[Cite as Enviropro Plastics, Inc. v. Trickett, 2014-Ohio-1707.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
ENVIROPRO PLASTICS, INC., ET AL. JUDGES: Hon. W. Scott Gwin, P. J. Appellees/Cross-Appellants Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2013 CA 00195 HOWARD TRICKETT
Appellant/Cross-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2012 CV 03354
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 21, 2014
APPEARANCES:
For Appellees/Cross-Appellants For Appellant/Cross-Appellee
MATTHEW L. MOHR JON A. TROYER BRENT A. BARNES 1953 Gulf Street, NW GEIGER TEEPLE ROBINSON Uniontown, Ohio 44685 & McELWEE 1844 West State Street, Suite A Alliance, Ohio 44601 [Cite as Enviropro Plastics, Inc. v. Trickett, 2014-Ohio-1707.]
Wise, J.
{¶1}. Appellant/Cross-Appellee Howard J. Trickett appeals the decision of the
Court of Common Pleas, Stark County, which awarded various damages in an eviction
and breach of contract case involving Appellees/Cross-Appellants Enviropro Plastics,
Inc., Robert Kirk, and Christopher Kirk. The relevant facts leading to this appeal are as
follows.
{¶2}. Appellee Enviropro Plastics, Inc. is a plastics business operating in
Alliance, Ohio. It specializes in extruding plastic lumber, chiefly for use in the pallet
industry, via plastic recycling. Tr. at 21. From its commencement of operations in 2002
until late 2011, the company was co-owned by Christopher Kirk and Robert Kirk. On or
about December 30, 2011, Appellant Trickett entered into a purchase agreement to buy
the business assets for the sum of $50,000.00. Tr. at 26.
{¶3}. In conjunction with the purchase agreement, Appellant Trickett and
Appellee Christopher Kirk entered into an employment agreement whereby Christopher
Kirk agreed to work for appellant on an "at will" basis for $3,000.00 per month. The
employment agreement contained a non-compete provision with appellant within a 100-
mile radius of Canton, Ohio. In addition to having appellant take over certain assets,
the parties agreed that appellant could occupy the Enviropro facility in Alliance for a
monthly rental fee.
{¶4}. Appellant operated the extrusion business at the facility from January
2012 until October 2012. Appellant later testified that he had sales and revenue in this
period, but he experienced various mechanical problems with some of the assets. {¶5}. Eventually, Appellant Trickett began to withhold his rent payment. On
August 29, 2012, Appellee Enviropro filed a forcible entry and detainer action against
Appellant Trickett in the Alliance Municipal Court.
{¶6}. On October 2, 2012, appellant filed a motion to dismiss the forcible entry
and detainer action on jurisdictional grounds. The municipal court heard the motion and
found that on September 25, 2012, Appellant Trickett had tendered a check for
$2,500.00 to Christopher Kirk, which he endorsed and deposited. This sum represented
rent of $1,500.00, attorney fees of $400.00, and court costs of $100.00. However, the
municipal court denied the motion to dismiss, although it also denied a writ of restitution
on the first cause of action in the complaint. See Judgment Entry, Alliance Municipal
Court, October 9, 2012.
{¶7}. On October 23, 2012, Appellant Trickett filed a nine-count counterclaim
against Appellee Enviropro and a third-party complaint against Robert Kirk and
Christopher Kirk. These counts included breach of purchase contract warranty and
breach of employment contract. On October 24, 2012, the case was transferred to the
Stark County Court of Common Pleas.
{¶8}. In the meantime, after appellant had vacated the Alliance facility on or
about November 1, 2012, appellees discovered that a large door had been damaged
and the electrical "drop lines" had been removed. See Tr. at 41-44.
{¶9}. On April 8, 2013, Appellee Enviropro filed a motion for partial summary
judgment requesting that the trial court dismiss Appellant Trickett's claims for attorney
fees and costs. On the same date, Appellant Trickett filed his own motion for summary
judgment. On May 1, 2013, the trial court denied both motions for summary judgment. {¶10}. The matter proceeded to a bench trial in the Stark County Court of
Common Pleas on May 9-10, 2013. Seven witnesses testified, including Robert Kirk,
Christopher Kirk, and Appellant Trickett.
{¶11}. The trial court issued its first judgment entry on August 30, 2013. The trial
court ruled in the eight-page entry, inter alia, that appellees had breached the
agreement's warranty provision, finding that the assets were not in good operating
condition and were not sufficient for the operation of the business. The court then found
that appellant had incurred repair costs of $23,741.94 to restore the equipment in the
facility to the condition as warranted in the parties' agreement. The court also found that
a certain die was improperly listed with the assets and had to be returned to its rightful
owner, causing a loss to appellant of $500.00. On the other hand, the court found that
the cost to appellees to replace the electrical drop lines taken by appellant was
$12,105.00, and that appellees had spent $1,635.55 to repair the door damaged while
the building was under appellant's control.
{¶12}. Accordingly, the trial court concluded, inter alia, that appellant had been
damaged in the amount of $24,241.94, and awarded judgment in said amount in favor
of appellant and against Appellee Enviropro, Robert Kirk, and Christopher Kirk, jointly
and severally, plus attorney fees and costs. The court also concluded that appellees
had been damaged in the amount of $13,740.55, and awarded judgment in that amount
in favor of appellees and against appellant.
{¶13}. The court scheduled a hearing to determine the amount of attorney fees to
be awarded to Appellant Trickett for September 12, 2013. Via the second judgment
entry, filed on September 16, 2013, the court ruled that appellant had failed to meet his burden of establishing the prevailing hourly rate charged in the community for similar
services and thus had failed to demonstrate the amount of fees that should be awarded.
However, the court granted appellant $4,465.83 in costs of the action.
{¶14}. Appellant filed a notice of appeal September 27, 2013, and filed his initial
brief on December 6, 2013. Appellees filed a notice of cross-appeal on September 30,
2013. Appellant herein raises the following six Assignments of Error:
{¶15}. “I. THE MUNICIPAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO DISMISS FOR LACK OF JURISDICTION, DESPITE THERE BEING NO
JUSTICIABLE CONTROVERSY AFTER THE PLAINTIFF ACCEPTED PAYMENT IN
SETTLEMENT OF ALL CLAIMS, AS WELL AS PAYMENT FOR FUTURE RENT.
{¶16}. “II. THE TRIAL COURT ERRED IN DENYING DEFENDANT/THIRD-
PARTY PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, WHEN THE ONLY
RESPONSE IN OPPOSITION OFFERED NOTHING MORE THAN BARE DENIALS OF
THE PROPERLY SUPPORTED FACTUAL EVIDENCE PRESENTED IN THE MOTION.
{¶17}. “III. THE TRIAL COURT ERRED WHEN IT FAILED TO AWARD
DEFENDANT/THIRD-PARTY PLAINTIFF DAMAGES AS INDEMNIFICATION FOR
BUSINESS LOSSES INCURRED AS A RESULT OF THE BREACH OF CONTRACT
COMMITTED BY THE THIRD-PARTY DEFENDANT.
{¶18}. “IV. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT
INJUNCTIVE RELIEF TO DEFENDANT/THIRD-PARTY PLAINTIFF, DESPITE
FINDING THAT THE THIRD-PARTY DEFENDANT WAS ENGAGED IN A
COMPETITIVE BUSINESS, IN VIOLATION OF A COVENANT NOT TO COMPETE. {¶19}. “V. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF’S CLAIM
FOR DAMAGES WHEN THE ASSET PURCHASE AGREEMENT TRANSFERRED ALL
ASSETS OF THE BUSINESS, AND THE ASSETS AT ISSUE WERE ELECTRICAL
DROPS CONSIDERED TO BE COMMERCIAL TRADE FIXTURES BECAUSE THEY
WERE SPECIFIC TO THE EQUIPMENT AND THE BUSINESS BEING CONDUCTED.
{¶20}. “VI. THE TRIAL COURT ERRED WHEN IT FAILED TO AWARD
DEFENDANT/THIRD-PARTY PLAINTIFF ANY ATTORNEY FEES, DESPITE HAVING
RULED THAT HE WAS ENTITLED TO THE COSTS OF THIS ACTION AS WELL AS A
RECOVERY OF ATTORNEY FEES.”
{¶21}. Appellees herein raise the following sole Assignment of Error on cross-
appeal:
{¶22}. “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF
PLAINTIFF/CROSS-APPELLANT IN DENYING ITS MOTION FOR SUMMARY
JUDGMENT AND AWARDING ATTORNEY'S FEES AND COSTS TO DEFENDANT
TRICKETT AT TRIAL.”
Trickett's Appeal
I.
{¶23}. In his First Assignment of Error, appellant maintains the municipal court,
prior to the transfer to common pleas court, erred in denying his motion to dismiss
appellees' forcible entry and detainer action based upon a purported settlement of the
issues in that action. We disagree.
{¶24}. “The generally accepted rule in Ohio is that, by accepting future rent
payments after serving a notice to vacate, a landlord waives the notice as a matter of law, as such acceptance is inconsistent with the intent to evict.” King v. Dolton, 9th Dist.
Wayne No. 02CA0041, 2003-Ohio-2423, ¶ 11, quoting Sholiton Indus., Inc. v. Royal
Arms, 2d Dist. Montgomery No. 17480, 1999 WL 355898 (additional citation omitted). In
the case sub judice, appellant maintains that Enviropro accepted payment for past due
rent, as well as future rent through October 2012. Thus, appellant urges, Enviropro
waived its notice and was no longer in compliance with R.C. Chap. 1923, and the
municipal court should not have proceeded on the forcible entry and detainer action.
{¶25}. Nonetheless, we have frequently recognized that an appellant, in order to
secure reversal of a judgment, must generally show that a recited error was prejudicial
to him. See Tate v. Tate, Richland App.No. 02–CA–86, 2004–Ohio–22, ¶ 15, citing
Ames v. All American Truck & Trailer Service (Feb. 8, 1991), Lucas App. No. L–89–295.
As noted in our recitation of facts, appellant, on October 23, 2012, filed a nine-count
counterclaim against Enviropro and a third-party complaint against Robert Kirk and
Christopher Kirk. The counterclaim divested the municipal court of its jurisdiction and
the case was transferred to the Stark County Court of Common Pleas. The municipal
court action thus became the starting point for appellant's civil counterclaim case in
which he ultimately obtained damages. Under these circumstances, we are
unpersuaded the municipal court's decision to keep appellees' forcible entry and
detainer action in effect (at least until the matter was transferred to the common pleas
level) resulted in prejudicial error to appellant.
{¶26}. Appellant's First Assignment of Error is overruled. II.
{¶27}. In his Second Assignment of Error, appellant contends the trial court erred
in denying summary judgment in his favor.
{¶28}. Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As
such, we must refer to Civ.R. 56 which provides, in pertinent part: “Summary judgment
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence in the pending case and written
stipulations of fact, if any, timely filed in the action, show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of
law. * * * A summary judgment shall not be rendered unless it appears from the
evidence or stipulation, and only from the evidence or stipulation, that reasonable minds
can come to but one conclusion and that conclusion is adverse to the party against
whom the motion for summary judgment is made, that party being entitled to have the
evidence or stipulation construed most strongly in the party's favor.”
{¶29}. Pursuant to the above rule, a trial court may not enter summary judgment
if it appears a material fact is genuinely disputed. The party moving for summary
judgment bears the initial burden of informing the trial court of the basis for its motion
and identifying those portions of the record that demonstrate the absence of a genuine
issue of material fact. The moving party may not make a conclusory assertion that the
non-moving party has no evidence to prove its case. The moving party must specifically
point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving
party to set forth specific facts demonstrating there is a genuine issue of material fact for
trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, citing Dresher v.
Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264.
{¶30}. The crux of appellant's argument is that appellees, in responding to the
motion for summary judgment, attached only the nearly-identical affidavits of
Christopher Kirk and Robert Kirk, both of which state, in regard to appellant's summary
judgment motion: "The Allegations contained in paragraphs 1-8, 10-18, 21, 23, 25-31
are either inaccurate and/or not true," and "[t]he allegations and/or facts stated in
paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 16, 19, 23, 24, 25, 26, 28, 30, 33, 36, 39, 40-45 are
either inaccurate and/or not true."
{¶31}. Appellant accordingly directs us to our decision in Combs v. Spence, 5th
Dist. Licking No. 2006CA0034, 2007-Ohio-2210, wherein we reiterated: "A party cannot
avoid summary judgment solely by submitting a self-serving affidavit containing nothing
more than bare contradictions of the evidence offered by the moving party." Id. at ¶ 21.
{¶32}. However, we have also held that any error by a trial court in denying a
motion for summary judgment is rendered moot or harmless if a subsequent trial on the
same issues raised in the motion demonstrates that there were genuine issues of
material fact supporting a judgment in favor of the party against whom the motion was
made. Harraman v. Howlett, 5th Dist. Morrow No. 03CA0023, 2004–Ohio–5566, ¶ 23,
citing Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d 150, 156, 642 N.E.2d
615. {¶33}. Based on our review of the record, as further set forth infra, we find that
genuine issues of material fact favoring appellees were demonstrated at trial; hence, we
find the rule of Harraman applicable in the case sub judice.
{¶34}. Appellant's Second Assignment of Error is therefore found moot.
III.
{¶35}. In his Third Assignment of Error, appellant contends the trial court erred in
failing to award him additional damages in the form of indemnification for business
losses allegedly caused by Christopher Kirk's breach of the employment agreement. We
disagree.
{¶36}. As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant,
competent and credible evidence upon which the fact finder could base its judgment.
Cross Truck v. Jeffries (February 10, 1982), Stark App. No. CA–5758. Generally, a civil
judgment which is supported by competent and credible evidence may not be reversed
as against the manifest weight of the evidence. See State v. McGill, Fairfield App.No.
2004–CA–72, 2005-Ohio-2278, 2005 WL 1092394, ¶ 18. In Eastley v. Volkman, 132
Ohio St.3d 328, 972 N.E.2d 517, 2012-Ohio-2179, the Ohio Supreme Court reiterated
the following in regard to appellate review of manifest weight challenges in civil cases:
“ ‘[I]n determining whether the judgment below is manifestly against the weight of the
evidence, every reasonable intendment and every reasonable presumption must be
made in favor of the judgment and the finding of facts. * * *.’ ” Id. at 334, 972 N.E.2d
517, quoting Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). A reviewing court must determine whether the finder of fact, in
resolving conflicts in the evidence, clearly lost his or her way and created such a
manifest miscarriage of justice that the judgment must be reversed and a new trial
ordered. See Hunter v. Green, Coshocton App.No. 12–CA–2, 2012-Ohio-5801, 2012
WL 6094172, ¶ 25, citing Eastley, supra. In addition, in a bench trial, a trial court judge
is presumed to know the applicable law and apply it accordingly. Walczak v. Walczak,
Stark App.No. 2003CA00298, 2004–Ohio–3370, ¶ 22, citing State v. Eley (1996), 77
Ohio St.3d 174, 180–181, 672 N.E.2d 640.
{¶37}. The parties' employment agreement required, among other things, that
Christopher Kirk was to "conduct business and regulate Employee's habits so as to
maintain and increase the good will and reputation of Trickett," and, "that Employee will
not directly or indirectly engage in or participate in any activities in conflict with the best
interests of Trickett. * * *" See Employment Agreement, Section 2.
{¶38}. Appellant particularly challenges the following findings by the trial court:
{¶39}. 32. The Court finds that Trickett has failed to demonstrate that
Enviropro has operated at a loss since his purchased [sic] as a result of
inaccurate or misinformation provided by Enviropro and/or Christopher
and Robert Kirk. Rather, the Court finds that the business has operated at
a loss or at a profit lower than that anticipated by Trickett because Trickett
added additional employees, an additional shift to operate the business 24
hours a day, and used lower grade plastic material for the manufacturing
of the product. {¶40}. Appellant, in his brief, directs us to various portions of transcript which, he
maintains, demonstrate that responsibility for the quality of the product was with
Christopher, who apparently was the keeper of the various formulae and techniques for
mixing the raw plastic products processed at the facility. Appellant’s son, Steve Trickett,
testified at trial that Christopher was responsible for decisions such as adding shifts,
making hiring recommendations and overseeing equipment, and he charged that
Christopher had on occasion inflated production figures. Appellant further questions the
trial court's findings that despite Christopher's illegal use of marijuana while at work,
such activity was not in violation of the parties' employment agreement. Appellant also
presents a "before and after" comparison of some of the accounting numbers, showing,
for example, that in 2010, Enviropro had revenue of $111,369.00 and real income after
expenses of $29,667.00, while in 2012, after appellant took over the business assets,
revenue had slipped to $38,621.00, with labor, freight, and supply expenses up,
dropping real income to minus $60,971.00. Appellant’s theory throughout the case was
that the decline in profits was attributable to Christopher.
{¶41}. Nonetheless, appellees countered at trial that Christopher was not
contracted to be the operations manager. The trial court had before it evidence that
appellant's son, Steve, did verbally give tasks to Christopher, who was under a duty to
perform all “assigned” tasks under the explicit terms of the employment agreement.
Other testimony indicated that appellant did make some decisions regarding the plastic
materials brought into the facility. We find there was adequate support in the record for
the conclusion that the business losses in the plastic extruding activity were the result of
appellant’s own decisions. Furthermore, the correlation of Enviropro's 2012 annual loss number to the hiring of Christopher under the employment agreement is subject to wide
interpretation and does not necessarily establish a cause-and-effect relationship. It is
well-established that the trier of fact (in this instance the trial judge herself) is in a far
better position to observe the witnesses' demeanor and weigh their credibility. See, e.g.,
Taralla v. Taralla, Tuscarawas App. No. 2005 AP 02 0018, 2005–Ohio–6767, ¶ 31,
citing State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. Upon review, we find
no basis to disturb the trial court's findings and conclusions in this matter in regard to
appellant's claim for damages under the employment agreement.
{¶42}. Appellant's Third Assignment of Error is overruled.
IV.
{¶43}. In his Fourth Assignment of Error, appellant contends the trial court erred
in denying him injunctive relief as to the covenant not to compete regarding Christopher
Kirk. We disagree.
{¶44}. Our standard of review regarding the granting of an injunction is whether
the trial court abused its discretion. City of Canton v. Campbell, Stark App.No. 2001
CA00205, 2002-Ohio-1856, citing Mechanical Contractors Association of Cincinnati, Inc.
v. University of Cincinnati (2001), 141 Ohio App.3d 333, 338, 750 N.E. 2d 1217.
Furthermore, it is well settled that an injunction will not issue where there is an adequate
remedy at law. Mid-America Tire, Inc. v. PTZ Trading Ltd., 95 Ohio St.3d 367, 2002-
Ohio-2427, ¶ 74 (citations omitted).
{¶45}. The employment agreement in the case sub judice generally restricts
Christopher Kirk from engaging in competition with appellant's utilization of the business
assets purchased and from disclosing trade secrets and competitor information. Said agreement includes a geographical limit in the form of a 100-mile radius surrounding
Canton, Ohio. The trial court determined that Christopher was working as a supervisor
at a plastic extruding and molding company in Parkman, Ohio. However, the trial court
declined to take judicial notice that Parkman was inside of the aforesaid 100-mile radius
of Canton. See Judgment Entry, August 30, 2013, at 6. We note appellant did not ask to
be heard on the matter at trial under Evid.R. 201(E), although we recognize that a trial
court may take judicial notice whether requested or not. See Evid.R. 201(C).
{¶46}. We review decisions by a trial court regarding judicial notice under an
abuse of discretion standard. See Molitor v. Gaddis (Aug. 25, 1999), Morrow App. No.
CA 875, 1999 WL 770688. Although a trial court may be under a duty in some
circumstances to take judicial notice of certain statutes and ordinances (see e.g., City of
Cleveland v. Keah (1952), 157 Ohio St. 331, 336, 105 N.E.2d 402), we are aware of no
mandate for such judicial recognition of specific geographical facts not demonstrated at
trial, nor is a trial judge required to utilize modern technology herself to ascertain such
facts, as suggested by appellant. We therefore find no abuse of discretion in the trial
court's decision in this instance to decline taking judicial notice of geographical
distances and to deny injunctive relief regarding the non-competition clause of the
parties' agreement.
{¶47}. Appellant's Fourth Assignment of Error is overruled.
V.
{¶48}. In his Fifth Assignment of Error, appellant contends the trial court erred in
calculating damages by not including the electrical "drop lines" as part of the assets
purchased by appellant. We disagree. {¶49}. In its August 30, 2013 judgment entry, the trial court made the following
pertinent findings at pages 2-3:
{¶50}. 9. During the negotiations regarding the sale of Enviropro's assets,
the parties discussed the electrical system that operated the equipment. In
2002, Enviropro installed an electrical system in its Armour Road facility
for $20,000.00. The electrical system was comprised of a junction box on
a wall and conduit running from the junction box across the walls and
ceiling to another junction box above the equipment. The equipment would
plug into the junction box located above it via 'drop lines.'
{¶51}. 10. Trickett desired to purchase the electrical system, specifically
the 'drop lines;' however, because it was part of the Armour Road facility,
Enviropro did not intend on selling it.
{¶52}. 11. On December 30, 2011, Enviropro and Trickett entered into a
purchase agreement ('the agreement') for the sale of Enviropro's assets.
The agreement was drafted by counsel for Trickett and contained 4
exhibits ***.
{¶53}. 12. The electrical system and its 'drop lines' described above are
not included in the agreement or in the exhibits thereto.
{¶54}. 13. The Court finds that the language relied upon by Trickett that
the electrical system's 'drop lines' are 'fixtures' or 'trade fixtures'
referenced in Article I, Section 1.1(a) unpersuasive as the Court finds that
such drop lines were, in fact, part of the facility.
{¶55}. The purchase agreement at issue includes the following clause: {¶56}. Section 1.1 Purchase and Sale of the Purchased Assets. *** For
purposes of this Agreement, the term ‘Purchased Assets’ shall mean and
include any and all assets of Sellers, which are located at, used in or
arise from the operation of the Business, including but not limited to, the
following:
{¶57}. (a) Any and all machinery, equipment, furniture, fixtures, materials,
electronics, trade fixture, and all other items of tangible personal property
of Seller, utilized in connection with the Business, including, but not
limited to those items set forth on Exhibit A ***.
{¶58}. (Emphasis added).
{¶59}. Our research reveals no Ohio case law specifically addressing whether
electrical drop lines in an industrial setting are considered affixed to the building.
However, when interpreting a contract, a court must first examine the plain language of
the contract for evidence of the parties' intent. See Oberst v. Oberst, 5th Dist. Fairfield
No. 08-CA-34, 2009-Ohio-13, ¶ 60, citing Klug v. Klug, 2nd Dist. Montgomery No.
19369, 2003-Ohio-3042, ¶ 13 (additional citations omitted). In the situation sub judice,
as appellees urge in their response brief, the purchase agreement at issue incorporated
lists of numerous specific items, including dies, compressors, and pallet jacks;
therefore, it was not unreasonable for the trial court to recognize that approximately
$12,000.00 to $20,000.00 in electrical components likewise would have been listed had
the parties intended them to be sold to appellant. Furthermore, even if ambiguity should
be recognized in the above clause, evidence was adduced that Robert Kirk informed appellant during negotiations for the purchase agreement that the drop lines should not
be removed and were "property specific." See Tr. at 47-48.
{¶60}. We therefore find no reversible error in the trial court's accounting of the
replacement value of the electrical drop lines in the damages calculation to appellees.
{¶61}. Appellant's Fifth Assignment of Error is overruled.
VI.
{¶62}. In his Sixth Assignment of Error, appellant argues the trial court erred in
declining to award him attorney fees. We disagree.
{¶63}. An award of attorney's fees lies within the sound discretion of the trial
court. Rand v. Rand (1985), 18 Ohio St.3d 356, 481 N.E.2d 609. In the case sub judice,
the trial court, in its decision regarding said fees, relied upon this Court's decision in
TCF National Bank v. Smith, 5th Dist. Stark No. 2009 CA 00101, 2010-Ohio-1336, in
which we reiterated: " 'The most useful starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on the litigation multiplied
by a reasonable hourly rate. This calculation provides an objective basis on which to
make an initial estimate of the value of a lawyer's services.' ” Id. at ¶ 20, citing Hensley
v. Eckerhart (1983) 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40. The trial court
proceeded to award zero attorney fees to appellant, noting that there had been "no
evidence produced with respect to the prevailing rate charged by attorneys in Stark
County." Judgment Entry, September 16, 2013, at 2.
{¶64}. Appellant presently emphasizes that the employment agreement between
appellant and Christopher Kirk made Christopher responsible for "any and all" attorney fees in the event appellant was required to enforce the agreement, with no
"reasonableness" language in regard to such fees.
{¶65}. However, we have previously held: "Pursuant to Ohio law, contractual
provisions awarding attorney fees are enforceable and not void as against public policy
so long as the fees awarded are fair, just, and reasonable as determined by the trial
court upon full consideration of all the circumstances of the case." Morgan Woods
Homeowners' Assn. v. Wills, 5th Dist. Licking No. 11 CA 57, 2012-Ohio-233, ¶ 55. The
Seventh District Court of Appeals has similarly recognized: "Although a contractual
provision may entitle a prevailing party to attorney's fees, the prevailing party still has
the burden of proving the reasonableness of the fees." Unick v. Pro–Cision, Inc., 7th
Dist. Mahoning No. 09 MA 171, 2011–Ohio–1342, ¶ 27.
{¶66}. Upon review, we are unpersuaded the trial court abused its discretion in
awarding appellant $0 in attorney fees under the facts and circumstances presented.
{¶67}. Appellant's Sixth Assignment of Error is overruled.
Enviropro's Cross-Appeal
{¶68}. In their sole Assignment of Error on cross-appeal, appellees contend the
trial court erred in denying their motion for partial summary judgment regarding attorney
fees and costs and in subsequently awarding costs of $4,465.83 to appellant. We
{¶69}. Appellees are essentially asking this Court to review the enforceability of
the portion of the parties agreement that required appellees to indemnify appellant
against any "adverse consequences" resulting from breach by appellees, which was defined in the agreement as "including court costs and reasonable attorneys fees and
expenses." Appellees, relying on Motorists Ins. Co. v. Shields, 4th Dist. Athens No.
00CA26, 2001-Ohio-2387, urge that the aforesaid provision, which was part of an
agreement drafted by appellant's counsel, should not have been enforced on the basis
that it promoted litigation and acted as a penalty. However, in addition to our aforecited
holding in Morgan Woods, supra, this Court has concluded: " *** [W]e believe that it
would be illogical to hold unenforceable a contractual provision for the payment of
attorney fees in a commercial transaction where there is no evidence of unequal
bargaining positions and no evidence of compulsion or duress.” See GMS Management
Company, Inc. v. K & K Industries, Inc. (April 29, 1991), 5th Dist. Stark No. CA 8279,
1991 WL 70154.
{¶70}. Upon review, we find no error or abuse of discretion in the trial court's
decision to award costs of litigation to appellant as allowed under the parties'
agreement. {¶71}. Appellees' sole Assignment of Error on cross-appeal is overruled.
{¶72}. For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Baldwin, J., concurs.
Gwin, P. J., concurs in part and dissents in part.
JWW/d 0314 Gwin, P.J., concurs in part; dissents in part
{¶73} I concur in the majority’s overall disposition of appellant’s first, second,
third, fourth, and fifth assignments of error and in the majority’s disposition of
appellees/cross-appellants’ sole assignment of error. However, I respectfully dissent
from the majority opinion concerning appellant’s sixth assignment of error. I would
sustain appellant’s sixth assignment of error.
{¶74} In its August 30, 2013 judgment entry, the trial court found appellant was
entitled to the costs of the action plus attorney fees due to appellees breach of the
warranty provision of the asset purchase agreement. At the hearing held before the trial
court on attorney fees, appellant testified to Exhibit A, which was a detailed billing
statement containing the description of each billed item and the time spent on each
entry. Appellant testified the total amount of fees contained in Exhibit A ($15,550.00)
was an accurate number that he was actually billed for the attorney’s time on the case
and that the individual entries represented an accurate summary of the attorney work
performed on his behalf. Appellee Robert A. Kirk, Jr. testified appellees incurred
approximately $8,500 in attorney fees in the case. At the hearing, appellees argued
certain items on Exhibit A did not pertain to the breach of warranty issue and thus were
not reasonable attorney fees pursuant to the asset purchase agreement. Appellees
encouraged the trial court to limit the attorney fees to the time spent on the breach of
warranty claim. In its September 16, 2013 judgment entry, the trial court determined
that no evidence was produced with respect to the prevailing wage charged by
attorneys in Stark County and thus awarded appellant $0 in attorney fees on the breach
of warranty claim. {¶75} The Ohio Supreme Court has noted that contractual provisions awarding
attorney fees are “enforceable and not void as against public policy so long as the fees
awarded are fair, just and reasonable as determined by the trial court upon full
consideration of all the circumstances of the case. Nottingdale Homeowners’ Assn.,
Inc. v. Darby, 33 Ohio St.3d 32, 514 N.E.2d 702 (1987); Wilborn v. Bank One Corp.,
121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396.
{¶76} Based upon the above, I would find the trial court abused its discretion in
awarding appellant $0 in attorney fees. I would remand the case to the trial court to fully
consider the facts and circumstances of the case as it relates to attorney fees, including
the detailed billing statement in Exhibit A and the testimony of appellant and appellee
Robert A. Kirk, Jr.
_______________________________________ HON. W. SCOTT GWIN