[Cite as Galena v. Delaware Cty. Regional Planning, 2011-Ohio-2982.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
VILLAGE OF GALENA JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Julie A. Edwards, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 10 CAE 09 0076
DELAWARE COUNTY REGIONAL
PLANNING, et al.
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 08-CV-H 10-1448
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 16, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant Jimba, Ltd.
D. MICHAEL CRITES DENNIS L. PERGRAM
DINSMORE & SHOHL LLP MANOS, MARTIN, PERGRAM & DIETZ
191 West Nationwide Blvd., Suite 300 50 North Sandusky Street
Columbus, Ohio 43215 Delaware, Ohio 43015-1926
KENNETH J. MOLNAR
21 Middle Street, Post Office Box 248
Galena, Ohio 43021-0248
Delaware County, Case No. 10 CAE 09 0076 2
Wise, P. J.
{¶1} Defendant-Appellant Jimba, Ltd. appeals the September 1, 2010, decision
of the Delaware County Court of Common Pleas denying its motion for attorney fees.
{¶2} Plaintiff-Appellee is the Village of Galena.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts are as follows:
{¶4} On October 30, 2007, Appellee Village of Galena filed an action against
Appellant property developer Jimba, Ltd. and two governmental entities in the Delaware
County Court of Common Please. In said action, Appellee Village alleged that the
Appellant was required to connect its proposed development properties with the
village's sanitary sewer system and sought to prevent the developer from installing
allegedly improper individual on-lot household sewage treatment systems. Appellant
argued that it had no duty to connect its properties with the village's sanitary system
and that it could properly rely on its proposed on-lot household sewage treatment
equipment.
{¶5} On November 21, 2008, the Board of Health filed a motion to dismiss the
claim against itself pursuant to Civ.R. 12(B)(6).
{¶6} On December 15, 2008, the Regional Planning Commission filed its
Answer.
{¶7} On December 31, 2008, the defendant developer filed its Answer.
{¶8} On May 4, 2009, the previously assigned judge (a) denied the Board of
Health's motion to dismiss, (b) denied the village's motion for a temporary restraining
Delaware County, Case No. 10 CAE 09 0076 3
order, and (c) scheduled a preliminary injunction hearing together with a trial on the
merits two weeks later on May 19, 2009.
{¶9} On May 15, 2009, Appellee Village filed a motion to delay the trial thirty
days to permit additional deposition discovery, which was opposed by Appellant.
{¶10} On May 18, 2009, Appellee Village voluntarily dismissed its suit without
prejudice.
{¶11} On May 17, 2009, Appellee Village re-filed this action.
{¶12} On June 17, 2009, thirty days after Galena dismissed its complaint,
Appellant Jimba filed a motion for attorney fees pursuant to R.C. §2323.51 on the
grounds that Appellee Village’s lawsuit was frivolous.
{¶13} The parties agreed to have the trial court first decide whether there was
frivolous conduct under R.C. §2323.51 and, if so, to later determine the amount of
attorneys' fees to be paid.
{¶14} In lieu of submitting testimony and documents to the trial court, at an
evidentiary hearing, the parties agreed to a "Stipulation of Facts" setting forth the facts
and documents to be considered by the trial court for the determination as to whether
Appellee Village and its legal counsel engaged in frivolous conduct under R.C.
§2323.51.
{¶15} On September 1, 2010, the trial court issued its Opinion and Order
Denying the Motion by Appellant Jimba, Ltd. for Fees Pursuant to R.C. §2323.51. In
said Opinion, the trial court stated:
{¶16} “In effect, the developer asks this court to decide the merits of the village's
claim without a full trial, when substantially the same case is now pending and awaiting
Delaware County, Case No. 10 CAE 09 0076 4
trial. Any decision about the merits of this case requires consideration of fact and legal
issues that deserve full development at a trial of the pending case. The developer does
not argue that a sanitary sewer district never has authority to compel connection to its
system. Rather; the developer argues that in these specific factual circumstances, this
sewer district lacked that authority. At least at this time, this court cannot conclude that
the village's claim constitutes "frivolous conduct" as R.C. 2323.51 defines that term.
Indeed, the village's claim may have merit, depending on the court's ultimate factual
findings and legal rulings
{¶17} “Accordingly, the court denies the developer's motion for fees pursuant to
to R.C.2323.51. The court has delayed consideration of the refiled case until it could
decide the pending motion. In the interest of all parties, the court now plans to schedule
prompt hearings on the refiled case.”
{¶18} It is from this Order that Appellant Jimba has filed its appeal, raising the
following assignments of error for review:
ASSIGNMENTS OF ERROR
{¶19} “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY NOT
CONSIDERING THE FACTS AS SET FORTH IN THE STIPULATION OF FACTS.
{¶20} “II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
DENYING APPELLANT’S MOTION FOR ATTORNEYS’ FEES AND SHOULD HAVE
FOUND IN FAVOR OF APPELLANT AS TO APPELLEE AND ITS LEGAL COUNSEL’S
LIABILITY UNDER R.C. 2323.51.”
Delaware County, Case No. 10 CAE 09 0076 5
I., II.
{¶21} We shall address Appellant’s assignments of error as they are inter-
related. In Appellant’s first and second assignments of error, Appellant contends that
the trial court erred in denying its motion for attorney’s fees and in not considering the
stipulated facts in support thereof. We disagree.
{¶22} Our review of a trial court's decision on a motion for sanctions is reviewed
for an abuse of discretion. Mitchell v. W. Res. Area Agency on Aging, Cuyahoga App.
Nos. 83837 and 83877, 2004–Ohio–4353, citing Cook Paving & Constr. Co. Inc. v.
Treeline Inc., Cuyahoga App. No. 77408, 2001–Ohio–4235; Pisani v. Pisani (1995), 101
Ohio App.3d 83, 654 N.E.2d 1355.
{¶23} In the case sub judice, Appellant’s motion for attorney’s fees was based
on frivolous conduct pursuant to Revised Code §2323.51 which governs the award of
attorney’s fees as a sanction for frivolous conduct and outlines the requirements for
such an award.
{¶24} R.C. §2323.51(A)(2)(a) defines frivolous conduct as conduct by a party to
a civil action when:
{¶25} “(i) It obviously serves merely to harass or maliciously injure another party
to the civil action or appeal or is for another improper purpose, including, but not limited
to, causing unnecessary delay or a needless increase in the cost of litigation.
{¶26} “(ii) It is not warranted under existing law, cannot be supported by a good
faith argument for an extension, modification, or reversal of existing law, or cannot be
supported by a good faith argument for the establishment of new law.
Delaware County, Case No. 10 CAE 09 0076 6
{¶27} “(iii) The conduct consists of allegations or other factual contentions that
have no evidentiary support or, if specifically so identified, are not likely to have
evidentiary support after a reasonable opportunity for further investigation or discovery.
{¶28} “(iv) The conduct consists of denials or factual contentions that are not
warranted by the evidence or, if specifically so identified, are not reasonably based on a
lack of information or belief.”
{¶29} R.C. §2323.51(B) provides that “any party adversely affected by frivolous
conduct may file a motion for an award of court costs, reasonable attorney's fees, and
other reasonable expenses incurred in connection with the civil action or appeal.”
{¶30} Further, R.C. §2323.51(B)(2) provides that attorney fees may only be
awarded after a hearing. Specifically, R.C. 2323.51(B)(2) provides:
{¶31} “(2) An award may be made pursuant to division (B)(1) of this section
upon the motion of a party to a civil action or an appeal of the type described in that
division or on the court's own initiative, but only after the court does all of the following:
{¶32} “(a) Sets a date for a hearing to be conducted in accordance with division
(B)(2)(c) of this section, to determine whether particular conduct was frivolous, to
determine, if the conduct was frivolous, whether any party was adversely affected by it,
and to determine, if an award is to be made, the amount of that award;
{¶33} “(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 who allegedly was adversely affected by frivolous conduct;
{¶34} “(c) Conducts the hearing described in division (B)(2)(a) of this section in
accordance with this division, allows the parties and counsel of record involved to
Delaware County, Case No. 10 CAE 09 0076 7
present any relevant evidence at the hearing, including evidence of the type described
in division (B)(5) of this section, determines that the conduct involved was frivolous and
that a party was adversely affected by it, and then determines the amount of the award
to be made. If any party or counsel of record who allegedly engaged in or allegedly was
adversely affected by frivolous conduct is confined in a state correctional institution or in
a county, multicounty, municipal, municipal-county, or multicounty-municipal jail or
workhouse, the court, if practicable, may hold the hearing by telephone or, in the
alternative, at the institution, jail, or workhouse in which the party or counsel is
confined.”
{¶35} Upon review, we find that an oral hearing on Appellant’s motion for
attorney’s fees based on frivolous conduct had initially been scheduled for November
30, 2009, rescheduled for March 5, 2010, and then rescheduled again to August 31,
2010. However, the August 31, 2010, hearing never took place because on August 27,
2010, the parties presented the trial court with a document captioned as “Stipulation of
Facts” and submitted such motion for attorney’s fees on this document and their
respective briefs.
{¶36} As R.C. §2323.51 requires that a hearing be held by the trial court before
it can make an award of attorney's fees as a sanction for frivolous conduct, we find that
the trial court did not err in not granting attorney’s fees in this case.
{¶37} While a trial court is required to hold a hearing before it can make an
award of attorney's fees as a sanction for frivolous conduct, the same is not required
when the court declines to award attorney fees. See First Place Bank v. Stamper,
Cuyahoga App. No. 80259, 2002–Ohio–3109. In other words, the trial court in this case
Delaware County, Case No. 10 CAE 09 0076 8
would have had to hold a hearing before it granted attorney fees. But the trial court was
not mandated to hold a hearing before denying Appellant's motion.
{¶38} That being said, Ohio courts have recognized that a trial court abuses its
discretion when it “arbitrarily” denies a request for attorney fees. Turowski v. Johnson
(1990), 68 Ohio App.3d 704, 589 N.E.2d 462; Mitchell at ¶ 27. An arbitrary denial
occurs when (1) the record clearly evidences frivolous conduct and (2) the trial court
nonetheless denies a motion for attorney fees without holding a hearing. Bikkani at ¶
31.
{¶39} In the instant case, as concisely set forth by the trial court, the trial court
has yet to decide this case, which is again pending before it, on its merits. The trial
court could not make a decision on such a motion without considering the facts of the
pending case, which it has yet to hear.
{¶40} Based on the foregoing, we find that the trial court did not abuse its
discretion in finding that determination on Appellant’s motion for attorney fees was
premature.
Delaware County, Case No. 10 CAE 09 0076 9
{¶41} Appellant's first and second assignments of error are overruled.
{¶42} For the foregoing reasons, the judgment of the Court of Common Pleas of
Delaware County, Ohio, is affirmed.
By: Wise, P. J.
Edwards, J., and
Delaney, J., concur.
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JUDGES
JWW/d 0601
Delaware County, Case No. 10 CAE 09 0076 10
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
VILLAGE OF GALENA :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DELAWARE COUNTY REGIONAL :
PLANNING COMMISSION, et al. :
:
Defendants-Appellants : Case No. 10 CAE 09 0076
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.
Costs assessed to Appellants.
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JUDGES