Carson v. Carrick

[Cite as Carson v. Carrick, 2019-Ohio-4260.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
DREW A. CARSON, :
Plaintiff-Appellant, :
No. 108129
v. :
KATHLEEN CARRICK, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 17, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-904219
Appearances:
Drew A. Carson, pro se.
Stephen G. Thomas Co., L.P.A., and Stephen G. Thomas,
for appellees.
MARY EILEEN KILBANE, A.J.:
Plaintiff-appellant Drew A. Carson (“Carson”) appeals the trial court’s
granting of defendants-appellees Kathleen M. Carrick (“Carrick”) and Stephen G.
Thomas, individually and doing business as Stephen G. Thomas Co., L.P.A.’s
(“Thomas”) motion for judgment on the pleadings pursuant to Civ.R. 12(C). For the
reasons set forth below, we affirm.
The instant lawsuit relates to a previous legal action (“original
lawsuit”) initiated by Carrick, who was represented by Thomas. In the original
lawsuit, Carrick filed a complaint on April 24, 2015, against Carson alleging legal
malpractice, breach of fiduciary duties, and fraud and conversion.1 At trial, the fraud
and conversion claims were dismissed pursuant to Carson’s request for a directed
verdict. On November 21, 2017, the jury returned a verdict in favor of Carrick on the
remaining two counts and awarded her $62,367.52.
Neither party filed an appeal. Carrick was unable to collect the jury
award from Carson and applied for compensation from the Ohio Supreme Court’s
Lawyers’ Fund for Client Protection. That application has been dismissed pending
the resolution of the instant appeal.
On September 2, 2018, Carson filed a complaint against Carrick and
Thomas alleging two causes of action: abuse of process and claim on an account
stated.
Regarding the abuse-of-process claim, Carson purports that once
Carrick and Thomas realized during the pendency of the original lawsuit that any
potential judgment against Carson was uncollectible, they perjured themselves
during trial.
1The previous lawsuit was filed with Cuyahoga County Court of Common Pleas,
Case No. CV-15-844720.
The alleged perjury stemmed from Carrick’s contractual relationship
with Carson for legal services. Carrick allegedly provided conflicting testimony
regarding whether she and Carson entered a binding agreement. Carrick testified
during her discovery deposition that she engaged Carson to perform legal services
on her behalf and later testified that Carson agreed to provide those services pro
bono. Based upon the varied testimony, Carson surmised that once Carrick
prevailed on her fraud and conversion causes of action, Carrick would seek
compensation from the Lawyers’ Fund for Client Protection. Carson argues Carrick
and Thomas used Carrick’s false testimony for an improper purpose — to obtain a
judgment on fraud and conversion. Carrick would then seek compensation from the
Lawyers’ Fund for Client Protection based upon that judgment.
Carrick and Thomas deny any mistruths were presented during
Carrick’s lawsuit against Carson. Alternatively, Carrick and Thomas contend they
have absolute immunity against any falsifications presented during trial.
Carson’s second cause of action, claim on an account stated, seeks
payment on unpaid legal fees due and owing from Carrick in the amount of $42,335.
The alleged legal services were provided between October 8, 2012, and June 11,
2014.
In response to Carson’s September 2, 2018 filing of his complaint,
Carrick and Thomas filed an answer on October 23, 2018, and a motion for
judgment on the pleadings on November 7, 2018. The trial court presented a
thorough opinion and order when it granted Carrick and Thomas’s motion for
judgment on the pleadings on December 20, 2018.
Carson now appeals, assigning the following errors for review:
Assignment of Error One
The trial court’s ruling that appellant failed to plead a claim for abuse
of process was plain error.
Assignment of Error Two
[The trial court erred because] [a]ppellant’s claim on an account stated
was not a compulsory counterclaim in a prior lawsuit brought by
appellee Kathleen M. Carrick against appellant, [sic] and therefore,
[sic] contrary to the trial court’s opinion [was] not barred under the
doctrine of res judicata.
Motion for Judgment on the Pleadings
In the first assignment of error, Carson argues that the trial court
committed plain error when it dismissed his abuse-of-process claim pursuant to
Carrick and Thomas’s Civ.R. 12(C) motion for judgment on the pleadings.
Plain error is not the correct standard of review in the case sub judice.
We review an appeal from a Civ.R. 12(C) motion for judgment on the pleadings
under a de novo standard of review. Shingler v. Provider Servs. Holdings, L.L.C.,
8th Dist. Cuyahoga No. 106383, 2018-Ohio-2740, ¶ 17. A review of a Civ.R. 12(C)
motion for judgment on the pleadings raises only questions of law and may take into
consideration both the complaint and answer. Id. The appropriate test to determine
whether a complaint can be dismissed pursuant to Civ.R. 12(C) is as follows:
Under Civ.R. 12(C), dismissal is appropriate where a court (1) construes
the material allegations in the complaint, with all reasonable inferences
to be drawn therefrom, in favor of the nonmoving party as true, and (2)
finds beyond doubt, that the plaintiff could prove no set of facts in
support of his claim that would entitle him to relief.
State ex rel. Midwest Pride IV v. Pontious, 75 Ohio St. 3d 565, 570, 664 N.E.2d 931
(1996), citing Lin v. Gatehouse Constr. Co., 84 Ohio App. 3d 96, 99, 616 N.E.2d 519
(8th Dist.1992).
“The tort action termed ‘abuse of process’ has developed for ‘cases in
which legal procedure has been set in motion in proper form, with probable cause,
and even with ultimate success, but nevertheless has been perverted to accomplish
an ulterior purpose for which it was not designed.’” Yaklevich v. Kemp, Schaeffer &
Rowe Co., L.P.A., 68 Ohio St. 3d 294, 297, 626 N.E.2d 115 (1994), quoting Keeton,
Dobbs, Keeton & Owen, Prosser and Keeton on the Law of Torts, Section 121, 897
(5th Ed.1984).
In Yaklevich at paragraph one of the syllabus, the Ohio Supreme
Court identified the elements for an abuse-of-process claim:
The three elements of the tort of abuse of process are: (1) that a legal
proceeding has been set in motion in proper form and with probable
cause; (2) that the proceeding has been perverted to attempt to
accomplish an ulterior purpose for which it was not designed; and (3)
that direct damage has resulted from the wrongful use of process.
“This court has held that ‘the ulterior motive contemplated by an
abuse-of-process claim generally involves an attempt to gain an advantage outside
the proceeding, using the process itself as the threat.’” Barbara Mills v. Westlake,
2016-Ohio-5836, 70 N.E.3d 1189, ¶ 38 (8th Dist.), quoting Sivinski v. Kelley, 8th
Dist. Cuyahoga No. 94296, 2011-Ohio-2145, ¶ 36. Typical examples of an ulterior
motive include “‘extortion of money, prevention of a conveyance, [or] compelling
someone to give up possession of something of value when these things were not the
purpose of the suit.’” Sivinski at ¶ 36, quoting Wolfe v. Little, 2d Dist. Montgomery
No. 18718, 2001 Ohio App. LEXIS 1902, 10 (Apr. 27, 2001).
The key factor in an abuse-of-process lawsuit “is whether an improper
purpose was sought to be achieved by the use of a lawfully brought previous action.”
Yaklevich, 68 Ohio St. 3d at 300, 626 N.E.2d 115.
Construing all material allegations in the complaint and all
reasonable inferences to be drawn therefrom in favor of Carson, we find that Carson
can prove no set of facts in support of his abuse-of-process claim that would entitle
him to relief. Specifically, Carson’s complaint alleges Carrick, with Thomas’s
representation, filed a lawsuit against Carson that was in proper form and presented
probable cause. Carson avers Carrick and Thomas perverted the proceedings in an
attempt to accomplish an ulterior purpose. The proposed ulterior purpose was to
prevail on Carrick’s fraud and conversion claims and, based upon that judgment,
apply to the Lawyers’ Fund for Client Protection. Carson argues this plan by Carrick
and Thomas would allow them to recover any sums awarded at trial that were
uncollectible due to Carson’s diminished financial status.
Carson’s argument lacks merit. Carrick’s fraud and conversion claims
were dismissed on a directed verdict. Based upon Carrick’s judgment on the legal
malpractice and breach of fiduciary duty claims — not a judgment on the fraud and
conversion as claimed by Carson — Carrick sought payment from the Lawyers’ Fund
for Client Protection. We find no set of facts support Carson’s argument that Carrick
had an ulterior motive behind her fraud and conversion claims that gave rise to an
abuse-of-process claim.
Further, the pleadings reflect Carrick and Thomas sought a legitimate
remedy in the original lawsuit — judgment on the pleaded causes of action and a
monetary award. An abuse-of-process claim must fail where a party seeks a legal
remedy that the court is empowered to give. Sivinski, 8th Dist. Cuyahoga
No. 94296, 2011-Ohio-2145, at ¶ 37.
Based on the foregoing, the pleadings did not support Carson’s abuse-
of-process claim and the trial court properly granted Carrick and Thomas’s
Civ.R. 12(C) motion for judgment on the pleadings.
Accordingly, the first assignment of error is overruled.
Compulsory Counterclaim
In the second assignment of error, Carson argues that the trial court
erred when it found his claim against Carrick on an account stated was a compulsory
counterclaim and, because Carson did not plead the counterclaim in the original
action, it was barred by res judicata.
Civ.R. 13(A) reads in pertinent part:
A pleading shall state as a counterclaim any claim which at the time of
serving the pleading the pleader has against any opposing party, if it
arises out of the transaction or occurrence that is the subject matter of
the opposing party’s claim and does not require for its adjudication the
presence of third parties of whom the court cannot acquire jurisdiction.
“‘Compulsory counterclaims under Civ.R. 13(A) must be litigated in the original
action or are forever barred.’” Myocare Nursing Home, Inc. v. Hohmann, 8th Dist.
Cuyahoga No. 104290, 2017-Ohio-186, ¶ 7, quoting Huntington Natl. Bank v.
Dixon, 8th Dist. Cuyahoga No. 101273, 2015-Ohio-1735, ¶ 6.
In Rettig Ents. v. Koehler, 68 Ohio St. 3d 274, 277, 626 N.E.2d 99
(1994), the Ohio Supreme Court set forth a two-prong test to establish a compulsory
counterclaim:
“(1) does the claim exist at the time of serving the pleading * * *; and
(2) does the claim arise out of the transaction or occurrence that is the
subject matter of the opposing claim.”
Id., quoting Geauga Truck & Implement Co. v. Juskiewicz, 9 Ohio St. 3d 12, 457
N.E.2d 827 (1984).
Carson acknowledges that his counterclaim for unpaid fees arose out
of the subject matter of Carrick’s claims in the prior lawsuit, thereby satisfying the
second prong of the test. Carson denies the claim existed at the time Carrick filed
the original complaint. Specifically, Carson contends his claim for legal fees did not
exist when Carrick filed her original complaint because (1) Carrick claimed she did
not execute a fee arrangement with Carson, (2) Carrick claimed Carson had stolen
the monies to satisfy his legal fees, and (3) Carrick claimed at trial she received
Carson’s legal fees pro bono.
Carson’s claim on an account stated seeks legal fees allegedly incurred
between October 8, 2012, and June 11, 2014. The original lawsuit was filed on
April 24, 2015. Hence, Carson’s claim for legal fees existed when the original lawsuit
was filed.
Carson’s claim on an account stated satisfies the two-prong test
espoused in Rettig Ents., and therefore, represents a compulsory counterclaim that
had to be filed in the original lawsuit. Res judicata barred Carson from
subsequently filing his claim on an account stated. The trial court correctly granted
Carrick’s Civ.R. 12(C) motion for judgment on the pleadings.2
Based on the foregoing, the trial court did not err when it determined
Carson’s action on an account stated was a compulsory counterclaim barred by res
judicata and granted Carrick’s Civ.R. 12(C) motion for judgment on the pleadings.
Accordingly, the second assignment of error is overruled.
Judgment 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 be sent to said court to carry this judgment
into execution.
2 In ruling on Carrick and Thomas’s Civ.R. 12(C) motion, the trial court could
consider the parties’ complaint and answer as well as the attachments to those pleadings.
Shingler, 8th Dist. Cuyahoga No. 106383, 2018-Ohio-2740, at ¶ 17; Civ.R. 10(C).
Relevant documents attached to the complaint and answer included (1) Carrick and
Thomas’s complaint filed in the original lawsuit; (2) Carson’s answer to the original
lawsuit; and (3) the judgment entries reflecting the directed verdict, jury verdict, and jury
award in the original lawsuit. Based upon the pleadings in the instant lawsuit and the
above-referenced documents, this case represents a situation where the trial court can
procedurally grant a Civ.R. 12(C) motion for judgment on the pleadings based upon res
judicata. See Hawke, Inc. v. Universal Well Servs., 9th Dist. Summit No. 25056, 2010-
Ohio-4730, ¶ 12; see also Hammerschmidt v. Wyant Woods Care Ctr., 9th Dist. Summit
No. 19779, 2000 Ohio App. LEXIS 6166, 3 (Dec. 27, 2000).
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and
EILEEN A. GALLAGHER, J., CONCUR