McCoy v. Cicchini Ents., Inc.

[Cite as McCoy v. Cicchini Ents., Inc., 2012-Ohio-1182.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
SARAH McCOY, et al., : John W. Wise, P.J.
: Julie A. Edwards, J.
Plaintiffs-Appellees : Patricia A. Delaney, J.
:
-vs- : Case No. 2011CA00156
:
:
CICCHINI ENTERPRISES, INC., : OPINION
et al.,
Defendants-Appellants
CHARACTER OF PROCEEDING: Civil Appeal from Stark County
Court of Common Pleas Case No.
2010CV03701
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 12, 2012
APPEARANCES:
For Plaintiffs-Appellees For Defendants-Appellants
TRACEY A. LASLO DONALD P. KOTNIK
325 East Main 600 West Maple Street
Alliance, Ohio 44601 North Canton, Ohio 44720
For Appellee – Kisling, Nestico & Redick, LLC
LORI E. BROWN
HOLLY M. OLARCZUK-SMITH
Gallagher Sharp
Sixth Floor – Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115
[Cite as McCoy v. Cicchini Ents., Inc., 2012-Ohio-1182.]
Edwards, J.
{¶1} Appellant, Cicchini Enterprises, Inc., appeals a judgment of the Stark
County Common Pleas Court overruling its request for attorney fees for frivolous
conduct. Appellees are Sarah and Ken McCoy and Kisling, Nestico & Redick, LLC.
STATEMENT OF FACTS AND CASE
{¶2} On October 7, 2010, appellees Sarah and Ken McCoy filed the instant
personal injury action against appellant and two John Doe defendants. The complaint
alleged that appellant and/or John Doe #1 was the owner of premises located at 2496
West State Street in Alliance, and John Doe #2 was an employee of either appellant or
John Doe #1, who was mopping the floor September 19, 2008. The complaint alleged
that appellee Sarah McCoy fell on the slippery floor and was injured by the defendants’
negligence. The second count of the complaint raised a loss of consortium claim on
behalf of appellee Ken McCoy.
{¶3} On November 8, 2010, appellant filed a motion to dismiss for failure to file
within the two-year statute of limitations. Appellees filed a response arguing that
discovery might reveal that the employee whose negligence caused appellees’ injuries
was out of the State of Ohio, imprisoned or absconded during the two years following
the incident, any of which would toll the statute of limitations pursuant to R.C. 2305.15.
The trial court overruled the motion to dismiss, finding that while it appears from the
complaint that the claims were time-barred, discovery might reveal that the employee
whose negligence allegedly caused the injuries was out of the State of Ohio, imprisoned
or absconded during the two years following the incident, any of which would toll the
statute of limitations pursuant to R.C. 2305.15.
Stark County App. Case No. 2011CA00156 3
{¶4} During discovery, appellees discovered that the real owner of the
restaurant in which Sarah McCoy fell was McDonald’s Carnation, Inc. The court
overruled their motion to join McDonald’s Carnation, Inc. as a party to the lawsuit on
March 3, 2011.
{¶5} Appellant filed a motion for summary judgment on January 4, 2011,
arguing that Cicchini Enterprises was not the owner of the restaurant in which appellee
Sarah McCoy fell and the action was filed outside the statute of limitations. The court
granted the motion on March 28, 2011. The court noted that appellees had failed to
produce evidence following discovery which would toll the statute of limitations and thus
appellant was entitled to judgment as a matter of law. The court dismissed the
complaint.
{¶6} Appellant filed a motion for attorney fees for frivolous conduct pursuant to
R.C. 2323.51 on April 26, 2011. Appellees filed a response. Attached to the response
was the affidavit of Kenneth M. Zerrusen, who is an attorney employed with the law firm
of Kesling, Nestico & Redick, LLC, which represented appellees. He averred that prior
to filing a complaint, he attempted to contact the owner/operator of the McDonald’s
restaurant in which appellee Sarah McCoy fell by calling the number the store manager
had given the McCoys. He sent correspondence to Cicchini Enterprises on September
25, 2008, advising the company of his firm’s representation of the McCoys and asking
for their insurance information and the incident report. Appellant did not respond. On
September 25, 2008, he also sent correspondence to the store manager of the
McDonald’s restaurant asking for the identity of the liability insurance carrier, and
received no response. On November 6, 2008, he left a voice mail message for Mr.
Stark County App. Case No. 2011CA00156 4
Cicchini and received no response. He sent follow up correspondence to Ed Davila, the
in-house adjuster and/or representative for appellant on December 30, 2008, and
received no response. He spoke to Ed Davila on January 9, 2009, and was advised
that Mr. Davila would investigate the claim and respond shortly. However, Attorney
Zerrusen never received a response from Mr. Davila or from Cicchini Enterprises.
{¶7} The trial court overruled the motion for attorney fees on June 21, 2011.
The court found that although appellees’ claims were ultimately found to be time-barred,
appellees’ conduct was not frivolous. Appellant assigns a single error:
{¶8} “THE TRIAL COURT ERRED IN DENYING APPELLANT CICCHINI
ENTERPRISES, INC.’S MOTION FOR FRIVOLOUS CONDUCT SANCTIONS WHERE
THE COMPLAINT CONTAINED ALLEGATIONS DEMONSTRATING IT HAD BEEN
FILED BEYOND THE STATUTE OF LIMITATIONS AND THERE WAS NO LAW OR
ARGUABLE EXTENSION OF EXISTING LAW WHICH WOULD PERMIT THE FILING.”
{¶9} R.C. 2323.51(B)(1) provides for the award of attorney fees to a party
adversely affected by frivolous conduct:
{¶10} “(B)(1) Subject to divisions (B)(2) and (3), (C), and (D) of this section and
except as otherwise provided in division (E)(2)(b) of section 101.15 or division (I)(2)(b)
of section 121.22 of the Revised Code, at any time not more than thirty days after the
entry of final judgment in a civil action or appeal, any party adversely affected by
frivolous conduct may file a motion for an award of court costs, reasonable attorney's
fees, and other reasonable expenses incurred in connection with the civil action or
appeal. The court may assess and make an award to any party to the civil action or
Stark County App. Case No. 2011CA00156 5
appeal who was adversely affected by frivolous conduct, as provided in division (B)(4)
of this section.”
{¶11} Frivolous conduct is defined by R.C. 2323.51(A)(2):
{¶12} “(2) ‘Frivolous conduct’ means either of the following:
{¶13} “(a) Conduct of an inmate or other party to a civil action, of an inmate who
has filed an appeal of the type described in division (A)(1)(b) of this section, or of the
inmate's or other party's counsel of record that satisfies any of the following:
{¶14} “(i) It obviously 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.
{¶15} “(ii) It 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.
{¶16} “(iii) The conduct consists of allegations or other factual contentions that
have no evidentiary support or, if specifically so identified, are not likely to have
evidentiary support after a reasonable opportunity for further investigation or discovery.
{¶17} “(iv) The conduct consists of denials or factual contentions that are not
warranted by the evidence or, if specifically so identified, are not reasonably based on a
lack of information or belief.”
{¶18} This Court has previously noted that no single standard of review applies
in R.C. 2323.51 cases, and the inquiry necessarily must be one of mixed questions of
law and fact. With respect to purely legal issues, we follow a de novo standard of review
Stark County App. Case No. 2011CA00156 6
and need not defer to the judgment of the trial court. Kinnison v. Advance Stores
Company, Richland App. No. 2005CA0011, 2006-Ohio-222, ¶20.
{¶19} “When an inquiry is purely a question of law, clearly an appellate court
need not defer to the judgment of the trial court. Id., citing Wiltberger v. Davis (1996),
110 Ohio App.3d 46, 673 N.E.2d 628. However, we do find some degree of deference
appropriate in reviewing a trial court's factual determinations; accordingly, we will not
disturb a trial court's findings of fact where the record contains competent, credible
evidence to support such findings. Id. This standard of review of factual determinations
is akin to that employed in a review of the manifest weight of the evidence in civil cases
generally, as approved in C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d
279, 376 N.E.2d 578.” Id.{¶20} Appellants argue that the complaint was clearly filed outside the applicable
statute of limitations and therefore pursuant to R.C. 2323.51(A)(2)(a)(iii) is not
warranted under existing law and cannot be supported by a good faith argument for an
extension, modification or reversal of existing law.
{¶21} R.C. 2305.15 provides for the tolling of the statute of limitations under
certain conditions:
{¶22} “(A) When a cause of action accrues against a person, if the person is out
of the state, has absconded, or conceals self, the period of limitation for the
commencement of the action as provided in sections 2305.04 to 2305.14, 1302.98, and
1304.35 of the Revised Code does not begin to run until the person comes into the state
or while the person is so absconded or concealed. After the cause of action accrues if
the person departs from the state, absconds, or conceals self, the time of the person's
Stark County App. Case No. 2011CA00156 7
absence or concealment shall not be computed as any part of a period within which the
action must be brought.”
{¶23} In the instant case, the appellees presented evidence to the trial court of
numerous efforts to obtain information from Cicchini Enterprises concerning the
incident, but they received nothing in return. In fact, it wasn’t until appellant filed
discovery responses on January 31, 2011, that appellees finally learned that
McDonald’s Carnation, Inc. was the owner of the McDonald’s where appellee Sarah
McCoy fell. During a deposition of Edwin Davila, appellees learned that from 1993 until
2006, Cicchini Enterprises owned the McDonald’s restaurant in question. In 2006, the
franchise was transferred to McDonald’s Carnation, Inc. However, the sole shareholder
of both Cicchini Enterprises and McDonald’s Carnation, Inc. is Guy Cicchini, and
Cicchini Enterprises maintains all corporate records for McDonald’s Carnation, performs
all administrative services for McDonald’s Carnation, secures liability coverage for
McDonald’s Carnation, and maintains incident reports for McDonald’s Carnation.
{¶24} The trial court did not err in concluding that appellees’ conduct was not
frivolous. R.C. 2305.15(A) provides a potential tolling of the time in which an action
must be brought under certain circumstances. Given that appellant provided absolutely
no information to appellees despite the fact that appellees repeatedly asked for such
information and such information was readily available to appellant, appellees had no
way of knowing if any of the circumstances which might toll the statute of limitations
were present in the instant case. Appellees action was not unwarranted under existing
law, as R.C. 2305.15 could possibly have saved the action.
Stark County App. Case No. 2011CA00156 8
{¶25} The assignment of error is overruled.
{¶26} The judgment of the Stark County Common Pleas Court is affirmed.
By: Edwards, J.
Wise, P.J. and
Delaney, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r1221
[Cite as McCoy v. Cicchini Ents., Inc., 2012-Ohio-1182.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SARAH McCOY, et al., :
:
Plaintiffs-Appellees :
:
:
-vs- : JUDGMENT ENTRY
:
CICCHINI ENTERPRISES, INC. :
et al., :
:
Defendants-Appellants : CASE NO. 2011CA00156
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
appellants.
_________________________________
_________________________________
_________________________________
JUDGES