Carter v. Durden

[Cite as Carter v. Durden, 2017-Ohio-738.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 103127

MICHAEL CARTER

PLAINTIFF

vs.

CORNELIUS DURDEN

DEFENDANT-APPELLEE

[Appeal by Bruce A. Brown, Third-Party Defendant]

JUDGMENT:

AFFIRMED

Civil Appeal from the

Cleveland Municipal Court, Housing Division

Case No. 2014-CVG763

BEFORE: Blackmon, J., E.A. Gallagher, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: March 2, 2017

-i-

FOR APPELLANT

Bruce A. Brown, pro se

6075 Penfield Lane

Solon, Ohio 44139

FOR APPELLEE

Cornelius Durden, pro se

961 Evangeline Road

Cleveland, Ohio 44110

Nicholas A. Colabianchi

5725 Broadway Avenue

Cleveland, Ohio 44127

PATRICIA ANN BLACKMON, J.:

{¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. Bruce A. Brown (“Brown”) appeals pro se from the

municipal court’s judgment entry granting $117,000 against him and in favor of Cornelius

Durden (“Durden”). Brown assigns the following sole error for our review:

I. The Supreme Court of Ohio has exclusive jurisdiction over the

unauthorized practice of law.

{¶2} Having reviewed the record and pertinent law, we affirm the court’s

decision. The apposite facts follow.

{¶3} In May 2011, Durden paid Brown $9,000 “to help him negotiate with the

county concerning taxes” relating to a foreclosure action against Durden. Brown took no

action on Durden’s behalf, and in August 2013, Michael Carter (“Carter”) purchased

Durden’s property at a tax foreclosure sale. In January 2014, Carter initiated eviction

proceedings against Durden in the Cleveland Municipal Court, Housing Division.

{¶4} On October 1, 2014, Durden filed a third-party complaint against Brown

alleging fraud, breach of contract, promissory estoppel, unjust enrichment, and quiet title.

Brown, acting pro se, filed an answer summarily denying all allegations and raising the

following affirmative defenses: the third-party complaint “fails to state a claim upon

which relief can be granted” and “is barred by the Third-Party Plaintiff’s own acts and

omissions.” According to the docket, Brown’s answer is the only appearance or filing he

made in the case.

{¶5} On May 11, 2015, the court adopted the magistrate’s decision finding in

favor of Durden on the fraud claim. Although there is no transcript,1 the magistrate’s

decision states that the court held a hearing on April 29, 2015. Brown claims that he did

not attend this hearing because he was incarcerated. The magistrate’s decision

concluded, in pertinent part, the following:

Durden is entitled to recover damages from Bruce Brown for fraud. Brown

intentionally misrepresented to Durden that he was an attorney and would

work on Durden’s behalf concerning taxes owed to the county. Brown * *

* took no action on Durden’s behalf. Instead, he continued to lie to

Durden until he was uncovered because of a criminal action filed against

him.

{¶6} The court awarded Durden $17,000 in compensatory damages and, after

finding that “Brown’s fraud was malicious,” $100,000 in punitive damages. It is from

this order that Brown appeals.

{¶7} Brown’s argument is that the Ohio Supreme Court has exclusive

jurisdiction over the “unauthorized practice of law” under R.C. 4705.07(A)(3). “Only

the supreme court may make a determination that any person has committed the

unauthorized practice of law in violation of division (A)(3) of this section.” R.C.

4705.07(B)(2).

1

The housing court issued a postjudgment journal entry on August 9, 2016, which states as

follows: Brown “wrote a letter to the Court dated July 19, 2016 asking for a transcript of the April 29,

2015 default hearing on the claim of Cornelius Durden against him. The hearing was not transcribed

by a court reporter and the court did not make an audio recording of the hearing, necessitating an

App.R. 9(C) statement.” Upon review, we find that Brown failed to file an App.R. 9(C) statement.

{¶8} We first note that Brown did not raise this argument in the lower court.

“[T]he fundamental rule is that an appellate court will not consider any error which could

have been brought to the trial court’s attention, and hence avoided or otherwise

corrected.” Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001

(1982). Nonetheless, in the interest of justice, we review Brown’s appeal on the merits.

{¶9} “[A] party may not raise any error on appeal regarding a finding of fact or

conclusion of law by a magistrate, unless he has timely objected to that finding or

conclusion.” Gee How Oak Tin Assn. v. Chang Yick, 8th Dist. Cuyahoga No. 89228,

2007-Ohio-6199, ¶ 18. Brown did not object to the magistrate’s decision in the case at

hand; therefore, he has waived his right to appeal the magistrate’s findings and

conclusions.

{¶10} “The unauthorized practice of law consists of rendering legal services for

another by any person not admitted to practice law in Ohio * * * and includes

representation by a nonattorney who advises, counsels, or negotiates on behalf of an

individual or business in the attempt to resolve a collection claim between debtors and

creditors.” Ohio State Bar Assn. v. Kolodner, 103 Ohio St.3d 504, 2001-Ohio-5581,

8107 N.E.2d 25, ¶ 15.

{¶11} In the case at hand, the court found that “Brown never took any action on

behalf of [Durden].” Additionally, the court concluded that Brown engaged in fraud.

The court did not find factually, nor did it conclude legally, that Brown engaged in the

unauthorized practice of law. Upon review of the magistrate’s findings of fact, which we

must accept as true absent the filing of objections, we find no error. There was no claim

for the unauthorized practice of law and the court did not make a determination that

Brown committed the unauthorized practice of law in violation of R.C. 4705.07.

{¶12} Accordingly, Brown’s sole assigned error is overruled, and the court’s

judgment is 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 the Cleveland Municipal Court,

Housing Division 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.

PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, P.J., and

MELODY J. STEWART, J., CONCUR