[Cite as Karnofel v. Superior Waterproofing, Inc., 2019-Ohio-1409.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
ANN KARNOFEL, : OPINION
Plaintiff-Appellant, :
CASE NO. 2018-T-0055
- vs - :
SUPERIOR WATERPROOFING, INC., :
Defendant-Appellee. :
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CV
01162.
Judgment: Affirmed.
Ann Karnofel, pro se, 1528 Greenwood Avenue, Girard, OH 44420 (Plaintiff-Appellant).
Ned C. Gold, Jr., Ford, Gold, Kovoor & Simon, Ltd., 8872 East Market Street, Warren,
OH 44484 (For Defendant-Appellee).
MARY JANE TRAPP, J.
{¶1} Appellant, Ann Karnofel, appeals the judgment of the Trumbull County
Court of Common Pleas denying her motion for relief from judgment for newly discovered
evidence and fraud against appellee, Superior Waterproofing, Inc. Finding this appeal
barred by the doctrine of res judicata, we affirm.
Substantive and Procedural Law
{¶2} The matter before us has a convoluted history because the same underlying
facts and claims have been before this court in a myriad of cases from both the Trumbull
County Court of Common Pleas as well as the Girard Municipal Court. Ann Karnofel and
her daughter, Delores Karnofel, a vexatious litigator, have employed a variety of creative,
yet fundamentally flawed and spurious legal theories, to continue to litigate a contract
matter for years after it was finally resolved by two trial courts, this court, and the Supreme
Court of Ohio.
{¶3} In sum, on June 27, 2013, Ann Karnofel (“Ann”) contracted with Superior
Waterproofing, Inc. (“Superior”) for waterproofing work and other improvements to the
home in which she lives with her two daughters who own the home, Delores Karnofel
(“Delores”) and Donna Jean Beck. The contract was submitted to Delores and approved
by Ann in Delores’ presence.
{¶4} Superior commenced work on September 16, 2013. At this time, Delores
Karnofel, with her mother’s consent, asked for additional work to be performed at
additional cost. Before work was completed, on October 1, 2013, Delores cancelled the
contract, objecting to the additional cost and the quality of the work. Since money was
owed on the work already performed, Superior filed an action against Delores in the
Girard Municipal Court, Case No. 2014 CVF 01065 (the “Girard case”).
Girard Municipal Court Case
{¶5} A synopsis of the Girard case is necessary because the same parties and
arguments are present in this case, as is the underlying issue of Delores’ status as a
vexatious litigator. (Pursuant to R.C. 2323.52, a vexatious litigator is required to file for
leave or permission of the court in which he or she was found to be vexatious every time
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he or she is seeking to proceed in a civil action at the trial court level. Similarly, he or
she must file for leave with a court of appeals in order to institute a proceeding at the
appellate level. See, R.C. R.C. 2323.52(F)(1) and (2).)
{¶6} After Superior filed a complaint against Delores for money owed under the
contract, attaching both the contract (entitled “Proposal” dated June 23, 2013) and an
“invoice” dated October 3, 2014. Delores, who was first declared a vexatious litigator by
the Trumbull County Court of Common Pleas on October 6, 2008, moved the Girard
Municipal Court for permission to file an answer, counterclaim, and motion for summary
judgment. The court granted these separately filed motions. Then four days after
Superior’s motion for summary judgment was filed, the motion was granted. Delores
subsequently appealed.
{¶7} We vacated this judgment and remanded in Superior Waterproofing v.
Karnofel, 11th Dist. Trumbull No. 2015-T-0113, 2016-Ohio-6992 (“Karnofel I”). In relevant
part, this court concluded that Delores was not required to file leave of the Trumbull
County Court of Common Pleas to file an answer and other responsive pleadings despite
her status as a vexatious litigator. She was, however, required to obtain leave of the
Trumbull County Court of Common Pleas to proceed in the Girard case on any claim
requesting an order or other relief, such as her counterclaim or summary judgment. Id.
at ¶20.
{¶8} On remand, the summary judgment proceedings continued. Delores filed a
response to Superior’s motion for summary judgment, but she failed to seek leave from
the Trumbull County Court of Common Pleas to file a counterclaim or summary judgment
motion.
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{¶9} A review of the matters addressed in the summary judgment exercise is
important to the understanding of the disposition of this appeal and the various other
cases and appeals that followed this first action.
{¶10} Incorporated into Superior’s motion for summary judgment were two
affidavits of Frank Kiepper (“Mr. Kiepper,”) the owner of Superior. His averments were
supported by a copy of the original signed contract and the itemized invoice. Mr. Kiepper
claimed the additional work requested was to (1) install new downspouts to the street, (2)
install additional waterproofing on a back wall and (3) replace a French drain with solid
PVC pipe. Delores claimed that the only additional work she approved was the French
drain.
{¶11} The invoice set out the contract price at $9,500, and the additional work
requested at $1,600, $1,200, and $200, respectively, for a total amount of $12,500. The
invoice indicated $6,000 had been paid, leaving a balance due of $6,500.
{¶12} Mr. Kiepper averred that $1,500 of the remaining balance was work that
was contracted but not completed because Delores halted the work. The $5,000
remaining was due for the additional work already completed.
{¶13} Attached to Delores’ response in opposition to Superior’s motion for
summary judgment were pictures of her residence and copies of contracts with other
contractors she hired “to correct the problems left uncompleted” in the amount of $1,303.
She admitted she instructed Mr. Keipper not to return to the property but claims it was
because of a “sex stunt” Mr. Keipper performed on her back porch.
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{¶14} The Girard Municipal Court granted Superior’s motion for summary
judgment in the amount of $5,000 plus post-judgment interest at the rate of 3 percent per
annum and costs.
{¶15} This court granted Delores’ application for leave to file an appeal of the
summary judgment order. We affirmed the lower court’s judgment in Superior
Waterproofing Inc. v. Karnofel, 11th Dist. Trumbull No. 2017-T-0010, 2017-Ohio-7966
(“Karnofel II”), finding Delores’ assignments of error without merit. We agreed with the
trial court that Delores failed to carry her burden to demonstrate a genuine issue of
material fact supporting her arguments that she had no knowledge of the additional work
requested and that Mr. Keipper was using these additional items as hidden costs to gain
a profit. Id. at ¶25-26. No further appeal was taken.
{¶16} Despite this final resolution, Delores then filed a motion for leave to file a
counterclaim in the Girard case with the Trumbull County Court of Common Pleas. On
the same day, the court denied her motion finding her counterclaim to have no merit.
Delores then filed in this court a motion for leave to proceed with a notice of appeal of the
Trumbull County Court of Common Pleas’ judgment. By way of a judgment entry in Case
No. 2019-T-0008, we denied this motion for leave because, pursuant to R.C. 2323.52(G),
a decision that denies a vexatious litigator leave to proceed is not appealable.
Trumbull County Court of Common Pleas Case
{¶17} While the Girard case proceeded through the various courts, including our
own, Delores’ mother, Ann, pro se, filed a complaint against Superior in the Trumbull
County Court of Common Pleas, Case No. 2015 CV 01162, for breach of contract and
negligent workmanship, raising the same allegations of the additional work Delores
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denied contracting for in the Girard case. Extensive motion practice followed with both
the trial court magistrate and Superior rebuking Delores for effectively acting as counsel
for her pro se mother. Delores had been handwriting all of Ann’s briefs and appearing in
court on Ann’s behalf.
{¶18} Attached to Superior’s answer to Ann Karknofel’s complaint and its
counterclaim was a copy of Superior’s complaint against Delores in the Girard case,
which contained copies of the original June 23, 2013 contract (entitled “Proposal”) and
the October 3, 2014 “Invoice” that itemized the account-the original bid, the additional
work requested after work began, and the total payments received.
{¶19} Attached to Superior’s motion for summary judgment was: Mr. Kiepper’s
affidavits, a copy of the original June 23, 2013 “Proposal,” followed most importantly by,
an untitled, handwritten document that contains the following information: “additional
1200 for digging around sunroom. Paid 3000.00 downpayment [sic] 9-24-13. Balance
7,700.” The document then itemizes what is owed and what was paid, delineating what
was left to be paid for the different services: “waterproofing: [$]9,500.00, downspouts
1,600.00, sunroom 1,200.00, extra French drain, 200.00 for a total of 12,500.00 –
3,000.00 downpayment [sic] paid on 9-24-13 – 3,000 payment on 9-30-13, for a
remainder balance of 6,500.00.”
{¶20} This is the same document Ann Karnofel claims in her motion for relief from
judgment was just discovered.
{¶21} The trial court granted Superior’s motion for summary judgment, concluding
that Ann’s claims were compulsory counterclaims in the Girard case and that Ann and
Delores were in privity. Consequently, the trial court concluded that the new case filed
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by Ann was barred by the doctrine of res judicata resulting from the final determination of
the issues in the Girard case.
{¶22} Ann appealed the trial court’s judgment, contending the court erred in
finding Delores in privity with her and in ruling in Superior’s favor on the merits. We
affirmed in Karnofel v. Superior Waterproofing, Inc., 11th Dist. Trumbull No. 2017-T-0026,
2017-Ohio-9346 (“Karnofel III”), finding no error in the trial court’s determination that Ann
and Delores were in privity inasmuch as they are mother and daughter, they live together
in the same house, and Delores’ attempted counterclaim against Superior in the Girard
case alleged breach of contract and negligent workmanship. Id. at ¶18.
{¶23} Ann then filed a Civ.R. 60(B) motion for relief from judgment with the trial
court alleging newly discovered evidence and fraud. Ann claimed that Mr. Keipper’s
handwritten notes on the back of the contract that detail the amounts paid and owed,
which she describes as a “falsified change order,” is newly discovered evidence. Ann
claims she only recently discovered this “evidence” in her daughter Delores’ file “since”
the suit on account was filed against her daughter.
{¶24} Ann not only claimed that this evidence could not have been discovered
sooner because it was in “her daughter’s file” in the Girard case, but she further claimed
that because it was on the backside of the parties’ contract, “it was hard to discover” and
constituted evidence of fraud. Ann alleged that Superior purposefully hid the back of the
contract despite the most crucial fact that Superior had attached the handwritten
document to its motion for summary judgment in this case in the Trumbull County Court
of Common Pleas.
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{¶25} The trial court denied Ann’s motion from relief from judgment, and Ann filed
the instant appeal. Superior filed its merit brief and a motion for sanctions and attorney
fees.
{¶26} Ann Karnofel raises three assignments of error:
{¶27} “[1.] The Trial Court overlooked the newly discovered evidence, because I
am a pro se litigant.
{¶28} “[2.] The Appellee participated in fraud upon the court.
{¶29} “[3.] The Trial Court issued a biased decision.”
Motion for Relief from Judgment
{¶30} “In order to prevail on a motion for relief from judgment pursuant to Civ.R.
60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement
to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) timeliness
of the motion.” Karnofel v. Nye, 11th Dist. Trumbull No. 2016-T-0119, 2017-Ohio-7027,
¶13, citing Rose v. Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20 (1988), citing GTE
Automatic Elec., Inc. v. ARC Industries, Inc., 147 Ohio St.2d 146 (1976), paragraph two
of the syllabus.
{¶31} “The applicable grounds for relief contained in Civ.R. 60(B) include: ‘(1)
mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence
which by due diligence could not have been discovered in time to move for a new trial
under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation or other misconduct of an adverse party; * * * or (5) any other reason
justifying relief from the judgment.’” Id. at ¶14, quoting Civ.R. 60(B). “A motion under
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Civ.R. 60(B) ‘shall be made within a reasonable time, and for reasons (1), (2) and (3) not
more than one year after the judgment, order or proceeding was entered or taken.’” Id.
{¶32} “A motion for relief from judgment under Civ.R. 60(B) is addressed to the
sound discretion of the trial court, and that court’s ruling will not be disturbed on appeal
absent a showing of abuse of discretion.” Id. at ¶15, quoting Griffey v. Rajan, 33 Ohio
St.3d 75, 77 (1987).
{¶33} Ann argues that the handwritten invoice on the back of the contract detailing
the work performed and monies owed is evidence of Superior’s fraudulent attempt to
include and charge for additional work. She contends this evidence could not have been
previously discovered because a copy of the contract was attached to Superior’s
complaint filed in the Girard case “against her daughter.” She also argues that the trial
court denied her motion for relief from judgment because he is biased against her as a
“female, pro se litigant who is an elderly senior citizen.”
{¶34} “When issues raised in a Civ.R. 60(B) motion have already been ruled upon
at the appellate court level, their consideration is barred by the doctrine of res judicata.”
Nye, supra, at ¶20, citing Streetsboro v. Encore Homes, 11th Dist. Portage No. 2002-P-
0018, 2003-Ohio-2109, ¶10; Blasco v. Mislik, 69 Ohio St.2d 684, 686 (1982) (a Civ.R.
60(B) motion is not a substitute for an appeal).
{¶35} As we noted in Karnofel III regarding Ann’s appeal of the trial court’s
summary judgment decision, all of Ann Karnofel’s claims are barred by res judicata
because she is in privity with Delores, and these claims were either already raised or
could have been raised in the Girard case. Id. at ¶22 (finding a privity of interest as
explained above and a “logical relation” pursuant to Civ.R. 13(A) between Ann’s case and
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Delores’ intended counterclaim in the Girard Municipal Court because they involve the
same contract and the same opposing party). By extension, our previous res judicata
determination also applies to the present appeal regarding Ann’s motion for relief for
judgment.
{¶36} Assuming arguendo, res judicata did not apply, Ann’s “newly discovered
evidence” as grounds for relief under Civ. R.60(B)(2) set out in her first assignment of
error must fail because a Civ.R. 60(B)(2) motion must be made “not more than one year
after the judgment * * * was entered or taken.” Ann’s May 7, 2018 motion for relief from
judgment was filed more than one year after the trial court awarded Superior summary
judgment on April 7, 2017.
{¶37} And in any event, and most fundamentally, Ann failed to demonstrate why
she was precluded from discovering a copy of the handwritten document in this case.
The handwritten document was attached to Superior’s February 1, 2017 motion for
summary judgment.
{¶38} Nor does Ann even attempt to explain or support with authority her
argument in the second assignment of error that “concealing” this “newly discovered
evidence” constitutes fraud, misrepresentation, or misconduct entitling her to relief under
Civ.R.60(B)(3) or the broader Civ.R. 60(B)(5). “App.R. 12(A)(2) states that an appellate
court ‘may disregard an assignment of error presented for review if the party raising it fails
to identify in the record the error on which the assignment of error is based or fails to
argue the assignment separately in the brief, as required under App.R. 16.’” Parkman
Properties, Inc. v. Tanneyhill, 11th Dist. Trumbull No. 2007-T-0098, 2008-Ohio-1502, ¶43,
quoting App.R. 12(A)(2). “App.R. 16(A)(7) further states that an appellant’s brief must
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contain ‘[a]n argument containing the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in support of the contentions,
with citations to the authorities, statutes, and parts of the record on which appellant relies.”
Id., quoting App.R. 16(A)(7).
{¶39} Accordingly, this court may disregard an assignment of error that fails to
comply with App.R. 12(A) or App.R. 16(A)(7). Id. at ¶44, quoting Village South Russell v.
Upchurch, 11th Dist. Geauga No. 2001-G-2395 and 2001-G-2396, 2003-Ohio-2099, ¶9.
Because Ann has failed to comply with App.R. 12(A) and App.R. 16(A)(7), we disregard
this assignment of error pursuant to App.R. 12(A)(2).
{¶40} Lastly, we note that Ann raises many of the same arguments Delores has
raised in many of Delores’ previous cases before this court.
{¶41} In her third assignment error Ann claims the trial court was biased against
her as a pro se, female, elderly litigant.
{¶42} We previously rejected this argument in Karnofel v. Nye, 11th Dist. Trumbull
No. 2015-T-0126, 2016-Ohio-3406, a case in which Delores was the appellant, where we
aptly stated: “[w]hile it is true that judicial bias or favoritism can violate an individual’s due
process rights, * * * Karnofel provides absolutely no basis for asserting such a claim
against the lower court.” Id. at ¶25, quoting State v. LaMar, 95 Ohio St.3d 181, 2002-
Ohio-2128, ¶34. Ann again provides no examples or evidence on which to base a claim
of bias, and her argument is without supporting authority. In the absence of any proof
supporting her argument, we reject the contention that the lower court was biased. Id.
{¶43} Finally, “‘[p]ro se civil litigants are bound by the same rules and procedures
as those litigants who retain counsel. They are not to be accorded greater rights and
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must accept the results of their own mistakes and errors.’” (Emphasis sic.) Karnofel v.
Cafaro Mgt. Co., 11th Dist. Trumbull No. 97-T-0072, 1998 WL 553491, 2 (June 26, 1998),
quoting Meyers v. First Natl. Bank of Cincinnati, 3 Ohio App.3d 209, 210 (1st Dist.1981).
{¶44} For the foregoing reasons, Ms. Karnofel’s assignments of error are not well-
taken and are frivolous. The judgment of the Trumbull County Court of Common Pleas
is affirmed.
THOMAS R. WRIGHT, P.J.,
TIMOTHY P. CANNON, J.,
concur.
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