[Cite as Helfrich v. Madison, 2014-Ohio-1928.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
JAMES HELFRICH JUDGES: Hon. William B. Hoffman, P.J. Appellant Hon. Sheila G. Farmer, J. Hon. Craig R. Baldwin, J. -vs- Case No. 13-CA-57 TIMOTHY MADISON, ET AL.
Appellees OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas Court, Case No. 07-CV-394
JUDGMENT: Affirmed in part; Reversed in part; and Final Judgment Entered
DATE OF JUDGMENT ENTRY: May 5, 2014
APPEARANCES:
For Appellant For Appellees
JAMES HELFRICH, PRO SE MADISON AND ROSAN LLP P.O. Box 921 39 East Whittier Street Pataskala, Ohio 43062 Columbus, Ohio 43206 Licking County, Case No. 13-CA-57 2
Hoffman, P.J.
{¶1} Appellant, James Helfrich, appeals the June 26, 2013 Judgment Entry
entered by the Licking County Common Pleas Court awarding appellees Timothy
Madison and Madison & Rosan, LLP ("Lawyer Defendants") and Carol Strickland, David
Garner and N.R.T. Columbus Inc. d.b.a. Coldwell Banker King Thompson Realty ("Real
Estate Defendants") attorney's fees and costs in the amount of $45,566.23.
STATEMENT OF FACTS AND CASE
{¶2} In February of 2004, Appellant filed suit in the Licking County Municipal
Court against appellees Strickland, Garner and Coldwell Banker over his purchase of a
home. Appellant dismissed the Municipal Court case and brought suit for the same
claims in Licking County Common Pleas Court (Case No. 05 CV 00120) in January of
2005, seeking $27,000.00 in damages. Appellees were granted summary judgment
when Appellant failed to present any evidence of damages. In that case, Appellant
sought to amend his complaint to join the defendants' counsel, Timothy Madison, as a
defendant. The motion was denied.
{¶3} On March 16, 2007, Appellant filed a pro se complaint in the instant case
alleging tortious interference with a business relationship, abuse of process and fraud
against the Real Estate Defendants, whom he had sued in the prior two cases, and
against the Lawyer Defendants, who had represented the Real Estate Defendants in the
prior cases. On April 13, 2007, Appellees filed a motion to dismiss the complaint, or in
the alternative for summary judgment, and a counterclaim asserting Appellant is a
vexatious litigator, as defined by R.C. 2323.52. Licking County, Case No. 13-CA-57 3
{¶4} The trial court granted summary judgment on the vexatious litigator
counterclaim in favor of Appellees without addressing the motion to dismiss the
complaint. This Court reversed the trial court's granting of summary judgment and
remanded for further proceedings in Helfrich v. Madison, 5th Dist. No. 08–CA–150,
2009–Ohio–5140.
{¶5} Following our remand, the trial judge recused himself and a visiting judge
was assigned to conduct all further proceedings in the case. Appellant amended his
complaint on February 16, 2010, adding Mark Serrott as an additional defendant.
Appellees moved to strike the amended complaint. Before ruling on the motion to strike,
the trial court stayed all proceedings in order to rule on the counterclaim. Following a
bench trial, the court found Appellant to be a vexatious litigator who must obtain leave of
court to file or pursue a claim in any Ohio trial court. Appellant appealed. This Court
affirmed the trial court's judgment. Helfrich v. Madison, 5th Dist. No. 11–CA–26, 2012–
Ohio–551.
{¶6} On March 14, 2011, Appellant voluntarily dismissed all claims against
Appellees. Appellees filed a timely post-judgment motion for attorney fees and
expenses for frivolous conduct, pursuant to R.C. 2323.51. The trial court held an
evidentiary hearing on the motion. Following the hearing, the trial court found Appellant
had engaged in frivolous conduct, as defined by R.C. 2323.51, and ordered Appellant
pay Appellees' attorney fees and expenses in the amount of $118,451.05.
{¶7} Appellant appealed the trial court's decision in Helfrich v. Madison, Licking
App. No. 2011-CA-89, 2012-Ohio-3701. This Court again reversed the decision of the
trial court in part, and remanded the matter to the trial court holding, Licking County, Case No. 13-CA-57 4
{¶8} "However, we do not read our decision in Mid–Ohio so broadly as to
encompass a counterclaim that is in effect a separate action from the underlying
complaint. A party seeking to have a person declared a vexatious litigator must do so in
a civil action pursuant to R.C. 2323.52. This statute has been interpreted to require the
filing of a separate action or a counterclaim. A party seeking to have a person declared
a vexatious litigator may not do so merely by motion filed in the underlying case. Kinstle
v. Union County Sheriff's Office, 3rd Dist. No. 14–07–16, 2007–Ohio–6024, ¶ 9.
Therefore, although the filing of the instant complaint was a part of appellees' claim that
appellant is a vexatious litigator, the counterclaim seeking to have appellant declared a
vexatious litigator is a separate action and appellees must show frivolous conduct in the
defense of the counterclaim in order to be entitled to fees.
{¶9} "Appellees failed to present evidence that appellant acted in a frivolous
manner in his defense of the counterclaim. Certainly appellant is entitled to defend
himself when a counterclaim is filed against him. Appellant prevailed on his first appeal
of the summary judgment finding him to be a vexatious litigator because the court had
based its judgment on material that was not of evidentiary quality as required by Civ. R.
56. Further, appellee Madison specifically testified that appellant was not frivolous in
choosing to defend himself. Tr. (II) 97. While Madison testified that appellant filed things
that he would deem frivolous, there was no specific evidence presented concerning
what documents appellant filed in defense of the counterclaim that were frivolous, nor
did the trial court make specific findings of frivolous conduct in conjunction with the
counterclaim. The trial court found that the counterclaim sought to show 'vexatious
conduct,' which is tantamount to 'frivolous conduct.' While the two statutes share similar Licking County, Case No. 13-CA-57 5
definitions, the issue is not whether appellant engaged in frivolous conduct in his past
lawsuits so as to meet the definition of a vexatious litigator, but whether he engaged in
frivolous conduct specifically in relation to his defense of the vexatious litigator
complaint. Further, the trial court found that appellees should recover fees and
expenses 'for a public service beyond their own interests by restraining a vexatious
litigator's future imposition on the courts and other potential defendants.' Judgment
Entry, August 19, 2011, p. 15. However, there is no statutory or legal authority for the
award of fees on this basis.
{¶10} "The third assignment of error is sustained.
{¶11} "***
{¶12} "The judgment of the Licking County Common Pleas Court is affirmed in
part and reversed in part. This cause is remanded to the court with instructions to
calculate the amount of fees and expenses incurred in conjunction solely with the
complaint filed by appellant and not including fees and expenses incurred in pursuit of
appellees' counterclaim. Costs split evenly between the parties." (Emphasis added.)
{¶13} Appellees attempted to appeal this Court's decision to the Ohio Supreme
Court relative to this Court's denial of fees associated with the vexatious litigator
counterclaim proceedings. Appellant Helfrich attempted to cross-appeal this Court's
decision relating to fees for his engaging in frivolous conduct as to his own claims. On
March 13, 2013, the Ohio Supreme Court denied the requests of both sides for further
review.
{¶14} On remand, the trial court conducted an evidentiary hearing on April 29,
2013 and June 19, 2013 to supplement the evidence submitted at the earlier sanction Licking County, Case No. 13-CA-57 6
hearings on June 23, 2011 and August 18, 2011. Via Opinion and Judgment Entry of
June 26, 2013, the trial court held,
{¶15} "For its analysis, this Court divided the services and related fees that
counsel provided for the defendants into six categories: (1) services in this Court that
related solely to Mr. Helfirch's claims; (2) services in this Court that related to both Mr.
Helfrich's claims and the vexatious litigator counterclaim; (3) services in this Court that
related to the defendants' motion for sanctions pursuant to R.C. 2323.51 for both Mr.
Helfrich's claims and the vexatious litigator counterclaim; (4) services in the Court of
Appeals to defend this Court's order relating to sanctions pursuant to R.C. 2323.51 for
both Mr. Helfrich's claims and the vexatious litigator counterclaim; (5) services in the
Ohio [SIC] Ohio Supreme Court that related solely to this Court's order pursuant to R.C.
2323.51 for Mr. Helfrich's claims; and (6) services in this court on remand from the
Court of Appeals relating solely to sanctions pursuant to R.C. 2323.51 for Mr. Helfrich's
claims.
{¶16} "Where specific services related to both Mr. Helfrich's claims and the
vexatious litigator counterclaim, there was no practical method to allocate the resulting
fees. Defendants' counsel contended that the entire fee should be recoverable. Mr.
Helfrich argued that none of it should be recoverable. Recognizing that the primary
purpose of that specific service could support either activity, this Court allocated half of
the resulting fees for all those services to their defense of Mr. Helfrich's claims."
(emphasis added).
{¶17} From the evidence at the hearings, the trial court found Appellees
reasonably incurred: Licking County, Case No. 13-CA-57 7
CATEGORY ONE
{¶18} "$5,266.55 as attorney fees and expenses for services in this Court that
related solely to their defense of Mr. Helfrich's claims."
CATEGORY TWO
{¶19} "$11.919.40 ($23,838.81 divided by 2) as one-half of the attorney fees and
expenses for services in this Court that related to both Mr. Helfrich's claims and the
vexatious litigator counterclaim."
CATEGORY THREE
{¶20} "$11,017.69 ($22,035.38 divided by 2) as one-half of attorney fees and
expenses for services in this Court that related to the defendants' motion for sanctions
pursuant to R.C. 2323.51 for both Mr. Helfrich's claims and the vexatious litigator
counterclaim. See Ron Scheiderer & Assoc. v. London, 1998-Ohio-453, 81 Ohio St.3d
94, Syllabus ("An award of attorney fees made by a court pursuant to former R.C.
2323.51 may include fees incurred in prosecuting a motion for sanctions"); Ferron v.
Video Professor; Inc. (5th Dist.), 2009-Ohio-3133, 08-CAE-09-0055, ¶s 111-112."
CATEGORY FOUR
{¶21} "$5,110.95 ($10,221.90 divided by 2) as one-half of attorney fees and
expenses for services in the Court of Appeals to defend this Court's order relating to
sanctions pursuant to R.C. 2323.51 for both Mr. Helfrich's claims and the vexatious
litigator counterclaim. This Court lacks authority to impose sanctions for an allegedly
frivolous appeal. Mueller v. City of Vandalia, 2d. Dist. No. 17285, 1999 WL 197971 *3,
(Mar. 31, 1999). However, this Court recognizes a split of authority whether fees
reasonably incurred to defend an appeal from the sanctions order are recoverable. Licking County, Case No. 13-CA-57 8
Compare Soler v. Evans, 2006-Ohio-5402, No. 04AP-314 (10th Dist.), ¶s 24-27 and
Dudley v Dudley, 2011-Ohio-5870, 196 Ohio App.3d 671 (12th Dist.) with Early v.Toledo
Blade Co., 2013-Ohio-404, L-11-1002 (6th Dist), citing and relying on State ex: rel Ohio
Dept of Health v. Sowald (1992), 65 Ohio St.3d 338 (R.C. 2323.51 not applicable to
appeal from original action in the Court of Appeals). This Court cannot find any decision
from the Court of Appeals for the Fifth District. Relying on the Supreme Court's post-
Sowald decision in Ron Scheiderer, supra, and the amendments to R.C. 2323.51 after
at least one arguably contrary decision, this Court concludes that the better decisions
permit that recovery."
CATEGORY FIVE
{¶22} "$2,522.00 as attorney fees and expenses for services in the Ohio
Supreme Court solely to defend this Court's order and the appeals court's affirmance for
Mr. Helfrich's claims."
CATEGORY SIX
{¶23} "$9,729.64 as attorney fees and expenses for services in this Court on
remand from the Court of Appeals relating solely relating to sanctions pursuant to R.C.
2323.51 for Mr. Helfrich's claims.
{¶24} "Therefore, this Court enters its judgment that the defendants shall
recover the total of $45,566.23 from James Helfrich pursuant to R.C. 2323.51 as
reasonable fees and expenses they inc45red [sic] in conjunction with his Complaint in
this case.”
{¶25} Appellant appeals the trial court's judgment, assigning as error: Licking County, Case No. 13-CA-57 9
{¶26} "I. THE TRIAL COURT ERRED WHEN IT AWARDED FEES AND
EXPENSES IN EXCESS OF THE APPELLATE COURT'S ENTRY OF AUGUST 13,
2012.
{¶27} "II. THE TRIAL COURT ERRED WHEN IT CONSIDERED FEES AND
EXPENSES FROM A FIRM'S LEDGER THAT CANNOT BE PARSED AND WHEN
THERE IS NOT ADMISSIBLE EVIDENCE.
{¶28} "III. THE TRIAL COURT ERRED WHEN IT VIOLATED APPELLATE
RULE 12(D).
{¶29} "IV. JUDGE MARKUS NOW OPENS THIS ENTIRE APPEAL FOR
{¶30} "V. HELFRICH ARGUES THAT THE CASE AGAINST MADISON IS NOT
FRIVOLOUS AND THAT HIS FORMER COUNSEL FAILED TO MAKE A NUMBER OF
ARGUMENTS.
{¶31} "VI. THE TRIAL COURT ERRED WHEN IT AWARDED FEES AND
EXPENSES WITHOUT ANY ADMISSIBLE TESTIMONY OR EVIDENCE.
{¶32} "VII. THE TRIAL COURT ERRED WHEN IT AWARDED FEES AND
EXPENSES FOR APPEALS AND THE SUPREME COURT.
{¶33} "VIII. THE TRIAL COURT ERRED WHEN IT AWARDED FEES AND
EXPENSES FOR THE COST HEARINGS.
{¶34} "IX. THE TRIAL COURT ERRED WHEN IT DENIED HELFRICH
DOCUMENTS AND STATEMENTS OF MONETARY REQUEST. Licking County, Case No. 13-CA-57 10
{¶35} "X. THE TRIAL COURT ERRED WHEN IT ORDERED HELFRICH TO
PREPARE A LIST OF SERVICES THAT HELFRICH DID NOT DISPUTE AND USED
ABUSIVE LANGUAGE.
{¶36} "XI. THE TRIAL COURT ERRED WHEN IT DENIED WITNESSES.
{¶37} "XII. THE TRIAL COURT ERRED WHEN IT AWARDED FEES AND
EXPENSES IN EXCESS OF EVIDENCE IN THE RECORD.
{¶38} "XIII. THE TRIAL COURT ERRED WHEN IT REIMBURSED OPPOSING
PARTY FOR GIFTS.
{¶39} "XIV. THE COURT ERRED WHEN IT ESCALADED COURT COSTS."
I, II, III, VI, VII, VIII, IX, X, XI, XII, XIII, and XIV.
{¶40} Upon review, Appellants first, second, third, sixth, seventh, eighth, ninth,
tenth, eleventh, twelfth, thirteenth and fourteenth assignments of error raise common
and interrelated issues; therefore, we will address the arguments together. We note our
order on remand was to determine fees and expenses associated with defense of
Helfrich's claims. It matters not when they were incurred relative to the trial court's stay
of proceedings with respect thereto.
{¶41} O.R.C. 2323.51, governs the award of attorney fees, and reads in
pertinent part,
{¶42} "(B)(1) 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 Licking County, Case No. 13-CA-57 11
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.
{¶43} "(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:
{¶44} "(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;
{¶45} "(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;
{¶46} "(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
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 Licking County, Case No. 13-CA-57 12
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.
{¶47} "(3) The amount of an award made pursuant to division (B)(1) of this
section that represents reasonable attorney's fees shall not exceed, and may be equal
to or less than, whichever of the following is applicable:
{¶48} "(a) If the party is being represented on a contingent fee basis, an amount
that corresponds to reasonable fees that would have been charged for legal services
had the party been represented on an hourly fee basis or another basis other than a
contingent fee basis;
{¶49} "(b) In all situations other than that described in division (B)(3)(a) of this
section, the attorney's fees that were reasonably incurred by a party.
{¶50} "(4) An award made pursuant to division (B)(1) of this section may be
made against a party, the party's counsel of record, or both.
{¶51} "(5)(a) In connection with the hearing described in division (B)(2)(a) of this
section, each party who may be awarded reasonable attorney's fees and the party's
counsel of record may submit to the court or be ordered by the court to submit to it, for
consideration in determining the amount of the reasonable attorney's fees, an itemized
list or other evidence of the legal services rendered, the time expended in rendering the
services, and whichever of the following is applicable:
{¶52} "(i) If the party is being represented by that counsel on a contingent fee
basis, the reasonable attorney's fees that would have been associated with those
services had the party been represented by that counsel on an hourly fee basis or
another basis other than a contingent fee basis; Licking County, Case No. 13-CA-57 13
{¶53} "(ii) In all situations other than those described in division (B)(5)(a)(i) of
this section, the attorney's fees associated with those services.
{¶54} "(b) In connection with the hearing described in division (B)(2)(a) of this
section, each party who may be awarded court costs and other reasonable expenses
incurred in connection with the civil action or appeal may submit to the court or be
ordered by the court to submit to it, for consideration in determining the amount of the
costs and expenses, an itemized list or other evidence of the costs and expenses that
were incurred in connection with that action or appeal and that were necessitated by the
frivolous conduct, including, but not limited to, expert witness fees and expenses
associated with discovery."
{¶55} Initially, we find the trial court properly awarded attorney fees and
expenses for services in the trial court related solely to the defense of Helfrich's claims
in the amount of $5,266.55.
{¶56} Appellant Helfrich specifically questions the award of costs and attorney
fees relative to three items: a March 30, 2007 Draft of Letter to Helfrich in the amount of
$61.05, an April 30, 2007 letter and an April 16, 2007 travel expense incurred in the
filing of a memo. Upon review of the exhibits, the April 30, 2007 letter and April 16,
2007 travel expense were included as Category 2 expenses, infra. The remaining
March 30, 2007 letter to Helfrich was allowed by the trial court as a Category I expense.
However, for purpose of this assignment of error, it matters not when the expense was
incurred as long as the expense was incurred in defense of the claims. Licking County, Case No. 13-CA-57 14
{¶57} Accordingly, we do not find the trial court erred in allowing the attorney
fees and expenses in Category I.
CATEGORY TWO AND CATEGORY THREE
{¶58} At the evidentiary hearing herein, Attorney Darcy Shaffer testified as to the
law firms time sheets provided to her by Attorney Kristin Rosan. (Exhibit Q). Attorney
Rosan prepared the time sheets and had personal knowledge thereof, while Attorney
Shaffer could merely testify as to the authenticity of the records without having personal
knowledge of the records.
{¶59} Evidence Rule 803(6) provides,
{¶60} "(6) Records of regularly conducted activity. A memorandum, report,
record, or data compilation, in any form, of acts, events, or conditions, made at or near
the time by, or from information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the regular practice of
that business activity to make the memorandum, report, record, or data compilation, all
as shown by the testimony of the custodian or other qualified witness or as provided by
Rule 901(B)(10), unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness. The term “business” as used in this
paragraph includes business, institution, association, profession, occupation, and calling
of every kind, whether or not conducted for profit."
{¶61} While Attorney Stephen Moyer testified at the previous hearing on April
29, 2013 as to the reasonableness and necessity of all of the fees charged, Attorney
Shaffer did not have personal knowledge as to what portion of the charges involved the
vexatious litigation claim as opposed to Helfrich's claims. She was unable to separate Licking County, Case No. 13-CA-57 15
those charges directly related to the representation of each as this Court previously
determined was necessary.
{¶62} The trial court awarded one-half of the attorney fees and expenses for
services in the trial court related to both Helfrich's claims and the vexatious litigator
counterclaim. The trial court awarded $11,919.40 representing one-half of the attorney
fees and expenses related for both defense of Helfrich's claims and the prosecution of
the vexatious litigator counterclaim. The court also awarded $11,017.69 representing
one-half of attorney fees and expenses associated with the motion for sanctions for both
defense of Helfrich's claims and prosecution of the vexatious litigator counter-claim.
{¶63} The moving party seeking fees has the burden of demonstrating the
reasonableness of the fees. Given our previous Opinion, merely submitting a copy of
the billing records is insufficient in this case. At the evidentiary hearing herein, Attorney
Shaffer testified the timesheets involved blocks of time which could not be separated
out. Tr. at 61. Shaffer further testified she did not have knowledge what percentage on
the time sheets separated into which category. Tr. at 66. She testified there was no
possible way to divide the charges by claim. Tr. at 70.
{¶64} The trial court's judgment entry admits "there was no practical method to
allocate the resulting fees," and the services "could support either activity." We find, the
trial court's division of the fees 50/50 was arbitrary and speculative. Appellees had the
burden of proof to demonstrate the reasonableness and necessity of said fees. We find
they failed to do so. Licking County, Case No. 13-CA-57 16
CATEGORY FOUR FEES
{¶65} R.C. 2323.51 allows for the recovery of fees for the civil action "or appeal."
The Tenth District, in Jackson v. Bellomy, 10th Dist. 01AP-1397, 2002-Ohio-6495,
upheld the award of fees incurred in defending an appeal of a trial court judgment.
Accordingly, we find the trial court properly allowed Appellees fees and expenses for
services in this Court of Appeals to defend that portion of the trial court's order relating
to sanctions pursuant to R.C. 2323.51 for Helfrich's claims. Appelles were not entitled
to fees and expenses for prosecution of the vexatious litigator claim. We have reviewed
the briefs submitted by the parties in Helfrich v. Madison, Licking App. No. 2011-CA-89,
2012-Ohio-3701, and this Court's Opinion disposing of that appeal. We find
considerably more than one-half went to challenging the trial court's finding Helfrich
engaged in frivolous conduct in filing his claims. We find the trial court's award of only
one-half of the fees associated with the prior appeal was very conservative.1 We find
Appellees are entitled to the amount of $5,1109.95 as awarded by the trial court.
CATEGORY FIVE FEES
{¶66} Appellees were not entitled to fees and expenses in the Ohio Supreme
Court as to the appeal they initiated in the Ohio Supreme Court, as they were not
"defending this Court's order". However, Appellees were entitled to fees and expenses
relative to their response to Helfrich's separate appeal to the Ohio Supreme Court.
Upon review of the record, we find the evidence supports a judgment in the amount of
$1,156.25 for attorney fees and expenses incurred by Appellees in responding to and
defending Helfrich's appeal to the Ohio Supreme Court.
1 Appellees did not file a cross-appeal contesting this amount. Licking County, Case No. 13-CA-57 17
CATEGORY SIX FEES
{¶67} The trial court awarded Appellees an additional $9,729.64 for attorney
fees and expenses following remand relating solely to their motion for sanctions for
defense of Mr. Helfrich's claims. Here the issue is not the intermingling of fees
associated with the vexatious litigator counterclaim as was the problem in Category Two
and Category Three. We previously decided supra such fees were not recoverable.
{¶68} The order on remand was for the determination of fees related solely to
the defense of Helfrich's claims regardless of when they were incurred. The statute
categorically permits the recovery of attorney fees associated with Appellant's motion
for fees pursuant to R.C. 2323.51. Accordingly, we find Appellees were entitled to
attorney fees and expenses subsequent to remand in the amount of $9,729.64.
{¶69} Based upon the foregoing, the judgment of the Licking County Court of
Common Pleas is affirmed in part; and reversed in part. We find the total amount of
attorney fees and expenses properly to be awarded Appellees is $21,263.39.
IV. AND V.
{¶70} Appellant's fourth and fifth assignments of error raise common and
interrelated issues; therefore, we will address those arguments together.
{¶71} Upon review of the fourth and fifth assigned errors, the arguments
presented were raised or capable of being raised on direct appeal. The arguments
were previously addressed by this Court on prior appeal and are thus law of the case.
Accordingly, the fourth and fifth assigned errors are barred by the doctrine of res
judicata.
{¶72} The fourth and fifth assigned errors are overruled. Licking County, Case No. 13-CA-57 18
{¶73} The June 26, 2013 Judgment Entry of the Licking County Court of
Common Pleas is affirmed in part, and reversed in part.
By: Hoffman, P.J.
Farmer, J. and
Baldwin, J. concur