Patel v. Village of Bellaire

[Cite as Patel v. Village of Bellaire, 2014-Ohio-880.]

STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

ARVIND PATEL, et al., )
) CASE NO. 13 BE 9
PLAINTIFFS-APPELLANTS, )
)
VS. ) OPINION
)
VILLAGE OF BELLAIRE, )
)
DEFENDANT-APPELLEE. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 08CV412.

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiffs-Appellants: Arvind Patel, Pro se
16 Renaissance Way
Wheeling, West Virginia 26003

For Defendant-Appellee: Attorney Mel Lute, Jr.
400 South Main Street
North Canton, Ohio 44720

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite

Dated: March 6, 2014
[Cite as Patel v. Village of Bellaire, 2014-Ohio-880.]
VUKOVICH, J.

{¶1} Plaintiff-appellant Arvind Patel appeals the decision of the Belmont
County Common Pleas Court which denied his post-judgment motion for Civ.R. 11
sanctions filed against Attorney Mel Lute, Jr. Appellant alleged that counsel used
false affidavits to support defendant-appellee Village of Bellaire’s motion for summary
judgment, which was then granted by the trial court and affirmed on appeal to this
court. Appellant is essentially attempting to relitigate a claim which he generally
asserted in his response to the Village’s request for summary judgment but which he
failed to specifically support with summary judgment evidence. Regardless, the trial
court did not abuse its discretion in finding, after listening to the affiants testify at the
sanctions hearing, that the affidavits were not fraudulent and/or that the Village’s
attorney did not willfully attach fraudulent affidavits to the motion. In accordance, the
judgment of the trial court is affirmed.
STATEMENT OF THE CASE
{¶2} On September 7, 2009, Village of Bellaire Law Director Michael
Shaheen filed a request for temporary and permanent injunctive relief against Arvind
Patel and Anu & Amu, Inc. in the Belmont County Common Pleas Court resulting in
Case No. 06CV371. The Village asked the court to order the closure of Patel’s motel
doing business as the 7-Inn Motel. Attached to the request was the affidavit of Fire
Captain Dennis VanKirk who stated that he undertook an inspection on behalf of the
Village which had received various complaints concerning the property. He stated
that he found at least 100 dangerous fire code violations, noting that he saw exposed
wiring, deplorable conditions, flammable material, and lack of adequate fire
extinguishers. He expressed concern that a fire would occur unless the motel was
closed for repair. He also stated that during the investigation, Patel voiced that he
would not comply with repair requests. A temporary restraining order was issued.
{¶3} Patel apparently began making some repairs. Less than two weeks
after the temporary order was issued, the State Fire Marshal’s Office conducted an
inspection, found 183 violations, and issued a citation. Based upon subsequent
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testimony of a State Fire Marshal, a preliminary injunction was then granted in
06CV371.
{¶4} Administratively, Patel requested a hearing before the Board of Building
Appeals, after which the State Fire Marshal’s citation was upheld, with no further
appeal taken. By this time, Patel’s operator’s license had expired, and the motel was
no longer in operation. Thus, in mid-2007, the Village dismissed its pending request
for a permanent injunction.
{¶5} In mid-2008, Patel filed a pro se complaint against the Village of
Bellaire in the Belmont County Common Pleas Court alleging a conspiracy to close
the motel by filing and perpetuating a malicious and wrongful suit with false testimony
and a false affidavit, negligence in filing a meritless suit and causing the motel to
close, and tortious interference with economic advantage by causing the motel to
close.
{¶6} The Village filed a motion for summary judgment. The Village attached
the fire captain’s prior affidavit and his more recent affidavit wherein he added that
the State Fire Marshall inspected the property, found 183 violations, and provided a
citation issued to Patel under R.C. 3737.42. He characterized this occurrence by
stating that the State Fire Marshall “took over” to determine the fate of the plaintiff’s
business. The Village also attached the affidavit of former Law Director Shaheen,
wherein he stated that he filed a request for temporary and permanent relief based
upon information supplied to him in order to ensure Patel would cease operation of
the property pending complete repair in compliance with fire code and/or the outcome
of an enforcement proceeding under Chapter 3737.
{¶7} The Village raised various arguments besides the one that it was proper
to seek closure of the motel. For instance, the Village pointed out that Patel had
already argued that the fire captain’s affidavit was false in 06CV371. The Village
stated that there was no allegation of an unlawful act as required for a civil
conspiracy claim. The Village also asserted immunity in the government functions
performed here.
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{¶8} Patel responded by urging that the ruling in 06CV371 was not final and
only related to a temporary order. As to the issue of the Village’s immunity, Patel
confusingly stated that the fire captain and law director acted outside the course of
their employment. Patel also urged that the issue of whether the Village used false
testimony and false affidavits was a jury question.
{¶9} The Village replied to the latter contention by pointing out that Patel set
forth mere general accusations of falsity and provided no summary judgment
evidence in support of his contention that there remained a genuine issue for trial.
Before the trial court could rule, Patel retained counsel for the first time in this suit.
Instructions were issued for counsel to review the file to determine if he concurred
with appellant’s pro se filings, but counsel later withdrew. In July 2010, the Village
filed a supplement to their motion for summary judgment in order to place it back
before the court’s consideration. The Village’s supplement added Patel’s deposition
and noted that he only generally set forth his belief that the affidavits were based on
lies and that the motive was to close his motel rather than an actual threat of fire.
{¶10} On July 21, 2010, the trial court granted summary judgment to the
Village. Patel appealed that judgment and raised a total of seven assignments of
error. See Patel v. Village of Bellaire, 7th Dist. No. 10BE27, 2012-Ohio-4348. Patel
made various arguments in that appeal regarding his belief that the trial court relied
on affidavits that were false, fraudulent, and manufactured. Id. at ¶ 25, 47.
{¶11} This court initially set forth the law on political subdivision immunity. Id.
at ¶ 27-29. We ruled that Patel did not raise any exception to immunity. Id. at ¶ 30.
We pointed out that he claimed that the fire captain or law director acted outside of
the scope of their duties, but this would only further the Village’s case of immunity,
noting that he did not file suit against the fire captain and the law director. Id. at ¶ 30,
39. We also concluded that Patel failed to provide evidence that the affidavits of the
fire captain and the law director were false or that there remained a genuine issue as
to his claims. Id. at ¶ 34, 39, 49. We affirmed the grant of summary judgment.
{¶12} While that appeal was pending, Patel filed a motion for sanctions under
Civ.R. 11 against Attorney Lute who defended the Village in this lawsuit. Patel
 -4-

claimed that Attorney Lute willfully attached to the summary judgment motion three
false affidavits (the two affidavits of the fire captain and the affidavit of the law
director). Appellant also contested counsel’s statements in the summary judgment
motion recapping the affidavits. Appellant then explained why he disagreed with the
content and/or wording of certain portions of the affidavits.
{¶13} The trial court waited to rule on the motion until the appellate process of
the underlying suit was complete. See Patel v. Judge Crawford, 7th Dist. No.
12BE28, 2013-Ohio-2284, ¶ 5, 15. The trial court conducted a hearing on the motion
on April 9, 2013. At the hearing, Patel questioned the fire captain and the law
director on certain portions of their affidavits. For instance, appellant tried to
establish that a statement in the law director’s affidavit that a permanent injunction
was requested was false because no permanent injunction was issued or because
no hearing ended up being held on a permanent injunction due to the voluntary
dismissal. As another example, appellant tried to demonstrate that the fire captain’s
affidavit falsely stated that the State Fire Marshal’s office “took over” to determine the
fate of the business; appellant based this argument on a letter he received from that
office stating that they were not part of the pending injunction lawsuit but were
proceeding administratively on his license. Both witnesses testified that when they
filed the affidavits at issue, they believed that what they said was true.
{¶14} The trial court concluded that there was no evidence that there was
anything false in any of the affidavits. And, the trial court stated that even if there
were false statements, there is no evidence that the affiants knew those statements
were false. Regardless, the trial court found that there was absolutely no evidence
that Attorney Lute had any knowledge of falsities in the affidavits. The court opined
that this was the most frivolous motion and hearing that the court had encountered in
its more than 30 years as a judge. The court’s decision denying the motion for
sanctions was journalized on April 24, 2013. Patel filed a timely notice of appeal and
filed a pro se brief on his own behalf (not on behalf of the corporation).
 -5-

ASSIGNMENTS OF ERROR
{¶15} Patel sets forth the following seven assignments of error:
{¶16} “The trial court made an egregious error in failing to recognize the
[former law director’s] false and fabricated affidavit and testimony at the hearing of
April 9, 2013.”
{¶17} “The trial court made an egregious error in failing to recognize the [fire
captain’s] false and fabricated affidavit and testimony at the hearing of April 9, 2013.”
{¶18} “Trial court abused its discretionary power by directly coaching the
witness stating that you can file a false and fabricated affidavit and come into court
and testify that you believe it was true at the time of the filing of the affidavit.”
{¶19} “The trial judge abused his discretionary power and changed the
definition of rule 11 ‘motion for sanction’ to favor Appellee.”
{¶20} “The trial judge abused his discretionary power, by not allowing the
defendant Attorney Lute on the stand for cross examination.”
{¶21} “The trial judge abused his discretionary power and falsely stated that
this is the first and only hearing on the Motion [for] sanctions today.”
{¶22} “The trial court abused his discretionary power, and held the hearing
without important witness[es], whom Mr. Patel subpoenaed.”
{¶23} Before proceeding, we admonish appellant that gratuitous cursing in an
appellate brief is inappropriate. See Appellant’s Brief at 21 (where appellant states
that the trial judge “did not give a shit”).
GENERAL LAW
{¶24} Pursuant to Civ.R. 11, every pleading, motion, or other document of a
party represented by an attorney shall be signed by at least one attorney of record.
The signature of an attorney constitutes a certificate by the attorney: that he has
read the document; that to the best of his knowledge, information, and belief there is
good ground to support it; and that it is not interposed for delay. Civ.R. 11. If a
document is signed with intent to defeat the purpose of this rule, it may be stricken as
sham and false and the action may proceed as though the document had not been
served. Id. For a willful violation of this rule, an attorney may be subjected to
 -6-

appropriate action, including an award to the opposing party of expenses and
reasonable attorney fees incurred in bringing a motion under this rule. Id.
{¶25} Appellee points out that the rule does not apply to affidavits of a non-
party used to support a motion. See Staff Note to 1994 Amendment to Civ.R. 11.
Appellant responds by contending that where counsel cites parts of those affidavits in
his motion, the rule would apply to those statements regardless of counsel’s
subjective belief. That is, appellant urges the test employed in a Civ.R. 11 evaluation
is not subjective and is employed without considering actual bad faith.
{¶26} However, the Ohio Supreme Court has stated that “Civ.R. 11 employs a
subjective bad-faith standard to invoke sanctions by requiring that any violation must
be willful.” State ex rel. Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789,
874 N.E.2d 510, ¶ 19. The standard requires more than bad judgment or negligence
and requires dishonest purpose or actual intent to mislead for instance. State ex rel.
Bardwell v. Cuyahoga Cty. Bd. of Commrs, 127 Ohio St.3d 202, 937 N.E.2d 1274,
2010-Ohio-5073, ¶ 8.
{¶27} A reviewing court does not reverse a decision on a motion for sanctions
unless the trial court has abused its discretion. Id. at ¶ 9, citing Dreamer, 115 Ohio
St.3d 190 at ¶ 18. As long as some competent, credible evidence exists to support
the judgment, no abuse of discretion occurs. Id.
ANALYSIS
{¶28} Many of appellant’s complaints regarding the affidavits can be classified
as caviling (the raising of trivial and frivolous objections), misinterpretation, or outright
mistake on appellant’s part. Most notably, appellant complains that the law director’s
affidavit stated that he previously requested a permanent injunction, but appellant
insists that this is not true. However, the original filing was a request for both
temporary and permanent relief. Although only a temporary and preliminary
injunction had been issued by the time the complaint was voluntarily dismissed, there
was still an initial request for a permanent injunction.
{¶29} Appellant’s next complaint regarding the law director dealt with his
statement at a hearing in the injunction case. As to how this relates to the affidavit,
 -7-

appellant seems to focus on the law director’s statement in his affidavit that he filed
for an injunction subject to complete repair of the property. Appellant believes the
statement is false because he alleges that he did make the repairs of the items in the
initial complaint but his motel stayed closed. However, the law director was merely
paraphrasing the complaint for an injunction; he was not swearing that repairs never
began or that they were not completed at a later date. And, the excerpt from a prior
hearing utilized by appellant here does not support his position as the law director
mentioned only that appellant was “making progress” and stated that several
violations still exist. In any event, appellant is essentially making a legal argument as
to whether the code violations found by the state could be used to further extend the
injunction where he allegedly fixed the violations found by the village. This was a
matter for the summary judgment stage of the proceedings, rather than the Civ.R. 11
stage.
{¶30} Appellant also alleges here that the law director falsely claimed that
Chapter 3737 was followed. This is apparently based upon appellant’s contention
that the fire captain did not strictly follow the law, and that the law director should
have known that. First, the law director’s three-sentence affidavit was used in this
lawsuit merely to show what he did in the prior lawsuit. He did not specifically claim
that the fire captain complied with every aspect of Chapter 3737. He merely outlined
that he filed for temporary and permanent relief to assure appellant would cease
operation subject to the complete repair in compliance with fire codes and/or the
outcome of enforcement proceedings under Chapter 3737. And, nothing in that
affidavit could be attributable to bad faith of the current attorney provided by the
insurance company to represent the Village of Bellaire in this action instituted by
appellant.
{¶31} As to the affidavit of the fire captain that was written at the time of the
summary judgment motion, appellant complains that he stated that the State Fire
Marshal’s office “took over” after finding 183 violations. The trial court found that the
fire captain believed the state was taking over (for him) and the affidavit was not
fraudulently made. Appellant points to a letter written to him on behalf of the State
 -8-

Fire Marshal’s Office, noting that it was not a party to the action for injunctive relief as
they were pursuing actions against the hotel’s license administratively which “at this
time do not involve the courts.” Appellant’s complaint seems to be merely an
interpretation argument or an argument of what impressions were made on the fire
captain by the involvement of the state. So they did not take over the civil case; they
did, however, essentially take over the investigatory and compliance aspects of the
matter. In fact, testimony of one of those state agents was presented to support
extending the temporary restraining order into a preliminary injunction. And, as
aforementioned, any argument that the state’s citation was a malicious reason to
extend the injunction is a legal argument. Arguments such as this were resolved at
the summary judgment stage of this action due to appellant’s inadequate response.
{¶32} Appellant also complains that the fire captain’s affidavit stated the he
issued a citation to appellant in writing, describing with particularity the nature of the
violation and the portion of the fire code violated. Appellant complains that the
citation was more like a letter and that each violation does not have a specific code
section after it. However, it was in writing, with a list of particular violations, and
general code sections were provided in the introduction to the list of violations. Once
again, any argument that the fire captain’s citation was statutorily insufficient to justify
an injunction is a legal argument that was already resolved, at the least by the time
that summary judgment was entered in this action. And, defense counsel does not
make a groundless argument by defending the sufficiency of a fire captain’s citation
in an action for malicious prosecution against his client, the Village of Bellaire.
{¶33} Appellant even takes issue with a statement in the fire captain’s original
affidavit, filed in support of the Village’s prior action for a restraining order, where he
states, “During our investigation, Mr. Patel made it clear that he absolutely will not
comply with our requests to repair the subject property. Furthermore, he openly
disputed our authority to order him to do so.” There is no rational reason to connect
any liability for this statement (made by a fire captain the day after an inspection in
September 2006) to a defense counsel who, two years later, merely attached the
affidavit (which had already been accepted by a court in granting both temporary and
 -9-

preliminary relief) to a motion for summary judgment. In any event, there is no
evidentiary indication that the fire captain’s impressions of appellant’s conduct and
statements were false. Additionally, appellant had the chance to contest these
statements, and summary judgment has since been entered against him.
{¶34} The trial court had the discretion to believe the affiants who testified that
the affidavits were true and/or they believed their affidavits were true when they wrote
them. The court did not “coach” the witnesses but followed up Patel’s questioning
with one final question as to whether they believed at the time of signing that the
affidavits were true. Other statements by the court were attempts to align appellant’s
presentation to the proper focus rather than to permit him to retry his original
complaint. Furthermore, appellant’s particular arguments were either unconvincing
or constituted erroneous analysis, misinterpretation, quibbling over semantics, or
caviling.
{¶35} “Civ.R. 11 employs a subjective bad-faith standard to invoke sanctions
by requiring that any violation must be willful.” Dreamer, 115 Ohio St.3d 190 at ¶ 19.
The standard requires more than bad judgment or negligence but suggests a
dishonest purpose or actual intent to mislead. Bardwell, 127 Ohio St.3d 202 at ¶ 8.
{¶36} Thus, contrary to appellant’s argument, the trial court was not wrong by
noting that even if it were to assume for sake of argument that a person’s affidavit
turns out to contain some false statements does not automatically mean that the
attorney representing the village (hired by the insurance company) must be
sanctioned. As Attorney Lute points out, Civ.R. 56 speaks of affidavits being made
on the personal knowledge of the affiant. Appellant cites nothing requiring the
attorney to be absolutely liable for the client’s (or a non-party’s) statements in the
affidavit just because he points to the affidavit in his motion for summary judgment.
{¶37} Putting aside the conclusion that a rational trier of fact could find a lack
of evidence that the affidavits were factually false, Attorney Lute was not part of the
lawsuit by the Village against appellant, and there was no evidence that Attorney
Lute had knowledge of a “conspiracy” or fraudulent statements by affiants. Appellant
states that the court should have let him cross-examine Attorney Lute; however, he
 -10-

did not mention questioning Attorney Lute until he was in the middle of making final
arguments and the court was responding to those arguments (thus alerting him as to
his evidentiary failure). As the trial court pointed out, appellant had already answered
that he had no more witnesses to call.
{¶38} Appellant also takes issue with the court’s statement that this was the
first and only hearing on his motion. He states that a hearing on his motion was
conducted back when he first filed the motion two years before. However, he failed
to provide a complete or official transcript of that hearing (as we pointed out to him in
ruling on the prior mandamus action he filed). As we stated then, the incomplete and
unofficial pages he did submit showed only that the trial court stated that it would
either dismiss the motion or stay it pending the appellate decision. There was no
indication that an evidentiary hearing was held then. We have before us only a full
and official transcript of the evidentiary hearing that occurred on April 9, 2013.
{¶39} Contrary to another assertion by appellant, there is nothing wrong with
the court having the questioner show the document to the witness instead of to the
court. As appellant points out, the motion for sanctions had been filed with the court,
and it had attachments to it. However, an unsworn document attached to a motion
need not be accepted as evidence. Even appellant’s own “affidavit” was not
notarized. In any event, we have the filed motion and its attachments and such
documents do not change the analysis of the situation here.
{¶40} As to his final contention, appellant waited until a few days before the
scheduled hearing to issue subpoenas. The local fire captain received his subpoena
the day prior to the hearing, and the law director and a judge did not receive their
subpoenas until the morning of the hearing. From the returns, it can be seen that the
non-local state employees could not be served in time for the hearing. Appellant did
not seek a continuance to secure these witnesses; nor did he show how their
testimony could relate to Attorney Lute’s knowledge. (The only reason he sought a
continuance was his attempted appeal to the United States Supreme Court.)
{¶41} Lastly, appellant was essentially attempting to relitigate the issues
arising from his complaint and the summary judgment stage; a stage which ended in
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a final order, a final order that was upheld on appeal. Appellant is taking issue with
statements in affidavits attached to a summary judgment motion in a motion for
sanctions against counsel when those issues were generally and vaguely sketched
but were not particularized in the response to summary judgment. He is finally
specifying what he should have specified in his response to summary judgment. He
said that affidavits were false then, but he presented no summary judgment evidence
in support of this bare assertion. The trial court accepted the affidavits in ruling on
summary judgment. This court reviewed appellant’s argument that the affidavits
were false. We concluded that he had presented no evidence below that this was
the case as was his burden. We affirmed the entry of summary judgment.
{¶42} To allow a motion for sanctions to be utilized in such a manner would
allow a party who loses due to their own lack of proper response to attempt to
relitigate the veracity of the movant’s summary judgment evidence. Notably, this is
not a case where a party who lost at summary judgment discovered new information
showing not only that the affidavits were false but also that counsel knew about the
falsity.
{¶43} And, as to the fire captain’s first affidavit, this document was filed in
court by the Village to support the restraining order years prior to this action. It was
contested by appellant at that time. Most importantly, appellant’s suit here was
based on his allegation that said affidavit was false. Counsel, who was uninvolved in
the prior suit, attached to the summary judgment motion the very affidavit that
appellant’s complaint says is false. Counsel was hired to defend against this claim.
It is not willful bad faith to attach the document upon which the opponent’s suit is
based. Had appellant shown there was a genuine issue as to whether the affidavit
was material and false at the proper stage, counsel still could have proceeded to
defend his client at trial.
{¶44} As explained in his appeal of the grant of summary judgment, appellant
failed to support his claim in responding to summary judgment. By filing a motion for
sanctions on this same affidavit, appellant is improperly duplicating the claim he
made in the complaint which he failed to protect in the summary judge stage of
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proceedings. And, he is essentially attempting to alter the law of the case on this
affidavit. Judgment has already been entered against appellant on his complaint that
the affidavit was false.
{¶45} Regardless, as explained supra, a reasonable court could find the
claims of falsity outlined on appeal were not supported by the evidence, and Attorney
Lute’s bad faith was not discernible and could be found lacking by a reasonable trial
court. For the foregoing reasons, the judgment of the trial court is hereby affirmed.

Donofrio, J., concurs.
Waite, J., concurs.