Miano v. Best

[Cite as Miano v. Best, 2017-Ohio-343.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

Christine M. Miano Court of Appeals No. L-16-1011

Appellant Trial Court No. CVF-1310222

v.

Steven M. Best dba Kasten Realty DECISION AND JUDGMENT

Appellee Decided: January 27, 2017

*****

Christine Miano, pro se.

Doug Dymarkowski, for appellee.

*****

OSOWIK, J.

I. Statement of Facts and Procedural History

{¶ 1} This case began with the filing of a pro se complaint in the Small Claims

Court in Sylvania, Ohio, on September 13, 2013. It was transferred to the Sylvania

Municipal Court soon thereafter. The plaintiff-appellant is Christine M. Miano; the

defendant-appellee is Steven Best.
 {¶ 2} Attached to the complaint is a “statement.” As noted by the lower court, it is

difficult to understand, but the nature of the dispute involves the sale and purchase of real

estate. In May of 2010, appellant purchased a piece of property on Vineyard Drive and

listed her property on Ward Street using appellee as her broker.

{¶ 3} The allegations against appellee are serious, involving nonfeasance and

misfeasance with regard to both transactions. She claims that appellee represented to her

that an inspection was completed on the new house, but which was in fact, never done.

For multiple reasons, the home was uninhabitable. To name a few, it was structurally

unstable, lacked water, had exposed and live electrical wires inside and animal carcasses

in the crawl space. Appellant also alleged that the closing documents were incomplete

and forged.

{¶ 4} As for the sale of her home on Ward Street, appellant asserts similarly

egregious misconduct. For example, she alleges that appellee misrepresented to her that

her home had been sold, that prior to the closing date, it was to be occupied by renters

and that rental payments would be collected by appellee’s representatives. Appellant

asserts, “all LIES…never sold and no rent, utilities collected…house wrecked inside and

they moved out in middle of night.” The file also indicates that, as part of the sale of her

home, one of appellee’s brokers told her that she had to sign the title of her vehicle over

to the broker as a “commission,” prior to the closing date. Ultimately, the sale never

occurred. When the car was finally returned to her, it had been damaged in excess of

$8,600.

2.
 {¶ 5} Prior to filing the instant case, appellant sued appellee, among others,

in the Lucas County Court of Common Pleas for breach of contract, breach of

fiduciary duty, fraud, conversion and unjust enrichment (case No. CI0201101686).

She also filed a charge of disability discrimination with the Ohio Civil Rights

Commission (“OCRC”) on May 4, 2011.

{¶ 6} On November 21, 2011, the OCRC found probable cause that appellee, and

the other named respondents, had discriminated against appellant based upon her

disability. The respondents were: appellee, Joe (a.k.a. Yousseff) Dakroub, ERA

Dynasty, MK Realty Group, LLC, Don Lavoy, and SB Kasten Real Estate. According to

his affidavit, appellee was “affiliated with MK Realty Group dba ERA Dynasty as a

broker, agent and representative of the company.”

{¶ 7} In November of 2011, and again on May 13, 2012, appellant entered into

two separate settlement agreements. The former was between appellant and appellee.

Among other action items, it specifically required appellant to dismiss her pending

lawsuit and OCRC charge against appellee. It also required appellee to testify on

appellant’s behalf if called to do so.

{¶ 8} The other settlement agreement was between appellant and Dakroub, Lavoy,

and MK Realty dba ERA Dynasty. It provided for the payment of $38,000, to be paid by

MK Realty to appellant, in exchange for the release of all claims as to those named

parties.

3.
 {¶ 9} In this case, appellant makes two legal arguments. First, she claims that the

settlement agreement(s) were procured by fraud. Second, appellant claims that appellee

is not covered by the 2012 release because he was not a party to it.

{¶ 10} At issue herein are cross-motions for summary judgment, both of which

were supported by the parties’ respective affidavits. On December 22, 2015, the trial

court granted appellee’s motion for summary judgment and denied appellant’s.

Appellant appealed.

II. Appellant’s Assignments of Error

{¶ 11} Appellant asserts nine assignments of error, although they are

misnumbered to appear to be ten. The assignments occupy three, single spaced pages of

appellant’s brief. We summarize them below:

1. The trial court erred in failing to rule on several pretrial motions,

including a motion that the trial judge recuse himself on the basis of biased

and preferential treatment.

2. The trial court erred in denying appellant’s request to present

evidence to support her claim of fraud and duress.

3. The trial court erred in granting appellee’s motion for summary

judgment because the 2011 release is not binding or enforceable.

4. The trial court erred, as a matter of fact, in stating that appellant

had an attorney and/or that appellant’s “counsel worked with defense

counsel to release and reach settlement.”

4.
 5. The trial court erred in stating that appellant received $38,000.00

from appellee to release him from liability.

6. The trial court erred in finding that no issue of material fact

existed and in refusing to hear appellant’s evidence of duress and coercion.

7. The trial court erred in ruling in appellee’s favor as he was

“equitably estopped” from moving for summary judgment based upon his

misrepresentations on November 18, 2011.

8. “The trial court erred when it ruled in favor of appellee where an

issue of material fact existed as to circumstances surrounding the Nov. 18,

2011 release [which] was procured under duress and coercion and appellant

[was] denied by court the ability to produce said evidence to substantiate.”

9. The trial court erred because the appellee’s motion to dismiss the

case was not entered on the docket.

III. Standard of Review

{¶ 12} Appellate review of a summary judgment is de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). In other words, we employ

the same standard as the trial court, without deference to its decision. Lorain Natl. Bank

v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The

motion may be granted only when it is demonstrated:

(1) that there is no genuine issue as to any material fact; (2) that the

moving party is entitled to judgment as a matter of law; and (3) that

5.
 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, who is entitled to have the evidence construed most strongly in his

favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375

N.E.2d 46 (1978), Civ.R. 56(C).

{¶ 13} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought and identify those portions of the record that

demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio

St.3d 280, 293, 662 N.E.2d 264 (1996). When a properly supported motion for summary

judgment is made, an adverse party may not rest on mere allegations or denials in the

pleadings, but must respond with specific facts showing that there is a genuine issue of

material fact. Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246

(1984). A “material” fact is one which would affect the outcome of the suit under the

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,

304, 733 N.E.2d 1186 (6th Dist.1999).

IV. Law and Analysis

{¶ 14} In her first assignment of error, appellant complains that the trial court

failed to rule on several motions before the court. She also complains of bias by the trial

court.

{¶ 15} “It is well settled that ‘when a trial court fails to rule upon a pretrial

motion, it may be presumed that the court overruled it.’” Journeyman Professionals, Inc.

6.
v. Am. Family Ins. Co., 6th Dist. Lucas No. L-05-1404, 2006-Ohio-5624, ¶ 24, quoting

State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 223, 631

N.E.2d 150 (1994).

{¶ 16} With regard to her complaint of bias and preferential treatment, this court

does not have jurisdiction to vacate a trial court’s judgment based on a claim of judicial

bias. Beer v. Griffith, 54 Ohio St.2d 440, 441-42, 377 N.E.2d 775 (1978). In Beer, “the

Ohio Supreme Court explicitly and unequivocally stated that, since only the Chief Justice

or [her] designee may hear disqualification matters, the Court of Appeals is without

authority to pass upon disqualification or to void the judgment of the trial court on the

basis of judicial bias.” (Citation omitted.) In re Estate of Fields, 6th Dist. Wood No.

WD-15-019, 2016-Ohio-5358, ¶ 16-18, citing Beer at 441-442.1

{¶ 17} Moreover, even if we had jurisdiction to consider the assignment of error,

appellant’s claims are without merit. “‘A judge is presumed not to be biased or

prejudiced, and a party alleging bias or prejudice must present evidence to overcome the

presumption.’” Cline v. Mortg. Elec. Registration Sys., 10th Dist. Franklin No. 13AP-

240, 2013-Ohio-5706, ¶ 33, quoting Wardeh v. Altabchi, 158 Ohio App.3d 325, 2004-

Ohio-4423, 815 N.E.2d 712, ¶ 20 (10th Dist.). “A judge’s rulings of law are legal issues,

subject to appeal, and are not by themselves evidence of bias or prejudice.” Id., citing

Okocha v. Fehrenbacher, 101 Ohio App.3d 309, 322, 655 N.E.2d 744 (8th Dist.1995).

1
We note that appellant was advised by Disciplinary Counsel of the Supreme
Court of Ohio that it had concluded that there was no bias on the part of the court.

7.
 {¶ 18} The gist of appellant’s argument is that she was treated unfairly because

she was not “given” legal advice, whereas the court advised appellee to file a motion for

summary judgment.

{¶ 19} In denying appellee’s motion to dismiss the complaint, it stated, “[b]ecause

[appellee] relies on information outside the pleadings in support of his motion, his

arguments would be more appropriately brought in the form of a motion for summary

judgment. Pursuant to Civ.R. 12(B), this Court grants [appellee] fourteen days [from

today to do so].”

{¶ 20} We see nothing problematic, as a matter of law, with the court’s reference

to the civil rules and allowing appellee to resubmit his argument as a motion for summary

judgment.

{¶ 21} We also note that the trial court did, in fact, offer similar advice to

appellant. For example, in its June 2, 2015 order, the court denied appellant’s motion for

a “no contact order” because it lacked jurisdiction. It suggested, however, that appellant

“contact the Sylvania Prosecutor’s office who has jurisdiction in the event [appellant] has

sufficient grounds to proceed.” The court acted appropriately in both circumstances.

{¶ 22} There is no evidence of bias or prejudice by the lower court. Appellant’s

first assignment of error is not well-taken.

{¶ 23} Assignments of error Nos. 2, 3, 6, 7 and 8 allege the same thing: that the

trial court erred in refusing to hear evidence of fraud and duress that would, in effect,

nullify the settlement agreement.

8.
 {¶ 24} Decisions concerning the admission or exclusion of evidence are within the

discretion of the trial court and will not be reversed absent an abuse of that discretion.

Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323.

The term “abuse of discretion” connotes more than an error of law or judgment; it implies

that the court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 25} Civ.R. 56(E) limits the types of evidence which may be considered for

purposes of summary judgment. Permissible evidence includes affidavits and supporting

papers attached thereto, that are specifically incorporated by reference. The record in this

case includes appellant’s motion for summary judgment and a subsequently filed

affidavit with multiple attachments. The trial court accepted and specifically referenced

appellant’s evidence.

{¶ 26} With regard to her allegation of fraud, a claim of fraud in the inducement

arises when a party is induced to enter into an agreement through fraud or

misrepresentation. “The fraud relates not to the nature or purport of the [contract], but to

the facts inducing its execution * * *.” Haller v. Borror Corp., 50 Ohio St.3d 10, 14, 552

N.E.2d 207 (1990). In order to prove fraud in the inducement, a plaintiff must prove that

the defendant made a knowing, material misrepresentation with the intent of inducing the

plaintiff’s reliance, and that the plaintiff relied upon that misrepresentation to her

detriment. Beer v. Griffith, 61 Ohio St.2d at 123, 399 N.E.2d 1227.

9.
 {¶ 27} “A classic claim of fraudulent inducement asserts that a misrepresentation

of facts outside the contract or other wrongful conduct induced a party to enter into the

contract: Examples include a party to a release misrepresenting the economic value of

the released claim, or one party employing coercion or duress to cause the other party to

sign an agreement.” Abm Farms v. Woods, 81 Ohio St.3d 498, 502-504, 692 N.E.2d 574

(1998).

{¶ 28} Here, appellant does not argue, or proffer evidence to support a claim, that

appellee made misrepresentations of facts to induce her to settle the underlying dispute.

Rather, her fraud claim is limited to the actions by appellee, and his colleagues, as to the

underlying dispute, i.e. the purchase and sale of appellant’s homes.

{¶ 29} We find, as a matter of law, that there is no evidence to support appellant’s

case that the settlement agreements were procured by fraud upon her. This is not to say

that this case does not allege an array of unconscionable actions by appellee and his

colleagues. The allegations pertaining to the sale and purchase of real estate, however,

occurred prior to the negotiated settlement agreements, and they encompassed the

underlying dispute.

{¶ 30} We find that there is no genuine issue of material fact to support appellant’s

fraud in the inducement claim and that appellee is entitled to judgment as a matter of law.

Similarly, we find that the trial court did not abuse its discretion with regard to its

evidentiary rulings. Appellant’s second, third, sixth, seventh and eighth assignments of

error are not well-taken.

10.
 {¶ 31} In her fourth assignment of error, appellant alleges the trial court erred

when it said, “plaintiff’s counsel worked with defense counsel to release and reach

settlement.” Appellant states that she acted pro se with regard to the mediation before the

OCRC in 2012. She also adamantly disputes that she “worked with” appellee’s counsel

during the mediation because, she claims, appellee “refused” to participate.

{¶ 32} That appellant acted pro se at the mediation does not allege an error as to

any of the trial court’s legal conclusions. Therefore, appellant’s fourth assignment of

error is not well-taken. To the extent that appellant is arguing that appellee was not

protected by the 2012 settlement agreement, that issue is addressed below, in her fifth

assignment of error.

{¶ 33} In her fifth assignment of error, appellant claims that “the trial court erred

in stating [that she] received $38,000.00 to release [appellee] from liability. [Appellant]

received nothing from [appellee].” Appellant claims that the second release was between

herself and “owner ERA Dakroub and Relator Lavoy.”

{¶ 34} The first settlement agreement was between appellant and appellee, in his

individual capacity. It is dated November 18, 2011. The agreement included a promise

not to “commence any action, or continue to prosecute any currently pending action,

against the other, on the basis of any claims released by this Settlement Agreement.” The

release makes specific reference to her claim in the Lucas County Court of Common

Pleas and her OCRC charge. The claim was described as “related to the sale and

11.
purchase of real estate located at * * * Vineyard Road, * * * Ward Street, and

[appellant’s] 2001 Chevrolet Blazer.”

{¶ 35} The second settlement agreement was entered into on May 3, 2012. It is

between appellant and Joseph (aka Youssef) Dakroub, Donald Lavoy and “MK Realty

Group dba ERA Dynasty.” In exchange for appellant’s release of all claims “relating

directly or indirectly to the allegations in the [OCRC charge] and the Lawsuit,” MK

Realty agreed to pay appellant $38,000.

{¶ 36} “[A] settlement agreement is a contract designed to terminate a claim by

preventing or ending litigation and such agreements are valid and enforceable by either

party.” Spercel v. Sterling Industries, 31 Ohio St.2d 36, 38, 285 N.E.2d 324 (1972).

Settlement agreements are highly favored in the law. Continental W. Condominium Unit

Owners Ass’n v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501, 502, 660 N.E.2d 431

(1996).

{¶ 37} In support of this assignment of error, appellant alleges that, because

appellee did not attend a mediation that resulted in the 2012 settlement agreement and

because appellee’s attorney said that the release was “voided” and to “tear it up,”

appellee is not protected by it. She also appears to argue that the money she received to

settle claims was between her and the other named parties and/or their business entities.

{¶ 38} It is undisputed that the issues raised in the instant case involve the same

transaction and occurrence that was the subject of the OCRC charge and the case in

Lucas County Court of Common Pleas. The language of the settlement agreements

12.
clearly releases appellee (in the first settlement agreement) and the business with which

he was affiliated, MK Realty (in the second release). According to his affidavit, appellee

was “affiliated with MK Realty Group dba ERA Dynasty as a broker, agent and

representative of the company.” As a matter of law, therefore, appellant’s complaint is

barred by the terms of the settlement agreement. Accordingly, the fifth assignment of

error is found not well-taken. See Palmer v. Pheils, 6th Dist. Wood No. 92WD024, 1993

Ohio App. LEXIS 601, *12 (Feb. 5, 1993).

{¶ 39} Finally, in her ninth assignment of error (erroneously labeled as the tenth),

appellant asserts that the trial court erred because the docket fails to indicate appellee’s

motion to dismiss.

{¶ 40} It is the role of the clerk of courts to receive court filings and to maintain

the docket, not the trial court’s. In any event, the docket in this case indicates that

appellee filed two motions to dismiss the case: the first on September 10, 2014, and the

second on January 9, 2015. Both motions are noted on the docket, as are appellant’s

objections thereto and the trial court’s decisions denying the motions. Appellant’s ninth

assignment of error is not well-taken.

{¶ 41} We find that there are no genuine issues of material fact and that appellee is

entitled to judgment as a matter of law. Therefore, we affirm the judgment of the

13.
Sylvania Municipal Court to grant summary judgment to appellee and to deny summary

judgment to appellant. Appellant’s assignments of error are not well-taken. Pursuant to

App.R. 24, costs are assessed to appellant.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________________
JUDGE
Stephen A. Yarbrough, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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