[Cite as Berman v. Minnesota Lawyers Mut. Ins. Co., 2025-Ohio-3147.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOHN BERMAN, :
Plaintiff-Appellant, : No. 114676 v. :
MINNESOTA LAWYERS MUTUAL : INSURANCE COMPANY, : Defendant-Appellee.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 4, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-24-103008
Appearances:
John Berman, pro se.
Gallagher Sharp LLP, Lori E. Brown, and Richard C.O. Rezie, for appellee.
MICHAEL JOHN RYAN, P.J.:
Pro se plaintiff-appellant John Berman appeals the trial court’s
dismissal of his complaint against Minnesota Lawyers Mutual Insurance Company
(“MLM”). We affirm. In August 2024, Berman filed a complaint against MLM alleging
extortion and seeking a declaratory judgment as to MLM’s right of subrogation. The
allegations in the complaint emanated from his position as a beneficiary of a trust;
litigation surrounding the trust has been ongoing in several states since at least
2013. As to MLM, a Maryland court found that the insurer was entitled to recover
attorney fees and costs it incurred while defending its insured, the trustee of the
trust, against claims brought by Berman. See Berman v. Modell, 2021 Md. App.
LEXIS 13 (Ct.Spec.App. Jan. 6, 2021).
In response to Berman’s complaint, MLM filed a motion to dismiss
pursuant to Civ.R. 12(B)(2) and (6), arguing that the trial court lacked personal
jurisdiction and the complaint should be dismissed for failure to state a claim upon
which relief could be granted. The motion was unopposed and granted.
Berman now appeals.1
Berman first argues that the trial court erred when it dismissed his
complaint without allowing him to amend the complaint.
Civ.R 15(A) allows a plaintiff to amend the complaint “as a matter of
course” within 28 days of service of the complaint, or 28 days of service of a motion
1 Berman’s brief fails to conform to App.R. 16. App.R. 16(A) governs the brief of the
appellant and sets forth what an appellant’s brief must contain. The rule states that an appellant “shall include in its brief . . . [a] statement of the assignments of error presented for review, with reference to the place in the record where each error is reflected.” App.R. 16(A)(3).
Berman does not provide this court with a statement of his assignments of error. We can glean from his briefs, however, the arguments he makes. We will review his claims noting that cases are best decided on their merits. to dismiss. Civ.R. 15(A) favors a liberal policy; however, there is no unconditional
or absolute right to amend a complaint once the time specified in Civ.R. 15(A) has
passed. Weiler v. Osborn Eng. Co., 2023-Ohio-619, ¶ 20 (8th Dist.), citing
Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120 (1991)
and Franciscan Communities, Inc. v. Rice, 2021-Ohio-1729 (8th Dist.).
Berman contends that, pursuant to Osborn, the trial court erred when
it did not allow him to amend his complaint. In Osborn, this court reversed the trial
court’s decision that granted the defendant’s motion for judgment on the pleadings,
finding that the plaintiff complied with Civ.R. 15(A) in filing his amended complaint.
The same cannot be said in this case.
The record reflects that Berman filed his complaint on August 29,
2024. On October 31, 2024, MLM answered by way of filing its motion to dismiss.
It appears that Berman attempted to e-file an amended complaint on November 14,
2024, which was within the 28-day time window, but the filing was rejected by the
Cuyahoga County Clerk of Courts because the attachment could not be opened or
was corrupted. In a letter dated November 15, 2024, Berman wrote to the court
informing the court that his first amended complaint had been rejected.
Importantly, in the letter, Berman did not seek leave to plead or otherwise ask for
an extension of time to file his amended complaint. He also never attempted to refile
his amended complaint. Therefore, because the trial court was never in receipt of
Berman’s amended complaint, the court could not have considered the pleading. Berman next claims that the trial court was required to give him
notice under Civ.R. 41(B)(1) that the case could be dismissed. He futher claims that
the trial court erred in dismissing his complaint without providing reasons for the
dismissal.
Berman’s arguments focus solely on the procedure the trial court used
to dismiss his complaint; he makes no substantive argument as to why the motion
to dismiss should not have been granted. “While we afford pro se litigants leeway in
putting forth legal arguments, we do not absolve these litigants of their burden to
put forth a cognizable argument, nor will we create arguments on their behalf.”
State v. Haigh, 2025 Ohio App. LEXIS 2289, *1 (1st Dist. July 2, 2025), citing
Borthwick v. Dept. of Bldgs. & Inspections, 2022-Ohio-1335, ¶ 7 (1st Dist.). As such,
we will address Berman’s procedural claims but decline to review the merits of the
trial court’s decision to grant MLM’s motion to dismiss.
As to Berman’s first claim, he argues that the trial court was required
to give him notice of the dismissal under Civ.R. 41(B)(1) prior to dismissing the case.
Civ.R. 41(B)(1) governs dismissal for a failure to prosecute. It states, “Where the
plaintiff fails to prosecute, or comply with these rules or any court order, the court
upon motion of a defendant or on its own motion may, after notice to the plaintiff’s
counsel, dismiss an action or claim.”
MLM’s motion to dismiss was premised on Civ.R. 12(B)(2) (lack of
personal jurisdiction) and Civ.R. 12(B)(6) (failure to state a claim); MLM did not ask
the court to dismiss the complaint due to a failure to prosecute. The trial court’s order granting the motion to dismiss did not indicate that it was granting the motion
due to a failure to prosecute.
Moreover, even if the court had granted the motion to dismiss for a
failure to prosecute the case, Berman was placed on notice that the case could be
dismissed. “The notice requirement of Civ.R. 41(B)(1) is satisfied ‘when counsel has
been informed that dismissal is a possibility and has had a reasonable opportunity
to defend against dismissal.’” Norris v. Greater Cleveland Regional Transit Auth.,
2022-Ohio-3552, ¶ 26 (8th Dist.), citing Walker v. Cleveland Clinic Found., 2009-
Ohio-2261, ¶ 7 (8th Dist.). Furthermore, “[w]hen a defendant files
a motion to dismiss for want of prosecution, and the court affords the plaintiff the
opportunity to respond, the notice requirement of Civ.R. 41(B)(1) is met.” Walker
at ¶ 10, citing Shafron v. Erie Rd. Dev. Co., 2008-Ohio-3813, ¶ 15 (8th Dist.); see
also Sazima v. Chalko, 86 Ohio St.3d 151, 156 (1999) (a pending motion to dismiss
was sufficient to put the plaintiff on implied notice of an impending dismissal).
Therefore, Berman’s claim is not well founded.
Next, Berman argues that the trial court abused its discretion in
granting the motion to dismiss without stating why it was granting the motion.
Berman points to no authority that requires a trial court to explain its
reasoning when deciding a motion to dismiss, and a trial court has no duty to issue
findings of facts or conclusions of law when deciding Civ.R. 12 motions. See
Civ.R.
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[Cite as Berman v. Minnesota Lawyers Mut. Ins. Co., 2025-Ohio-3147.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOHN BERMAN, :
Plaintiff-Appellant, : No. 114676 v. :
MINNESOTA LAWYERS MUTUAL : INSURANCE COMPANY, : Defendant-Appellee.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 4, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-24-103008
Appearances:
John Berman, pro se.
Gallagher Sharp LLP, Lori E. Brown, and Richard C.O. Rezie, for appellee.
MICHAEL JOHN RYAN, P.J.:
Pro se plaintiff-appellant John Berman appeals the trial court’s
dismissal of his complaint against Minnesota Lawyers Mutual Insurance Company
(“MLM”). We affirm. In August 2024, Berman filed a complaint against MLM alleging
extortion and seeking a declaratory judgment as to MLM’s right of subrogation. The
allegations in the complaint emanated from his position as a beneficiary of a trust;
litigation surrounding the trust has been ongoing in several states since at least
2013. As to MLM, a Maryland court found that the insurer was entitled to recover
attorney fees and costs it incurred while defending its insured, the trustee of the
trust, against claims brought by Berman. See Berman v. Modell, 2021 Md. App.
LEXIS 13 (Ct.Spec.App. Jan. 6, 2021).
In response to Berman’s complaint, MLM filed a motion to dismiss
pursuant to Civ.R. 12(B)(2) and (6), arguing that the trial court lacked personal
jurisdiction and the complaint should be dismissed for failure to state a claim upon
which relief could be granted. The motion was unopposed and granted.
Berman now appeals.1
Berman first argues that the trial court erred when it dismissed his
complaint without allowing him to amend the complaint.
Civ.R 15(A) allows a plaintiff to amend the complaint “as a matter of
course” within 28 days of service of the complaint, or 28 days of service of a motion
1 Berman’s brief fails to conform to App.R. 16. App.R. 16(A) governs the brief of the
appellant and sets forth what an appellant’s brief must contain. The rule states that an appellant “shall include in its brief . . . [a] statement of the assignments of error presented for review, with reference to the place in the record where each error is reflected.” App.R. 16(A)(3).
Berman does not provide this court with a statement of his assignments of error. We can glean from his briefs, however, the arguments he makes. We will review his claims noting that cases are best decided on their merits. to dismiss. Civ.R. 15(A) favors a liberal policy; however, there is no unconditional
or absolute right to amend a complaint once the time specified in Civ.R. 15(A) has
passed. Weiler v. Osborn Eng. Co., 2023-Ohio-619, ¶ 20 (8th Dist.), citing
Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120 (1991)
and Franciscan Communities, Inc. v. Rice, 2021-Ohio-1729 (8th Dist.).
Berman contends that, pursuant to Osborn, the trial court erred when
it did not allow him to amend his complaint. In Osborn, this court reversed the trial
court’s decision that granted the defendant’s motion for judgment on the pleadings,
finding that the plaintiff complied with Civ.R. 15(A) in filing his amended complaint.
The same cannot be said in this case.
The record reflects that Berman filed his complaint on August 29,
2024. On October 31, 2024, MLM answered by way of filing its motion to dismiss.
It appears that Berman attempted to e-file an amended complaint on November 14,
2024, which was within the 28-day time window, but the filing was rejected by the
Cuyahoga County Clerk of Courts because the attachment could not be opened or
was corrupted. In a letter dated November 15, 2024, Berman wrote to the court
informing the court that his first amended complaint had been rejected.
Importantly, in the letter, Berman did not seek leave to plead or otherwise ask for
an extension of time to file his amended complaint. He also never attempted to refile
his amended complaint. Therefore, because the trial court was never in receipt of
Berman’s amended complaint, the court could not have considered the pleading. Berman next claims that the trial court was required to give him
notice under Civ.R. 41(B)(1) that the case could be dismissed. He futher claims that
the trial court erred in dismissing his complaint without providing reasons for the
dismissal.
Berman’s arguments focus solely on the procedure the trial court used
to dismiss his complaint; he makes no substantive argument as to why the motion
to dismiss should not have been granted. “While we afford pro se litigants leeway in
putting forth legal arguments, we do not absolve these litigants of their burden to
put forth a cognizable argument, nor will we create arguments on their behalf.”
State v. Haigh, 2025 Ohio App. LEXIS 2289, *1 (1st Dist. July 2, 2025), citing
Borthwick v. Dept. of Bldgs. & Inspections, 2022-Ohio-1335, ¶ 7 (1st Dist.). As such,
we will address Berman’s procedural claims but decline to review the merits of the
trial court’s decision to grant MLM’s motion to dismiss.
As to Berman’s first claim, he argues that the trial court was required
to give him notice of the dismissal under Civ.R. 41(B)(1) prior to dismissing the case.
Civ.R. 41(B)(1) governs dismissal for a failure to prosecute. It states, “Where the
plaintiff fails to prosecute, or comply with these rules or any court order, the court
upon motion of a defendant or on its own motion may, after notice to the plaintiff’s
counsel, dismiss an action or claim.”
MLM’s motion to dismiss was premised on Civ.R. 12(B)(2) (lack of
personal jurisdiction) and Civ.R. 12(B)(6) (failure to state a claim); MLM did not ask
the court to dismiss the complaint due to a failure to prosecute. The trial court’s order granting the motion to dismiss did not indicate that it was granting the motion
due to a failure to prosecute.
Moreover, even if the court had granted the motion to dismiss for a
failure to prosecute the case, Berman was placed on notice that the case could be
dismissed. “The notice requirement of Civ.R. 41(B)(1) is satisfied ‘when counsel has
been informed that dismissal is a possibility and has had a reasonable opportunity
to defend against dismissal.’” Norris v. Greater Cleveland Regional Transit Auth.,
2022-Ohio-3552, ¶ 26 (8th Dist.), citing Walker v. Cleveland Clinic Found., 2009-
Ohio-2261, ¶ 7 (8th Dist.). Furthermore, “[w]hen a defendant files
a motion to dismiss for want of prosecution, and the court affords the plaintiff the
opportunity to respond, the notice requirement of Civ.R. 41(B)(1) is met.” Walker
at ¶ 10, citing Shafron v. Erie Rd. Dev. Co., 2008-Ohio-3813, ¶ 15 (8th Dist.); see
also Sazima v. Chalko, 86 Ohio St.3d 151, 156 (1999) (a pending motion to dismiss
was sufficient to put the plaintiff on implied notice of an impending dismissal).
Therefore, Berman’s claim is not well founded.
Next, Berman argues that the trial court abused its discretion in
granting the motion to dismiss without stating why it was granting the motion.
Berman points to no authority that requires a trial court to explain its
reasoning when deciding a motion to dismiss, and a trial court has no duty to issue
findings of facts or conclusions of law when deciding Civ.R. 12 motions. See
Civ.R. 52 (findings of fact and conclusions of law are unnecessary upon motions
made pursuant to Civ.R. 12). See also State ex rel. Drake v. Athens Cty. Bd. of Elections, 39 Ohio St.3d 40, 41 (1988) (holding that when a court dismisses a
complaint pursuant to Civ.R. 12(B)(6), it makes no factual findings beyond its legal
conclusion that the complaint fails to state a claim upon which relief can be granted;
thus, the court has no duty to issue findings of fact and conclusions of law).
Berman’s second claim is also without merit.
“It is not the duty of this [c]ourt to scour the record for evidence and
construct an argument on an appellant’s behalf.” In re E.G., 2017-Ohio-2584, ¶ 27
(9th Dist.); see also Story v. Story, 2021-Ohio-2439, ¶ 30 (8th Dist.) (An appellate
court is not obligated to construct or develop arguments for an appellant or to guess
at undeveloped claims.). Berman limited his arguments on appeal to claiming that
the trial court was required to provide him notice under Civ.R. 41(B)(1) and abused
its discretion when it granted MLM’s motion without stating its reasons. We find
no merit to these claims; therefore, Berman’s assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
______ MICHAEL JOHN RYAN, PRESIDING JUDGE
ANITA LASTER MAYS, J., and KATHLEEN ANN KEOUGH, J., CONCUR