[Cite as Novak, L.L.P. v Professional Solutions Ins., Co. , 2024

- Ohio

- 1978.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

NOVAK LLP , ET AL.

, :

Plaintiff s

- Appell ants

, :

No. 113040

v. :

PROFESSIONAL SOLUTIONS :

INSURANCE COMPANY,

Defendant

- Appell ee

. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIR MED IN PART AND REVERS E D

IN PART

RELEASED AND JOURNALIZED: May 23, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV

- 20

- 939819

Appearances:

Sammon Law, LLC and Colin P. Sammon

, and NOVAK

LLP, and William J. Novak

, for a ppellant s

.

Eastman & Smith Ltd., Rudolph A. Peckinpaugh, Jr., and

Jared J. Lefe vre

, for a

ppellee

.EMANUELLA D. GROVES

, J.:

Plaintiff s

- appellants Novak LLP

, 1 William Novak, and Thomas C.

Pavlik (collectively, “appellants” ) appeal the trial court’s decision granting

defendant

- appellee’s Professional Solutions Insurance Company (“PSIC”) motion

for summary judgment. Upon a thorough review of the record and applicable law,

we affirm the trial court’s decision in part and reverse in part.

Facts and Procedural History

This is the third matter before this court regarding a policy dispute

between the parties. The procedural history and facts are quite extensive. The

previous litigation stemmed from an Attorney Shield Professional Liability

Insurance Policy (the “policy”) that Novak LLP purchased from PSIC in June of

2013

. Novak LLP submitted two separate claims under the policy for two

malpractice lawsuits filed against it , i.e.

, Skoda Minotti v. Novak, Pavlik &

Deliberato, LLP, et al

. , Cuyahoga C.P. No. CV

- 13

- 810085 (“ Sk oda Minotti ”) and

Latina v. Novak, Robenalt & Pavlik LLP, et al. , Cuyahoga C.P. No. CV

- 15

- 838548

(“ Latina ”)

.

The policy called for Novak LLP to pay a $10,000 deductible. After

Novak LLP failed to pay the deductible in Skoda Minotti

, PSIC commenced a lawsuit

against Novak LLP, William Novak, Thomas C. Pav l ik, and Matthew D. Deliberato

(the “Novak defendants”) for payment of the deductible on August 16, 2016, in

1 Novak, LLP was formerly known at different times as Novak, Pavlik & Deliberato,

LLP and Novak, Robenalt and Pavlik LLP . For ease of discussion , we will refer to the firm

as Novak, LLP

.Cuyahoga C.P. No. CV

- 16

- 867801 (“CV

- 16

- 867801”)

. On May 19, 2017, the Novak

defendants filed their first a mended a nswer and c ounterclaim alleging breach of

contract, unjust enrichment, and requesting declaratory judgment

. On November

27, 2017, after extensive pretrial pleadings, they filed a m otion for l eave to f ile a

s econd a mended a nswer and c ounterclaim i nstanter to add the affirmative defenses

of recoupment and setoff citing the supplementary payment provision in the policy.

The motion also included, “ a s a direct and proximate result of p laintiff’s multiple

breaches of contract ; d efendants suffered damages, including but not limited to the

loss of the benefit of the bargain, payment of unnecessary insurance premiums, legal

fees, loss of earnings

, which are uncompensated, and any and all costs associated

with Skoda Minotti as well as the Latina case.” CV

- 16

- 867801

, s econd a mended

a nswer and c ounterclaim ¶ 41

.

On December 7, 2017, the trial court denied the motion as untimely

because the case was already scheduled for trial and amended pleadings would

prejudice PSIC. On February 13, 2018, a bifurcated jury trial commenced. On

February 19, 2018, the Novak defendants filed a m otion for l eave to a mend the

c ounterclaim pursuant to Civ.R. 15(B), which stated in part, “ [T] he evidence at t rial

has demonstrated that P SIC owed the loss of earnings to the d efendant firm based

upon the s upplementary p ayments clause above, but PSIC never paid nor so much

as offered it. Therefore, d efendants move to amend the counterclaim to add this

breach of contract claim based upon p laintiff’ PSIC’s failure to pay or offer the loss

of earnings as is clearly required by the policy.” CV

- 16

- 867801

, m otion to c onformto the e vidence. Additionally, the Novak defendants claimed PSIC pursued the case

in bad faith

. Id

. The trial court denied the motion.

On February 21, 2018, the jury returned verdicts in PSIC’s favor on

the breach

- of

- contract claim and against the Novak defendants on their

counterclaims. On February 22, 2018, the second part of the trial commenced

regarding PSIC’s claim for legal fees under the policy and other expenses

. The jury

ultimately awarded PSIC $113,379 : $10,000 for the deductible and $103,379 to

reimburse PSIC for outside expenses as required under the policy. The Novak

defendants appealed the jury verdicts and among other assignments of error,

claimed the trial court erred when it denied their motion to am end the counterclaim

to conform to the evidence. Prof essional Sol utions Ins

. Co

. v. Novak, L.L.P.

, 8th

Dist. Cuyahoga No. 107028, 2020

- Ohio

- 4829 (“ Prof’l Sols” ). This court overruled

the assignment of error and found “the trial court did not abuse its discretion when

it denied Novak’s motion to amend the pleadings to conform to the evidence where

Novak failed to produce sufficient evidence to sustain the propos ed cause of action.”

Id

. ¶ 44, citing Palker v. Huntington Natl. Bank , 8th Dist. Cuyahoga No. 70975,

1997 Ohio App. LEXIS 1526, 18 (Apr. 17, 1997)

.

Subsequently, on November 2, 2020, the appellants in this case

initiated a breach

- of

- contract complaint in Cuyahoga C.P. No. CV

- 20

- 939819.

On December 7 , 2020, appellants amended the complaint to add

William J. Novak as a plaintiff and raised the following claims

.Count 1

, s pecific p erformance in the amount of $5,200 , which

included $4,500 for Perlmuter’s appearances in the Skoda Minotti case and $750

for Pavlik’s appearances in the Latina case; Count 2

, a nticipatory b reach in amount

of $5,200 in anticipation PSIC would improperly claim a res judicata defense; and

Count 3

, a

buse of p rocess in excess of $25,000 for economic and noneconomic

damages for proceeding in collection of deductible with ulterior purpose designed

to punish, harass

, and maliciously injure a ppellants.

On December 7, 2020, PSIC filed its answer to the original complaint

.

Subsequently, PSIC filed a m otion to d ismiss pursuant to Civ.R. 12(B)(6) on

December 21, 202 0

. The trial court ordered the m otion to d ismiss be converted to

a m otion for s ummary j udgment on April 19, 2021, and granted PSIC until May 14,

2021, to supplement its motion to comply with Civ.R. 56. Appellants w ere given

until June 14, 2021, to file a supplemental brief in opposition and requested and

were granted an extension until June 30, 2021, to do so. PSIC supplemented the

record by filing the transcript from the prior case, Case No. CV

- 16

- 867801, and

certified copies of all relevant filings. Appellants did not file a supplemental brief.

The trial court granted PSIC’s m otion for s ummary j udgment on July

3, 2023, finding that there we re no genuine issues of material fact

, that appellants’

claims we re precluded and estopped

, and that PSIC wa s entitled to judgment as a

matter of law.

Appellant s appeal the trial court’s judgment and raise the following

a ssignments of e rrors for this court’s consideration.Assignment of Error No. 1

The trial court erred by granting appellee’s motion for summary

judgment on the grounds of estoppel.

Assignment of Error No. 2

The trial court erred in granting a ppellee’s motion for summary

judgment without addressing the abuse of process claim.

Law and Analysis

For ease of analysis, we will address the assignments of error

together. We first note that our review of summary judgment is de novo. Johnson v.

Cleveland City School Dist. , 8th Dist. Cuyahoga No. 94214, 2011

- Ohio

- 2778, ¶ 33.

In a de novo review, “we afford no deference to the trial court’s decision and

independently review the record to determine whether [the denial of] summary

judgment is appropriate.” Id . at ¶ 53, citing Hollins v. Shaffer , 182 Ohio App.3d

282, 2009

- Ohio

- 2136, 912 N.E.2d 637, ¶ 12 ( 8th Dist.).

To begin, summary judgment shall be rendered if “the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts

of evidence, and written stipulations of fact, if any, timely filed in the action, show

that there is no ge nuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Civ.R. 56(C). Summary judgment is proper

where

(1) t here is no genuine issue of material fact; (2) the moving party is

entitled to judgment as a matter of law; and (3) reasonable minds

can come to but one conclusion and that conclusion is adverse to the

nonmoving party, said party being entitled to have the evidence

construed most strongly in his or her favor.Bohan v. McDonald Hopkins, L

. L

. C ., 8th Dist. Cuyahoga No. 110060, 2021

- Ohio

4131, ¶ 19, citing Horton v. Harwick Chem. Corp ., 73 Ohio St.3d 679, 653 N.E.2d

1196 (1995), paragraph three of the syllabus; Zivich v. Mentor Soccer Club , 82 Ohio

St.3d 367, 696 N.E.2d 201 (1998).

“The party moving for summary judgment bears the burden of

demonstrating that no material issues of fact exist for trial.” Edvon v. Morales , 8th

Dist. Cuyahoga No. 106448, 2018

- Ohio

- 5171, ¶ 17, citing Dresher v. Burt , 75 Ohio

St.3d 280, 292, 662 N.E.2d 264 (1996). If the movant satisfies the initial burden,

then the nonmoving party has the burden to set forth specific facts that there remain

genuine issues of material fact that would preclude summary judgment. Id . A trial

court’s grant of summary judgme nt is reviewed de novo. Grafton v. Ohio Edison

Co ., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Here, the issue is whether there are genuine issues of material fact

that the claims brought by appellants are estopped from further litigation

,

specifically whether claims for supplemental payments regarding the Skoda

Minotta and Latina malpractice cases and the claim for abuse of process are barred

.

We find the claims for supplemental payments for the Skoda Minotta case and

abuse of process are barred from further litigation

. However, the supplemental

payment claim for Latina is not barred.

The finality of decisions is ensured by the doctrine of res judicata.

AJZ’s Hauling, L.L.C. v. Trunorth Warranty Programs of N. Am

., Slip Opinion No.

2023

- Ohio

- 3097, ¶ 15. It stops a party from relitigating the same issue or claim thathas already been decided in a final , appealable order or a valid final judgment in a

previous proceeding where that ruling could have been raised on appeal to that

previous proceeding

. Id. The doctrine of res judicata as applied in Ohio

encompasses both claim preclusion and issue preclusion. Id

. ¶ 16. Under claim

preclusion, “ ‘ [a] final judgment or decree rendered upon the merits, without fraud

or collusion, by a court of competent jurisdiction * * * is a complete bar to any

subsequent action on the same claim or cause of action between the parties or those

in privity with them. ’ ” Grava v. Parkman Twp ., 73 Ohio St.3d 379, 381, 653 N.E.2d

226 (1995) quoting Norwood v. McDonald (1943), 142 Ohio St. 299, 27 O.O. 240,

52 N.E.2d 67, paragraph one of the syllabus. Issue preclusion , in contrast, prevents

“‘relitigation of any fact or point that was determined by a court of competent

jurisdiction in a prev ious action between the same parties or their privies.’” State ex

rel. Peterson v. Miday , 8th Dist. Cuyahoga No. 112792, 2023

- Ohio

- 2963, ¶ 4

quoting O ’

Nesti v. DeBartolo Realty Corp ., 113 Ohio St.3d 59, 2007

- Ohio

- 1102, 862

N.E.2d 803

, citing Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations

Bd. , 81 Ohio St.3d 392, 395, 692 N.E.2d 140 (1998).

In the instant case, both claim preclusion and issue preclusion apply.

We will begin by examining the claim preclusion aspects of the case.

Claim preclusion applies when

(1) a court of competent jurisdiction rendered a valid final judgment

on the merits in an earlier action, (2) the second action involves the

same parties or their privies; (3) the second action raises claims that

were or could have been litigated in the first cause of action, and (4)the second action arises out of the same transaction or occurrence

that was the subject of the first action.

Lycan at ¶ 23, quoting Hapgood v. Warren

, 127 F.3d 490, 493 ( 6th Cir.1997).

T he question is whether the previous litigation in Prof’l Sols

prevents Novak LLP from pursuing any of the claims in the current litigation. First,

the decision in Prof’l Sols. Ins. Co. v. Novak, L.L.P.

, 8th Dist. Cuyahoga No. 108839,

2020

- Ohio

- 4829, satisfies the final judgment element of claim preclusion. A valid

final judgment was rendered on the merits of PSIC’s claim against Novak LLP for

the deductible and collection of legal fees arising from the Skoda Minotta

malpractice case

.

The second element, that the current litigation involves the same

parties as the previous litigation is also satisfied. All the parties in this case were

parties in Prof’l Sols. The third element requires a finding that the second action

raises claims that were or c ould have been raised in the first cause of action

.

Notably, in Prof’l Sols.

, the Novak defendants unsuccessfully attempted to raise a

claim for breach

- of

- contract for the supplemental payment s provision under the

policy by a motion for leave to file an amended complaint and counterclaim shortly

before trial. This motion was denied by the trial court as untimely. After trial

commenced, the Novak defendants attempted unsuccessfully to raise the claim

a g ain along with an abuse

- of

- process claim in a motion to amend the counterclaim

to conform to the evidence introduced at trial. T he trial court denied that motion

because Novak failed to produce evidence that stated the amount of time Perlmuterspent at trial. O n appeal, this court agreed and found that the trial court properly

denied the motion to conform to the evidence but on different grounds

. We found

that Novak did not submit sufficient evidence at trial to satisfy the elements of a

breach

- of

- contract claim, specifically, Novak failed to establish they performed on

the contract and that PSIC breached the contract. Prof’l Sols.

, at ¶ 42. Our finding

that the Novak defendants failed to establish the elements of a breach

- of

- contract

claim regarding the supplemental payments provision of the pol icy impacts the

claim the appellants raise here. In other words, appellants had the opportunity to

present evidence of breach of contract in the original action but failed to meet their

burden of production

. A ccordingly , the issue was raised in the original action and

could have been addressed

, meeting the third requirement of res judicata

.

Additionally, in their abuse

- of

- process claim, appellants allege d that

PSIC pursued impermissible claims in CV

- 16

- 867801 by suing members of Novak

LLP individually and seeking enforcement of the outside expense provision in the

policy

. The trial court awarded PSIC over $100,000 on the outside expens es

provision under the policy

. Appellants could have raised t he claim of abuse

- of

process along with the appellants’ other defenses

, which they v igorously defended

.

U ltimately

, we rejected the trial court’s award of outside expense s to PCIS on appeal.

The abuse

- of

- process claim was fully cognizable in the original case and should have

been pursued by appellant s at that time.

Interestingly, appellants argue that PSIC has failed to demonstrate

the supplemental payment claim was previously litigated because they are unable toproduce a journal entry that specifically identifies this claim. This argument is

rejected

. Appellants have failed to cite any case that requires the journal entry must

specifically identify every claim litigated.

Finally, the fourth element is whether the second action arises out of

the same transaction or occurrence that was the subject of the first action. “The term

‘transaction’ may be broader than ‘occurrence’” Davis v. Wal

- Mart Stores, Inc

., 93

Ohio St.3d 488, 490, 756 N.E.2d 657 (2001). Transaction has been defined as “to

encompass events

, which arise from a ‘common nucleus of operative facts’” Id

. ,

citing Grava v. Parkman Twp

., 73 Ohio St.3d 379, 382, 653 N.E.2d 226 (1995)

.

Interestingly

, appellants argue that the supplemental payment claim did not arise

out of the same transaction because it was not ripe, despite this court’s finding that

they essentially failed to meet their burden of production on that claim

. Appellants’

lack

- of

- ripeness argument ignores this court’s previous ruling

. Accordingly, t his

argument is without merit and is rejected. Undeniably, the supplemental payment

claim and abuse

- of

- process claim arise from the nexus of the Skoda Minotta

malpractice case. This malpractice case is also the nexus of Prof’l Sols. Therefore,

the fourth element of claim preclusion is satisfied. Consequently, PSIC has met its

burden that there is no genuine issue of a material fact in dispute and that

Appellants’ claims arose from the Skoda Minotta malpractice case

, which is the

nexus of Prof’l Sols

. Consequently, all four elements of claim preclusion are

satisfied.Accordingly, the trial court’s decision granting summary judgment on

appellants’ c laims for supplemental payment from the Skoda Minotta malpractice

case and abuse of process is affirmed.

We now turn to appellants’ claim for supplemental payments from

the Latina case and whether it is barred by issue preclusion. Under res judicata,

i ssue preclusion “holds that a fact or a point that was actually and directly at issue

in a previous action, and was passed upon and determined by a court of competent

jurisdiction, may not be drawn into question in a subsequent action between the

same parties or their privies , whether the cause of action in the two actions be

identical or different. ” Pisani v. Pisani

, 8th Dist. Cuyahoga No. 78744, 2001 Ohio

App. LEXIS 1309 at 6 (Mar

. 22, 2001 )

, c iting Norwood v. McDonald

, 142 Ohio St.

299, 52 N.E.2d 67 (1943)

, paragraph three of the syllabus; Trautwein v. Sorgenfrei

,

58 Ohio St.2d 493, 391 N.E.2d 326 (1979), syllabus; Goodson v. McDonough Power

Equip. Inc.

, 2 Ohio St. 3d 193, 443 N.E.2d 978 (1983), paragraph one of the syllabus.

Here, Latina was a separate malpractice action. PSIC’s claim in Prof’l

Sols dealt with the representation and deductible in Skoda Minottta. Prof’l Sols had

nothing to do with Latina

. There is no mention of Latina in the pleadings of Prof’l

Sols

, except when the Novak defendants unsuccessfully attempted to file a s econd

a mended a nswer and c ounterclaim. Whether appellants were entitled to

supplemental payments under the policy for Pavlik’s appearance in Latina was

never addressed in Prof’l Sols. PSIC’s a rgument that appellants’ claim for

supplemental payments is barred by res judicata because both the Skoda Minottaand Latina malpractice cases arose from the same policy is without merit. This

position unduly broadens the term of occurrence or transaction. The facts in Latina

arose from a separate malpractice lawsuit. Prof’l Sols addressed the Skoda Minotta

malpractice suit only. Appellants’ claim for supplemental payments from Latina

has never been litigated. Therefore, the trial court erred when it found that there

was no genuine issue of a material fact regarding appellants’ claim for supplement

payments in Latina

. That claim is not barred by res judicata.

Based on the foregoing, appellants’ assignments of error are

overruled with respect to the claims of supplemental payments i n Skoda Minotta

and the claim of abuse of process but sustained as to the claim for supplemental

payments in Latina.

Judgment affirmed in part and reversed in part.

It is ordered that appell ants and appell ees split 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.

______________________ EMANUELLA D. GROVES , JUDGE

MARY EILEEN KILBANE

, P. J., and

MICHAEL JOHN RYAN , J., CONCUR