[Cite as Linetsky v. DeJohn, 2012-Ohio-6140.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98370 

TANYA M. LINETSKY, ET AL. 

PLAINTIFFS-APPELLANTS 

vs. 

TIMOTHY M. DEJOHN, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Common Pleas Court 

Case No. CV-672668 

 BEFORE: Blackmon, A.J., Stewart, J., and Keough, J. 

 RELEASED AND JOURNALIZED: December 27, 2012
ATTORNEY FOR APPELLANTS

Rhys B. Cartwright-Jones 

42 North Phelps Street 

Youngstown, OH 44503 

ATTORNEY FOR APPELLEE

Brett M. Mancino 

75 Public Square 

Suite 1016 

Cleveland, OH 44113
PATRICIA ANN BLACKMON, A.J.: 

{¶1} Appellants Tanya Linetsky and Eldar Zarbavel1

 (collectively referred to as 

“appellants”) appeal the trial court’s judgment awarding sanctions for attorney fees 

against Linetsky in favor of appellee Timothy DeJohn (“DeJohn”) and assign the 

following errors for our review: 

I. The trial court erred in granting a motion for attorney’s fees under 

R.C. 2323.51 where the trial court lacked jurisdiction over the 

post-voluntary dismissal motion for attorney’s fees. 

II. The trial court erred in granting a motion under R.C. 2323.51 

contrary to the law of the case that this Court has set down on remand. 

III. The trial court erred in granting a motion for fees where the 

underlying case was legally and factually meritorious. 

IV. The trial court erred in ordering attorney’s fees, without first 

holding a hearing as to the amount of the fees under R.C. 

2323.51(B)(2)(c) and without providing notice to all parties the Court 

intended to sanction. 

V. The trial court erred in denying plaintiff’s motion for attorney’s 

fees.

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

decision. The apposite facts follow. 

Facts

{¶3} On April 25, 2007, Linetsky obtained two loans from Washington Mutual. 

The first loan was in the amount of $181,000 to refinance Linetsky’s and Zarbavel’s 

 1

Zarbavel’s name does not appear on the loan documents.
home. The second loan was an open-end mortgage in the amount of $25,977 to pay off 

credit card debt, which was evidenced by a promissory note and collateralized by a 

mortgage on the property. 

{¶4} On October 7, 2008, approximately 18 months after the closing, the 

appellants filed a complaint against Timothy M. DeJohn (“DeJohn”), Carlyle Mortgage 

Services, Washington Mutual Bank, and JP Mortgage Bank2

 alleging violations of the 

Federal Truth in Lending Act (“TILA”), Ohio Consumer Sales Practices Act (“CSPA”), 

Ohio Mortgage Broker Act (“MBA”), and common law claims of fraud, conspiracy to 

commit fraud, and negligence. Appellants alleged that as to the first mortgage, they 

wanted a 30-year fixed-rate amortizable mortgage, but due to last minute modifications 

by Washington Mutual’s broker, DeJohn, the first mortgage is actually a 

non-conventional ten-year, fixed rate, interest-only adjustable rate mortgage that would 

not amortize for its first ten years. 

{¶5} Both parties filed motions for summary judgment. The trial court denied 

Linetsky’s motion and granted DeJohn’s motion on all claims without opinion. DeJohn 

subsequently filed a motion for attorney fees pursuant to R.C. 2323.51 for having to 

defend a frivolous lawsuit. The trial court granted the motion for fees in the amount of 

$7,525. 

 2

Carlyle Mortgage Services was never served with the complaint and thus did 

not participate in the case, and Washington Mutual Bank and JP Morgan Chase 

were subsequently dismissed from the case by the appellants without prejudice. 
{¶6} On appeal, we affirmed summary judgment for DeJohn on Linetsky’s 

claims for violation of the TILA, fraud, conspiracy to commit fraud, and negligence 

claims. However, we found that the trial court erred by granting summary judgment on 

Linetsky’s claims regarding violations of the CSPA and the MBA because there were 

material issues of fact in dispute of whether the notice regarding the change in the terms 

of the loan was timely given. We also held the trial court erred by awarding fees without 

conducting a hearing. 

{¶7} On remand, the trial court reinstated the case to its active docket and 

scheduled a date for trial. Two weeks prior to the commencement of trial, Linetsky 

dismissed her case without prejudice pursuant to Civ.R. 41(A). DeJohn again filed a 

motion for attorney fees pursuant to R.C. 2323.51. The trial court held a hearing on 

whether sanctions should be imposed on Linetsky for alleged frivolous conduct. In a 

19-page opinion, the trial court concluded that Linetsky’s claims were frivolous and 

awarded DeJohn $9,045 in attorney fees. 

Trial Court’s Jurisdiction

{¶8} In her first assigned error, Linetsky argues the trial court did not have 

jurisdiction to award attorney fees because DeJohn’s request for attorney fees was filed 

after Linetsky dismissed her case pursuant to Civ.R. 41(A). 

{¶9} In arguing the trial court lacked jurisdiction, Linetsky relies on a case from 

our court, Dyson v. Adrenaline Dreams Adventures, 143 Ohio App.3d 69, 757 N.E.2d 401 

(8th Dist.2001), in which we held that a trial court lacks jurisdiction to rule on a motion 
for sanctions when the motion is filed after a voluntary dismissal. However, Dyson was 

overruled by the Ohio Supreme Court in State ex rel. Hummel v. Sadler, 96 Ohio St.3d 

84, 2002-Ohio-3605, 771 N.E.2d 853. 

{¶10} In Hummel, the Supreme Court held that “despite a voluntary dismissal 

under Civ.R. 41(A)(1), a trial court may consider certain collateral issues not related to 

the merits of the action.” Id. at ¶ 23. The Hummel Court concerned costs pursuant to 

Civ.R. 43(E); however, the Ohio Supreme Court later cited Hummel in a case in which 

the Supreme Court held that sanctions for frivolous conduct could be considered after a 

case was voluntarily dismissed. State ex rel. Ahmed v. Costine, 100 Ohio St.3d 36, 

2003-Ohio-4776, 795 N.E.2d 672. See also ABN AMRO Mtge. Group, Inc. v. Evans, 8th 

Dist. No. 96120, 2011-Ohio-5654; Gitlin v. Plain Dealer Publishing Co., 161 Ohio 

App.3d 660, 2005-Ohio-3024, 831 N.E.2d 1029 (8th Dist.); and, Ayad v. Radio One 

Inc., 8th Dist. No. 92159, 2009-Ohio-2139, which all held that sanctions for frivolous 

conduct are considered collateral issues that can be considered after a dismissal of the 

case. Accordingly, Linetsky’s first assigned error is overruled. 

 Law of the Case 

{¶11} In her second assigned error, Linetsky argues the trial court’s award of 

attorney fees was in contravention of the law of the case as set forth by this court in 

Linetsky’s prior appeal. 

{¶12} The law-of-the-case doctrine holds that “the decision of a reviewing court 

in a case remains the law of that case on the legal questions involved for all subsequent 
proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio 

St.3d 1, 3, 462 N.E.2d 410 (1984). This doctrine prevents a litigant from relying on 

arguments at retrial that were fully litigated, or could have been fully litigated, in a first 

appeal. See Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 404-405, 

1996-Ohio-174, 659 N.E.2d 781. Because the evidence argued in the hearing included 

evidence that had not been discovered at the time of the first appeal, different issues were 

raised and considered by the trial court. 

{¶13} After the case was voluntarily dismissed, the court conducted a R.C. 

2323.51 hearing based on evidence that was never presented in the prior appeal or 

summary judgment motions. As the court held in its opinion: 

The fact that the appellate court found Plaintiff’s claims not per se 

frivolous based upon the evidence before it does not mean that the 

court would not have found the case frivolous based upon other issues 

not before it. More testimony and evidence was presented during the 

hearings than those that were before the Eighth District. Journal Entry, 

May 3, 2012. 

{¶14} Therefore, because the trial court was considering new evidence and 

issues, it was not bound by the law of the case doctrine. Accordingly, Linetsky’s second 

assigned error is overruled. 

Meritorious Claims

{¶15} In her third assigned error, Linetsky argues the trial court erred in 

concluding her claims were frivolous. 
{¶16} This court in In re Carothers, 8th Dist. No. 96369, 2011-Ohio-6754, ¶10 

and 11, held the standard of review regarding the trial court’s decision to impose 

sanctions is as follows: 

“Appellate review of a trial court’s decision to impose sanctions 

pursuant to Civ.R. 11 and R.C. 2323.51, and upon whom to impose 

such sanction, is on an abuse of discretion standard.” Mitchell v. W. 

Res. Agency, 8th Dist. No. 86708, 2006-Ohio-2475, ¶47. Appeals 

concerning sanction awards, pursuant to R.C. 2323.51, require the 

application of a mixed standard of review and entail inquiring into 

questions of both law and fact. Wheeler v. Best Emp. Fed. Credit Union, 

8th Dist. No. 92159, 2009-Ohio-2139, ¶11. Although the trial court’s 

determination of legal issues is given no deference, some deference is 

given to factual findings. Id. 

{¶17} Thus, on issues of law, the appellate review is de novo. However, 

regarding findings of fact we defer to the trial court and only reverse based on an abuse of 

discretion. 

{¶18} R.C. 2323.51 provides that a party adversely affected by frivolous conduct 

may file a motion for an award of court costs, reasonable attorney fees, and other 

reasonable expenses incurred in connection with the civil action. The term “frivolous” is 

defined as conduct by a party to a civil action that “is not warranted under existing law 

and cannot be supported by a good faith argument for an extension, modification, or 
reversal of existing law.” R.C. 2323.51(A)(2)(a)(ii). In determining whether the claim 

itself is frivolous, the test is whether no reasonable lawyer would have brought the action 

in light of the existing law. Orbit Electronics, Inc. v. Helm Instrument Co. Inc., 167 

Ohio App.3d 301, 2006-Ohio-2317, 855 N.E.2d 91, ¶ 47 (8th Dist.), citing Riston v. 

Butler, 149 Ohio App.3d 390, 397-398, 2002-Ohio-2308, 777 N.E.2d 857 (1st Dist.);

Lisboa v. Kleinman, 8th Dist. No. 89703, 2008-Ohio-1270. 

{¶19} DeJohn’s motion for sanctions identified three grounds for finding 

Linetsky’s claims to be frivolous: 1) Linetsky was aware of the loan rate for more than a 

month prior to the loan closing; 2) Linetsky provided inaccurate information regarding 

her employment and income, that if known to be untrue, would have disqualified her from 

obtaining a loan; and 3) the loans, in spite of Linetsky’s claims otherwise, were 

completed according to disclosure laws required by Ohio and federal law. After 

conducting a hearing that lasted several days, the trial court agreed with DeJohn. 

{¶20} The trial court found based on the testimony and evidence submitted at the 

hearing that Linetsky received the loan that she had bargained for and that, although 

initially she was seeking a fixed 30-year mortgage, her loan needs changed once she also 

decided to consolidate her credit card debt. The court agreed with DeJohn’s expert 

witness that by signing the closing disclosure, Linetsky demonstrated she was in 

agreement with the loan terms. Even Linetsky’s expert testified that by signing the 

disclosure form, Linetsky agreed to the terms. 
{¶21} Additionally, the court found the fact that Linetsky also received a $9,000 

cash-out would put her on notice that she was not receiving a conventional loan. Most 

damaging is the fact that Linetsky admitted in an email to DeJohn that she and her 

husband were aware at closing that she was receiving an adjustable rate mortgage, fixed 

for ten years, but signed anyway after “raising our eyebrows we figured, oh well, at least 

it is fixed for the first 10 years.” 

{¶22} The court also noted that Linetsky failed to object to the loan after paying 

the mortgage for 15 months, and receiving balance statements for these 15 months, which 

showed she was only paying interest. It was not until Linetsky attempted to again 

refinance with Washington Mutual and was rejected that she filed the lawsuit. 

{¶23} The court also found no merit to Linetsky’s claim that she received 

untimely notice of the loan changes pursuant to the MBA and CSPA. The loan officer 

who sent the fax testified that she worked on Linetsky’s loan and testified to Washington 

Mutual’s standard procedure in processing a loan. The officer stated that the loan would 

never have been “cleared to close” unless the underwriter had ensured that all notices 

were given in compliance with the TILA/CSPA and MBA. She also stated that she 

believed the fax was not the first notice that Linetsky had received regarding the change 

of terms. Pursuant to her standard procedure, she would have mailed the original signed 

copy directly to Linetsky, who was then responsible for sending the copy to Washington 

Mutual. The fax was just a copy. DeJohn’s expert agreed that the loan would not have 
been cleared to close by Washington Mutual without the proper notifications being given. 

 

{¶24} DeJohn, who was the broker for the loan, testified that he had discussed the 

terms of the loan several weeks prior to the fax being sent; therefore, Linetsky was well 

aware of the terms of the loan. He stated that the fax was merely a copy reiterating the 

terms. 

{¶25} Finally, the court found that Linetsky had unclean hands because she lied 

on her application for the loan by misrepresenting her income and that she was 

self-employed for 18 months, when it was actually 10 months. Linetsky argues that the 

doctrine of unclean hands, which is an equitable principle, does not apply to statutory 

claims under the CSPA or MBA and cites to California law in support thereof because 

there is no Ohio law on the issue. However, even if it is true that the unclean hands 

doctrine does not apply to a statutory claim, the trial court also found as we stated above 

that the facsimile notice that Linetsky received on the day of closing was not the first 

notice of the change in terms that she received. Moreover, the fact that she engaged in 

“fraudulent conduct” by misrepresenting her income and employment supports the court’s 

conclusion that her claims were frivolous, because she would not have even qualified for 

the loan if her real income and employment history were used to determine her eligibility. 

{¶26} Linetsky also argues the best evidence rule prevents DeJohn from raising 

the unclean hands doctrine because he failed to present documentary evidence in support 

of his testimony that Washington Mutual required certain income limits and employment 
times for loan eligibility. DeJohn testified that he was aware of the eligibility 

requirements of Washington Mutual based on his job as a broker. Therefore, he could 

testify to the requirements. Moreover, Linetsky’s objection based on the best evidence 

rule was that DeJohn could not testify to the fact that he mailed the notice of the terms of 

the loan to Linetsky for her signature without presenting the document. (Tr. 107.) The 

court properly concluded that this was a matter that DeJohn could be cross-examined on 

and overruled the objection. 

{¶27} Based on the evidence presented and the deference we are to give to the 

trial court’s factual findings, we conclude the trial court did not err by determining that 

Linetsky’s claims were frivolous. Accordingly, Linetsky’s third assigned error is 

overruled. 

Failure to Conduct a Hearing

{¶28} In her fourth assigned error, Linetsky argues the trial court erred by 

ordering attorney fees without conducting a hearing on the amount to be awarded. 

{¶29} R.C. 2323.51(B) provides: 

(2) An award may be made pursuant to division (B)(1) of this section 

upon the motion of a party to a civil action or an appeal of the type 

described in that division or on the court’s own initiative, but only after 

the court does all of the following: 
(a) Sets a date for a hearing to be conducted in accordance with 

division (B)(2)(c) of this section, to determine whether particular 

conduct was frivolous, to determine, if the conduct was frivolous, 

whether any party was adversely affected by it, and to determine, if an 

award is to be made, the amount of that award;

{¶30} Thus, R.C. 2323.51(B)(2) requires a hearing to be conducted to determine 

the amount of the award. However, this court has held the evidence that would be 

presented at a hearing could be submitted in writing. 

Such a hearing date provides an opportunity for each party to submit 

briefs and evidentiary material which may support their respective 

positions. The hearing is not required to be an oral hearing. Whether 

the hearing is to be conducted on the submitted matters or orally 

remains discretionary with the trial court. Wheeler v. Best Emp. Fed. 

Credit Union, 8th Dist. No. 92159, 2009-Ohio- 2139, ¶ 22. 

{¶31} DeJohn’s attorney included in his written closing argument that he was 

requesting the fees in the amount of $9,045 and attached an itemization of the fees and a 

billing invoice, representing the amount. He also attached the affidavit of an expert 

regarding the reasonableness of the fees. Linetsky filed her written closing argument one 

day later; thus, arguably, her attorney did not see DeJohn’s closing argument prior to 

submitting Linetsky’s. However, the court did not issue its judgment until almost six 

months later, which would have allowed Linetsky’s counsel time to object to the fees 

requested or request leave to file a supplemental brief to address DeJohn’s fees. He 

failed to do so. Under these circumstances, where counsel had time to object prior to the 

court’s decision, we conclude the trial court did not abuse its discretion by awarding the 
fees without conducting a hearing. Accordingly, Linetsky’s fourth assigned error is 

overruled. 

Linetsky’s Claim for Attorney Fees

{¶32} In her fifth assigned error, Linetsky argues the trial court erred in failing to 

order DeJohn to pay her attorney fees for having to defend against DeJohn’s motion for 

attorney fees. 

{¶33} Given our disposition of the above assigned errors in which we found the 

trial court did not err in granting DeJohn’s motion for attorney fees, this assigned error is 

moot. Accordingly, Linetsky’s fifth assigned error is overruled. 

{¶34} Judgment affirmed. 

It is ordered that appellee recover from appellants, the 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. 

 

PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE 

MELODY J. STEWART, J., and 

KATHLEEN ANN KEOUGH, J., CONCUR