Kellogg v. DaultonKellogg v. Daulton
- Reporters:
- Before:
- Bryant
DECISION
{¶ 1} Plaintiff-appellant, Theodore A. Kellogg, appeals from a judgment of the Franklin County Court of Common Pleas awarding defendant-appellee, Stephen W. Daulton (“Daulton“), attorney fees for frivolous conduct pursuant to
{¶ 2} In the underlying divorce action between plaintiff and his former spouse, Daulton acted as the guardian ad litem for plaintiff‘s minor son. At no time did Daulton represent plaintiff or otherwise act as plaintiff‘s attorney; plaintiff‘s own counsel represented plaintiff. As a result of the divorce action, plaintiff‘s former spouse was granted sole custody of their son, and plaintiff was permitted visitation. The judgment was affirmed on appeal in Kellogg v. Kellogg, Franklin App. No. 04AP-382, 2004-Ohio-7202.
{¶ 3} On October 21, 2004, plaintiff filed a complaint against Daulton asserting legal malpractice, racketeering, and fraud. Although the trial court ultimately struck it, plaintiff filed a second complaint on December 27, 2004, alleging obstruction of justice, a violation of the Racketeer Influenced Corrupt Organizations Act, and various unspecified crimes and illegal activity. Following Daulton‘s January 11, 2005 request to plaintiff for the production of documents supporting his claims, Daulton on June 8, 2005 filed a motion for summary judgment. After plaintiff filed a memorandum in opposition to Daulton‘s motion, the trial court ordered a scheduling status conference that took place on September 9, 2005. On September 15, 2005, plaintiff voluntarily dismissed his action against Daulton pursuant to
{¶ 4} Due to the contents of plaintiff‘s “memorandum” to dismiss his action, the court journalized the September 9, 2005 status conference. According to the court‘s entry, the court informed plaintiff at the status conference that he was to both produce documents and file a response to Daulton‘s motion for summary judgment within seven days, at which time the court would rule on the pending motions. Although recognizing plaintiff‘s right tо represent himself, the trial court advised plaintiff to seek counsel, as the court felt that Daulton‘s motion for summary judgment had merit. “The plaintiff was also advised that he could voluntarily dismiss the case pursuant to
{¶ 5} On September 26, 2005, Daulton filed a motion for sanctions pursuant to
{¶ 6} Plaintiff appeals, assigning the following errors:
[I.] Appellee never provided references where anyone, including the Appellee in this action, is permitted by law to fix the outcome of a trial.
[II.] Appellee provided incorrеct cost information to hearing judge.
[III.] Hearing Judge made clear what his actions would be on September 9, 2005 if Appellant did not withdraw his case. Then, hearing Judge acted differently when Appellant withdrew his action.
[IV.] Hearing judge was biased and prejudice [sic] against Appellant before, during, and after the January 13, 2006 hearing.
[V.] Court did not consider the mind of the Appellant even though the information was provided at the hearing.
[VI.] Court referenced Appellant [sic] actions incorrectly.
[VII.] Appellee provided false information to the Court and it was so noted at hearing.
{¶ 7} In the first assignment of error, plaintiff claims Daulton did not provide references to plaintiff where a trial may be fixed as to its outcome. Plaintiff‘s argument in support of his assigned error is difficult to construe, as it consists of оne sentence and is virtually the same as the assignment of error itself.
{¶ 8} Under Ohio law, a guardian ad litem enjoys absolute immunity from actions arising out of his or her services in that role. Dolan v. Kronenberg (July 22, 1999) Franklin App. No. 76054; Pisani v. Pisani (Dec. 11, 1997), Cuyahoga App. No. 72136; Penn v. McMonagle (1990), 60 Ohio App.3d 149. Daulton thus is immune from suit in his function as guardian ad litem for plaintiff‘s son. If the record contained evidence to support plaintiff‘s assertion that Daulton fixed the outcome of the underlying divorce action, plaintiff‘s contentions would be considerably more persuasive in arguing that Daulton acted outside the scope of his role as guardian ad litem. The record, however, contains no evidence even remotely suggesting Daulton attempted to fix, much less fixed, the outcome of plaintiff‘s divorce action in the allocation of pаrental rights and responsibilities. As a result, the trial court properly concluded plaintiff‘s complaint lacked merit.
{¶ 9} Indeed, the policy reasons underlying the immunity granted to a guardian ad litem are apparent. A guardian ad litem must act in the best interests of the child; such a position places him or her squarely within the judicial process to accomplish thаt goal. Id., quoting Kurzawa v. Mueller (C.A.6, 1984), 732 F.2d 1456. Without immunity, the possibility of later harassment and intimidation from dissatisfied parents would severely hamper a guardian ad litem‘s ability to function appropriately in representing the best interest of his or her ward. Id.
{¶ 10} Finally, plaintiff admitted he never had an attorney-client relationship with Daulton and never hired Daulton in any capacity. Because plaintiff failеd to establish an attorney-client relationship between himself and Daulton, plaintiff‘s legal malpractice claim is without merit. Vahila v.Hall (1997), 77 Ohio St.3d 421. Plaintiff thus cannot maintain any of his asserted claims against Daulton. Plaintiff‘s first assignment of error is overruled.
{¶ 11} Plaintiff‘s second assignment of error claims Daulton provided incorrect cost information to the trial court. Because plaintiff fаiled to object to the admission of exhibits reflecting attorney fees Daulton paid to defend plaintiff‘s action, plaintiff waived that issue on appeal. In re Estate ofPallay, Washington App. No. 05CA45, 2006-Ohio-3528. Although plaintiff may have been unaware of the need to object, Ohio law holds a pro se litigant to the same standards that apply to a licensed attorney. Justice v. Lutheran Social Servs. (Apr. 8, 1993), Franklin App. No. 92AP-1153. Even if, however, we examine thе trial court‘s award, recognizing that the award need only be proper under either
{¶ 12} Pursuant to
{¶ 13} No single standard of review applies in
{¶ 14} Here, the trial court awarded attorney fees under
{¶ 15} Minimal legal research into the matter prior to сommencing an action against Daulton would have revealed to plaintiff that a lawsuit against Daulton was legally baseless. Instead, plaintiff‘s investigation prior to filing the action against Daulton consisted of going through “the court documents, things like that, and records.” (Jan. 13, 2006 Tr., 37.) Moreover, plaintiff was alerted to the immunity issue once Daulton filed his motion for summary judgment detаiling the applicable law. Indeed, Daulton‘s attorney requested that plaintiff dismiss the case several times, but plaintiff refused. Id. at 10. Presented with such information, the trial court properly awarded sanctions to Daulton under
{¶ 16} The remaining inquiry is whether the amount of sanctions was reasonable. The court may award fees reasonably incurred and necessitated by the frivolous conduct. Wiltberger, supra. Pursuant to
{¶ 17} Plaintiff claims Daulton misrepresented the amount of fees to the trial court in that Daulton charged for two separate actions instead of one and shared information with other unrelated parties in an unrelated case. The record does not support plaintiff‘s contentions. All the invoices submitted relate to plaintiff‘s case against Daulton. The similarity among entries at different points in time is inconsequential, as in a given case attorneys often make numerous phone calls to the same individuals. Further, аny entries referencing other attorneys or parties were relevant to plaintiff‘s case against Daulton and reflect the investigation of Daulton‘s attorney into the matter. Because the trial court properly found plaintiff engaged in frivolous conduct, and because the award of fees is reasonable, plaintiff‘s second assignment of errоr is overruled.
{¶ 18} In his third assignment of error, plaintiff asserts the trial court informed plaintiff that if he dismissed his case, the court would impose no sanctions. Plaintiff claims the trial court then acted contrary to its representations by imposing sanctions.
{¶ 19} Plaintiff dismissed his case on September 15, 2005 pursuant to
{¶ 20} Plaintiff‘s fourth assignment of errоr maintains the trial court was biased and prejudiced against him because plaintiff chose to represent himself rather than retain an attorney. Judicial bias is a hostile feeling or spirit of ill will or favoritism toward one of the parties or that party‘s attorney that creates in the judge a fixed anticipatory judgment. State v. Corrai, Franklin App. No. 04AP-599, 2005-Ohio-1156. Trial judges are presumed to be unbiased аnd unprejudiced, and the party alleging such must set forth evidence to overcome the presumption of integrity. Id.
{¶ 21} Although plaintiff points to no evidence to support his contention, plaintiff may be referring to the trial court‘s advice to plaintiff to retain counsel. Rather than displaying bias or prejudice against plaintiff for representing himself, the trial cоurt‘s statement appears directed to assisting plaintiff, as the trial court recognized plaintiff‘s difficult position in light of the immunity issue. Indeed, consultation with an attorney may have revealed the deficiencies in plaintiff‘s case and averted the award against plaintiff.
{¶ 22} While plaintiff is dissatisfied with the outcome of his case, disagreement or dissatisfaction with a judge‘s ruling does not constitute bias or prejudice that mandates the judge be disqualified. In re Disqualification of Murphy (1988), 36 Ohio St.3d 605. Because plaintiff fails to present any evidence the trial judge was biased or prejudiced, plaintiff‘s fourth assignment of error is overruled.
{¶ 23} In his fifth assignment of error, plaintiff contends the trial court failed to consider the “mind” of plaintiff, even though information pertinent to plaintiff‘s intent was provided at the hearing. Plaintiff‘s intent, or the “mind” of plaintiff, is not a prerequisite to an award of sanctions under
{¶ 24} Plaintiff‘s sixth assignment of error claims the trial court “referenced appellant[‘] actions incorrectly.” Plaintiff‘s argument appears to assert that the trial court incorrectly stated “[t]he plaintiff chose not to hire counsel * * *.” (January 20, 2005 Order, 2.) Plaintiff claims that, despite his attempts to find counsel, no one would represent him.
{¶ 25} According to the record, plaintiff did not attempt to retain counsel until well after he filed two complaints against Daulton. Because plaintiff failed to contact counsel prior to filing his complaints аgainst Daulton, the trial court was not inaccurate in its statement that plaintiff chose to represent himself. Moreover, even if plaintiff belatedly sought counsel, his subsequent attempts do not obviate the fact that he filed complaints against Daulton without even the most minimal attempt to determine the viability of such an action against a guardian ad litem. Plаintiff‘s sixth assignment of error is overruled.
{¶ 26} Plaintiff‘s seventh and final assignment of error maintains that Daulton provided false information to the trial court “and it was so noted at hearing.” Plaintiff asserts that at the hearing on Daulton‘s motion for sanctions, Daulton testified he never received any documents or other evidence from plaintiff to support plaintiff‘s claims. Plaintiff contends he provided such evidence, but Daulton essentially lied at the hearing. Plaintiff further asserts that if Daulton wanted to know what information plaintiff had in support of his claims, Daulton could have deposed various individuals.
{¶ 27} Daulton was not required to depose anyone. When Daulton testified he had not seen evidence to support the allegations of plaintiff‘s complaint, he was referencing, in part, discovery requests directed to plaintiff to which Daulton did not receive a response. Nothing in the record suggests that Daulton provided false information, or that the court noted any irregularity, in that regard. Accordingly, plaintiff‘s seventh assignment of error is overruled.
{¶ 28} Having overruled plaintiff‘s seven assignments of error, we аffirm the judgment of the Franklin County Court of Common Pleas awarding Daulton attorney fees in the amount of $6,000.
{¶ 29} Daulton filed a motion seeking an award of attorney fees pursuant to
{¶ 30}
{¶ 31} In Stuller, the appellant assigned six errors, two of which related to whether the trial court‘s award of attorney fees under
{¶ 32} Here, although plaintiff‘s contentions are difficult to precisely ascertain, plaintiff appears to challenge both the trial court‘s finding that he engaged in frivolous conduct and the amount of the sanctions imposed. Pursuant to Stuller, an award of fees under
{¶ 33} Having overruled plaintiff‘s assignments of error, the judgment of the Franklin County Court of Common Pleas is affirmed.
Motion denied; judgment affirmed.