584 N.E.2d 77 | Ohio Ct. App. | 1991
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *402
This is an appeal from a judgment entered by the Hillsboro Municipal Court ordering Phillip Mease, defendant-appellant, to pay $609.02 in attorney fees and travel expenses to Ida Mae Shaffer, plaintiff-appellee, on the basis that appellant had engaged in frivolous conduct pursuant to R.C.
Appellant assigns the following errors:
"1. Defendant assigns as error the finding of fact, opinion, and judgment entry entered hereon on the 16th day of October, 1990, that the defendant's conduct was frivolous.
"2. Defendant further appeals from the judgment in favor of the plaintiff against the defendant for Six Hundred Nine Dollars ($609.00), in that said judgment in favor the [sic] plaintiff and against the defendant is not well taken on either the facts or the law in the case."
On July 13, 1990, appellee filed a complaint for forcible entry and detainer, naming appellant, appellant's "unknown spouse," and "all other occupants" of 3103 Beltz Road, Sardinia, Ohio, as defendants. Appellee's complaint alleged that appellant was in default of an oral rent-to-purchase agreement concerning the subject property. Appellee prayed for, inter alia, restitution of the premises and unpaid rent in the sum of $5,700 through June 30, 1990. On the same date that appellee's complaint was filed, a deputy clerk of the trial court *403 mailed notices that the case had been set for trial to the court on August 1, 1990 at 9:00 a.m.
On July 31, 1990, appellant filed an answer which alleged that he had taken possession of the premises pursuant to a purchase agreement and he denied the allegations of appellee's complaint. On the same date, appellant filed a counterclaim which alleged that appellee had refused to give him a receipt on July 1989 reflecting his total payments made on the property; that appellant had made at least $3,400 in payments on the property; and that he had made over $10,000 worth of improvements to the property. Appellant's counterclaim prayed for $13,400 in damages, a determination of his amount due under the purchase agreement, a conveyance of the premises to him, and a jury trial on these issues.
On August 1, 1990, the date scheduled for the bench trial of appellee's forcible entry and detainer action, appellant's counsel was involved in proceedings in another case and he had attorney Kevin Greer deliver a message to the trial court. The following exchange then occurred:
"MR. GREER: * * * He said, or rather requested me to state for the Record to note his exceptions, that he had asked for a Jury, which he feels he is entitled to, and also that this Court does not have jurisdiction now to hear the matter now that he has raised the claim over the monetary amount that this Court can hear, so he feels that his action is not properly in the Court, and to note his objections, exceptions to this Court's Ruling does [sic] it go forward on any issues, today.
"THE COURT: O.K. It is the Court's position on the, first of all, the Jury Demand, is that it requires a filing of $200.00, which the Clerk advised me has never been filed. So, there is, the Court doesn't feel that the Defendant is entitled to a Jury Trial until that has been filed. The second problem I have is that this was filed yesterday. It seems that we have got a problem here, with some people that have come up from West Virginia or some place.
"* * *
"THE COURT: Which, I think that I have got either my rathers of either continuing this matter and assessing some type of expenses against the Defendant for these people coming up here. Their time, their travel expense, loss of earnings or whatever they have or going forward with it on the issue of the restitution of premises.
"* * *
"THE COURT: O.K. If he had filed this Answer, earlier, so counsel would have had notice of it, instead of his people being up here from West Virginia, *404 the Court might take a different tack on it, but this filing at the last minute, it, I just don't feel it is fair to the other parties."
Appellant was personally present at the August 1, 1990 proceeding but did not participate upon advice of his counsel. The trial court proceeded to hear testimony from appellee's witnesses and at the conclusion of her presentation of evidence, it issued an oral decision that appellee was entitled to restitution of the premises. In so holding, the trial court noted that if appellant had notified appellee of his answer and counterclaim at a time sufficient to prevent unnecessary travel expenses incurred on the part of appellee, it would have continued the case. The trial court stated that at the very least, appellant's counsel should "have extended [appellee's counsel] the courtesy of a phone call."
On August 6, 1990, prior to any judgment of the trial court reiterating its oral decision, appellant filed a motion for new trial pursuant to Civ.R. 59(A) based on several grounds, including that the trial court did not have jurisdiction of the matter since appellee's counterclaim exceeded the jurisdictional limits of the trial court. On August 8, 1990, the trial court filed an entry which stated that the "order of the court herein granting restitution of the premises is stayed" and that appellant's motion for new trial would be set for a September 6, 1990 hearing. Appellee subsequently filed a reply1 to appellant's counterclaim.
On September 6, 1990, a hearing was held on appellant's new trial motion. In the course of the hearing, the trial court asked appellant's counsel why he had not requested a continuance of the earlier hearing. Appellant's counsel responded that he had filed an answer the day before that hearing and that he had thought he would be able to be present for the August 1, 1990 hearing but the unexpected length of a jury trial in common pleas court ultimately precluded his presence. After the attorneys' arguments, the trial court stated the following:
"THE COURT: The Court is faced with basically two issues. Whether the Court, under the Law, has the authority to go forward at the hearings [sic] date set on August 1st, and this is the issue that Mr. Hapner has raised. Whether I had the authority to do that. If I determine that I have the authority to do that, obviously, the Ruling is going to stand. If I determine, from what has been cited here, and I don't have the authority, then there is a second question. And I want counsel's input on this second question. I feel, under the circumstances, if in fact, the Defendant is entitled to a new trial, I *405 want to know whether this Court has authority to require as a condition of that new trial, that the Plaintiff be compensated for the inconvenience. I briefly checked Civil Rule 59 and 60, which seemed to be in play here, and find nothing in there, one way or the other. These are, this is an issue that I want addressed, by the Court, it doesn't have to, or by Counsel, it doesn't have to be formal."
On September 20, 1990, appellee filed a motion to impose sanctions "against the attorney for the Defendant" pursuant to Civ.R. 11, in order to reimburse expenses which she incurred to "meet [appellant's] unjustified pleadings." Attached to appellee's motion to impose sanctions is a list of appellee's expenses, i.e., lost wages and travel expenses, for the August 1, 1990 trial and the September 6, 1990 hearing on appellant's motion for a new trial. Also attached to the motion was an itemized list of appellee's counsel's $790 in attorney fees. Appellant subsequently filed a response to the motion for sanctions, asserting that Civ.R. 11 would not authorize sanctions in this case.
On October 16, 1990, the trial court issued a "FINDING OF FACT, OPINION AND JUDGMENT ENTRY" which vacated its prior judgment2 granting restitution of the premises and transferred the case to the Highland County Court of Common Pleas. The trial court also determined that appellant's conduct had been frivolous pursuant to R.C.
At the outset, we note that an order of a court is a final appealable order only if the requirements of both Civ.R. 54(B), if applicable, and R.C.
"An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial * * *." *406
The entry appealed from concerns an imposition of sanctions while transferring a forcible entry and detainer action from municipal court to common pleas court by granting a motion for new trial. Obviously, this entry did not determine either appellee's forcible entry and detainer action or appellant's counterclaim for, inter alia, specific performance and/or damages. Although it was entered in the context of appellant's new trial motion, it cannot fit the third category of final orders specified in R.C.
Appellant's first assignment of error asserts that the trial court erred in determining that his conduct was frivolous, and appellant's second assignment of error asserts that the trial court erred in ordering sanctions against appellant in the amount of $609.02. In that these assignments of error raise similar issues, they will be considered jointly.
The trial court determined that appellant, through counsel, engaged in "frivolous conduct," as defined in R.C.
Pursuant to R.C.
Appellant initially argues that neither he nor his attorney engaged in frivolous conduct. R.C.
"`Frivolous conduct' means conduct of a party to a civil action or of his counsel of record that satisfies either of the following:
"(a) It obviously serves merely to harass or maliciously injure another party to the civil action;
"(b) It is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law."
"Conduct" means filing a civil action, asserting a claim, defense, or other position in connection with a civil action, or taking any other action in connection with a civil action. R.C.
"The Court makes a further finding that Defendant's conduct was frivolous, pursuant to Ohio Revised Code Section
We are persuaded that the trial court erred in determining that appellant had an "obligation to notify counsel for Plaintiff" of the filing of his counterclaim and his election not to participate in the scheduled August 1, 1990 trial on appellee's complaint for forcible entry and detainer. Any defense in a forcible entry and detainer action may be asserted at trial. R.C.
Finally, we note that the trial court eventually determined that appellant's objections to the lack of jurisdiction over the action as a result of appellant's counterclaim were meritorious when it decided to transfer the case to the common pleas court. Under the foregoing limited circumstances, we hold that neither appellant's nor his counsel's actions obviously served merely to harass or maliciously injure appellee or were unwarranted under existing law. In other words, although appellant's counsel's conduct was extremely lacking of professional courtesy, it did not constitute frivolous conduct pursuant to R.C.
Assuming, arguendo, that appellant or his counsel's conduct constituted frivolous conduct, we are still unpersuaded that the trial court's award was proper. The trial court determined that its hearing on appellant's motion for new trial substantially complied with the procedure set forth in R.C.
"An award of reasonable attorney's fees may be made pursuant to division (B)(1) of this section upon the motion of a party to a civil action, but only after the court does all of the following:
"(a) Sets a date for a hearing to determine whether particular conduct was frivolous, to determine, if the conduct was frivolous, whether any party was *409 adversely affected by it, and to determine, if an award is to be made, the amount of that award;
"(b) Gives notice of the date of the hearing described in division (B)(2)(a) of this section to each party or counsel of record who allegedly engaged in frivolous conduct and to each party allegedly adversely affected by frivolous conduct;
"(c) Conducts the hearing described in division (B)(2)(a) of this section, allows the parties and counsel of record involved to present any relevant evidence at the hearing, including evidence of the type described in division (B)(5) of this section, determines that the conduct in question was frivolous and that a party was adversely affected by it, and then determines the amount of the award to be made."
R.C.
Additionally, we note that under the Frivolous Conduct Statute, attorney fees are the only sanction available. R.C.
Appellee seems to argue that sanctions were justified pursuant to Civ.R. 11. Although the trial court never appeared to rely on Civ.R. 11 in imposing sanctions expressly pursuant to R.C.
Accordingly, for all of the foregoing reasons, the trial court abused its discretion in imposing sanctions against appellant pursuant to R.C.
Judgment reversed.
PETER B. ABELE and STEPHENSON, JJ., concur.