KATHIE M. HARDIN v. MICHAEL NAUGHTON, ET AL.
No. 99182
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 3, 2013
2013-Ohio-2913
Boyle, P.J., Celebrezze, J., and Jones, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-735851
BEFORE: Boyle, P.J., Celebrezze, J., and Jones, J.
RELEASED AND JOURNALIZED: July 3, 2013
Patrick F. Roche
Davis & Young
1200 Fifth Third Center
600 Superior Avenue, E.
Cleveland, Ohio 44114
Sean P. Allan
Allan & Gallagher, L.L.P.
1300 Rockefeller Building
614 West Superior Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert P. Ducatman
Sheryl H. Love
Jones Day
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
{¶1} Defendant-appellants, Michael and Rusty Naughton (“the Naughtons“) appeal the trial court‘s decision denying their motion for attorney fees, raising the following assignment of error:
The trial court improperly denied defendants-appellants’ motion for award of reasonable attorney fees and expenses.
{¶2} Finding no merit to the appeal, we affirm.
Procedural History and Facts
{¶3} The underlying case involves a contentious battle between next-door neighbors with lakefront property. Following the Naughtons’ installation of playground equipment, planting of maple trees and side yard vegetation, plaintiff-appellee, Kathie Hardin — their next-door neighbor — filed the underlying action against them.1 In her complaint, she asserted three counts and alleged the following: (1) that the Naughtons’ swing set was a nuisance; (2) that the swing set and vegetation in the Naughtons’ yard violated Bay Village‘s ordinances; and (3) that the Naughtons committed conversion by cutting down Hardin‘s trees. There is no dispute that the Naughtons’ playground partially blocks the Hardins’ lateral view of the Cleveland city skyline. The Naughtons filed a counterclaim, alleging that Hardin, through her authorized agent (a landscaper)
{¶4} The parties proceeded with discovery and sought to resolve their claims through settlement. Following an unsuccessful settlement attempt, the Naughtons filed a motion for summary judgment on March 13, 2012. On May 7, 2012, the trial court granted the Nаughtons’ motion for summary judgment, in part. The trial court found that Count 1 for private nuisance and Count 3 for conversion fail as a matter of law as well as a portion of Count 2 dealing with the playground equipment. The court found, however, that part of Count 2 survived, concluding that there were genuine issues of material fact as to whether the arborvitae is in compliance with the city‘s zoning ordinance with respect to its height. The trial court therefore denied the Naughtons’ motion for summary judgment regarding the planting of the arborvitae.
{¶5} One week later, the Naughtons voluntarily dismissed their counterclaim. Subsequently, Hardin dismissed her remaining claim and then appealed the trial court‘s judgment granting summary judgment.2
{¶6} On July 13, 2013, the Naughtons filed a motion for reasonable attorney fees and exрenses under
{¶7} Hardin oppоsed the motion, arguing that (1) despite relying on
{¶8} Hardin further disputed the Naughtons’ claim of her bad motive in рursuing the action. According to Hardin, she brought the action to address the harm to her property value as a result of the obstruction created by the Naughtons. As for the Naughtons’ claim that she improperly “aggressively” pursued the litigation with an ulterior motivе to increase the Naughtons’ legal costs, Hardin countered that the Naughtons never sought any court intervention limiting discovery or any other matter. Nor did they ever raise any claim of frivolous conduct prior to their obtaining summary judgment. And according to Hаrdin, she and her husband have been the victims of the Naughtons’ ongoing crusade to interfere with the enjoyment of their property, and that even after the trial court‘s decision on summary judgment, the Naughtons have resumed their harassment and unneighborly behavior.
{¶9} Following the trial court‘s consideration of the briefs, exhibits attached thereto, and authority cited therein, the trial court ultimately denied the Naughtons’ motion, noting the following:
The court hereby finds that plaintiff prosecuted her claim based on a
good faith аrgument for an extension, modification, or reversal of existing law and sufficiently supported her complaint with a good faith argument for the establishment of new law. As such, the court further finds that plaintiff‘s actions and conduct within the instant matter do not rise to “frivolоus conduct” as defined in
R.C. 2323.51 .
{¶10} It is from this decision that the Naughtons now appeal.
Civ.R. 11 and R.C. 2323.51
{¶11} In their sole assignment of error, the Naughtons argue that the trial court improperly denied their motion for an award of reasonable attorney fees and expenses. Thеy argue that they are entitled to such an award under both
{¶12} Ohio law provides two separate mechanisms for an aggrieved party to recover attorney fees for frivolous conduct:
{¶13}
The signature of an attorney or pro sе party constitutes a certificate by the attorney or party that the attorney or party has read the document; that to the best of the attorney‘s or party‘s knowledge, information, and belief there is good ground to support it; and that it is not interрosed for
delay. If a document is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the document had not been served. For a willful violation of this rule, an attornеy or pro se party, upon motion of a party or upon the court‘s own motion, may be subjected to appropriate action, including an award to the opposing party of expenses and reasonable attorney fees incurred in bringing any motion under this rule. Similar action may be taken if scandalous or indecent matter is inserted.
{¶14}
{¶15} Initially, we note that, aside from citing to
{¶16} ”
{¶17} “Frivolous conduct” is defined under
(i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.
(ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by а good faith argument for the establishment of new law. * * *
{¶18} Relying on the above two statutory definitions, the Naughtons claim that the trial court should have granted their motion because Hardin engaged in frivolous conduct.
{¶19} The Naughtons first contend that the record overwhelmingly demonstrates that Hardin‘s conduct in this action served only to harass or maliciously injure them. But the trial court сonsidered and rejected this argument. Notably, as acknowledged by the parties, the trial judge was actively involved in this case, which included presiding over four settlement conferences trying to facilitate a resolution to the claims. Here, therе is no doubt that the trial judge was in the best position to appraise the conduct of the parties, and we must, therefore, absent an abuse of discretion, defer to the trial court‘s ruling. Based on the record before us, we find no abuse of discretion.
{¶20} Next, the Naughtons restate the same arguments raised in their motion for reasonable attorney fees with respect to Hardin‘s claims being unwarranted under existing law and that she has made no good faith argument for an extension, modification, or reversal for existing law. While it is true the bulk of Hardin‘s claims did not withstand a motion for summary judgment, the mere fact that she was not successful on her claims does not warrant the award of sanctions. See Miller v. Miller, 5th Dist. No. 11CA020, 2012-Ohio-2905, ¶ 18 (”
{¶21} Further, although the Naughtons obviously disagree with the trial court‘s decision on their motion for sanctions, they fail to demonstrate how the trial court abused its discretion in denying their motion. Indeed,
{¶22} The sole assignment of error is overruled.
{¶23} Judgment affirmed.
It is ordered that appellee recover from aрpellants 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.
MARY J. BOYLE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR