Shaffer v. Jones

2017 Ohio 7730

• Court: Ohio Court of Appeals
• Decided: September 22, 2017
• Docket: C-160684
• Status: Published

Opinion

[Cite as Shaffer v. Jones, 2017-Ohio-7730.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

PETER SCHAFFER, : APPEAL NO. C-160684 TRIAL NO. A-1303707 Plaintiff-Appellee, :

vs. : O P I N I O N.

ADAM JONES, :

Defendant, :

and :

AARON CUDWORTH, :

THOMAS URBANSKI, :

KATHLEEN URBANSKI, :

Proposed Intervenors- Appellants. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 22, 2017

Peter Schaffer, pro se,

Weltman, Weinberg & Reis, Co., L.P.A., and David S. Brown, for Proposed Intervenors-Appellants. OHIO FIRST DISTRICT COURT OF APPEALS

C UNNINGHAM , Presiding Judge.

{¶1} Proposed intervenors-appellants, Aaron Cudworth, Thomas Urbanski,

and Kathleen Urbanski, challenge the trial court’s August 3, 2016 order denying their

motion to intervene in this action to confirm an arbitration award initiated by plaintiff-

appellee Peter Schaffer. Schaffer is the lawyer and registered agent for defendant Adam

Jones, a professional football player employed by the Cincinnati Bengals. The proposed

intervenors and Schaffer are each judgment creditors of Jones. They sought

intervention in Schaffer’s action arguing that the judgment for Schaffer in this case is

void, and that Jones’ cooperation with Schaffer, or failure to contest the validity of the

judgment here, resulted in the preference of Schaffer’s judgment ahead of all other valid

claims including those of the proposed intervenors. Because the proposed intervenors

did not accompany their motion to intervene with a pleading as required by Civ.R.

24(C), we affirm the trial court’s denial of their motion to intervene.

Jones’ Multiple Judgment Creditors

{¶2} In the summer of 2012, the proposed intervenors obtained judgments

totaling over $14 million against Jones in a Nevada court for intentional infliction of

emotional distress. The judgments were transferred to municipal courts in Cleveland,

Ohio for execution in late 2012 and 2013.

{¶3} Since 2012, Schaffer has negotiated Jones’ football contracts and

provided other services to Jones. On April 23, 2013, Schaffer obtained an arbitration

award in the amount of $113,250 against Jones for fees related to Jones’ 2012-2013

player contract with the Bengals, as well as for repayment of a personal loan to Jones

for $7,500. In May 2013, Schaffer commenced this action to confirm the arbitration

award.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} In July and August 2013, the proposed intervenors filed garnishments

of Jones’ personal earnings naming the Bengals as garnishee. On September 27, 2013,

the trial court confirmed Schaffer’s arbitration award and Schaffer filed for

garnishment of Jones’ earnings, also naming the Bengals as garnishee. The proposed

intervenors filed second and third garnishments.

{¶5} In 2014, Schaffer obtained a second arbitration award against Jones for

contract fees for $220,750. Schaffer filed a motion to amend the judgment in this case.

The trial court quickly granted the motion and in October 2014 issued an order of

continuous distributions. In November 2015, Schaffer obtained a third arbitration

award against Jones for agent fees. On Schaffer’s motion, the trial court again amended

the judgment to include this award. Schaffer obtained a fourth arbitration award in

March 2016 which was also added to an amended judgment. The proposed intervenors

claimed that Schaffer’s initial judgment had ballooned to over $1.1 million by December

2015.

{¶6} Since Jones had multiple judgment creditors throughout this period,

each parties’ garnishment—the proposed intervenors’ and Schaffer’s—was subject to a

stacking order under R.C. 2716.041(D). According to the statute, each party enjoyed its

182-day turn to receive a portion of Jones’ personal earnings, often as high as $25,000

per week. Schaffer claims that the proposed intervenors have collected nearly

$600,000 in garnishment since 2013 and continued to share in the garnished funds

during their stacking periods.

{¶7} The proposed intervenors filed a declaratory-judgment action with

another judge of the common pleas court. In the case numbered A-1603512, they

sought a preliminary and permanent injunction against the confirmation of the

arbitration awards in this case. The proposed intervenors alleged that Schaffer’s careful

3 OHIO FIRST DISTRICT COURT OF APPEALS

manipulation of Jones’ personal earnings during the 16-week football season and the

timing of Jones’ multimillion dollar signing bonuses had served to irreparably harm

their interests. They also alleged that the trial court’s continuous amendment of its

judgment in this case was not authorized by law and was void. The court denied the

injunctive relief and the proposed intervenors dismissed their action.

{¶8} On June 30, 2016, the proposed intervenors moved the trial court to

intervene in this action pursuant to Civ.R. 24(A)(2). Claiming an interest in “any

funds” garnished from Jones’ personal earnings, they argued that Schaffer and Jones

colluded to minimize the funds available for their garnishment, and that the trial court

was without authority to continuously reopen and amend its judgment. While the

proposed intervenors’ motion was supported by a lengthy memorandum, it was not

accompanied by a pleading as required by Civ.R. 24(C).

{¶9} After receiving memoranda in support of and opposition to the motion

and after entertaining thorough oral argument, the trial court denied the motion to

intervene. This appeal ensued.

The Trial Court’s Denial of the Motion to Intervene Is a Final Order

{¶10} Because an appellate court’s jurisdiction is limited to review of final

judgments or orders, we must determine our jurisdiction to proceed before reaching

the merits of any appeal. See Ohio Constitution, Article IV, Section 3(B)(2); see also

R.C. 2505.03(A); State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d

543, 544, 684 N.E.2d 72 (1997). An order that is entered in a special proceeding and

that affects a substantial right is a final appealable order under R.C. 2505.02(B)(2).

{¶11} The underlying action in this case is Shaffer’s complaint for

confirmation of an arbitration award brought under R.C. 2711.09. See Walters v.

Enrichment Ctr. of Wishing Well, Inc., 78 Ohio St.3d 118, 121-122, 676 N.E.2d 890

4 OHIO FIRST DISTRICT COURT OF APPEALS

(1997). Proceedings set forth in R.C. Chapter 2711 are special proceedings because they

were not recognized at common law or equity and were legislatively provided for in

1953 by the Ohio Arbitration Act, R.C. 2711.01 et seq. See Kelm v. Kelm, 93 Ohio

App.3d 686, 691, 639 N.E.2d 842 (10th Dist.1994); see also MBNA Am. Bank, N.A. v.

Anthony, 5th Dist. Tuscarawas No. 05AP090059, 2006-Ohio-2032, ¶ 12. Thus the trial

court’s order denying the proposed intervenors’ motion was an order entered in a

special proceeding under R.C. 2505.02(A)(2). See Buyer’s First Realty, Inc. v.

Cleveland Area Bd. of Realtors, 139 Ohio App.3d 772, 782, 745 N.E.2d 1069 (8th

Dist.2000); see also Ockrant v. Ry. Supply & Mfg. Co., 111 Ohio App. 276, 278, 165

N.E.2d 233 (1st Dist.1960); Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Emps.,

AFL-CIO v. Cent. State Univ., 16 Ohio App.3d 84, 474 N.E.2d 647 (2d Dist.1984).

{¶12} A motion to intervene is a right recognized by Civ.R. 24, the denial of

which ordinarily affects a party’s substantial right to intervene and is immediately

appealable. See R.C. 2505.02(A)(1). But the denial of a motion to intervene does not

affect a substantial right “when the purpose for which intervention was sought may be

litigated in another action.” Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514,

2007-Ohio-607, 861 N.E.2d 519, ¶ 37 (construing finality under R.C. 2505.02(B)(1) for

an order that determines the action and prevents a judgment).

{¶13} By contrast, here, the proposed intervenors’ attempt to assume the

rights of parties to this action constitutes the sole means by which they can attack the

judgments entered in Schaffer’s award-confirmation complaint. They are not seeking

simply a modification of their garnishment rights by means of R.C. 2716.041 or

2716.09, or a third-party claim under R.C. 2329.84. Rather, the essence of their motion

is that Schaffer and Jones colluded to minimize the funds available for their

garnishment, and that the trial court is without authority to continuously reopen and

5 OHIO FIRST DISTRICT COURT OF APPEALS

amend its judgment. The proposed intervenors cannot attempt to review, invalidate, or

reverse the trial court’s previously adjudicated orders and judgments in this action by

resort to other actions such as a declaratory-judgment action. See Lingo v. State, 138

Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, paragraph one of the syllabus.

Because the proposed intervenors’ motion to intervene constituted the sole means

available to secure the rights they seek, the trial court’s denial of the motion affected a

substantial right. See Southside Community Dev. Corp. v. Levin, 116 Ohio St.3d 1209,

2007-Ohio-6665, 878 N.E.2d 1048, ¶ 8. Thus, the trial court’s order denying the

proposed intervenors’ motion is a final appealable order under R.C. 2505.02(B)(2).

The Motion to Intervene is not Accompanied by a Pleading

{¶14} In a single assignment of error, proposed intervenors claim that the trial

court erred in denying their motion to intervene. They argue that they had properly

claimed an interest relating to the transaction involved in Schaffer’s award-

confirmation complaint, that Schaffer’s garnishment of Jones’ personal earnings would

impair and impede their ability to protect their interests as judgment creditors of Jones,

and that their motion to intervene was timely. Schaffer argues, inter alia, that because

the proposed intervenors failed to observe the requirement of Civ.R. 24(C) to attach a

pleading to their motion, the motion was properly denied. We agree.

{¶15} We review the trial court’s denial of a motion to intervene under an

abuse-of-discretion standard. State ex rel. Merrill v. Ohio Dept. of Natural Resources,

130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41, citing State ex rel. First New

Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 503, 696 N.E.2d 1058 (1998), fn.

1. The term “abuse of discretion” connotes more than an error in judgment. See

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

discretion, a court must have acted unreasonably, arbitrarily, or unconscionably. See

6 OHIO FIRST DISTRICT COURT OF APPEALS

Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). The

proposed intervenors do not argue that the trial court’s actions were arbitrary or

unconscionable. Thus if the court’s exercise of its discretion exhibits a sound reasoning

process that supports its decision, this court will not disturb its determination. See

AAAA Ents., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d 157,

161, 553 N.E.2d 597 (1990).

{¶16} Civ.R. 24(C) provides that:

A person desiring to intervene shall serve a motion to intervene

upon the parties as provided in Civ.R. 5. The motion and any

supporting memorandum shall state the grounds for intervention and

shall be accompanied by a pleading, as defined in Civ.R. 7(A), setting

forth the claim or defense for which intervention is sought. The same

procedure shall be followed when a statute of this state gives a right to

intervene.

(Emphasis added.)

{¶17} The prior version of Civ.R. 24(C) also required that a motion to

intervene be accompanied by a pleading, but did not cite to Civ.R. 7(A). In 1999, Civ.R.

24(C) was amended, and the reference to Civ.R. 7(A) was added “to clarify that the

‘pleading’ to be filed with a motion to intervene requires more than just a

memorandum in support of the motion to intervene.” 1999 Staff Note, Civ.R. 24(C).

Pursuant to Civ.R. 7(A):

There shall be a complaint and an answer; a reply to a

counterclaim denominated as such; an answer to a cross-claim, if the

answer contains a cross-claim; a third-party complaint, if a person

who was not an original party is summoned under the provisions

7 OHIO FIRST DISTRICT COURT OF APPEALS

of Civ.R. 14; and a third-party answer, if a third-party complaint is

served. No other pleading shall be allowed, except that the court may

order a reply to an answer or a third-party answer.

{¶18} The pleading requirement is “logical, as the applicant is asking to be

made a party to the existing action.” 1 Baldwin’s Ohio Practice, Civil Practice, Section

24:26 (2016). When a motion to intervene is not accompanied by a pleading, as

required by Civ.R. 24(C), the motion should be denied. State ex rel. Sawicki v. Court of

Common Pleas of Lucas Cty., 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶

21-22; see State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106, 2003-Ohio-2506, 789

N.E.2d 203, fn. 1.

{¶19} Here the proposed intervenors did not accompany their motion with a

pleading as defined in Civ.R. 7(A). They had asserted below that attaching a pleading

was “not required,” and was “unnecessary and redundant” where one seeks

intervention to vacate the judgment below. They note that Ohio courts have tacitly

acknowledged the procedure they attempted here: post-judgment intervention along

with a motion to vacate under Civ.R. 60(B). See Millers v. Kasnett, 2015-Ohio-298, 26

N.E.3d 915 (8th Dist.); see also Pliable Veneers, Inc. v. Omni Store Fixtures Corp., 6th

Dist. Lucas No. L-96-145, 1997 WL 276214 (May 23, 1997); Nicholas v. State Farm Ins.,

11th Dist. Trumbull No. 99-T-0030, 2000 WL 757355, *4 (June 9, 2000).1 We

disagree.

{¶20} First, we note that a Civ.R. 60(B) motion for relief from judgment is not

a pleading as enumerated in Civ.R. 7(A). And the proposed intervenors have failed to

accompany their motion to intervene even with a proposed Civ.R. 60(B) motion.

1 We note that this court has also affirmed a trial court’s granting of a motion to intervene and a Civ.R. 60(B) motion. See Pfeiffer v. State Farm Mut. Ins. Co., 1st Dist. Hamilton No. C-050683, 2006-Ohio-5074. But as in the cases cited by the proposed intervenors, we did not discuss the Civ.R. 24(C) pleading requirement.

8 OHIO FIRST DISTRICT COURT OF APPEALS

Second, and more importantly, none of the cases advanced by proposed intervenors

contain any mention of Civ.R. 24(C) much less an express statement that the pleading

requirement is optional when the intervenor seeks ultimately to file a motion for relief

from judgment. We are unwilling to ignore the express requirements placed on an

intervenor by the Ohio Supreme Court and Civ.R. 24(C). See Yemma v. Reed, 7th Dist.

Mahoning No. 16 MA 0015, 2017-Ohio-1015, ¶ 46-47 (Upholding trial court’s denial of

motion to intervene in a tax foreclosure action where intervenor who ultimately sought

relief from the foreclosure decree failed to attach a pleading to his motion to

intervene.).

{¶21} Since the proposed intervenors’ motion to intervene was not

accompanied by a pleading as described in Civ.R. 7(A), the trial court’s denial of their

motion was not an abuse of discretion, as the denial was supported by a sound

reasoning process. See Civ.R. 24(C); see also State ex rel. Sawicki, 121 Ohio St.3d 507,

2009-Ohio-1523, 905 N.E.2d 1192, at ¶ 21-22; AAAA Ents., Inc., 50 Ohio St.3d at 161,

553 N.E.2d 597. The assignment of error is overruled.

{¶22} Therefore, the trial court’s August 3, 2016 order denying the proposed

intervenors’ motion to intervene is affirmed.

Judgment affirmed.

M YERS and M ILLER , JJ., concur.

Please note:

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