Payson v. Phipps
| Decision Date | 06 May 2022 |
| Docket Number | 2021-CA-36 |
| Citation | 2022 Ohio 1525 |
| Parties | FRANK M. PAYSON Plaintiff/Counterclaim Defendant-Appellant v. PRISCILLA ANN PHIPPS (SPIVEY) Defendant/Counterclaim Plaintiff-Appellee |
| Court | Ohio Court of Appeals |
Civil Appeal from Common Pleas Court Trial Court Case No 2019-CV-327
ROBERT W. HOJNOSKI, Atty. Reg. No. 0070062, Attorney for Plaintiff/Counterclaim Defendant-Appellant
PRISCILLA ANN PHIPPS SPIVEY, Defendant/Counterclaim Plaintiff-Appellee, Pro Se
{¶ 1} Plaintiff-Appellant, Frank Payson, appeals from a judgment granting R.C. 2323.51 sanctions against him and in favor of Defendant-Appellee, Priscilla Ann Phipps Spivey ("Spivey"). In his sole assignment of error, Payson contends that the trial court erred in granting sanctions and in the amount of sanctions awarded. For the reasons discussed below, we conclude that the assignment of error is without merit. Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 2} This action arose from an attorney-client relationship between Payson and Spivey that began in July 2017 and ended in March 2018. After Spivey filed a disciplinary complaint regarding Payson with the Dayton Bar Association ("DBA"), a fee-dispute arbitration occurred on June 26, 2019. The arbitrators ordered Payson to give Spivey a refund of either $1, 273.12 or $1, 472.02 depending whether a prior check issued to Spivey in the amount of $198.09 was still negotiable. See In the Matter of Fee Dispute Arbitration Between Priscilla Spivey and Frank Payson, Montgomery C.P. No. 2020-CV-2210, 2019 WL 12382488 (July 9, 2019). See also Answer and Counterclaim (August 30, 2019), Ex. A.
{¶ 3} On August 9, 2019 (a month after the award), Payson filed a complaint against Spivey, alleging that she had committed defamation, defamation per se, and reckless and malicious conduct. No specifics about the alleged defamatory circumstances or statements were included. In the complaint, Payson alleged compensatory damages in excess of $25, 000 for each common law claim, for a minimum of $275, 000, compensatory damages in excess of $25, 000 for each tort claim, for a minimum of $275, 000, and punitive and/or liquidated damages in an amount in excess of $25, 000 on his tort claims, for a minimum of $275, 000. He also asked for attorney fees and costs.
{¶ 4} On August 30, 2019, Spivey filed an answer which included various defenses, including that Payson had violated Civ.R. 11, and that any communications regarding Payson were confidential and privileged as they were made in the context of a disciplinary complaint. Spivey also included a counterclaim seeking payment of the arbitrator's award. In addition, Spivey asserted counterclaims for frivolous conduct and for violation of Civ.R. 11.
{¶ 5} On September 13, 2019, Spivey filed an amended answer and counterclaim. She then filed a notice of submission on September 16, 2019, indicating that she had served a first set of interrogatories and a first request for production of documents on Payson.
{¶ 6} On September 26, 2019, Payson filed a motion to dismiss the amended counterclaim, contending that the court lacked subject matter jurisdiction and that the counterclaim failed to state a claim. Payson also requested a temporary restraining order and preliminary injunction. Among other things, Payson alleged that Civ.R. 11 and R.C. 2323.51 claims must be made by motion rather than in a counterclaim. Motion to Dismiss (Sept. 26, 2019), p. 18-19. Additionally, Payson filed a motion to strike the arbitration decision (which was attached to Spivey's original answer and counterclaim).
{¶ 7} Spivey filed a memorandum replying to the motion to dismiss; Payson then responded and included a second motion to strike. In this motion, Payson asked the court to strike documents and an affidavit that were attached to Spivey's memorandum. On November 15, 2019, Spivey filed a motion to compel Payson to respond to her discovery requests. Payson did not respond to the motion.
{¶ 8} On December 4, 2019, the trial court filed a decision overruling Payson's motion to dismiss and converting his motion into one for summary judgment. The court also overruled Payson's request for injunctive relief and attorney fees and overruled his motion to strike the arbitration decision. The court did grant Payson's second motion to strike, but only in minor part. The motion to strike was denied with respect to an affidavit Spivey had attached to her memorandum opposing the motion to dismiss. However, the court struck unanswered discovery requests attached to Spivey's memorandum, as the court felt these, being unanswered, could not supply evidence for or against summary judgment. Decision and Judgment Entry (Dec. 4, 2019), p. 10-11. As part of its decision, the court also set deadlines pertaining to the converted motion for summary judgment.
{¶ 9} On December 16, 2019, the court granted Spivey's motion to compel discovery and ordered Payson to pay reasonable attorney fees and costs that Spivey had incurred in obtaining the discovery order. As a result, on December 26, 2019, Spivey filed a document outlining the fees she had incurred in pursing the motion to compel. Payson did not respond to this filing.
{¶ 10} In its December 4, 2019 Decision, the court had ordered Payson to submit his Civ.R. 56(C) evidence on summary judgment within 30 days of the order. However, on December 31, 2019, Payson filed a motion seeking temporary suspension of the court's order; he also claimed not to have understood the court's decision. In the motion, Payson mentioned medical issues he had been experiencing. While awaiting the court's decision, Payson did not timely file any summary judgment materials.
{¶ 11} On January 21, 2020, the court gave Payson a 14-day extension (from that date) to file summary judgment materials. The court further stressed that its prior decision converting the motion to dismiss to summary judgment was not ambiguous.
{¶ 12} Payson did not file the summary judgment materials as ordered. Instead, he asked for an additional extension, claiming he did not timely receive the January 21, 2020 extension decision. The court then granted Payson another 14-day extension on February 14, 2020.
{¶ 13} Instead of complying with the court's December 16, 2019 order compelling discovery, Payson filed a Civ.R. 60(B)(3) motion on January 22, 2020, seeking to vacate the order. In the motion, Payson alleged fraud in that Spivey and her counsel had "deceived" the court into granting the motion to compel. This was based on the fact that Payson, while having an email address, did not choose to communicate by email. Payson therefore contended that Spivey's counsel had falsely represented to the court that Payson had been served with discovery requests. Spivey filed a response on January 29, 2020, noting that Payson had sent interrogatories to her counsel by email in this case in September 2019. Payson then filed a reply memorandum on February 17, 2020.
{¶ 14} On February 28, 2020, Payson filed a supplemental motion for summary judgment and included his own affidavit. The affidavit asserted for the first time that his defamation claim was not related to the fee dispute. No other facts were provided. In the motion, Payson made the same arguments as he had made before concerning the Civ.R. 11 and R.C. 2323.51 counterclaims. In response, Spivey noted that she was entitled to bring these claims. She also stated that even if the fee claims were premature, she intended to assert them in the case at a later date when the court permitted her to proceed. Payson filed a reply memorandum on March 11, 2020.
{¶ 15} On March 25, 2020, the trial court overruled Payson's Civ.R. 60(B)(3) motion to vacate. The court found that Payson's selective use of his email was unreasonable and also found no evidence of fraud. Furthermore, the court admonished Payson that his "leap to allegations of fraud, entrapment, trickery, lying, and illegality, are unacceptable and will not be tolerated." Decision and Judgment Overruling Plaintiff's Civ.R. 60(3)(B) Motion to Vacate (March 25, 2020), p. 9.
{¶ 16} On April 15, 2020, Spivey filed a motion asking the court to confirm the DBA arbitration award. Spivey attached a copy of the July 9, 2019 award.
{¶ 17} On April 22, 2022, the trial court granted Payson's summary judgment motion in part and overruled it in part. The court granted summary judgment as to Spivey's first cause of action (concerning the arbitration award). The court reasoned that the arbitration claim was not compulsory and that Civ.R. 13(A) () did not control over R.C. Chap. 2711. Decision and Entry Granting in Part and Overruling in Part Plaintiffs Supplemental Motion for Summary Judgment (Apr. 22, 2020) ("April 22, 2020 Decision"), p. 8. The court stressed that this failure was not Spivey's fault, due to the vagueness of Payson's defamation claims (which he had much later corrected by affidavit, indicating that they did not arise from the bar complaint). Id. at p. 7.[1] Nonetheless, because the arbitration claim was apparently not compulsory, the court concluded that summary judgment on this claim was required.
{¶ 18} The court then denied Payson's summary judgment motion on the rest of the counterclaims. The court noted that a split of authority existed concerning whether Civ.R. 11 and R.C. 2323.51 claims should be brought by motion or in counterclaims. Id. at 8-9. The court also stressed the lack of evidence from Payson (as opposed to legal conclusions) about his defamation claims against Spivey. Id. at 10-11.
{¶ 19} Although the court had already granted Payson's motion for summary judgment...
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