Winona Holdings, Inc. v. DuffeyWinona Holdings, Inc. v. Duffey
Case Information
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[Cite as
Winona Holdings, Inc. v. Duffey
,
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Winona Holdings, Inc., :
Plaintiff-Appellee, : v. : (M.C. No. 2009 CVF 52504) Eli J. Duffey, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on February 13, 2014 Pope Law Offices , LLC , and Gregory S. Pope , for appellee.
Rachel K. Robinson , for appellant.
APPEAL from the Franklin County Municipal Court SADLER, P.J.
Defendant-appellant, Eli J. Duffey, appeals from the judgment of the
Franklin County Municipal Court denying his R.C. 2307.61(B) motion for attorney fees. For the following reasons, we affirm the judgment of the trial сourt.
I. BACKGROUND On December 9, 2009, plaintiff-appellee, Winona Holdings, Inc., filed a
complaint against appellant in the Franklin County Municipal Court. The complaint alleged that, in 2006, appellant presented Budget Car Sales ("Budget") with a $2,600 check that was latеr dishonored for insufficient funds. Appellee, claiming to be the assignee of Budget, demanded judgment in the amount of $8,135.28 pursuant to R.C. 2307.60(A)(1) and 2307.61(A)(1) and (2). In the alternative, appellee sought $2,600 in damages under R.C. 1303.54. On March 3, 2010, appellee filed a motion for default judgment, and on
March 17, 2010, the trial court granted appellee's motion for default judgment and
awarded appellee $8,135.28 for the dishonored check. Appellant filed a motion for relief
from judgment pursuant to
prevailing party nor the jurisdiсtion to grant [appellant's] motion." (Mar. 29, 2013 Plaintiff Winona Holdings, Inc.'s Reply to Defendant Eli J. Duffey's Motion for Attorney Fees and Request for Sanctions, 1.) Appellant filed a reply. In denying appellant's motion for attorney fees, pursuant to R.C. 2307.61, the trial court detеrmined it lacked jurisdiction because appellant "has not prevailed and attorney's fees are not a collateral matter under the operation of this statute" and, further, "[e]ven if the Court did have jurisdiction to consider the issue of attornеy's fees under R.C. 2307.61, [appellee] voluntarily dismissed the case without prejudice." (May 6, 2013 Decision and Entry, 4.) This appeal followed.
II. ASSIGNMENTS OF ERROR Appellant brings the following assignments of error for our review.
[I.] THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT APPELLANT'S MOTION FOR ATTORNEY FEES WAS NOT A COLLATERAL MATTER TO THE MERITS OF APPELLEE'S OHIO CIVIL THEFT ACT CLAIM.
[II.] THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT APPELLANT DID NOT PREVAIL IN HIS DEFENSE OF APPELLEE'S OHIO CIVIL THEFT ACT CLAIM.
III. DISCUSSION For ease of discussion, we address appellant's assignments оf error out of
order. In appellant's second assignment of error, he argues "[t]he trial court's holding contravenes the purposes of fee-shifting provisions," and "[t]he trial court erred in not concluding that pursuant to the text of R.C. § 2307.61(B), Appellant prevailed in his defense of Appellee's [Ohio Civil Theft Act] claim." (Appellant's brief, 18, 21.) R.C. 2307.61(B) provides, in relevant part:
If a property owner * * * brings a civil action pursuant to division (A) of section 2307.60 of the Revised Code to recover damages for willful damage to рroperty or for a theft offense * * * and if the defendant prevails in the civil action, the defendant may recover * * * reasonable attorney's fees, the cost of defending the civil action, and any compensatory damages that may be proven.
(Emphasis added.) As such, pursuant to R.C. 2307.61(B), a defеndant cannot be awarded
attorney fees unless they are the prevailing party. Black's Law Dictionary 1232 (9th
Ed.2009) defines "prevailing party" as "[a] party in whose favor a judgment is rendered."
We have previously stated, a "prevailing party" generally is the рarty in whose favor the
verdict or decision is rendered and judgment entered.
Hikmet v. Turkoglu
, 10th Dist. No.
08AP-1021,
court's holding contravenes the purpоses of fee-shifting provisions." (Appellant's brief, 18.) Appellant, without citation, asserts R.C. 2307.61(B) is a fee-shifting provision whose "purpose * * * is to provide a remedy to an aggrieved person and to deter unlawful or unwarranted conduct." (Appellant's brief, 18.) Even аssuming arguendo that appellant has correctly identified the
intended legislative intent behind R.C. 2307.61(B), the record is bereft of any evidence that appellee's claim under R.C. 2307.61(B) was "unlawful or unwarranted." (Appellant's brief, 18). Thus, we cannot find that the trial court's holding "сontravene[d] the purpose" of R.C. 2307.61(B). We next turn our attention to appellant's argument that "[t]he trial court
erred in not concluding that pursuant to the text of R.C. § 2307.61(B), Appellant prevailed in his defense of Appellee's [Ohio Civil Theft Act] claim." (Appellant's brief, 21.) Appellant asserts, pursuant to the decision of the Second District Court of Appeals in Miami Valley Hosp. v. Payson, 2d Dist. No. 17830 (Dec. 17, 1999) (" Payson I "), that, although "[a]ppellee voluntarily dismissed its [Ohio Civil Theft Act] claim[,] * * * [l]ike the Second District, this Court should * * * consider the merits of [appellant's] statute of limitations dеfense." (Appellant's brief, 25.) In response, appellee relies upon a subsequent decision in the same line of cases, Payson II , for the proposition that "[w]here a claim was filed and dismissed, there can be no prevailing party." (Appellee's brief, 32.) We address Payson I and Payson II in turn. In Payson I , third-party defendant Guardian filed a motion to dismiss the
Paysons' third-party complaint and, in the same motion, sought recovery of its reasonable
attorney fees and expenses incurred in defending against the third-party complaint
pursuant to the provisions contained in the Employee Retirement Income Security Act
("ERISA"). Subsequently, pursuant to
generally "that '[a] voluntary dismissal under
make a finding regarding the appropriate award of attorney fees. The trial court affirmed the magistrate's decision which awarded third-party defendаnt, Guardian, attorney fees. The Paysons timely appealed from the trial court's decision. In Payson II , the Second District noted an exception to its prior generalization from Payson I that all claims for attorney fees are collateral claims independent of the merits of the claim. The Payson II court stated:
The concept of "prevailing party" is important because a voluntary dismissal without prejudice in Ohio means there has been no adjudication on the merits. * * * Further, without an adjudication on the merits, no formal "рrevailing party" exists. * * * Consequently, Guardian's ability to recover attorney fees depends on whether the statute authorizing fees requires an applicant to be a prevailing party.
Id. The Payson II court went on to state that, "unlike other fee-shifting statutes * * *, the term 'prevailing party' is 'conspicuously absent' from [ERISA]." Id. We find the Payson line of cases distinguishable from the present case.
Unlike the ERISA statute at issue there, R.C. 2307.61(B) requires a party to prevail as a prerequisite to the award of attorney fees. Here, appellant asserts the trial court incorrectly determined that he was not a рrevailing party. In determining the interpretation of "prevail" in the context of R.C.
2307.61(B), we find our decision in Hansel instructive. In Hansel , relevant to this appeal, the plaintiffs filed a claim alleging that the defendant violated the Ohio Consumer Sales Practice Act, as memorialized in R.C. 1345.09. However, priоr to trial, the plaintiffs voluntarily dismissed their R.C. 1345.09 claim. Thereafter, the defendant "filed a motion for attorney fees pursuant to R.C. 1345.09(F)(1), which authorizes, in certain circumstances, an attorney fees award to the prevailing party." (Emphasis added.) Id. at 55. The trial court denied the defendant's motion for attorney fees, and on appeal, we concluded the defendant "was not entitled to attorney fees under R.C. 1345.09(F)(1) because there was no [R.C. 1345.09] claim, and thus no prevailing party, once such claim was voluntarily dismissed." Id. at 60. As such, we held, "[a] prevailing рarty does not exist when a claim is voluntarily dismissed." Id. Appellant contends Hansel is contrary to the Sixth Circuit Court of Appeals'
holding in
Pavlovich v. Natl. City Bank
,
{¶ 19} On appeal, the plaintiff in Pavlovich argued that, because the Ohio RICO claim was dismissed without prejudice and, therefore, did not constitute an adjudicatiоn on the merits, the defendant could not be considered a prevailing party. The Sixth Circuit disagreed and held the trial court's decision was an adjudication on the merits, and, therefore, the defendant was a prevailing party as contemplated by thе Ohio RICO statute. Having examined the facts of both Hansel and Pavlovich , we find the instant case in accord with Hansel and distinguishable from Pavlovich . Here, as in Hansel , appellee voluntarily dismissed his claims without prejudice prior to the issuance of any judgment by the trial court on the merits of his claims. [1] Thus, consistent with Hansel, appellant cannot be considered a prevailing party, as contemplated in R.C. 2307.61(B). Because R.C. 2307.61(B) requires a party prevail on the merits before attorney fees may be awarded and we have determined no prevailing party exists in this case, we find the trial court did not err in denying appellant's R.C. 2307.61(B) motion for аttorney fees . Accordingly, appellant's second assignment of error is overruled. Our disposition of appellant's second assignment of error renders
appellant's first assignment of error moot.
IV. CONCLUSION For the foregoing reasons, appellant's second assignment of error is
overruled, and аppellant's first assignment of error is rendered moot. The judgment of the Franklin County Municipal Court is affirmed.
Judgment affirmed. DORRIAN and O'GRADY, JJ., concur. _____________________________
Notes
[1] Based on a federal judgment issued in his favor, appellant asks this court to hold that he is a prevailing
party under the doctrine of res judicata. On review of the record, appellant did not raise the affirmative
defense of res judicata below. Thus, even if the record supported appellant's assertion that there is a federal
judgment which effects this case, which we are not declaring it does, we will not consider such argument for
the first time on appeal.
Chase Home Fin., LLC v. Mustafa,
10th Dist. No. 11AP-846,