Tabbaa v. Lexpro, L.L.C.

2020 Ohio 5514

• Court: Ohio Court of Appeals
• Decided: December 3, 2020
• Docket: 109690, 109691
• Status: Published

Opinion

[Cite as Tabbaa v. Lexpro, L.L.C., 2020-Ohio-5514.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

MOHAMMAD TABBAA, :

Plaintiff-Appellant, : Nos. 109690 and 109691 v. :

LEXPRO, L.L.C., ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 3, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-926735

Appearances:

Michael Drain, for appellant.

RaslanPLA & Company, L.L.C., Erika Molnar, and Nadia R. Zaiem for appellee Lexpro, L.L.C.

Law Office of David Ledman and David Ledman for appellees Lila and Fares Raslan. SEAN C. GALLAGHER, J.:

Mohammad Tabbaa appeals the dismissal of his declaratory

judgment action advanced against Lexpro, L.L.C. (“Lexpro”), and Lila and Fares

Raslan (“Raslans”). For the following reasons, we affirm.

In 2008, two judgments were entered against Tabbaa and the Raslans

in separate actions in the Cuyahoga County Court of Common Pleas — Natl. City

Bank v. Kay Properties L.L.C., et al., Cuyahoga C.P. No. CV-08-677951 (Dec. 3,

2008), and Natl. City Bank v. Luna M. Tabbaa, et al., Cuyahoga C.P. No. CV-08-

676689 (Dec. 3, 2008) — both of which were based on an outstanding mortgage

debt totaling nearly $800,000. The resulting judgments were ultimately assigned

to Lexpro sometime in 2011, and the pertinent judgment liens were filed in 2012.

According to the allegations in the complaint, Lexpro released the Raslans from the

judgment debt shortly thereafter, although that fact is disputed, and Lexpro

proceeded to execute on the judgment as against Tabbaa. Lexpro has been pursuing

“extraterritorial collections measures outside the United States against property or

properties believed to belong to [Tabbaa] in Jordan” in order to satisfy the

outstanding judgments that were entered jointly and severally against Tabbaa and

the Raslans.

Tabbaa initiated the underlying action seeking a declaration that

Lexpro’s attempts to execute on the judgment liens were illegal because Lexpro is

currently attempting to execute on property not located in Ohio or, in the

alternative, because the judgments had become dormant under Ohio law — despite the alleged fact that Lexpro is actively engaging in proceedings in aid of execution.

R.C. 2329.07(B) (a judgment becomes dormant unless a proceeding in aid of

execution is commenced or ongoing); 62 Ohio Jurisprudence 3d, Judgments,

Section 137 (providing an example that a judgment entered in another state was not

dormant when the judgment creditor filed a judgment lien and writ of execution in

Ohio within five years of the judgment). In addition, Tabbaa claimed that because

Lexpro allegedly released the Raslans from their debt, it was required to release

Tabbaa from his portion as well, and therefore, the proceedings in aid of execution

were invalid.1 And finally, Tabbaa sought a declaration that he had the right of

contribution from the Raslans should he be forced to pay any portion of the

judgment in excess of his rightful share. In separate entries, the trial court dismissed

all claims under Civ.R. 12(B)(6), which provides for a dismissal of allegations for the

failure to state a claim upon which relief can be granted. This timely appeal

followed.

In this appeal, Tabbaa argues that the trial court erred by granting the

motion to dismiss under Civ.R. 12(B)(6) because affirmative defenses, such as the

statute of frauds, cannot be tested through a motion to dismiss and the facts of the

1 It appears that Tabbaa is confusing full satisfaction of a judgment with a release based on partial payment. In general, “[s]atisfaction of a judgment against one of several obligors is a bar to an action against the others for the same debt or obligation.” 63 Ohio Jurisprudence, Judgments, Section 582; see also In re Miamisburg Train Derailment Litigation, 132 Ohio App.3d 571, 582, 725 N.E.2d 738 (2d Dist.1999). However, the general rule is dependent upon the judgment being satisfied in full. Until the judgment has been satisfied, the judgment creditor may execute upon the judgment. There are no allegations that the judgment has been satisfied such to release Tabbaa from any liability. complaint must be accepted in the light most favorable to the plaintiff. Tabbaa also

asks this court to recognize that the two judgments issued in separate cases were

dormant because more than five years had passed, and thus, the trial court erred in

dismissing the action for declaratory relief. Tabbaa’s arguments are misplaced.

There are no affirmative defenses being raised, especially one related to the statute

of frauds that would be irrelevant to the collection of a judgment debt. And because

Tabbaa’s complaint alleges the existence of an ongoing proceeding to attach

property in satisfaction of the judgments assigned to Lexpro, it cannot be concluded

that the judgments have become dormant. R.C. 2329.07(B) (a judgment becomes

dormant unless a proceeding in aid of execution is commenced or ongoing). The

more pertinent question in this case is whether the trial court has authority to grant

the declaratory relief sought — an issue that Tabbaa has largely avoided.

“A declaratory judgment action is a creature of statute” as set forth

under Revised Code Sections 2721.01 through 2721.15. Galloway v. Horkulic, 7th

Dist. Jefferson No. 02 JE 52, 2003-Ohio-5145, ¶ 21. R.C. 2721.03 expressly provides

as follows:

A person interested under a deed, will, written contract, or other writing constituting a contract * * * may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.

(Emphasis added.) Id.; Freedom Rd. Found. v. Ohio Dept. of Liquor Control, 80

Ohio St.3d 202, 204, 1997-Ohio-346, 685 N.E.2d 522. A court may declare such rights, status, or other legal relations whether or not further relief could be claimed.

R.C. 2721.02(A). Declaratory relief is merely in the alternative to other remedies.

Swander Ditch Landowners’ Assn. v. Joint Bd. of Huron & Seneca Cty. Commrs.,

51 Ohio St.3d 131, 135, 554 N.E.2d 1324 (1990) (concluding that a declaratory action

will not be considered where another remedy exists). In order to properly plead a

complaint seeking declaratory relief, the plaintiff must demonstrate that (1) the

action is within the scope of the Declaratory Judgment Act; (2) a justiciable

controversy exists between adverse parties; and (3) speedy relief is necessary to

preserve rights that may otherwise be impaired. Freedom Rd. Found. at 204. A

complaint seeking declaratory relief under R.C. Chapter 2721 must be dismissed

where it does not meet any of those requirements. Horkulic at ¶ 24; State ex rel.

Ford v. Ruehlman, 149 Ohio St.3d 34, 2016-Ohio-3529, 73 N.E.3d 396, ¶ 76 (a

declaration of venue is not within the scope of the declaratory judgment statute).

In this case, Tabbaa’s request for declaratory relief against Lexpro is

improper. Essentially, Tabbaa is seeking to invalidate proceedings in aid of

execution that are ongoing in another jurisdiction, according to the allegations of

the complaint. Such a request is beyond the scope of the Declaratory Judgment Act.

None of the allegations in the complaint against Lexpro seek a determination as to

the construction or validity of an “instrument, constitutional provision, statute, rule,

ordinance, resolution, contract, or franchise” and fails to include any request to

“obtain a declaration of rights, status, or other legal relations under” a “deed, will,

written contract, or other writing constituting a contract” as authorized under R.C. 2721.03. See, e.g., Lima Mem. Hosp. v. Dardio, 3d Dist. Allen No. 1-95-38, 1995

Ohio App. LEXIS 4809, 1 (Oct. 18, 1995) (declaratory judgment action instituted to

challenge the constitutionality of the statute under which a proceeding in

garnishment was ongoing). Instead, Tabbaa sought a declaration to invalidate

extraterritorial proceedings to execute on property located in another country that

were initiated based on judgment liens filed in separate proceedings. In essence,

Tabbaa is attempting to collaterally challenge the final judgment rendered in

separate cases and the ensuing attempts to execute upon such judgments.

It is well settled that “[c]ollateral attacks of final judgments are

disfavored and succeed only in limited situations—fraud or lack of jurisdiction.”

Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 34,

citing Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-

5024, 875 N.E.2d 550, ¶ 22-23. A declaratory judgment action filed under R.C.

Chapter 2721 cannot be used to collaterally attack the validity of the judgment

rendered by another court. Tabbaa’s requested relief — seeking to declare the

judgment lien to be invalid based on the dormancy of the judgment or to attack the

execution proceedings that have occurred outside of Ohio — is an impermissible,

collateral attack on another court’s proceedings and judgments. Further, because

Tabbaa’s action against Lexpro is not within the scope of the Declaratory Judgment

Act, the trial court did not err in dismissing the complaint as against Lexpro.

And finally, with respect to the claims advanced against the Raslans,

Tabbaa has not asserted facts demonstrating the existence of a justiciable controversy that exists between the adverse parties. The sole allegation against the

Raslans in the complaint is limited to a declaration that Tabbaa be granted a right

to contribution from the Raslans “in the event any property of [Tabbaa’s] is

attached” by Lexpro. (Emphasis added.) Generally in Ohio, a “claim is not ripe if it

depends on ‘future events that may not occur as anticipated, or may not occur at

all.’” Kalnasy v. MetroHealth Med. Ctr., 8th Dist. Cuyahoga No. 90211, 2008-Ohio-

3035, ¶ 5, quoting Texas v. U.S., 523 U.S. 296, 140 L.Ed.2d. 406, 118 S.Ct. 1257

(1998); State v. Loving, 180 Ohio App.3d 424, 2009-Ohio-15, 905 N.E.2d 1234, ¶ 4

(10th Dist.); see also Keller v. Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599, 797

N.E.2d 964, ¶ 26 (declaratory judgment action is not well pleaded when it relies on

the allegation of a future event that may never occur). The allegations in the

complaint are contingent on the possibility of a future event that may never occur.

There are no allegations that Tabbaa has paid any portion of the judgment, much

less more than his share of the judgment entered against him and the Raslans. A

declaratory judgment action cannot be used to obtain a judgment that is advisory in

nature or based on an abstract question or a hypothetical statement of facts. Bilyeu

v. Motorists Mut. Ins. Co., 36 Ohio St.2d 35, 37, 303 N.E.2d 871 (1973).

The allegations against the Raslans are limited to the existence of a

potential controversy should Tabbaa pay more than his share of the judgment debts.

That event may or may not occur. Tabbaa claims that his property in Jordan is in

the process of being seized, but none of the allegations in the complaint demonstrate

that the property has been seized and is in excess of his share of the judgment debt. Accordingly, that allegation is insufficient to create a justiciable controversy for the

purposes of properly pleading the claim for declaratory relief against the Raslans.

The trial court did not err in dismissing the declaratory relief action as against the

Raslans.

Having resolved the merits of the appeal, we must briefly address the

request for sanctions accompanying Lexpro’s appellate briefing in accordance with

App.R. 23 and Loc.App.R. 23(A). An appeal is frivolous if it presents no reasonable

question for review, is prosecuted for delay, harassment, or any other improper

purpose. Cleveland v. FOP, 2017-Ohio-9174, 103 N.E.3d 235, ¶ 31 (8th Dist.), citing

State v. G.D., 8th Dist. Cuyahoga Nos. 104317 and 104328, 2016-Ohio-814, ¶ 258;

Loc.App.R. 23(A). Further, and although Loc.App.R. 23 provides for the award of

sanctions upon the finding of frivolity, before awarding sanctions we “must consider

‘whether the attorney or pro se party who signed the document: (1) read it; (2) to the

best of his knowledge, had good grounds for filing it; and (3) did not file it for the

purpose of delaying the proceedings’” or for some other nefarious purpose.

E. Cleveland v. Dailey, 8th Dist. Cuyahoga No. 108873, 2019-Ohio-4267, ¶ 15, citing

State ex rel. Bristow v. Baxter, 6th Dist. Erie Nos. E-17-060, E-17-067, and E-17-

070, 2018-Ohio-1973, ¶ 25, and Bergman v. Genoa Banking Co., 6th Dist. Ottawa

No. OT-14-019, 2015-Ohio-2797, ¶ 33. Thus, it has been concluded that under

Loc.App.R. 23, “[s]anctions are proper only for willful, bad faith violations of Civ.R.

11—not merely negligent ones.” Id., citing State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs., 127 Ohio St.3d 202, 2010-Ohio-5073, 937 N.E.2d 1274, ¶ 8;

Gallagher v. AMVETS, 6th Dist. Erie No. E-09-008, 2009-Ohio-6348, ¶ 33.

Lexpro contends that Tabbaa’s appeal is not reasonably grounded in

fact because he and his attorney were aware of the ongoing litigation in Jordan for

over eight years. Lexpro also argues that there is no good faith basis in law from

which to appeal the trial court’s decision and that executing on judgments in foreign

jurisdictions is permissible. It is claimed that Tabbaa’s current appeal is meant to

delay the proceedings that are occurring in Jordan meant to attach and sell certain

real property in an effort to collect on the outstanding judgment. Even if we were

inclined to agree with Lexpro’s position on the issue of frivolity, there is no willful

misconduct apparent from the record. Tabbaa attempted to challenge the

collections proceedings through a declaratory judgment action. Although we have

concluded that such an action is beyond the scope of the Declaratory Judgment Act,

Lexpro has not provided any citations to authority directly refuting Tabbaa’s claims.

Instead, Lexpro’s brief addresses the merits of Tabbaa’s appellate arguments.

Accordingly, even if we concluded that Tabbaa’s legal arguments were misguided

and legally incorrect, none of the arguments rise to the level of frivolity, much less

accompanied with the requisite willful misconduct. The motion for sanctions is

denied.

The decision of the trial court is affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the

common pleas 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.

___________________________________ SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, A.J., AND LARRY A. JONES, SR., J., CONCUR