Fox v. City of Pataskala
111 N.E.3d 104
Ohio Ct. App.2018Background
- Michael P. Fox (Council member) was accused by Pataskala's mayor of malfeasance and given notice of a special council meeting under City Charter §11.01(C).
- Hearings were held January 14–15, 2014; parties reached an Agreed Order: Fox would apologize, receive a public reprimand, and would not be removed; the order stated the removal proceedings were complete.
- Fox submitted a bill for legal fees under City Charter §11.01(G) (which requires the City to pay reasonable defense costs if an accused is not finally removed); the City refused to pay.
- Fox sued (August 2016) for the attorney fees; both parties moved for summary judgment. The trial court granted summary judgment to Fox and later entered $10,000 in agreed damages for fees; Fox’s later motion for fees incurred litigating the fee claim was denied.
- The City appealed the liability ruling and Fox cross-appealed denial of fees and assertion of bad faith; the appellate court affirmed the trial court on all issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §11.01(G) of the City Charter requires the City to pay Fox’s defense fees after a settlement that did not result in removal | Fox: Charter is triggered by being accused and not finally removed; settlement left him not removed, so City must pay reasonable defense costs | City: No removal proceedings ever commenced; parties settled and the charter doesn’t apply to settlements; City not obligated to pay | Held: Charter applies. Accusation and completion of proceedings trigger §11.01(G); City must pay agreed $10,000 in fees |
| Whether the Agreed Order extinguished Fox’s right to recover attorney fees | Fox: Right to fees arises from charter, not waived by Agreed Order | City: Agreed Order settled all issues and contained no fee provision; Fox should have demanded fees during settlement | Held: Agreed Order did not negate charter obligation; no bargain required to invoke §11.01(G) |
| Whether Fox may recover attorney fees incurred pursuing the fee-enforcement lawsuit | Fox: Fees necessary to enforce charter and its intent | City: No statutory or contractual basis for fee-shifting; American Rule applies | Held: Denied — no statute/contract authorizing fees and no bad faith shown by City |
| Whether the City acted in bad faith to permit fee-shifting | Fox: City’s refusal and appeal show bad faith | City: Relied on advice of counsel and reserved appellate rights; acted in good faith | Held: No bad faith; advice-of-counsel and appeal do not constitute bad faith |
Key Cases Cited
- State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447 (1996) (Civ.R. 56 summary judgment standards reaffirmed)
- State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509 (1994) (summary judgment/Civ.R. 56 standard discussion)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (standard for granting summary judgment)
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (1987) (appellate review of summary judgment explained)
- Nottingham Homeowners' Assn., Inc. v. Darby, 33 Ohio St.3d 32 (1987) (exceptions to the American Rule for attorney fees)
- Pegan v. Crawmer, 79 Ohio St.3d 155 (1997) (bad-faith exception to American Rule requires clear showing)