
___________________________________
SEAN C. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, A.J., AND
LARRY A. JONES, SR., J., CONCUR