Sanford J. Berger v. Alfred Palay, 81-LW-0679

• Decision Date: 25 November 1981
• Docket Number: 81-LW-0679,42903
• Parties: SANFORD J. BERGER APPELLANT, v. ALFRED PALAY, ET AL. APPELLEES.
• Court: Ohio Court of Appeals

SANFORD J. BERGER APPELLANT, v. ALFRED PALAY, ET AL. APPELLEES.

No. 42903.

81-LW-0679 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

November 25, 1981

APPEAL FROM COMMON PLEAS COURT No. 990,807.

For plaintiff-appellant: Sanford J. Berger.

For defendant-appellee: Jack F. Smith.

JOURNAL ENTRY AND OPINION

PARRINO J.

This cause came on to be heard upon the pleading and the transcript of the evidence and record in the Common Pleas Court, and was argued by counsel; on consideration whereof the court certifies that in its opinion substantial justice has not been done the party complaining, as shown by the record of the proceedings and judgment under review, and judgment of said Common Pleas Court is reversed. Each assignment of error was reviewed by the court and upon review the following disposition made:

Sanford J. Berger, plaintiff-appellant, appeals entry of summary judgment in the Court of Common Pleas in favor of defendantsappellees Alfred Palay and the law firm of Zimmerman, Caticchio, Eisenberg & Palay. The case sounds in tort and arises from actions by appellees in representing appellant's wife in divorce proceedings against him.

Appellant filed his complaint on October 24, 1978, asserting five causes of action. The first four causes of action arose from the same alleged conduct of appellees while litigating the Berger divorce. The complaint alleged the following: On December 6, 1977, the trial court in the Berger divorce proceedings granted a motion to show cause why appellant should not be held in contempt for failure to vacate the marital premises, which had been filed by appellees against appellant. The court ordered appellees to prepare a journal entry. Appellee Palay prepared a proposed journal entry which exceeded the scope of the trial court's order. Palay then intentionally and maliciously submitted the proposed journal entry to the court without affording appellant or his counsel notice and opportunity to object to it as required by the Local Rules. The proposed entry was signed on December 12, 1977, and Palay thereafter distributed copies of the entry to the Beachwood police and other city officials. Appellant asserted that as a result of these alleged acts he was wrongfully evicted from the marital residence and denied access to his personal property, and thereby suffered mental distress, embarrassment, humiliation, and special damages. The first four counts of the complaint, according to appellant, are causes of action for abuse of process, defamation, prima facie tort, and negligent breach of professional duty.

The fifth count of appellant's complaint asserted that in the Berger divorce proceedings appellant had been ordered to pay his wife's dental bills, and that Palay had fraudulently presented bills to appellant for payment which were not solely Mrs. Berger's and had maliciously sought to have appellant held in contempt for refusing to pay these bills. As a result appellant incurred legal expenses and suffered humiliation. On the basis of these five counts appellant sought compensatory and punitive damages from Palay and the law firm of which he was a partner.

By way of answer Palay entered a general denial.®1¯ On July 10, 1980, Palay filed with leave of court a motion for summary judgment. By means of excerpts of the depositions of appellant's wife and Palay himself the motion demonstrated that Palay had mailed a copy of the proposed journal entry to appellant's counsel on the same day that he (Palay) obtained the trial court's signature on the original. The motion tended to show that Palay did not personally distribute copies of the entry to the police and other city officials but, instead, gave a certified copy of the entry to his client Mrs. Berger who in turn distributed photocopies of it to these officials.

Footnote 1 The record reflects no answer filed by the law firm. However, none of the parties has represented that this omission is relevant to the issues on appeal.

In a brief in opposition to Palay's motion appellant, by way of affidavit, incorporated by reference all the allegations in his complaint. Appellant indicated further that he had filed a timely motion to vacate the journal entry of December 12, 1977. Nither party indicated in this record the outcome of these proceedings in the Berger divorce case.

On the basis of this record the trial court granted summary judgment in favor of appellee Palay on August 20, 1980. On January 21, 1981, the law firm filed a motion for summary judgment with affidavit which was granted on May 20, 1981.

From these judgments appellant has filed a timely appeal, raising two assignments of error:

"FIRST ASSIGNMENT OF ERROR

"WHEN A COMPLAINT IS FILED AGAINST TWO DEFENDANTS SETTING FORTH FIVE VALID CAUSES OF ACTION UNDER CIV. R. 8, ONE OF WHICH IS DEEMED SUFFICIENT BY VIRTUE OF CIV. R. 84, AND A JOINT ANSWER IS FILED IN THE FORM OF A GENERAL DENIAL, FOLLOWED BY ONEOF THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, WHICH IS TOTALLY LACKING OF ANY SUPPORTIVE MATERIAL REQUIRED BY CIV. R. 56(C), BUT INSTEAD, CONTAINS ONLY DEFENDANT COUNSEL'S DISCOURSE ON WHAT HE WOULD HOPE TO PROVE ON THE TRIAL OF THE MATTER; WHICH MOTION FOR SUMMARY JUDGMENT IS OPPOSED BY PLAINTIFF'S BRIEF IN OPPOSITION WITH AN AFFIDAVIT IN COMPLIANCE WITH CIV. R. 56(C) - THE GRANTING OF SAID MOTION FOR SUMMARY JUDGMENT BY THE TRIAL COURT CONSTITUTES THE UNLAWFUL TAKING OF THE PLAINTIFF'S PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF ART. I, SEC. 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

"SECOND ASSIGNMENT OF ERROR

"A 'CHOSE IN ACTION' IS A VALUABLE PROPERTY RIGHT WHICH MAY NOT BE TAKEN FROM A CITIZEN WITHOUT DUE PROCESS OF LAW, AND CIV. R. 56, WHICH PERMITS SUCH A TAKING WITHOUT A HEARING, AND CIV. R. 52 WHICH PERMITS SUCH A TAKING WITHOUT EXPLANATION OR JUSTIFICATION, ARE UNCONSTITUTIONAL AS BEING VIOLATIVE OF ART. I, SEC. 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION."

These assignments are well taken to the extent noted hereinafter.

The issue is whether the trial court erred in granting summary judgment for appellees.®2¯ Summary judgment is appropriate where the evidentiary material delineated in Civ. R. 56(C) demonstrates that there is no genuine issue of fact and that movant is entitled to judgment as a matter of law.

Footnote 2 Appellant also asserts that summary judgment as provided in Civ. R. 56 violates due process. This assertion is without merit. Houk v. Ross (1973), 34 Ohio St. 2d 77.

Additionally, appellant asserts that the trial court erred in granting summary judgment since the deposition pages attached to the motion were unverified. Since appellant failed to raise this objection at the trial level he waived the asserted error. Brown v. Ohio Cas. Ins. Co. (1978), 63 Ohio App. 2d 87.

"A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."

Civ. R. 56(C).

We will analyze appellant's first four causes of action together since they are based on the same alleged conduct. The allegations may be reduced to the following critical components:

1) Palay intentionally and maliciously procured an invalid judgment entry by improper means;

2) Palay disseminated the invalid entry to law enforcement officials; and

3) As a direct result of this wrongful conduct appellant sustained injury.

While the motion for summary judgment tends to show that Palay did not personally disseminate the judgment entry it does not preclude indisputably the possibility that Palay may have induced his client Mrs. Berger to disseminate the entry or may have acted in concert with her in its dissemination.

Moreover, the motion does not refute the allegation that Palay procured the entry by improper means. Indeed, Palay's deposition clearly reveals that Palay violated Loc. R. 19(A) by failing to afford appellant's counsel three days to review the proposed journal entry prior to submission to the...