Summit Gardens Assn. v. Lemongelli, 2007 Ohio 6720 (Ohio App. 12/14/2007)
| Decision Date | 14 December 2007 |
| Docket Number | No. 2006-P-0050.,2006-P-0050. |
| Citation | 2007 Ohio 6720 |
| Parties | Summit Gardens Association, Plaintiff-Appellee, v. Michael Lemongelli, Defendant/Third Party Plaintiff-Appellant, Del Rob, Inc., et al., Third Party Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Monica E. Russell, 7081 Pearl Road, Middleburg Heights, OH 44130 (For Appellees).
Nancy E. Grim, 237 East Main Street, Kent, OH 44240 (For Appellant).
{¶1} Appellant, Michael Lemongelli, appeals the judgment entered by the Portage County Court of Common Pleas. The trial court granted a motion for relief from judgment filed by appellees, Summit Gardens Association; Del Rob, Inc.; R & G Thompson Associates, Inc.; Robert R. Thompson; and Thompson III Builders & Developers, Inc.
{¶2} Summit Gardens Association operates an apartment complex in Kent, Ohio, known as Summit Gardens Apartments. Appellant and his family were tenants at Summit Gardens Apartments. In addition, appellant was employed by Summit Gardens Association.
{¶3} Summit Gardens Association filed a complaint for forcible detention and rent against appellant in the Portage County Municipal Court. In response, appellant filed an answer and counterclaim. The counterclaim asserted that Summit Gardens Association's actions were retaliatory for appellant knowing that Summit Gardens engaged in discriminatory conduct. In addition, the counterclaim alleged that Summit Gardens Association violated the United States Department of Housing and Urban Development ("HUD") regulations by failing to recalculate appellant's rent obligation after appellant notified Summit Gardens Association of a decrease in his income.
{¶4} This matter was transferred to the Portage County Court of Common Pleas. After the matter was transferred, appellant filed several amended counterclaims, which named Del Rob, Inc.; R & G Thompson Associates, Inc.; Robert R. Thompson; and Thompson III Builders & Developers, Inc. as third-party defendants.
{¶5} Robert Thompson has been involved in various real estate ventures for several decades. At the relevant times of this action, Thompson was in his late 70s and his health was failing. Dolores Thompson is Thompson's wife. The Thompsons have two children, Robert Thompson, Jr. and Y'Teva Thompson. Y'Teva became involved in Thompson's businesses following Thompson's inability to manage them.
{¶6} Summit Gardens Association is a limited partnership. Thompson is the general partner of Summit Gardens Association. In addition, there are 32 limited partners of Summit Gardens Association. The record does not reveal the identity of the 32 limited partners. Summit Gardens Association employed an office employee named Reginald Smith.
{¶7} Thompson III Builders and Developers, Inc. is a corporation. It is "the payroll facility for the management company and the development." Y'Teva Thompson is an agent of Thompson III Builders and Developers, Inc. She and Dolores Thompson testified that Robert Thompson owns Thompson III Builders and Developers, Inc. However, in his deposition, Robert Thompson testified Dolores Thompson owns Thompson III Builders and Developers, Inc.
{¶8} Del Rob, Inc. is the managing agent for Summit Gardens. Thompson owns Del Rob, Inc. Thompson III Builders and Developers, Inc. took over the assets of Del Rob, Inc.
{¶9} Y'Teva Thompson testified that R & G Thompson Association was a company that her uncle and Robert Thompson formed. She testified that it is no longer in existence.
{¶10} In January, 2002, upon Summit Gardens Association's motion, its complaint for forcible detention and rent against appellant was dismissed. However appellant's counterclaims against appellees proceeded and were not affected by the dismissal of the original complaint.
{¶11} There have been several discovery disputes in this matter. In November, 2002, a hearing was held before the magistrate on these and other issues. Following the hearing, the magistrate recommended that appellees be ordered to pay $2,130.15 as previously ordered for discovery violations, as well as $45 for failure to appear at a deposition. Appellees filed objections to the magistrate's decision. The trial court adopted the magistrate's decision and entered judgment accordingly. Appellees filed a notice of appeal from the trial court's December 13, 2002 judgment entry in this court. This court dismissed appellees' appeal due to the lack of a final appealable order.
{¶12} Robert Thompson's deposition was taken on November 25, 2003. In addition to his personal involvement in the matter as a named third-party defendant, Robert Thompson was deposed as the representative for the entities. Robert Thompson was uncooperative throughout the deposition. During the deposition, Reginald Smith was in a nearby office and assisted Robert Thompson with certain details.
{¶13} On January 12, 2004, appellant filed a motion for default judgment pursuant to Civ.R. 37. The motion was based on the multiple discovery violations committed by appellees. Appellees did not respond to this motion. The trial court granted appellant's motion for default judgment. The matter proceeded to a hearing before the magistrate on the issue of damages. Appellees did not appear for this hearing. The magistrate issued a decision recommending that appellant be awarded $68,217.25 in compensatory damages for lost compensation; $200,000 for his claim for emotional distress as a result of appellees' harassing conduct; and $200,000 in punitive damages due to a finding that appellees' conduct was "outrageous and intentional." Per the magistrate's instructions, appellant's counsel submitted an affidavit in support of attorney fees.
{¶14} On June 24, 2004, appellees filed a request for findings of fact and conclusions of law. The trial court entered judgment in favor of appellant in the amount of $509,452.87, which included $68,217.25 for lost compensation; $200,000 for emotional distress; $200,000 in punitive damages; and $41,235.62 in attorney fees.
{¶15} Appellees filed a notice of appeal of the trial court's default judgment entry. This appeal was dismissed by this court for appellees' failure to prosecute.
{¶16} Appellant obtained a judgment lien against appellees. Thereafter, appellant initiated foreclosure proceedings.
{¶17} By the summer of 2005, Thompson's health had further deteriorated. Also, Reginald Smith had been murdered. Y'Teva Thompson stepped in to run the various businesses owned by Robert Thompson. In August 2005, while going through the mail, Y'Teva Thompson discovered the documents regarding the foreclosure proceedings.
{¶18} On November 2, 2005, appellees filed a Civ.R. 60(B) motion for relief from judgment. Appellant filed a motion in opposition to the Civ.R. 60(B) motion.
{¶19} On March 29, 2006, a hearing was held before the magistrate on appellees' motion for relief from judgment. Appellees submitted an affidavit from Dr Harry Isaacson. Dr. Isaacson is a physician at the Cleveland Clinic and treated Robert Thompson from 2002 through 2004. He stated that Robert Thompson was hospitalized several times during 2004; Robert Thompson's "mental status during 2004 was altered such [that] he had significant memory impairment"; and he did not believe that Robert Thompson "was capable of comprehending his legal obligations during 2004 and thus [did] not believe he was competent to handle business and legal affairs on behalf of himself or anyone else."
{¶20} Y'Teva and Dolores Thompson testified at the hearing on appellees' motion for relief from judgment. They testified that Robert Thompson had significant memory loss during late 2003 and in 2004. They testified he suffered from various health problems, including sleep apnea, emphysema, heart disease, and "a very serious state of dementia." They testified that he was often unaware of his immediate surroundings and was delusional, in that he believed strangers were coming into the house and stealing things from him. He was disoriented to the point that he would walk into walls. He was taking 18 different medications during this time.
{¶21} The magistrate issued a decision recommending that appellees' motion for relief from judgment be granted. Appellant filed objections to the magistrate's decision. Thereafter, the trial court overruled appellant's objections and granted appellee's motion for relief from judgment.
{¶22} Appellees were represented by various attorneys at the trial court level. Attorney Gabrielle Ross represented appellees for a significant time. She was present during Robert Thompson's deposition. Shortly after the deposition, in December 2003 Attorney Ross withdrew as counsel for appellees, citing the fact that Robert Thompson had terminated her representation. In January, 2004, Attorney Alexander Jurczenko entered an appearance as attorney for appellees. In her decision recommending that appellees' motion for relief from judgment be granted, the magistrate noted that Attorney Jurczenko had been suspended from the practice of law. See Cuyahoga Cty. Bar Assn. v. Jurczenko, 106 Ohio St.3d 123, 2005-Ohio-4101.
{¶23} Appellant filed a notice of appeal from the trial court's judgment entry granting appellees' motion for relief from judgment. The trial court's judgment entry is a final, appealable order pursuant to R.C. 2505.02(B)(3). See GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph one of the syllabus.
{¶24} Appellant raises three assignments of error. His first assignment of error is:
{¶25} "It was an abuse of discretion for the trial court to grant the motion to vacate the default judgment previously entered against Robert R. Thompson, individually, for persistent noncompliance with discovery rules and orders."
{¶26} "A reviewing court reviews a trial court's decision on a motion for relief from...
To continue reading
Request your trial