THOMAS HUNT v. EUGENE ALLEN, et al.
Case No. 11-CA-70
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 19, 2012
[Cite as Hunt v. Allen, 2012-Ohio-1212.]
Hоn. Patricia A. Delaney P.J., Hon. W. Scott Gwin J., Hon. Julie A. Edwards, J.
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 10 CV 01127. JUDGMENT: AFFIRMED.
For Appellant: DAVID A. GOLDSTEIN, SETH K. KLEINMAN, 326 South High St., Suite 500, Columbus, OH 43215
For Appellees: STEVEN T. GREENE, 33 W. Main St., P.O. Box 4190, Newark, OH 43058-4190
{1} Plaintiff-Appellant Thomas Hunt appeals the June 6, 2011 judgment entry of the Licking County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{2} On July 19, 2010, Appellant filed a verified complaint against Defendant, Suzanne Hunt and Defendants-Appellees, Eugene Allen and Ron Doran. Appellant‘s central allеgation in his complaint was Defendants took tools and auto parts belonging to Appellant from the garage of Appellant‘s father after the death of his father. As to that property, Appellant alleged conversion, criminal theft, and unjust enrichment.
{3} In count four of Appellant‘s complaint, Appellant claimed breach of contract against Appellee Doran. Appellant alleged in 2008, he and Doran entered into an oral agreement where Appellant would rebuild a chassis for Doran for $1,600. Appellant rebuilt the chassis but Doran did not pay Appellant $1,600. Appellant also claimed unjust enrichment based on the breach of contract.
{4} The Defendants filed answers to Appellant‘s complaint. The trial court conducted a pretrial conference on November 23, 2010 pursuant to a scheduling order sent to the parties by the Licking County Clerk of Courts. The scheduling order was sent to the counsel for the parties and used their correct mailing addresses.
{5} The trial court scheduled a jury trial for this case on October 11, 2011. On November 23, 2010, Appellees filed their notice of service of discovery requests upon Appellant.
{6} On January 24, 2011, Appellant filed a notice of voluntary dismissal of his complaint.
{8} On March 11, 2011, Appellant filed a response to the motion for frivolous conduct. In his motion, Appellant argued that an oral hearing on the motion was not necessary because the Appellees’ motion lacked merit.
{9} The matter came on for hearing on March 21, 2011. Appellees appeared at the hearing prepared to go forward with their witnesses. As to Appellant, however, only counsel for Appellant appearеd. Counsel objected to the hearing proceeding that day because counsel alleged he did not get notice of the hearing, although the notice of the hearing had counsel‘s address on it. (T. 5.) Counsel had only appeared at court because he reviewed the Licking County Clerk of Courts’ online docket and saw the docket noted a status conference scheduled for March 21, 2011 at 1:30 p.m. Counsel requested that Aрpellant be permitted to file a supplemental memorandum contra to provide additional evidence in affidavit form, which Appellant would have provided at the hearing. Id. The trial court denied a continuance of the hearing but permitted supplemental memorandum to be filed. (T. 52.)
{10} The following evidence was adduced at the hearing.
{12} Suzanne Hunt testified in December 2008, she and Appellant had a dispute about a racecar that Michael Hunt had purchased and Appellant was to drive. (T. 16.) After the argument with Suzanne Hunt in the house, Appellant went to the garage where Michael Hunt and Bobby Glenn were working. (T. 27.) Bobby Glenn saw Appellant take only a motor from the garage. (T. 27.) Appellant returned to the house, told his mother he had loaded up all his stuff, left the key to his father‘s garage on the table, and told his mother he was never coming back. (T. 17.)
{13} After that incident, Michael Hunt revised his will. (T. 17.) Michael Hunt executed a new will on January 21, 2009, where he left his estate, inсluding personal property, to Suzanne Hunt. (T. 9.) Michael Hunt passed away on April 17, 2009. (T. 20.)
{14} Suzanne Hunt asked Appellee Allen and Bobby Glenn to clean out her husband‘s garage. (T. 20.) Suzanne Hunt testified it was her husband‘s wish that Bobby Glenn receive the tools from the garage after he died. (T. 19.) The tools were removed from the garage at Suzanne Hunt‘s direction but were stored at Appellee Doran‘s property. (T. 36.) Appellee Doran testified there wеre two items in the garage belonging to Appellant and these items were returned to Appellant. (T. 38-39.)
{16} Appellee Doran testified regarding the attorney‘s fees he and Appellee Allen incurred in the defense of this case. (T. 40.) Appellee Doran and Allen retained the same attorney to represent them. Id. The attorney bill, submitted without objection as Exhibit A, showed a fee of $5,642.83.
{17} The trial court took the matter under advisement аnd would not render a judgment until after the parties filed their post-hearing briefs with supporting affidavits. (T. 52.)
{18} On March 22, 2011, the motion for frivolous conduct sent by certified mail to Appellant was returned to the Licking County Clerk of Courts as unclaimed.
{19} Appellant filed his post-hearing brief with supporting affidavits on April 11, 2011. In his brief, Appellant argued he filed a verified complaint, which allegations can be considered evidence if the allegations were in the рersonal knowledge of the affiant. Appellant also attached several affidavits from individuals who stated they knew that Appellant kept tools and personal property owned by Appellant at Michael Hunt‘s garage. Appellant finally attached an incident report from the Licking County Sheriff‘s Department where Appellant went to his parent‘s house on November 1, 2009 demanding his property and his mother called thе police. Appellee Doran was present and denied Appellant had any property left in the garage. Appellant did not file affidavit evidence as to the attorney‘s fees.
{21} On June 6, 2011, the trial court issued a judgment entry granting Appellees’ motion for frivolous conduct under
{22} It is from this judgment Appellant now appeals.
ASSIGNMENT OF ERROR
{23} Appellant raises one Assignment of Error:
{24} “I. THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR FRIVOLOUS CONDUCT OF DEFENDANTS RON DORAN AND EUGENE ALLEN AND IN AWARDING ATTORNEYS’ FEES.”
ANALYSIS
{25} Appellant argues in his sole Assignmеnt of Error the trial court erred in granting Appellees’ motion for frivolous conduct and awarding Appellees attorney‘s fees. We disagree.
R.C. 2323.51
{26}
{27} There is no single standard of review applicable to a
{28} “Where a trial court has found the existence of frivolous conduct, the decision whether or not to assess a penalty lies within the sound discretion of the trial court.” Id. Abuse of discretion requires more than simply an error of law or judgmеnt, implying instead that the court‘s attitude is unreasonable, arbitrary or unconscionable. Tracy v. Merrell-Dow Pharmaceuticals, Inc., 58 Ohio St.3d 147, 152, 569 N.E.2d 875 (1991).
Notice of Evidentiary Hearing
{29} Appellant argues the trial court erred in denying Appellant‘s oral motion to continue the evidentiary hearing because Appellant‘s counsel stated he did not receive written notice of the hearing. On March 2, 2011, the trial court issued a scheduling order that stated, “STATUS CONFERENCE AND ORAL HEARING ON MOTION FOR FRIVOLOUS CONDUCT” to be held on March 21, 2011 at 1:30 p.m.
{30} Appellant‘s counsel requested a continuance of the hearing based on the lack of notice, but the trial court denied the motion. Counsel requested that Appellant be permitted to file a supplemental memorandum contra to provide additional evidence in affidavit form, which Appellant would have provided at the hearing. The trial court permitted supplemental memorandum to be filed.
{31} In order to award sanctions,
{32} There is no dispute in the present case the trial court complied with
Evidence of Frivolous Conduct Warranting Sanctions
{33} Appellant contends the trial court abused its discretion in finding Appellant‘s claims against Appellees had no evidentiary support and were unlikely to have evidentiary support after a reasonable opportunity for further investigation or discovery, thereby making a finding of frivolous conduct under
{34} The trial court found, after considering the evidence presented at the hearing and the evidence presented by post-hearing brief, there was no evidentiary support for Appellant‘s claims of conversion, criminal theft, unjust enrichment, or breach of contract. Appellant argues the trial court incorrectly characterized the status
{35} First, Appellant contends the trial court inaccurately stated in the June 6, 2011 judgment entry that Appellant did not provide his own affidavit. Appellant states the complaint filed by Appellant on July 19, 2010 was a verified complaint and was akin to filing an affidavit to be considered by the trial court. A trial court can accept factual averments in a verified complaint as evidence, but only to the extent that those averments are within the personal knowledge of the affiant who verified the complaint. Brunner Firm Co., L.P.A. v. Bussard, 10th Dist. No. 07AP-867, 2008-Ohio-4684, ¶ 13-14. A review of Appellant‘s complaint shows that his claims are within his personal knowledge and the verified complaint could have been considered by the trial court as evidence.
{36} Second, Appellant takes exception at the trial court‘s characterization of the length of discovery in this case. The trial court states there were “several months of discovery” and within this time, Appellant did not provide evidentiary support for his allegations. (June 6, 2011 Judgment Entry.) Appellant states that Appellant never submitted discovery requests to Appellees and Appellees submitted discovery requests to which Appellant never responded because of his health issues. Appellant contends that the lack of discovery in this case prohibits a finding that Appellant‘s claims would not have evidentiary support after a reasonable opportunity for further investigation or discovery under
{37} We find the evidence presented in the hearing and post-hearing briefs, even considering Appellant‘s verified complaint, supports the trial court‘s conclusion
{38} The undisputed fact in this case is there was a disagreement between Appellant and his parents. Appellant‘s father revised his will to give all his property to Appellant‘s mother. After his father‘s death, his mother distributed the contents of the garage according to her husband‘s wishes. Under these facts, there was competent, credible evidence to find frivolous conduct under
Attorney‘s Fees
{39} Appellant finally argues the trial court еrred in awarding attorney‘s fees to Appellees because they failed to meet their burden under
{40} In Canton v. Irwin, 5th Dist. No. 2011CA00029, 2012-Ohio-344, this Court recently discussed the award of attorney‘s fees. We discussed the standard by which a court of appeals may review an award of attorney‘s fees:
“It is well settled that where a court is empowered to award attorney fees by statute, the amount of such fees is within the sound discretion of the trial court. Unless the amount of fees determined is so high or so low as to shоck the conscience, an appellate court will not interfere.” Bittner v. Tri-County Toyota, Inc. (1991), 58 Ohio St.3d 143, 146, 569 N.E.2d 464, quoting Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc. (1985), 23 Ohio App.3d 85, 91, 491 N.E.2d 345. “There are over 100 separate statutes providing for the award of attorney‘s fees; and although these provisions cover a wide variety of contexts and causes of action, the benchmark for the awards under nearly all of these statutes is that the attorney‘s fee must be ‘reasonable‘.” Pennsylvania v. Delaware Valley Citizens’ Council for Clеan Air (1986), 478 U.S. 546, 562, 106 S.Ct. 3088, 3096, 92 L.Ed.2d 439.
“The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer‘s services.” Hensley v. Eckerhart (1983), 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40. See, also Bittner v. Tri-County Toyota, Inc., supra, 58 Ohio St.3d at 145, 569 N.E.2d at 466.
To establish the number of hours reasonably expended, the party requesting the award of attorney fees “should submit evidence supporting the hours worked....” Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. The number of hours should be reduced to exclude “hours that are excessive, redundant, or otherwise unnecessary” in order to reflect the number of hours that would properly be billed to the client. Id. at 434, 103 S.Ct. at 1939-40. A reasonable hourly rate is defined as “the ‘prevailing market rate in the relevant community.‘” Blum v. Stenson (1984), 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891.
The party requesting an award of attorney fees bears the burden “to produce satisfactory evidence -- in addition to the attorney‘s own affidavit -- that the requested rate [is] in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, supra 465 U.S. at 895 n. 11, 104 S.Ct. at 1547 n. 11.
{41} To enable the appellate court to conduct a meaningful review, “the trial court must state the basis for the fee determination.” Id. citing Bittner, 58 Ohio St.3d at 146. In its judgment entry sub judice, the trial court stated it based its decision to award $5,642.83 as a sanction “on the account submitted as Exhibit A and Mr. Greene‘s affidavit.” (June 6, 2011 Judgment Entry.) We find Exhibit A and the counsel‘s affidavit were sufficient evidence for the trial court to determine the reasonableness of the attorney‘s fees for defending against Appellant‘s complaint.
CONCLUSION
{42} Accordingly, we find Appellant suffered no prejudice in this case by failing to receive written notice of the evidentiary hearing. Further, we find there was competent, credible evidence to support Appellees’ claim for frivolous conduct under
By: Delaney, P. J.
Gwin, J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
THOMAS HUNT v. EUGENE ALLEN, et al.
Case No. 11-CA-70
[Cite as Hunt v. Allen, 2012-Ohio-1212.]
For the reasons stated in our accompanying Opinion on file, the judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS