Merino v. Salem Hunting Club
2012 Ohio 4553
Ohio Ct. App.2012Background
- Merino owns property adjacent to the Club and filed suit in 2003 for trespass, nuisance, qualified nuisance, and negligence; he voluntarily dismissed in 2004 and refiled in 2005.
- The trial court granted summary judgment to the Club on all claims in 2007; Merino appealed, and this court remanded for trial on disputed issues of qualified nuisance and negligence.
- On remand (2010 bench trial), Merino presented multiple witnesses and exhibits; the Club moved for a directed verdict which the court granted, dismissing the complaint with prejudice.
- In 2010 the Club moved under R.C. 2323.51 for attorney fees and expert fees, alleging frivolous conduct by Merino; Merino disputed timeliness and the merits of the frivolous-conduct claim.
- The trial court awarded attorney fees (not expert fees) totaling $8,381.25 and denied expert fees, finding no evidence of negligence.
- On appeal, this court held the fee-timing issue/relations back to the original filing were governed by Soler and Olivito; the first assignment of error was overruled, but the second assignment of error was sustained, leading to reversal of the trial court’s attorney-fees award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of frivolous-conduct fee motion | Merino argues Club failed to timely file under R.C. 2323.51(B)(1). | Club contends filing within 30 days after final judgment in the refiled case is timely and relates back to the original filing. | Timely; motion relates back to original filing; final judgment date governs filing window. |
| Whether Merino's conduct was frivolous given reliance on expert and remand | Merino relied on expert testimony and our remand to proceed; his claims were not frivolous. | Merino’s conduct and the trial outcome show frivolous conduct under R.C. 2323.51(A)(2)(a)(iii). | Merino’s conduct was not frivolous; fees for frivolous conduct improper; assignment sustained. |
Key Cases Cited
- Soler v. Evans, St. Clair & Kelsey, 94 Ohio St.3d 432 (Ohio 2002) (defines 'final judgment' for R.C. 2323.51 timing)
- Merino v. Salem Hunting Club, 2008-Ohio-6366 (7th Dist. No. 07 CO 16 (Ohio)) (Merino I: genuine issues of material fact on qualified nuisance and negligence)