STATE OF OHIO ex rel. JACK CHRISMAN, et al., Appellants, - vs - CLEARCREEK TOWNSHIP, WARREN COUNTY, OHIO, et al., Appellees.
CASE NO. CA2013-03-025
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
1/27/2014
[Cite as State ex rel. Chrisman v. Clearcreek Twp., 2014-Ohio-252.]
CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 11-CV-80194
John D. Smith, Andrew Meier, 140 North Main Street, Suite B, Springboro, Ohio 45066, for appellees, Clearcreek Township, Glenn Wade and Robert Lamb
Schroeder, Maundrell, Barbiere & Powers, Larry Barbiere, 5300 Socialville-Foster Road, Suite 200, Mason, Ohio 45040, for respondent, Cathy Anspach
PIPER, P.J.
{¶ 1} Relator-appellant, Jack Chrisman, appeals a decision of the Warren County Court of Common Pleas that ordered him to pay attorney fees as a sanction for engaging in frivolous conduct.
{¶ 2} Relator commenced an action in the Warren County Court of Common Pleas in 2011, alleging five violations of the Open Meetings Act (OMA) by respondents-appellees, Clearcreek Township and its three trustees (the Trustees). The violations were broken into two categories (1) allegations that four nonpublic meetings were held, and (2) an allegation that the Trustees engaged in the systematic holding of pre-meeting meetings.
{¶ 3} After the parties performed discovery, Relator‘s counsel approached counsel for the Trustees. Relator‘s counsel explained to the Trustees’ counsel that Relator intended to dismiss the allegations related to the four nonpublic meetings because evidence did not support the proposition that the meetings were a violation of the OMA. Counsel for the Trustees suggested that the allegations remain intact so that they could be adjudicated by the trial court on summary judgment. The parties then filed motions for summary judgment. Relator did not argue that the four nonpublic meetings were a violation of the OMA, and instead, offered arguments specific to the systematic holding of pre-meeting meetings only.
{¶ 4} The trial court granted summary judgment in favor of the Trustees regarding the pre-meeting meetings, finding that they were not a violation of the OMA.1 The trial court also granted summary judgment in favor of the Trustees as to the four nonpublic meetings. The Trustees then filed a motion with the trial court, asking it to order sanctions against Relator because the filing of the claim specific to the first four allegations regarding the non-public meetings had been frivolous. A magistrate held a hearing wherein Relator stipulated that the defense fees were reasonable, but argued that he had not engaged in frivolous conduct. The magistrate granted the Trustees’ motion for sanctions after finding that the filing of the first four allegations was frivolous. The magistrate used a percentage approach and found that
{¶ 5} Relator objected to the magistrate‘s decision, and the trial court overruled the objection, adopting the magistrate‘s award of attorney fees. Relator now appeals the trial court‘s decision, raising the following assignment of error.
{¶ 6} THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ASSESSING SANCTIONS PURSUANT TO
{¶ 7} Relator argues in his assignment of error that the trial court erred in assessing sanctions because his suit was not frivolously filed and because the amount of fees was an abuse of discretion.2
{¶ 8} Appellate review of a trial court‘s decision regarding frivolous conduct involves mixed questions of law and fact. Dudley v. Dudley, 196 Ohio App.3d 671, 2011-Ohio-5870, ¶ 9 (12th Dist.). A court‘s factual determinations are accorded a degree of deference and will not be disturbed on appeal if there is competent, credible evidence in the record to support them. Id. However, legal questions require a de novo review. Id.
{¶ 9} According to Ohio‘s OMA,
{¶ 11}
{¶ 12} To demonstrate a violation of the OMA, the complainant must show that the public body simultaneously conducted a “meeting,” and “deliberated” over “public business.” Tyler v. Village of Batavia, 12th Dist. Clermont No. CA2010-01-002, 2010-Ohio-4078, ¶ 16. According to the OMA, a “meeting” is defined as “any prearranged discussion of the public business of the public body by a majority of its members.”
{¶ 14} The trial court found that Relator had filed a frivolous claim according to
{¶ 15} While we agree with the trial court that Relator‘s filing was frivolous, we do so for a different reason. After our de novo review of the legal issues at hand, the more accurate analysis is that Relator‘s filing specific to his first four allegations constituted frivolous conduct pursuant to
{¶ 16} According to the complaint, the first “illegal meeting” occurred during November 2009. Relator‘s complaint alleged that the trustees who held office at that time (Greg
{¶ 17} We agree with the magistrate and trial court that even if Lamb gathered with others to consider stepping down from office as trustee, his decision to step down would constitute a personal, political decision, rather than “public business.”4 No reasonable attorney would have brought the claim because the first three allegations were specific to a personal decision that only Lamb could make, and did not, or could not, constitute a meeting at which deliberations occurred. Therefore, Realtor‘s claim based upon these allegations was not warranted under existing law, could not be supported by a good faith argument for an extension, modification, or reversal of existing law, and could not be supported by a good faith argument for the establishment of new law.
{¶ 18} The Fourth “illegal meeting” was allegedly held in May 2011, during which Relator alleges that the Trustees discussed “status and employment” relationships with the
{¶ 19} Relator‘s first four allegations were unwarranted, and no reasonable attorney would have filed a claim based upon them. Unlike a case where there was a tactical error founded in a belief that discovery would permit evidence to surface to support the claims, there was no possible violation of the OMA as alleged in Relator‘s first four allegations. Under the narrow set of facts before this court, we find that Relator‘s conduct in filing the first four claims was frivolous.
{¶ 20} Once conduct is determined frivolous,
{¶ 21} “Where a court is empowered to award attorney fees by statute, the amount of these fees is within the sound discretion of the trial court.” Kinder v. Smith, 12th Dist. Warren No. CA2012-05-046, 2013-Ohio-2157, ¶ 16. According to
{¶ 22} The record indicates that the Trustees were forced to defend against the first four allegations, and incurred attorney fees as a result. After Relator stipulated to the reasonableness of the defense fees, the magistrate found that approximately 20 percent of the defense fees were specific to the first four allegations based upon the corresponding amount of work and resources expended by the defense, including depositions taken and filings made. The trial court adopted the magistrate‘s decision after Relator filed objections, and we find that the trial court did not abuse its discretion in awarding fees as it did. See Dudley v. Dudley, 196 Ohio App.3d 671, 2011-Ohio-5870, ¶ 20 (12th Dist.) (affirming trial court‘s order for appellant to pay 93 percent of appellees’ attorney fees and costs as a sanction for frivolous conduct where the trial court determined that 93 percent of the defense fees were incurred because of the frivolous conduct).
{¶ 23} Relator also suggests that the fee award was improper because the township has not paid the fees. However, the Ohio Supreme Court has clearly expressed that the fees need only be incurred, regardless of whether such fees have been paid by the party who was subjected to the frivolous conduct. State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-5350 (finding the fact that attorney fees were paid by an insurance fund irrelevant where the fees were nonetheless incurred by the aggrieved party). The Ohio Supreme Court also referenced fees as being “incurred” when such fees are “actually paid” or the party
{¶ 24} After reviewing the record, we find that the trial court properly found that Relator engaged in frivolous conduct by filing his claim based upon the first four allegations of nonpublic meetings. We also find that the trial court did not abuse its discretion in awarding attorney fees as it did. Therefore, Relator‘s single assignment of error is overruled.
{¶ 25} Judgment affirmed.
DINKELACKER, J., concurs.
FISCHER, J., concurs in part and dissents in part.
FISCHER, J., concurring in part and dissenting in part.
{¶ 26} While I agree with the majority‘s analysis and conclusion that Relator‘s fourth allegation was frivolous, I respectfully dissent from the decision that Relator‘s first three allegations constituted frivolous conduct.
{¶ 27} As correctly stated by the majority, courts must be careful not to deter legitimate claims when determining whether conduct is frivolous and may only base frivolous conduct on filings that are egregious, overzealous, or unjustifiable. Cleveland v. Abrams, 8th Dist. Cuyahoga No. 97814, 2012-Ohio-3957, ¶ 17. One legitimate concern inherent in any
{¶ 28} Another legitimate concern weighing on our analysis is that the public‘s right to enforce the Open Meetings Act is guarded jealously by law. As stated by the Ohio Supreme Court, “one of the strengths of American government is the right of the public to know and understand the actions of their elected representatives. This includes not merely the right to know a government body‘s final decision on a matter, but the ways and means by which those decisions were reached.” White v. Clinton Cty. Bd. of Commr‘s., 76 Ohio St.3d 416, 419 (1996).
{¶ 29} When taking into account the high hurdle associated with ordering sanctions, as well as the policy reasons behind it, I would find Relator‘s first three allegations were not frivolous. After reviewing the record, it is not absolutely clear that no reasonable attorney would have brought a claim, at the time the lawsuit was filed, based upon Relator‘s allegations that the Trustees engaged in nonpublic meetings. Relator‘s complaint alleged that the first three meetings occurred when certain trustees gathered to discuss the possibility of changing the makeup of the Clearcreek Township Board of Trustees so that the ousted trustee could continue to utilize insurance benefits -- a government provided benefit. While the majority characterizes this decision as purely political and personal to Trustee Lamb, it is reasonable to allege that a majority of trustees meeting together to discuss who would sit on the Board and who would utilize benefits provided by taxpayers and bestowed upon township trustees is pertinent township business.
{¶ 30} Relator‘s allegations as to the first three meetings were based upon statements Lamb allegedly made to the newly-elected Anspach. While Anspach had no personal
{¶ 31}
{¶ 32} Given the close nature of this case, I cannot say that the record clearly indicates that Relator engaged in frivolous conduct by filing a claim based on his first three allegations. Therefore, I respectfully concur in part, and dissent in part.
Dinkelacker, J., of the First Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
Fischer, J., of the First Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.