[Cite as Davila v. Cecchini, 2019-Ohio-2317.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
EDWIN DAVILA : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 2018CA00133 : GAETANA MATTIOLI CECCHINI, ET : AL. : : : Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2016CV01691
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 10, 2019
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
EDWIN DAVILA, PRO SE J. MICHAEL GATIEN 333 Erie Street South, #325 2371 Chestnut Hill St. NW Massillon, OH 44648 North Canton, OH 44720 Stark County, Case No. 2018CA00133 2
Delaney, J.
{¶1} Plaintiff-Appellant Edwin Davila appeals the August 6, 2018 judgment entry
of the Stark County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellant Edwin Davila was hired by Avanti Corporation in 2001.
The principal of the company, Defendant Gaetano Cecchini, approached Davila and
invited him to work for Avanti, though the recitation of facts in Davila's complaint revealed
that many of the duties he assumed were personal services for Cecchini. Davila stated
he “agreed to work for Cecchini and began employment with Avanti in that spring of 2001.”
(Amended Complaint, paragraph 12). The complaint described an employee handbook
that would govern the “relationship between the employment (sic) between the plaintiff
and Avanti during the term of the employment” (Amended Complaint, paragraph 13), but
it also stated that his duties would include “responsibilities which may be assigned to him
on an ad hoc basis by Cecchini, individually, or through his companies. (Amended
Complaint, paragraph 15). Finally, the complaint alleged Davila was “also involved with
assisting Cecchini with resolving his improper relationships with certain female
employees.” (Amended Complaint, paragraph 16).
{¶3} Defendant-Appellee Jennifer Simpson is the former wife of Cecchini. Davila
argued that during settlement negotiations of the contested divorce between Simpson
and Cecchini, Simpson requested that Cecchini terminate Davila's employment with
Avanti and all of Cecchini's companies. Davila’s employment with Avanti was terminated
on December 13, 2015 and Davila argued his termination was the direct result of
Simpson’s request. Cecchini stated Davila’s termination was due to “the distressed Stark County, Case No. 2018CA00133 3
financial condition of Avanti Corporation and Cecchini Enterprises.” (Amended Complaint,
paragraph 26).Davila offered documents to support his contention, which he described
as two letters from an attorney representing Simpson in the divorce and a responsive
letter from Cecchini. Davila also offered a memorandum he drafted after hearing a
telephone conversation purportedly between Simpson and Cecchini. The letters were not
authenticated by their purported authors and the letter attributed to Cecchini were not
signed. Davila offered nothing to authenticate the identity of the party who spoke with
Cecchini during the phone call.
{¶4} Davila also submitted his affidavit containing descriptions of two telephone
conversations he witnessed between Cecchini and Simpson, one dated August 2015 and
one dated November 2015, in which he contended that Simpson insisted Davila's
termination was a critical part of any settlement of the pending complaint for divorce.
Davila recalled that Cecchini did not agree with Simpson, but told her they would talk
about it later. The identity of the other person on the phone during the calls was not
authenticated pursuant to Evid.R. 901(B)(6).
{¶5} Davila filed a complaint on April 25, 2016 in the Cuyahoga County Court of
Common Pleas and named Cecchini, Avanti Corporation, and Cecchini, Inc. as
defendants. In his complaint, Davila alleged claims of breach of contract, interference with
constitutional rights, defamation, and intimidation of a witness. The defendants moved for
a change of venue to Stark County on May 27, 2016. After the exchange of several
pleadings, the court granted the motion on July 15, 2016.
{¶6} The case was scheduled for a telephonic pretrial conference on September
6, 2016. At the conference the trial court set deadlines and included within its order the Stark County, Case No. 2018CA00133 4
following language: “plaintiff to strike extraneous statements from complaint within 30
days.” No explanation is contained within the record regarding the trial court's intent.
Davila filed an amended complaint on October 5, 2016 and named Simpson as a
defendant. His amended complaint included a quote from Dante’s Inferno and alleged
claims of tortious interference with an employment contract, malicious refusal to pay
medical bills incurred in connection with work related injury, breach of contract, unjust
enrichment, fraud, breach of employment agreement, spoliation of evidence, interference
with constitutional rights, defamation, intimidation of a witness, and violations of the Ohio
Corrupt Activity Statutes.
{¶7} On November 1, 2016, Davila dismissed all claims against Cecchini, Avanti
Corporation and Cecchini, Inc., leaving Simpson as the remaining defendant. Against
Simpson, Davila claimed tortious interference with an employment contract.
{¶8} Simpson filed an answer and counterclaim on January 17, 2017, alleging
Davila’s amended complaint was frivolous under Civ.R. 11 and R.C. 2323.51. On April
18, 2017, Davila filed a motion to disqualify Simpson's trial counsel, claiming Davila
planned to call him as a witness. Simpson opposed the motion and filed a motion for leave
to file an amended answer. The motion requesting leave to file an amended answer was
granted. Prior to the trial court issuing a ruling on the motion to disqualify, new counsel
entered an appearance on behalf of Simpson on May 12, 2017, making the motion to
disqualify moot.
{¶9} Simpson filed her amended answer on May 12, 2017 and scheduled the
deposition of Davila. Davila's deposition was completed on June 1, 2017 and filed with
the court on July 10, 2017. Stark County, Case No. 2018CA00133 5
{¶10} On July 10, 2017, Simpson filed a motion requesting a protective order
regarding the sealed final decree of divorce and agreed judgment entry executed by
Simpson and Cecchini. Simpson requested the trial court review the documents in
camera to determine whether an agreement to terminate Davila appeared in those
documents. Simpson also requested that the documents remain sealed and that the
Davila not be permitted to review them.
{¶11} On July 17, 2017, Davila filed his opposition to the Simpson's motion, but
Davila did not serve Simpson with any discovery requests seeking a copy of the decree
or an opportunity to review it. Davila asserted that the decree was irrelevant, but did not
object to the use of the decree in support of the motion for summary judgment and did
not file a motion to strike the decree from the record.
{¶12} On August 9, 2017, the trial court found that “plaintiff has not requested the
divorce settlement agreement in discovery.” The Court further concluded “the court has
conducted a review of the document and find (sic) the same shall not be disclosed to
Plaintiff. Accordingly the motion for protective order is granted.”
{¶13} Both parties filed motions for summary judgment on July 10, 2017,
supported with affidavits, memoranda opposing the motions and replies. The trial court
issued a ruling on August 9, 2017, granting Simpson's motion for summary judgment and
finding Davila's motion moot. The trial court found that while correspondence between
Simpson and Cecchini’s divorce counsel discussed settlement proposals including
Simpson’s desire that Davila’s employment be terminated, the Final Divorce Decree and
Agreed Judgment Entry did not include terms related to Davila’s employment. It further
found Davila was a discretionary employee and could be terminated without cause. Davila Stark County, Case No. 2018CA00133 6
failed to present case law to support his argument that liability should be imposed on an
employer’s estranged spouse for the employer’s decision to terminate his employee.
{¶14} The parties exchanged several memoranda regarding motions in limine
involving the Davila's criminal history as well as a motion to strike any references to that
history from the record and to strike comments made by Simpson's counsel. These
motions remained unresolved as they became moot when the motion for summary
judgment was granted.
{¶15} On September 5, 2017, Davila appealed the trial court’s summary judgment
to this Court in Davila v. Simpson, 2018-Ohio-946, 108 N.E.3d 628 (5th Dist.). On
September 7, 2017, Simpson filed a motion for frivolous conduct against Davila. In her
motion, she requested attorney fees, deposition costs, and court costs. Davila filed a
response, arguing Simpson admitted she interfered with Davila’s employment.
{¶16} On March 12, 2018, we affirmed the judgment of the trial court in Davila v.
Simpson, supra, stating:
We find, therefore, that in addition to the reasons set forth by the trial court,
summary judgment is appropriate because, in construing all of the
appropriate documentation in a light most favorable to appellant, there are
no genuine issues of material fact with regard to proximate cause and
appellee is entitled to judgment as a matter of law as a result of the lack of
any evidence establishing a causal connection between the alleged acts of
the appellee and the termination of appellant.
Id. at ¶ 49. Stark County, Case No. 2018CA00133 7
{¶17} After we affirmed the judgment of the trial court, Simpson filed a
supplemental motion for frivolous conduct on April 12, 2018, wherein she renewed and
supplemented her original motion against Davila.
{¶18} The trial court granted Simpson’s motion for frivolous conduct on June 19,
2018. The trial court found the conduct upon which Davila based his claims consisted of
allegations or other factual contentions that had no evidentiary support. The matter was
set for a hearing to determine the appropriate sanctions.
{¶19} On July 12, 2018, Davila filed a motion to dismiss the motion for frivolous
conduct based on lack of jurisdiction. He argued that pursuant to R.C. 2323.51, the April
12, 2018 motion was filed beyond the 30-day time limit.
{¶20} An evidentiary hearing on the motion for frivolous conduct was held on July
12, 2018. Simpson presented testimony from the three attorneys that assisted her with
this action and submitted their invoices into evidence. Simpson initially retained Attorney
Susan Pritchard to review Davila’s complaint. Pritchard testified she invoiced Simpson
fees in the amount of $490, which was charged based on an hourly rate of $280. Attorney
Stanley Rubin testified he was next retained by Simpson, but withdrew after Davila filed
a motion to disqualify her counsel. Rubin worked for 15.1 hours and charged $350.00 per
hour. The total charges were $5,285.00 but he gave Simpson a courtesy discount,
reducing his fee to $2,500.00. Simpson also paid Rubin $93.00 in court costs. After Rubin
withdrew from the case, Simpson hired Attorney Michael Gatien. Gatien testified he
charged $300.00 per hour and his total hours were 49.2, for total attorney fees of $14,760.
Transcript costs were $473.45. As to the reasonableness of the hours spent and the
hourly rate charged, Simpson asked the trial court to take judicial notice. Davila objected. Stark County, Case No. 2018CA00133 8
At the conclusion of the evidence, the trial court found the attorney fees were reasonable
and appropriate.
{¶21} The trial court memorialized its findings via judgment entry filed August 6,
2018. It awarded a total of $17,843.00 to Simpson against Davila. The trial court further
denied Davila’s motion to dismiss for lack of jurisdiction.
{¶22} It is from this judgment Davila now appeals.
ASSIGNMENTS OF ERROR
{¶23} Davila raises two Assignments of Error:
{¶24} “I. THE TRIAL COURT SHOULD HAVE DENIED THE APPELLEE’S
MOTION FOR FRIVOLOUS CONDUCT BECAUSE THE MOTION FOR SANCTIONS
WAS FILED BEYOND THE THIRTY DAYS MANDATED BY R.C. 2323.51.
{¶25} “II. THE TRIAL COURT ERRED BY AWARDING ATTORNEY FESS IN
THE ABSENCE OF PROOF OF THE REASONABLENESS OF ATTORNEY FEES AS
REQUIRED BY R.C. 2323.51.”
ANALYSIS
I. Timely Filed
{¶26} Davila argues in his first Assignment of Error the trial court erred in denying
his motion to dismiss Simpson’s claim for frivolous conduct as untimely filed. We
disagree.
{¶27} On August 9, 2017, the trial court granted Simpson’s motion for summary
judgment and denied Davila’s motion for summary judgment as moot. Simpson voluntarily
dismissed her counterclaim, without prejudice, on August 14, 2017. On September 5,
2017, Davila filed his appeal of the August 9, 2017 judgment. Simpson filed her motion Stark County, Case No. 2018CA00133 9
for frivolous conduct judgment on September 7, 2017. The trial court did not rule on
Simpson’s motion for frivolous conduct judgment because trial court case was stayed
pending appeal in Davila v. Simpson, supra. Our opinion affirming the trial court’s
judgment was filed on March 12, 2018. On April 12, 2018, Simpson filed a renewed and
supplemental motion for frivolous conduct. The trial court granted the motion on June 19,
2018. Davila filed his motion to dismiss on July 12, 2018, arguing Simpson’s April 12,
2018 renewed motion for frivolous conduct judgment was untimely filed.
{¶28} Davila’s argument that Simpson’s motion for frivolous conduct judgment
was untimely filed was based on R.C. 2323.51(B)(1). The statute reads:
Subject to divisions (B)(2) and (3), (C), and (D) of this section and except
as otherwise provided in division (E)(2)(b) of section 101.15 or division
(I)(2)(b) of section 121.22 of the Revised Code, at any time not more than
thirty days after the entry of final judgment in a civil action or appeal, 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. The court may assess
and make an award to any party to the civil action or appeal who was
adversely affected by frivolous conduct, as provided in division (B)(4) of this
section.
R.C. 2323.51(B)(1). Davila stated Simpson’s motion for frivolous conduct was untimely
filed pursuant to R.C. 2323.51(B)(1) because she filed her motion for frivolous conduct
on April 12, 2018, 30 days after our decision was filed in Davila v. Simpson, supra. Stark County, Case No. 2018CA00133 10
{¶29} We find Davila’s argument to be not well taken because the April 12, 2018
motion for frivolous conduct was not the original filing. After the trial court granted
summary judgment in favor of Simpson on August 9, 2017, Simpson filed her original
motion on September 7, 2017, requesting a determination that Davila engaged in frivolous
conduct. This was 29 days after the trial court’s summary judgment ruling. Davila filed his
notice of appeal of the trial court’s judgment on September 5, 2017. Based on Davila’s
appeal, the matters pending in the trial court were stayed until the resolution of the appeal.
Our Court issued its ruling on March 12, 2018. On April 12, 2018, Simpson filed a
supplemental motion for frivolous conduct, wherein she stated she renewed and
supplemented her original motion for frivolous conduct.
{¶30} After the appeal was resolved, the trial court regained jurisdiction to
consider pending motions, which included the September 7, 2017 motion for frivolous
conduct. We find Simpson timely filed her original motion for frivolous conduct on
September 7, 2017, 29 days after the trial court entered a final judgment.
{¶31} Davila’s first Assignment of Error is overruled.
II. Reasonableness of Attorney Fees
{¶32} Davila argues in his second Assignment of Error that the trial court erred in
awarding attorney fees in the absence of proof of the reasonableness of the fees as
required by R.C. 2323.51. A motion for sanctions brought under R.C. 2323.51 requires a
three-step analysis by the trial court. The trial court must determine (1) whether the party
engaged in frivolous conduct, (2) if the conduct was frivolous, whether any party was
adversely affected by it, and (3) if an award is to be made, the amount of the award.
Martell v. Martell, 5th Dist. Stark No. 2018CA00017, 2018-Ohio-4927, 2018 WL 6446618, Stark County, Case No. 2018CA00133 11
¶ 41 citing Bear v. Troyer, 5th Dist. Guernsey Nos. 15 CA 17, 15 CA 24, 2016-Ohio-3363,
¶ 55. Davila does not argue on appeal the trial court erred in finding he engaged in
frivolous conduct and Simpson was adversely affected by Davila’s frivolous conduct.
{¶33} R.C. 2323.51(B)(1) provides a court may award court costs, reasonable
attorney fees, and other reasonable expenses incurred in connection with the civil action
or appeal to any party to the civil action or appeal who was adversely affected by frivolous
conduct. Martell, supra at ¶ 40. R.C. 2323.51(B)(3)(b) states that any award made
pursuant to R.C. 2323.51(B)(1) shall not exceed those fees that were reasonably incurred
by a party. In re Guardianship of Bakhtiar, 9th Dist. No. 16CA011036, 2018-Ohio-1764,
113 N.E.3d 24, 2018 WL 2105772, ¶ 27. Where a trial court has found the existence of
frivolous conduct, the decision whether or not to assess a penalty lies within the sound
discretion of the trial court. Harper v. Kandel, 5th Dist. Tuscarawas No. 2018 AP 02 0010,
2018-Ohio-3382, 2018 WL 4037406, ¶ 18 citing Wiltberger v. Davis, 110 Ohio App.3d 46,
52, 673 N.E.2d 268 (10th Dist.). A trial court exercises discretion in deciding to assess
attorney fees as a sanction for frivolous conduct. Carasalina LLC, 10th Dist. No. 14AP–
74, 2014-Ohio-5665, at ¶ 48. Moreover, a trial court has discretion to determine the
amount of attorney fees to award. Bear v. Troyer, 5th Dist. No. 15 CA 17, 2016-Ohio-
3363, ¶ 67; Wrinch v. Miller, 183 Ohio App.3d 445, 2009-Ohio-3862, ¶ 59 (9th Dist.);
Southard Supply, Inc. v. Anthem Contractors, Inc., 10th Dist. Franklin No. 16AP-545,
2017-Ohio-7298, 2017 WL 3602073, ¶ 43. Abuse of discretion requires more than simply
an error of law or judgment, implying instead the court's attitude is unreasonable, arbitrary
or unconscionable. Tracy v. Merrell-Dow Pharmaceuticals, Inc., 58 Ohio St.3d 147, 152,
569 N.E.2d 875 (1991). Stark County, Case No. 2018CA00133 12
{¶34} “The burden of establishing that a party incurred reasonable attorney fees
because of the opposing party's frivolous conduct falls upon the moving party.” White v.
White, 2nd Dist. Montgomery No. 27011, 2016-Ohio-7628, 2016 WL 6575330, ¶ 14 citing
Grine v. Sylvania Schools Bd. of Edn., 6th Dist. Lucas No. L–06–1314, 2008–Ohio–1562,
¶ 65, citing In re Verbeck's Estate, 173 Ohio St. 557, 559, 184 N.E.2d 384 (1962). For the
moving party to prevail on a claim for attorney fees, she must demonstrate the fees were
reasonable and necessary. White, supra at ¶ 19 citing Donese v. Donese, 2d Dist. Greene
No.2000–CA–17, 2000 WL 1433872, *4 (Sept. 29, 2000), citing Thomas v. Thomas, 2d
Dist. Greene No. 94–CA–18, 1995 WL 137015, *9 (Mar. 31, 1995). See also Swanson v.
Swanson, 48 Ohio App.2d 85, 91–93, 355 N.E.2d 894 (8th Dist.1976). The record must
demonstrate facts upon which the reasonableness of the fee can be judged, including the
time and labor involved, the fee customarily charged, the nature and length of the
professional relationship with the client, and the parties' relative need and ability to
pay. Swanson, supra at 91–93. “At a minimum, * * * the record must contain some
evidence of the reasonableness of the fees.” (Citation omitted.) White, supra at ¶ 20 citing
Donese at *3.
{¶35} The testimony of Simpson’s three attorneys demonstrated the attorneys’
hourly rates ranging from $280, $300, and $350, were customary and reasonable for the
area. Davila’s cross examination of the attorneys did not demonstrate the hourly rates of
the three local attorneys were not reasonable. Simpson’s second attorney charged an
hourly rate of $350 but reduced his invoice from $5,285.00 to $2,500.00. Davila cross
examined the attorneys as to the work completed on the matter, specifically whether the
work was duplicative of the other attorneys’ work. Simpson’s third attorney entered an Stark County, Case No. 2018CA00133 13
appearance on May 12, 2017 and completed much of the work on the case after her
second attorney withdrew from the matter on May 9, 2017. The third attorney’s invoice
reflects the work done to prepare the motion for summary judgment, conduct Davila’s
deposition, respond to discovery requests, prepare a protective order, and file a motion
for frivolous conduct. We find the record contains sufficient evidence of reasonableness
of the fees to demonstrate no abuse of discretion by the trial court to award attorney fees
and costs to Simpson.
{¶36} Davila’s second Assignment of Error is overruled.
CONCLUSION
{¶37} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Wise, Earle, J., concur.