Newman v. Al Castrucci Ford Sales, Inc.
| Decision Date | 12 October 1988 |
| Docket Number | C-870796,Nos. C-870361,s. C-870361 |
| Parties | NEWMAN, Appellant, v. AL CASTRUCCI FORD SALES, INC., Appellee. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. The affidavit of a party's attorney filed in opposition to a motion for summary judgment is properly stricken pursuant to Civ.R. 56(E) when the attorney does not have personal knowledge of the "facts" recited in the affidavit.
2. Where the plaintiff, in a deposition, refutes every material allegation of the complaint filed by her attorney, and denies having ever made such allegations to anyone or having ever seen the complaint, a trial court does not abuse its discretion in finding that plaintiff's attorney willfully violated Civ.R. 11.
3. A trial court retains jurisdiction to decide a motion for sanctions pursuant to Civ.R. 11, even though an appeal of summary judgment in the same matter has been filed, because the trial court's decision on the motion does not affect the appellate court's power to review and decide the appeal.
4. When a trial court fails to rule upon a motion, it may be presumed that the court overruled such motion.
5. A trial court does not err by granting defendant's motion for sanctions against plaintiff's attorney under Civ.R. 11 where the record reveals that the attorney willfully violated the rule by filing a groundless complaint.
6. A trial court does not abuse its discretion by ordering that an attorney who violated Civ.R. 11 pay the portion of the opposing party's attorney fees generated in defending a groundless complaint; however, such award may not include the portion of defendant's attorney fees generated in connection with the Civ.R. 11 motion itself.
David J. Boyd, Cincinnati, for appellant.
Taft, Stettinius & Hollister and Timothy C. Sullivan, Cincinnati, for appellee.
These consolidated appeals involve the complaint filed on behalf of plaintiff-appellant, Joyce Newman, for breach of contract, deceptive consumer practices and fraud in her purchase of a van from defendant-appellee, Al Castrucci Ford Sales, Inc. ("Castrucci Ford"). In appeal No. C-870361, plaintiff challenges the trial court's entry of summary judgment in favor of defendant based upon plaintiff's retraction of the material allegations of the complaint; appeal No. C-870796 involves the trial court's granting of defendant's motion for sanctions against plaintiff's attorney for filing a groundless complaint. Of the two assignments of error presented in appeal No. C-870361 and the four assignments presented in appeal No. C-870796, we find merit in only one aspect of the final assignment; in all other respects we affirm the trial court's judgments.
The complaint filed by plaintiff's attorney alleged that on November 10, 1985, plaintiff went to Castrucci Ford in response to a newspaper advertisement for a new Ford van; that she entered into an oral agreement with defendant to purchase the van for precisely the advertised price, with a specific trade-in allowance for her Ford LTD (paragraph two); that defendant made specific oral representations as to her trade-in equity and the resulting net purchase price of the van (paragraph three); that she later signed a partially blank purchase agreement at defendant's request; that when she returned to pick up the van, defendant had raised the purchase price substantially; that plaintiff demanded defendant rescind the transaction, but defendant refused (paragraph six); and that such actions amounted to breach of an oral contract, deceptive consumer practices and fraud.
However, at her deposition plaintiff testified absolutely that paragraphs two, three and six of the complaint were not correct statements; that what she signed was filled in and she was not complaining about blank documents; that "they didn't promise me nothing" or make any oral representations or agreements as to either trade-in equity or purchase price; and that she did not demand rescission of the transaction. Instead, plaintiff testified her only complaint was that the balance she still owed on her LTD, which amounted to more than the car was worth, and which defendant paid off for her as part of the van purchase in accordance with customary trade-in procedure, was charged to her as part of the van purchase. In other words, plaintiff thought it unfair that she should still have to pay the balance owed on the LTD when she no longer possessed it.
Defendant filed a motion for summary judgment, arguing that plaintiff's deposition testimony demonstrated that every material allegation of the complaint had no basis in fact or law. Thus, according to defendant, plaintiff's lawsuit was groundless and defendant was entitled to judgment as a matter of law.
In opposition to the motion for summary judgment, plaintiff's attorney filed his own affidavit which recited his version of the facts of the case, stating that he had personal knowledge of the facts based upon his participation in taking the deposition of plaintiff and others. Defendant filed a motion to strike that affidavit.
On May 1, 1987, the trial court granted defendant's motion for summary judgment, and subsequently entered an order (nunc pro tunc to May 1) granting defendant's motion to strike the affidavit of plaintiff's attorney. Plaintiff filed her notice of appeal from the summary judgment on May 29.
Also on May 29, defendant filed a motion for sanctions pursuant to Civ.R. 11. This rule states that when an attorney signs a pleading, he verifies that there are good grounds to support it, and that an attorney may be subject to "appropriate action" for a willful violation of the rule. Defendant's motion requested that plaintiff's attorney be ordered to pay defendant reasonable attorney fees generated in defending the groundless complaint. Plaintiff filed a motion to strike the motion for sanctions, arguing that the trial court lost its jurisdiction when her notice of appeal was filed.
Without ruling on the motion to strike, the trial court granted the motion for sanctions and ordered plaintiff's attorney to pay defendant attorney fees of $5,050. The notice of appeal from this ruling was filed on behalf of both plaintiff and her attorney.
The first assignment of error in this appeal is that the trial court erred by striking the affidavit of plaintiff's attorney and considering it as support for her argument opposing the motion for summary judgment. As we noted above, this affidavit summarizes the events surrounding the sale and delivery of the van to plaintiff. However, plaintiff's attorney was not present at the time of sale or delivery and, thus, did not have the personal knowledge required by Civ.R. 56(E) for an opposing affidavit to be considered on a motion for summary judgment. We therefore find that the affidavit was properly stricken and we overrule the first assignment of error.
The second assignment of error is that the trial court erred in granting defendant's motion for summary judgment. As can be seen from our summaries of the complaint and plaintiff's deposition set forth above, plaintiff testified that each material allegation of the complaint was not true. She admitted that there were no oral agreements as to price or trade-in value, no signing of blank documents, no increase in sales price, no demands for rescission, and no false representations. We believe reasonable minds can only conclude that there is no dispute as to any material fact and that defendant is entitled to judgment as a matter of law on each claim advanced in the complaint. See Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267; Civ.R. 56(C). Accordingly, the second assignment of error is overruled and the judgment in appeal No. C-870361 is affirmed.
The first assignment of error in this appeal is that the trial court erred in failing to rule upon and to grant plaintiff's motion to strike defendant's motion for Civ.R. 11 sanctions. As noted above, defendant's motion for sanctions and plaintiff's notice of appeal from the summary judgment were filed on the same day. Plaintiff argues that once her appeal was filed, the trial court lost its jurisdiction to consider defendant's motion for sanctions. We do not agree.
Generally, when an appeal is taken, the trial court is divested of jurisdiction except to take action in aid of the appeal. However, the trial court does retain jurisdiction over issues not inconsistent with ...
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