Bachman v. Durrani

2021 Ohio 4073, 180 N.E.3d 1246

• Court: Ohio Court of Appeals
• Decided: November 17, 2021
• Docket: C-190514
• Status: Published

Opinion

[Cite as Bachman v. Durrani, 2021-Ohio-4073.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

GAYLE BACHMAN, et al., : APPEAL NO. C-190514 TRIAL NO. A-1601237 Plaintiffs, :

VS. : O P I N I O N.

ABUBAKAR ATIQ DURRANI, M.D., et : al., : Defendants, : and : THE CHRIST HOSPITAL, : Defendant-Appellee, : vs. : THE DETERS LAW FIRM, : FRED JOHNSON, ESQ., : and : BENJAMIN MARAAN II, ESQ., : Appellants. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 17, 2021 OHIO FIRST DISTRICT COURT OF APPEALS

The Deters Law Firm Co. II, P.A., James F. Maus, Alex Petraglia and Robert A. Winter, Jr., for Appellants,

Dinsmore & Shohl LLP, Jennifer Orr Mitchell, Matthew S. Arend and R. Samuel Gilley, for Defendant-Appellee.

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BERGERON, Presiding Judge.

{¶1} We don’t let a party file multiple suits against the same defendant in

the same court for the same injury at the same time. And just reciting that

proposition answers the question of why. Nevertheless, in this latest scene from a

medical malpractice epic, counsel for Gayle Bachman violated that basic rule, filing a

consolidated action against defendant-appellee The Christ Hospital (“TCH”) joining

the claims of multiple plaintiffs who already had cases pending against TCH for the

same claims (worse yet, some of these claims had already been dismissed in favor of

TCH). Upon learning of the duplicative action, TCH alerted the lawyers to this

procedural snafu and requested that they dismiss the second, duplicative action.

These entreaties fell on deaf ears, as counsel forced TCH to wage a two-front battle

over several years—defending the individual actions as well as the duplicative

consolidated action. After never receiving a satisfactory answer as to why counsel

compelled these wasteful efforts, the trial court levied sanctions against them. On

appeal, after delving into the record of this procedural adventure, we have no

hesitation in affirming its judgment.

I.

{¶2} The trial court sanctioned appellants The Deters Law Firm, Fred

Johnson, Esq., and Benjamin Maraan II, Esq., (collectively, “Counsel”). The first

chapter of this odyssey began in 2014 when Counsel joined 36 former patients of Dr.

Abubakar Atiq Durrani in an action against Cincinnati Children’s Hospital Medical

Center (“CCHMC”), captioned Bachman v. Durrani. In drafting the complaint,

however, Counsel included nine plaintiffs with pending lawsuits involving the same

claim against CCHMC, in the same forum. Making matters worse, the court had

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already dismissed with prejudice the identical claims of two of the plaintiffs, Carla

Greissman and Kevin Hunley. Shortly after receiving the complaint, CCHMC’s

attorney alerted Counsel to the pleading deficiencies and the frivolity of the

complaint. Counsel conceded that one plaintiff—Andrew Carr—should be dismissed

from the lawsuit as duplicative. But other than that one acknowledgment, Counsel

refused to take any action in response to CCHMC’s inquiry and instead rebuked

CCHMC for having the temerity to broach the subject.

{¶3} Sensing no forthcoming voluntary agreement on this issue, CCHMC

moved to dismiss the “legally frivolous lawsuit.” The motion chronicled efforts by

Counsel to file inappropriate pleadings and stall the progress of numerous cases with

this type of conduct, all of which multiplied the cost of litigation. Instead of

defending the propriety of the litigation, Counsel voluntarily dismissed the suit in

2015—the exact action CCHMC wanted in the first place.

{¶4} The next chapter in our journey began about a year later, in 2016.

Despite CCHMC’s previous warnings, Counsel refiled the exact same joint complaint

with the exact same 36 plaintiffs. Counsel made one change of note—adding TCH as

a defendant in addition to CCHMC. By this point in time, TCH had been embroiled

in Durrani-related litigation in a multitude of suits brought by Counsel for quite

some time. Imagine TCH’s surprise when it reviewed this consolidated action to

discover that 28 of the plaintiffs had pending individual lawsuits against TCH

alleging the same cause of action, three others had their cases previously dismissed

with prejudice, and the remaining five had previously dismissed actions without

timely refiling. TCH accordingly advised Counsel of the frivolousness of the filing,

requesting dismissal of the joint lawsuit in order to avoid unnecessary motion

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practice. The next day, CCHMC chimed in, reiterating its concerns from the original

filing the previous year. Counsel was unmoved—they refused to dismiss the action

despite the failure to explain how the matter could be independently maintained.

{¶5} In the ensuing 16 months, various opposing counsel notified Counsel

on at least three separate occasions that the complaint was frivolous and duplicative.

Yet Counsel refused to budge, forcing TCH and CCHMC to move forward and defend

against the Bachman action while they simultaneously defended the myriad

individual suits. During this process, the trial court dismissed on the merits many

additional individual cases against TCH. As case after case was dismissed, one might

have suspected that this would have caused Counsel to reevaluate their position on

the second, duplicative action. Not so.

{¶6} TCH accordingly filed a motion to dismiss and CCHMC filed for

judgment on the pleadings, both of which raised the specter of sanctions against

Counsel for refusing to voluntarily dismiss. The trial court, also seemingly perplexed

about why it was being forced to referee duplicative claims, emailed Counsel for an

explanation of “how Plaintiffs expect to proceed on these separate actions that are

joined in this one complaint.” The court advised Counsel that all of these plaintiffs

had identical cases pending (or already dismissed), marking yet another occasion in

which this flaw was raised to Counsel’s attention. In response, Counsel

acknowledged that even though “it’s the same claim as their main cases,” they did

not want to dismiss and preferred to have the cases consolidated. Three days later,

Counsel did indeed file a single-sentence motion to consolidate followed by a motion

to amend the complaint to add a RICO claim. The trial court swiftly denied those

motions while granting TCH’s motion to dismiss and CCHMC’s motion for judgment

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on the pleadings. Counsel never bothered to file a response to TCH’s motion to

dismiss.

{¶7} Shortly after, in December of 2018, TCH and CCHMC moved for

sanctions against Counsel. CCHMC subsequently entered settlement negotiations

and apparently resolved the matters pending against it, so it exited the stage in

Bachman. The trial court ultimately awarded TCH sanctions in the amount of

$54,630 for frivolous conduct under R.C. 2323.51 and Ohio Rule of Civil Procedure

11. Undeterred by this ruling, Counsel continued to appeal the trial court’s denial of

the motion to consolidate (although they paradoxically failed to appeal the

dismissal). At oral arguments in front of this court, Counsel informed us that all of

the individual actions against TCH had already been decided on the merits and

conceded that the matter was moot. Thus, we dismissed the appeal as moot—almost

five years after TCH first asked Counsel to dismiss the action precisely because the

individual suits rendered the joint complaint duplicative.

II.

{¶8} In their first assignment of error, Counsel insists the trial court abused

its discretion by granting TCH’s motion for sanctions because the court should have

consolidated the cases. But before we dive into this analysis, we must clarify that the

trial court imposed sanctions under both R.C. 2323.51 and Civ.R. 11, but in this

appeal, Counsel limit their challenge to R.C. 2323.51, essentially disregarding the

Civ.R. 11 aspect of that determination. Why does this matter? A law firm is generally

not responsible for an award of fees under Civ.R. 11, which is limited to the attorneys

signing the offending documents. Civ.R. 11 (“The signature of an attorney or pro

se party constitutes a certificate by the attorney or party that the attorney or party

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has read the document; that to the best of the attorney’s or party’s knowledge,

information, and belief there is good ground to support it; and that it is not

interposed for delay.”); Riley v. Langer, 95 Ohio App.3d 151, 162-163, 642 N.E.2d 1

(1st Dist.1994) (comparing former analogous section to Federal Rule of Civil

Procedure 11 in finding that liability under Civ.R. 11 can be imposed on a signing

attorney only in his or her individual capacity, not on the attorney's firm). But firms,

as well as individual lawyers, can be liable for such fees under R.C. 2323.51.

{¶9} Although the trial court found that Matthew Hammer violated Civ.R.

11 by initially filing the offensive pleadings and motions, Mr. Hammer never

appealed. Therefore, we do not consider any issues in this appeal concerning his

conduct. Similarly, the court found that Mr. Johnson and Mr. Maraan ratified and

continued the wrongful litigation in subsequently-filed documents, but despite

appealing, neither of these individuals contests the Civ.R. 11 sanction against them (it

turns out that Mr. Johnson is deceased now). As a result, we affirm the trial court’s

Civ.R. 11 decision against the individual attorneys for failure to advance any specific

argument or assignment of error on that issue. See App.R. 16(A). We limit the

balance of our analysis to the frivolous conduct determination.

{¶10} Under R.C. 2323.51(A)(2)(a)(ii), conduct is frivolous and unwarranted

if no reasonable attorney would have brought the action in light of existing law.

Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857, ¶ 31 (1st

Dist.). If a court “determine[s] that reasonable inquiry by a party’s counsel of record

should reveal the inadequacy of a claim, a finding that the counsel of record has

engaged in frivolous conduct is justified, as is an award * * * to any party adversely

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affected by the frivolous conduct.” Ron Scheiderer & Assocs. v. London, 81 Ohio

St.3d 94, 97-98, 689 N.E.2d 552 (1998). As relevant here, conduct is frivolous when

it: (1) “serves merely to harass or maliciously injure another party to the civil action

or appeal or is for another improper purpose, including, but not limited to, causing

unnecessary delay or a needless increase in the cost of litigation,” or (2) “[i]t is not

warranted under existing law, cannot be supported by a good faith argument for an

extension, modification, or reversal of existing law, or cannot be supported by a good

faith argument for the establishment of new law.” R.C. 2323.51(A)(2)(a)(i) and (ii).

A motion for sanctions requires the trial court to consider whether any party has

been adversely affected by the frivolous conduct of another party. Riston at ¶ 17.

Because the issue of whether the complaint was unwarranted and legally groundless

pursuant to R.C. 2323.51(A)(2)(a)(ii) involves a question of law, we review that

portion de novo. Id. at ¶ 21.

{¶11} In their brief, Counsel frames the issue at hand as whether filing for

consolidation was sanctionable conduct under R.C. 2323.51. Counsel believes that

granting the motion to consolidate would have alleviated any concerns about

duplicative litigation, and thus they imagine vindication on consolidation as their

ticket out of sanctions. But this argument rests on a misapprehension of the basis of

the trial court’s sanctions award. The trial court sanctioned Counsel for willfully

resisting dismissal of the duplicative suit long after being made aware of the

problem, not for filing the motion to consolidate. Therefore, even if the

consolidation motion were meritorious, it would not absolve Counsel of their

sanctionable conduct.

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{¶12} Hampered by that misplaced perspective, Counsel effectively miss the

forest for the trees in this appeal, as they never muster a substantive defense as to

why they filed multiple lawsuits against the same parties for the same harm. Ohio

law “abhors a multiplicity of suits,” a long-standing tenet prohibiting Counsel from

harassing TCH with multiple actions for the same claims. See State ex rel. Maxwell

v. Schneider, 103 Ohio St. 492, 496, 134 N.E. 443 (1921) (“[T]he law * * * will not

permit a defendant to be harassed and oppressed by two actions for the same cause

where plaintiff has a complete remedy by one of them.”); State ex rel. Miller v. Court

of Common Pleas, 151 Ohio St. 397, 400, 86 N.E.2d 464 (1949) (“It is well settled

that the pendency of an action for the identical cause and between the same parties

as in a subsequent action is ground for the dismissal of the latter.”). And

undoubtedly, frivolous conduct under Ohio law encompasses Counsel’s conduct at

issue here—bringing the same claims against the same parties after having been

previously unsuccessful. See State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-

Ohio-5350, 957 N.E.2d 19, ¶ 17 (“A court does not abuse its discretion in determining

that a party’s conduct in repeatedly relitigating an issue after first raising it

unsuccessfully constituted frivolous conduct under R.C. 2323.51.”).

{¶13} The closest Counsel comes to mounting a substantive defense is to

point to State ex rel. Consortium for Economic & Community. Dev. for Hough Ward

7 v. Russo, 151 Ohio St.3d 129, 2017-Ohio-8133, 86 N.E.3d 327. There, the Ohio

Supreme Court considered the jurisdiction priority rule when two cases are pending

in the same court before different judges. Id. at ¶ 6. But the two lawsuits involved

different claims (quiet title in one, tax foreclosure in another), different parties (the

contesting owners in one, taxing agency versus property and others in the second),

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and ended up on the desk of two different judges. Id. at ¶ 4. The Supreme Court

recognized that in such a situation, consolidation before the same judge constitutes a

proper procedural path, but this is little more than a garden-variety situation that

could benefit from consolidation. See id. at ¶ 10. That situation bears little

resemblance to this case, where Counsel copied and pasted identical causes of

actions involving identical parties for the same harm into a consolidated complaint

that duplicated the already-pending actions.

{¶14} Furthermore, Counsel’s shifting explanations for why they could not

dismiss the joint complaint resulted in the trial court’s assessment that their efforts

were designed to harass and inflict needless fees on TCH pursuant to

R.C. 2323.51(A)(2)(a)(i). Because this portion of the analysis involves factual

determinations, we accord the trial court deference and review these findings for an

abuse of discretion. Riston, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857,

at ¶ 22 (“[T]he abuse-of-discretion standard is appropriate when reviewing a trial

court’s determination of whether a party has engaged in conduct merely to harass or

maliciously injure another, an issue that necessarily involves factual

considerations”). Abuse of discretion occurs when “a court exercis[es] its judgment,

in an unwarranted way, in regard to a matter over which it has discretionary

authority.” Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304, ¶ 35. We would

be hard-pressed to conclude the trial court abused its discretion after Counsel

vacillated between various justifications for the consolidated action—all of which

crumbled under scrutiny.

{¶15} First, Counsel assured the trial court that they needed to file the

consolidated action quickly to avoid any statute of repose or limitations bar. But this

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makes no sense given that Counsel had already filed individual cases against TCH for

all of the plaintiffs (and it had previously filed the same action against CCHMC but

dismissed it). In other words, no clock was ticking that needed to be stopped.

Counsel also complained that dismissing the complaint for the second time would

violate Civ.R. 41’s double-dismissal rule, resulting in a judgment on the merits. But

this strikes us as a problem of Counsel’s own creation, albeit one that they could have

extricated themselves from by requesting an order to dismiss without prejudice from

the trial court or a stipulation in similar vein from TCH. Regardless, even if those

concerns were legitimate, Counsel cannot defend (nor do they attempt to) the

prosecution of the Bachman case with respect to individuals whose cases were

resolved on the merits in favor of TCH. In their reply brief before this court, Counsel

concedes that at least 15 individuals of those named in the consolidated complaint

had their individual cases dismissed, and confesses “erring” in this regard by

pursuing the duplicative litigation against TCH.

{¶16} This means that the consolidation idea, ill-fated from the start, could

never have been effectuated based on the dismissals of the individual actions. After

all, a court cannot join two things unless they both exist. Proper consolidation

requires the court to first consider whether two pending actions present common

issues, an impossible task when one of the claims has been dismissed.

See Waterman v. Kitrick, 60 Ohio App.3d 7, 14, 572 N.E.2d 250 (10th Dist.1990); see

also Parkstone Capital Partners v. City of Salon, 8th Dist. Cuyahoga No. 99241,

2013-Ohio-3149, ¶ 17 (holding that in cases of voluntary dismissal, the second case

no longer exists and any motion to consolidate is rendered moot). This further

reinforces the impropriety of the consolidation appeal in this case, which subjected

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TCH to needless expense and delay, only to have Counsel admit that the matter was

moot when we gathered for oral argument.

{¶17} Even if we could excuse the initial filing of this duplicative action, no

reasonable attorney would have declined to dismiss this case when confronted with

the facts and record at hand. Counsel had multiple opportunities to do the right

thing (and were reminded of that option on several occasions), but instead they

perpetuated this matter as long as possible, inflicting as much damage as they could

on TCH and the judicial system. We accordingly overrule Counsel’s first assignment

of error.

{¶18} In their second assignment of error, Counsel contest the amount of

the sanctions award, focusing on two line-items: (1) fees incurred by TCH during

appeal (about $9,585), and (2) fees incurred by TCH in connection with an

unsuccessful removal to federal court (about $6,323). We review the amount of

sanctions under an abuse of discretion standard. Pitcher v. Waldman, 1st Dist.

Hamilton No. C-160245, 2016-Ohio-5491, ¶ 16.

{¶19} Regarding fees incurred during appeal, Counsel incorrectly declares

that only the appellate court may award such fees. To be sure, appellate courts enjoy

the power to award fees and costs under the Ohio Rules of Appellate Procedure.

App.R. 23 (“If a court of appeals shall determine that an appeal is frivolous, it may

require the appellant to pay reasonable expenses of the appellee including attorney

fees and costs.”). But this is not the exclusive path to fees, notwithstanding Counsel’s

reliance on Tessler v. Ayer, 108 Ohio App.3d 47, 669 N.E.2d 891 (1st Dist.1995),

ostensibly for the notion that only appellate courts can impose sanctions for

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appellate proceedings. We see two things wrong with this premise. First, we never

held in Tessler that appellate sanctions fall within the exclusive purview of appellate

courts; to the contrary, we simply imposed sanctions pursuant to App.R. 23. Tessler

at 57. Second, after we decided Tessler, the General Assembly amended R.C. 2323.51

in 1996 to now expressly allow for “reasonable expenses incurred in connection with

the civil action or appeal.” (Emphasis added.) R.C. 2323.51(B)(1). By statute, the

trial court possessed discretionary authority to award sanctions for fees incurred in

the appeal of this frivolous action. We see nothing to cast doubt on the court’s

exercise of discretion on this record.

{¶20} Finally, Counsel claims that TCH should not recover fees expended in

an unsuccessful attempt to remove the case to federal court. Because the federal

court remanded the matter, Counsel concludes that such a determination bars any

fee recovery in connection with removal. But this places too narrow a limit on the

scope of the frivolous conduct statute. The 1996 amendment to R.C. 2323.51

broadened the permissible fees from only those “necessitated by the frivolous

conduct” to now include all “reasonable expenses incurred in connection with the

civil action or appeal.” R.C. 2323.51(B)(1); Helfrich v. Madison, 5th Dist. Licking No.

2011-CA-89, 2012-Ohio-3701, ¶ 49 (“ ‘The amendment to the statute clearly removed

the requirement that fees be necessitated by the frivolous conduct, and replaced it

with language allowing a party to recover attorney’s fees ‘reasonably incurred’ by a

party in a civil action.’ ”), quoting Mid-Ohio Mechanical v. Eisenmann Corp., 5th

Dist. Guernsey Nos. 07 CA 000035 and 08 CA 00012, 2009-Ohio-5804, ¶ 157. The

statute does not limit awarded fees to successful filings and Counsel provided no

authority to the contrary. Mid-Ohio Mechanical at ¶ 158 (“R.C. 2323.51 [does] not

13 OHIO FIRST DISTRICT COURT OF APPEALS

limit the award of fees to those incurred as a result of appellant’s filings only, but

allow[s] an award of fees ‘incurred in connection with the civil action.’ ”), quoting

Neubauer v. Ohio Remcon, Inc., 10th Dist. Franklin No. 05AP-946, 2006-Ohio-1481,

¶ 50. The relevant question on this issue is whether the removal to federal court

represented a reasonable expense incurred in defending the civil action, not whether

TCH ultimately prevailed on the issue. Here, parallel Durrani litigation proceedings

confirm the removal related to the underlying frivolous civil action.

{¶21} TCH and CCHMC removed Bachman in April of 2016. At that time,

and at the request of Counsel, all of the cases involving Dr. Durrani were in the

process of being assigned to a particular judge, who anticipated convening a

“massive group trial” with a multitude of plaintiffs (far exceeding 100) that would

last six months to a year. As a result, the Bachman filing potentially created a mass

action as defined in 28 U.S.C. 1332(d)(11). That a federal judge disagreed with that

maneuver does not end our analysis.

{¶22} Much to the contrary, as explained above, TCH gave Counsel multiple

opportunities to dismiss this suit. When Counsel demurred, TCH was entitled to

defend the case as appropriate. Second-guessing TCH’s litigation strategy after the

fact only penalizes it. Even when a matter is frivolous, it often consumes a fair

amount of resources to obtain judgment in one’s favor, particularly if the lawyers

involved resort to measures that drag the case out well beyond its shelf life. Based on

the totality of this record, including the opportunities for Counsel to avoid all of the

fees involved and the lack of any legitimate justifications for their actions, we find

that the trial court acted within its discretion in holding that the removal fees were

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reasonably incurred in defense of this action. We accordingly overrule Counsel’s

second assignment of error.

* * *

{¶23} In light of the foregoing analysis, we overrule both assignments of

error and affirm the judgment of the trial court.

Judgment affirmed.

CROUSE and BOCK, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion