Johnson v. Robey

[Cite as Johnson v. Robey, 2020-Ohio-2.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MARVIN F. JOHNSON, SR. :
Plaintiff-Appellant, :
No. 108682
v. :
GREGORY SCOTT ROBEY :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 2, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-911472
Appearances:
Marvin F. Johnson Sr., pro se.
Reminger Co., L.P.A., Andrew J. Dorman, and Aaren R.
Host, for appellee.
MARY EILEEN KILBANE, P.J.:
Plaintiff-appellant, Marvin F. Johnson, Sr. (“Johnson”), pro se,
appeals the trial court’s decision granting defendant-appellee’s, Gregory Robey’s
(“Robey”), motion for judgment on the pleadings and dismissing Johnson’s legal
malpractice claim. For the reasons set forth below, we affirm.
In April 2015, Johnson was indicted on one count each of drug
trafficking, drug possession, and possession of criminal tools. Johnson rejected the
state’s offer of a two-year prison sentence and subsequently filed a motion to
suppress evidence discovered through the execution of a search warrant. Johnson
alleged the search warrant contained material falsehoods, lacked probable cause,
and was thus invalid. In December 2015, the trial court conducted a hearing and
denied the motion to suppress. Thereafter, Johnson pleaded no contest to the
charges, and was found guilty.
In May 2016, the trial court sentenced Johnson to a prison term of six
years. The trial court placed Johnson, who suffers from a heart condition known as
Wolff-Parkinson-White syndrome, on supervised release and electronic home
detention, to allow Johnson to undergo heart surgery in July 2016. The trial court
ordered Johnson to report to jail no later than August 1, 2016. In the interim,
Johnson was to remain on bond.
In July 2016, Johnson requested appointed counsel. The trial court
assigned Johnson appellate counsel, but then vacated its assignment because
Johnson was not indigent and had retained counsel throughout the proceedings. In
the same month, the trial court scheduled a bond hearing because Johnson
reportedly tested positive for marijuana. Johnson did not appear for the bond
hearing and alleged that he was still recovering from heart surgery, but the court was
not informed. The trial court revoked Johnson’s bond and issued a capias. Johnson,
who claims he was under post-surgical care, failed to report to prison and failed to
inform the trial court of his status.
More than seven months later, in February 2017, Johnson turned
himself in and the trial court resentenced him to eight years in prison. Johnson
timely appealed his conviction. There, Johnson argued that the trial court erred in
denying the motion to suppress, erred in imposing an eight-year prison sentence
and erred in resentencing him to eight years after initially sentencing him to six
years. He also argued that his trial counsel was ineffective for not objecting to the
increased prison term and to the issuance of a capias for failure to appear in court
due to medical reasons.
In State v. Johnson, 8th Dist. Cuyahoga No. 105560, 2018-Ohio-169,
we affirmed the trial court’s denial of the motion to suppress. We reversed the trial
court’s imposition of an eight-year prison sentence after initially imposing a six-year
prison sentence. We remanded the matter for the limited purpose of executing the
original six-year prison sentence.
In February 2019, Johnson filed a legal malpractice complaint against
Robey, whom he had retained for his direct appeal. The complaint alleged that the
state’s attorney briefed and argued from exhibits that were deemed inadmissible by
the trial court and that Robey failed to put forth any defense. The complaint also
alleged that the state’s attorney filed inadmissible exhibits in this court and that
Robey failed to file a motion to strike those exhibits. In addition, the complaint
alleged that in Johnson’s direct appeal, this court considered evidence contained in
the inadmissible exhibits in reaching its decision, and that Robey failed to bring that
to this court’s attention in his motion for reconsideration.
In March 2019, after being served with Johnson’s complaint on
February 26, 2019, Robey motioned the court for a two-day extension and for leave
to file his answer instanter. Robey informed the court that he had retained counsel
that afternoon. The trial court granted the motion and deemed Robey’s answer filed
instanter.
In April 2019, Johnson filed a motion for default judgment, which the
trial court struck as being improperly filed. In the same month, Johnson also filed
a motion in opposition to Robey’s answer and a motion to strike the answer. The
trial court struck both motions as improper pleadings.
Subsequently, Robey filed a motion for judgment on the pleadings.
Robey asserted that Johnson could not state a prima facie claim for legal malpractice
because he could not demonstrate that Robey’s failure to object to the state’s
submission of inadmissible exhibits into the appellate record caused injury. On May
17, 2019, the trial court granted Robey’s motion for judgment on the pleading and
dismissed the case.
Johnson now appeals, assigning the following two errors for review:
Assignment of Error One
The trial court abused its discretion by granting [Robey’s] request for
leave to file answer out of rule without a finding of excusable neglect.
Assignment of Error Two
The trial court erred in granting [Robey’s] motion for judgment on the
pleadings.
In the first assignment of error, Johnson argues the trial court abused
its discretion in granting Robey’s request for an extension to file his answer.
Civ.R. 6(B) provides in relevant that:
When by these rules * * * an act is required or allowed to be done at or
within a specified time, the court for cause shown may at any time in
its discretion * * * upon motion made after the expiration of the
specified period permit the act to be done where the failure to act was
the result of excusable neglect * * *.
Thus, “[i]f a defendant moves for leave to answer after the date the
answer is due, Civ.R. 6(B)(2) permits the trial court to grant the defendant’s motion
upon a showing of excusable neglect.” McGrath v. Bassett, 196 Ohio App. 3d 561,
2011-Ohio-5666, 964 N.E.2d 485 (8th Dist.), citing Brooks v. Progressive Speciality
Ins. Co., 9th Dist. Summit No. 16639, 1994 Ohio App. LEXIS 3268 (July 20, 1994).
A trial court’s Civ.R. 6(B)(2) determination is addressed to the sound
discretion of the trial court and will not be disturbed on appeal absent a showing of
an abuse of discretion. State ex rel. Lindenschmidt v. Bd. of Commrs. of Butler Cty.,
72 Ohio St. 3d 464, 465, 650 N.E.2d 1343 (1995). The term “abuse of discretion”
connotes more than an error of law or judgment; it implies that the court’s attitude
is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
“[T]he test for excusable neglect under Civ.R. 6(B)(2) is less stringent
than that applied under Civ.R. 60(B).” Fourtounis v. Verginis, 8th Dist. Cuyahoga
No. 105349, 2017-Ohio-8577, ¶ 14, citing Lindenschmidt at 466. The determination
must take into consideration all the surrounding facts and circumstances, with the
admonition that cases should be decided on their merits, where possible. Id.
In the instant case, on March 28, 2019, Robey’s counsel stated, in his
motion for leave to file answer instanter, that he had been retained that afternoon,
that he had just received the complaint, that he had reviewed the docket and noted
that the answer was due on March 26, 2019. In addition, Robey’s counsel stated that
he was unable to contact Johnson’s counsel, because Johnson is pro se and appears
to be in a correctional institution. Further, at the time of the request, Robey was out
of rule by only two days and Johnson had yet to file a motion for default judgment.
Considering all the surrounding facts and circumstances, as well as
being mindful that, optimally, cases should be decided on their merits, Johnson was
not prejudiced by the trial court granting Robey a two-day extension to file his
answer. Thus, under the circumstances, we conclude there was no abuse of
discretion in granting the two-day extension.
Accordingly, the first assignment of error is overruled.
In the second assignment of error, Johnson argues the trial court
erred in granting Robey’s motion for judgment on the pleadings.
We review a trial court’s determination regarding a motion for
judgment on the pleadings de novo. Schmitt v. Edn. Serv. Ctr., 8th Dist. Cuyahoga
No. 97623, 2012-Ohio-2210, citing State ex rel. Midwest Pride IV, Inc. v. Pontious,
75 Ohio St. 3d 565, 569, 664 N.E.2d 931 (1996).
A Civ.R. 12(C) motion for judgment on the pleadings presents only
questions of law. Shingler v. Provider Servs. Holdings, L.L.C., 8th Dist. Cuyahoga
No. 106683, 2018-Ohio-2740, citing Whaley v. Franklin Cty. Bd. of Commrs., 92
Ohio St. 3d 574, 581-582, 752 N.E.2d 267 (2001). Dismissal of a complaint is
appropriate under Civ.R. 12(C) when, after construing all material allegations in the
pleadings, along with all reasonable inferences drawn therefrom in favor of the
plaintiff, the court finds that the plaintiff can prove no set of facts in support of his
or her claim that would entitle the plaintiff to relief. Pontious at 570, Socha v. Weiss,
8th Dist. Cuyahoga No. 105468, 2017-Ohio-7610, ¶ 9.
In order to establish a claim of legal malpractice based on negligent
representation, the plaintiff must demonstrate “(1) that the attorney owed a duty or
obligation to the plaintiff, (2) that there was a breach of that duty or obligation and
that the attorney failed to conform to the standard required by law, and (3) that there
is a causal connection between the conduct complained of and the resulting damage
or loss.” Skoda Minotti Co. v. Novak, Pavlik & Deliberato, L.L.P., 8th Dist.
Cuyahoga No. 101964, 2015-Ohio-2043, quoting Vahila v. Hall, 77 Ohio St. 3d 421,
674 N.E.2d 1164 (1997), syllabus, following Krahn v. Kinney, 43 Ohio St. 3d 103, 538
N.E.2d 1058 (1989).
In the instant case, as previously noted, Johnson retained Robey to
represent him in his direct appeal. In that matter, Robey assigned four errors for
review on Johnson’s behalf; chief among them was the assertion that the trial court
erred in denying the motion to suppress evidence discovered through the execution
of a search warrant.
The trial court’s journal entry following the suppression hearing
stated in pertinent part as follows:
Upon review of testimony at hearing, Court finds that search warrant
was issued pursuant to fresh evidence set forth in affidavit, including
controlled buy performed within appropriate time. Court further finds
that background information, while vague as to operative facts, was
mere surplusage and did not form the basis for the issuance of the
search warrant.
Nonetheless, Johnson challenged paragraphs one, three, and four
through nine of the affidavit and claimed it contained materially false and
misleading statements or omissions. Johnson also claimed that probable cause was
lacking because there was no evidence of ongoing drug trafficking.
In affirming the trial court’s denial of Johnson’s motion to suppress,
we stated in pertinent part as follows:
[Johnson’s] general challenges to the affidavit do not overcome the
presumption of validity afforded to the warrant affidavit. State v.
Sheron, 8th Dist. Cuyahoga No. 98837, 2013-Ohio-1989, ¶ 31. Johnson
has failed to make a substantial preliminary showing of the knowing,
intentional, or reckless inclusion of a false statement, or establish that,
without the false statements, the warrant “affidavit is unable to support
a finding of probable cause” Id., citing State v. Roberts, 62 Ohio St. 2d
at 178, 405 N.E.2d 247 (1980), and Franks v. Delaware, 438 U.S. at
155, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Removing the language
deemed surplusage by the trial court, it is beyond dispute that the
controlled buy took place, heroin was purchased, and a search warrant
executed within a 36-to 48-hour time frame.
Johnson, 8th Dist. Cuyahoga No. 105560, 2018-Ohio-169, ¶ 32.
As we were required to do, in reaching the above decision, we
conducted a de novo review of the trial court’s application of the law to the facts.
State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. (When
reviewing a ruling on a motion to suppress, deference is given to the trial court’s
findings of fact so long as they are supported by competent, credible evidence. The
reviewing court, however, must independently determine whether those facts satisfy
the applicable legal standard.) After our independent review, we concluded there
was no dispute that the controlled-buy occurred, that heroin was purchased, and the
search warrant was executed within a 36-48 hour time frame. As a result, we
affirmed the trial court’s denial of Johnson’s motion to suppress.
In addition, although Johnson claimed the affidavit contained
materially false and misleading statements or omissions, we underscored that
search warrant affidavits enjoy a presumption of validity. Johnson at ¶ 9, citing
Sheron, 8th Dist. Cuyahoga No. 98837, 2013-Ohio-1989, ¶ 29, citing Roberts, 62
Ohio St. 2d at 178, 405 N.E.2d 247. We concluded that Johnson failed to make a
substantial preliminary showing of the knowing, intentional, or reckless inclusion of
a false statement, or establish that, without the false statements, the warrant
“affidavit is unable to support a finding of probable cause.” Johnson at ¶ 32 citing
Roberts, 62 Ohio St. 2d at 178, 405 N.E.2d 247, and Franks, 438 U.S. at 155, 98 S. Ct.
2674, 57 L. Ed. 2d 667.
Further, although Johnson alleged that the state’s attorney filed
inadmissible exhibits in this court and that Robey failed to file a motion to strike
these exhibits, we did not rely on the exhibits to arrive at the aforementioned
decision. As previously noted, there was no dispute that the controlled-buy
occurred, that heroin was purchased, and the search warrant was executed within a
36-48 hour time frame. Consequently, the trial court did not err in overruling
Johnson’s motion to suppress.
Based on the foregoing, we can find no evidence that Robey failed to
use his best professional judgment in determining the most successful tactics to
represent Johnson in his direct appeal. There was no breach of duty or obligation
and Robey did not fail to conform to the standard required by law. As a result,
construing all material allegations in the pleadings and all reasonable inferences
that can be drawn therefrom in favor of Johnson, we find that Johnson can prove no
set of facts in support of his claim that would entitle him to relief. As a result, the
trial court did not err in dismissing his complaint.
Accordingly, the second assignment of error is overruled.
Judgment 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 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.
______
MARY EILEEN KILBANE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
KATHLEEN ANN KEOUGH, J., CONCUR