New Lebanon v. Krahn

2015 Ohio 4791

• Court: Ohio Court of Appeals
• Decided: November 20, 2015
• Docket: 26659
• Status: Published

Opinion

[Cite as New Lebanon v. Krahn, 2015-Ohio-4791.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

VILLAGE OF NEW LEBANON, OHIO : : Plaintiff-Appellant : C.A. CASE NO. 26659 : v. : T.C. NO. 2012-CV-03566 : BERTIE L. KRAHN, et al. : (Civil appeal from : Common Pleas Court) Defendants-Appellees : : ...........

OPINION

Rendered on the __20th__ day of ____November____, 2015.

........... RONALD D. KEENER, Atty. Reg. No. 0002145, Ronald D. Keener Co., LPA, 125 West Main Street, New Lebanon, Ohio 45345 Attorney for Plaintiff-Appellant

TIMOTHY G. PEPPER, Atty. Reg. No. 0071076, and VALERIE M. TALKERS, Atty. Reg. No. 0088769, Taft Stettinius & Hollister LLP, 40 North Main Street, Suite 1700, Dayton, Ohio 45423 Attorney for Defendants-Appellees

.............

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of the Village of New

Lebanon (“the Village”), filed April 22, 2015. The Appellees herein are Bertie L. Krahn

and Trails End Lounge, which is owned by Krahn (collectively, “Trails End”). At issue is

the award of attorney fees in favor of Trails End after the Village dismissed its complaint 2

against Trails End for malicious prosecution. We hereby affirm the judgment of the trial

court.

{¶ 2} The Village’s Notice of Appeal provides that it

* * * is appealing the Decisions made by the Court below, said decisions

being the Decision, Order, and Entry on Defendant’s Motion for Fees filed with the

Court on September 26, 2013 * * * ; the Decision, Order and Entry on Motions for

Reconsideration filed in the Court on February 21, 2014 * * *; the Magistrate’s

Decision filed in the Court on February 28, 2014 * * * ; and the Decision, Order and

Entry Overruling Objections to the Magistrate’s Decision filed March 25, 2015 * *

** .

{¶ 3} On May 18, 2011, Trails End filed a “Complaint for Temporary Restraining

Orders; Preliminary and Permanent Injunctive Relief” against George Markus, the

Municipal Manager of New Lebanon; David Lunsford, the Zoning Compliance Officer of

New Lebanon; and the New Lebanon Fire Department. The complaint alleged that Trails

End brought the action against “all named and to-be-named Defendants.” Trails End

alleged that it had received “Notices to Appear for alleged Zoning Violations,” and that

Trails End filed a Motion to Dismiss in response because the notices lacked merit. The

complaint alleged that Trails End received a bill for $918.77 for lawn care and mowing

from the Village, and that Trails End did not violate the city ordinance regarding grass

height. The complaint further alleged that Trails End was cited for zoning violations

regarding its parking lot, and that it also received a report from the Fire Department

detailing alleged violations under the Ohio Fire Code. The complaint asserted that

“Defendants have continued to harass, bother, molest, annoy, intrude, and/or interfere 3

with [Trails End] ow[n]ing, operating, and conducting business * * *.” On August 10,

2011, Trails End voluntarily dismissed the complaint against the Village.

{¶ 4} On May 17, 2012, the Village filed a complaint against Trails End, alleging

malicious prosecution of a frivolous claim based upon Trails End’s prior complaint.

According to the Village, the action initiated by Trails End “was brought merely to harass

or maliciously injure [the Village] * * * so as to prevent the Village from appropriate and

proper enforcement of the zoning laws as well as of (sic) the State Fire code and that said

action was not warranted under any existing law and that there was no evidentiary support

for the allegations contained in the action.” The complaint provided that the Village

“incurred damages in the defense of the malicious prosecution of the frivolous action filed

by [Trails End] by expending time of Municipal employees, attorney fees, court costs, as

well as the payment of defense expenses with respect to that frivolous action.” The

Village sought judgment in the amount of $25,000.00.

{¶ 5} On June 15, 2012 Trails End answered the Complaint, and on July 9, 2012,

Trails End filed a “Notice of Filing Subpoena Duces Tecum Return Receipts,” indicating

that subpoenas had been served upon seven individuals. The Village filed a “Motion to

Quash” the subpoenas, and Trails End filed “Defendants’ Motion to Strike Plaintiff’s

Motion to Quash,” asserting in part that the Village failed to comply with Civ.R. 45(C)(3)(d)

and failed to attempt to resolve any claim of undue burden prior to filing its “Motion to

Quash.”

{¶ 6} On October 30, 2012, the Village filed a Motion for Summary Judgment. On

November 13, 2012, Trails End filed “Defendants’ Rule 56(F) Motion,” asserting that a

“continuance is necessary to allow for discovery to be completed and to provide 4

Defendants with the information necessary to fully and adequately respond to the Motion

for Summary Judgment.” The trial court granted the motion for a continuance. On

December 14, 2012, Trails End filed a second “Notice of Filing Subpoena Duces Tecum

Receipts,” indicating that subpoenas had been served upon two individuals.

{¶ 7} On January 4, 2013, the parties filed a “Joint Motion to Amend the Final

Pretrial Order,” seeking an extension of time, which the trial court granted. The court

scheduled trial for July 22, 2013. On April 3, 2013, Trails End filed a “Notice of Filing

Subpoena Duces Tecum Receipt” reflecting that an additional subpoena had been

served. On June 24, 2013, the parties filed a “Joint Pre-Trial Statement.”

{¶ 8} On June 25, 2013, the Village filed “Plaintiff’s Voluntary Dismissal of

Complaint,” and on July 24, 2013, Trails End filed “Defendants’ Motion for Fees,” pursuant

to R.C. 2323.51. Trails End asserted that “Ohio law provides for the award of attorney’s

fees where a claim has been brought that is not warranted by existing law and cannot be

supported by a good faith argument for an extension, modification or reversal of existing

law * * *.” The motion provides: “[The Village’s] Complaint identified two causes of

action – malicious prosecution and abuse of process. * * * Neither of those two causes of

action was viable as a matter of law on the undisputed facts of this case, as those facts

were known to Plaintiff at the time of filing.” Trails End asserted that for a malicious

prosecution plaintiff to be successful, the plaintiff must demonstrate that a prior action

terminated in the plaintiff’s favor, and since Trails End voluntarily dismissed its complaint

against the Village, the action did not terminate in the Village’s favor. Trails End further

asserted that “Ohio courts require seizure of property in malicious civil prosecution

cases,” and that the Village cannot establish such a seizure. Trails End requested a 5

hearing to determine the amount of the award of fees and costs.

{¶ 9} On August 5, 2013, the Village filed “Plaintiff’s Memorandum Contra

Defendant[s’] Motion for Fees.” According to the Village, the “instant action was brought

about as a response to the previous litigation filed by the Defendants herein. The

response is not only justified but is viable based upon the previous action, the previous

action having been filed to seek a Court Order for and to accomplish a purpose which the

Court cannot grant.” The Village asserted that the motion for fees should fail and be

dismissed. It asserted that Trails End “presented themselves with unclean hands.” The

Village asserted that it is “a Municipality incorporated and organized under the laws of the

State of Ohio and as such, is entitled to the protection under an absolute qualified privilege

or privileges by operation of O.R.C. §2744.03.”

{¶ 10} The Village asserted that for Trails End to “ask the court to enjoin a

Municipality from enforcing the law is beyond the bounds of the Court system.” Regarding

the seizure requirement, the Village asserted that “it can be submitted that there is a good

faith argument for an extension, modification, or reversal of existing law or the

establishment of a new law relating to the elements of malicious prosecution,” citing

Lemieux v. Central Oil Field Supply Co. of Logan, 11th Dist. Ashtabula No. 89-A-1479,

1990 WL 128277 (Sept. 7, 1990).

{¶ 11} On August 12, 2013, Trails End filed “Defendants’ Reply in Support of Their

Motion for Fees.” Therein they asserted that the Village filed its complaint against them

“in retaliation for the previous litigation, and cost the Defendants a great deal of money

as a result.” Trails End asserted that the “prior suit against [the Village] lasted only a few

months, and did not even proceed to depositions. * * * In stark contrast, [the Village] drove 6

its lawsuit against Defendants all the way to the brink of trial. Only after extensive

discovery was completed, and only when the parties were days away from trial, did” the

Village dismiss its case.

{¶ 12} Trails End asserted as follows regarding immunity:

[The Village] attempts to hide behind Ohio’s political subdivision

immunity statute, in effect arguing that it should be permitted to misuse the

legal system by filing frivolous lawsuits with impunity. Plaintiff offers no

legal authority for this argument, because there is none. The immunity

statute applies to “civil actions,” while R.C. §2323.51 authorizes “awards” in

cases that are already pending. Furthermore, there is no judicial precedent

for political subdivision immunity under § 2323.51, and the appeals courts

that have considered the matter have held that political subdivisions are

subject to awards. * * *.

Finally, Trails End asserted that the Village failed to rebut Trails End’s showing that the

claims alleged by the Village were frivolous.

{¶ 13} In its decision on the motion for fees, the trial court initially addressed Trails

End’s assertion that they were entitled to fees based upon the frivolous conduct of the

Village as follows:

Here, the Court finds that [the Village] knew, should have known, or

later discovered that at least three of the elements for malicious prosecution

could not have been supported by law or asserted facts. Primarily, and

most importantly, the previous action to which the [the Village] so frequently

refers did not terminate in [the Village’s] favor. The previous action was 7

terminated by voluntary dismissal, by virtue of Ohio Civil Rule 41(A), in

which the plaintiff has [the] option to dismiss an action instituted by them

without prejudice. A quick search of relevant case law would have

apprised [the Village] of the fact that a voluntary dismissal does not mean

that the matter terminated in [the Village’s] favor, but rather that it merely

was settled. Second, [the Village] has not suffered a seizure of either its

person or property. While Plaintiff argues that the seizure requirement

should be re-evaluated, case law very clearly abides by, and requires a

seizure to occur, whether it be of person or property.* * * Although a

preliminary injunction hearing was scheduled for the previous case, Plaintiff

did not have its person, its actions, nor its property seized because the case

was dismissed before the injunction hearing could happen.

Finally, the Court finds that there are no facts which suggest that

Defendant’s previous case was filed out of malice or with malicious intent.

While [the Village] argues that [Trails End] instituted the previous

proceeding “frivolously”, and with perversion, [the Village] has failed to

present any evidence other than broad allegations of malicious intent. In

reviewing the facts of this case, the Court views the previous case as an

attempt to appeal the citations and violations alleged by the City and its

employees on the grounds of improper process and procedure. * * *

Therefore, the Court finds that Plaintiff has engaged in frivolous conduct

under R.C. §2323.51(A)(2)(a)(ii) and (iii).

{¶ 14} Regarding statutory immunity, the court determined that the Village is a 8

political subdivision, and that it was “engaged in a proprietary function when it filed suit

against [Trails End] for malicious prosecution,” such that it “is not protected by statutory

immunity.” The court further analyzed whether the Village was entitled to “assert any

additional defenses or immunities * * *.” The court found that “the only manner in which

[Trails End] may avoid the statutory immunity [provided by R.C. 2744.03(A)(6)] is by

proving [the Village’s] actions were with malicious purpose, bad faith, or were performed

in a wanton or reckless manner.” After reviewing Trails End’s Motion for Fees and Reply,

the court found that Trails End “has presented no evidence supporting the allegation that

[the Village’s] actions were malicious, and/or in bad faith, or that the actions were

performed in a wanton or reckless manner.” The court concluded that “without any

showing of malicious purpose, bad faith, or wanton and reckless conduct, [the Village] is

protected by R.C. 2744.03(A)(6).”

{¶ 15} Finally, the court determined as follows:

***

C. Rule 11 Sanctions

Although most often used congruently with R.C. § 2323.51,

appropriate sanctions and attorneys fees may be awarded through a motion

for fees pursuant to Ohio Rule of Civil Procedure 11. * * *

As previously discussed, the Court finds that there are no good legal

grounds to support the allegations in the complaint, and thus the signing of

the Complaint could have only happened in willful violation of Civ.R.11.

Again, the most important factor in making this determination is the very 9

basic element of malicious prosecution, which requires the previous action

to terminate in Plaintiff’s favor, and according to solid case law a voluntary

dismissal is not a termination in the Plaintiff’s favor. Therefore, the Court

finds that [the Village] has violated Civ.R. 11 on the basis that the Complaint

is not supported by law.

Additionally, the Court finds that [the Village] has failed to show that

the Complaint is also supported by the facts of this case. To this (sic), the

Court considers the facts alleged in the Complaint and two elements of

malicious prosecution. In review of the Plaintiff’s Motion for Summary

Judgment, filed on October 30, 2012, and its Response, [the Village] cannot

point to any person or property which was seized in the previous action, an

element of the claim. Instead, [the Village] argues that the Court should

consider other judgments which lament the seizure requirement, and asks

this Court to overturn sound precedent set by the Supreme Court of Ohio.

The second element, malicious intent, is also lacking. In fact, [the Village]

does not address any malicious intent of [Trails End] in either the Motion for

Summary Judgment or its Response except for bald allegations of

“perverted intent.” Thus, this Court finds that [the Village] and [counsel for

the Village] knew or should have known that its Complaint and claims were

not supported by the facts of this case.

In finding a violation of Civ.R. 11, the Court inherently finds that

statutory immunity is inapplicable. While Chapter 2744 grants immunity to

political subdivisions for damages, costs, and awards in tort actions, that 10

immunity does not extend to sanctions imposed through the Ohio Rules of

Civil Procedure. * * *

Based upon these findings, the Court, on its own motion, orders

the parties to show cause as to why costs, including attorney fees and

expenses of defending the suit, should not be awarded to [Trails End.]

{¶ 16} On October 18, 2013, the Village filed a “Motion for Reconsideration and

Memorandum Contra Civil Rule 11 Action.” Therein, the Village asserted that “it is a

mistake for this Court to view the previous case as an attempt to appeal the citations and

violations alleged by the Village and its employees. The matters that had been

mentioned had all been resolved.” According to the Village, “asking the Court to

permanently enjoin a Municipality from enforcing its laws and permanently enjoin a duly

licensed Fire Inspector from doing fire inspections within his jurisdiction is and constitutes

in itself a malicious act.”

{¶ 17} The Village asserted as follows:

As to the seizure of Plaintiff’s person or property, it was necessary

for [the Village] to expend time and money to defend the action. Personnel

from the Village had to take their time away from their normally assigned

duties in order to assist defense counsel in defending the action; office

personnel were required to expend time and money with copying materials,

obtaining certified copies of the prior determinations of the zoning violation

cases; and transmitted all of that to defense counsel. The Village was

required to pay the deductible portion of their insurance coverage to their 11

insurance carrier. All of that resulted in time and expense, therefore, a

seizure of property.

{¶ 18} The Village asserted that “the bringing of this action in order to recover

monies that were paid out of the government fund and budget, is, in fact, a government

function.” Finally, the Village asserted that “there was no willful violation of Rule 11 * *

*.”

{¶ 19} On October 29, 2013, Trails End filed “Defendants’ Submission in

Response to Court’s Order to Show Cause,” asserting that the court “correctly concluded

that [the Village’s] conduct in this case violated Rule 11. Nothing in Plaintiff’s Submission

on that issue changes the Court’s analysis. Therefore, in the absence of relief under §

2323.51, an award of fees and costs pursuant to Rule 11 is justified and warranted.”

{¶ 20} On November 5, 2013, the Village filed a “Supplemental Motion for

Reconsideration and Memorandum Contra Civil Rule 11 Action.” The Village asserted

that there should be “a remedy for the costs and damages suffered by” the Village, and

that “this undersigned counsel does not agree with the current case precedent. It is

honestly and legitimately felt that the current case precedent does not address matters of

this instant type and is wrong.” According to the Village, the “bringing of an action that

may not be supported by existing case law does not necessarily mean that there is not

good ground to support the action. The precedent can be challenged in the hope of

modifying the existing case law.” The Village asserted that the reason its “Complaint

was withdrawn and dismissed revolved around discovery that [the Village] had another

insurance policy that would make [the Village] whole insofar as what had been expended

in Defendant’s Complaint litigation. It would not have been proper to proceed with this 12

case when [the Village] had found a way to mitigate its damages in another source.”

{¶ 21} On November 5, 2013, Trails End filed “Defendants’ Motion for

Reconsideration of Court’s September 26, 2013 Decision, Order and Entry on

Defendants’ Motion for Attorney Fees.” Trails End asserted as follows:

* * * Defendants respectfully disagree with the Court’s conclusion that

[the Village] is entitled to statutory immunity from liability under Ohio Rev.

Code § 2323.51. The plain language of Ohio Rev. Code § 2744.03(A)(6)

– the statute relied upon by the Court when granting immunity to Plaintiff –

only applies to the issue of individual employee immunity, not the immunity

of the political subdivision itself.

* * *.

{¶ 22} On November 13, 2013, the Village filed “Plaintiff’s Memorandum Re:

Defendant’s Motion for Partial Reconsideration of Court’s September 26, 2013 Decision,

Order & Entry on Defendant’s Motion for Attorney Fees.” Therein the Village again

asserted that Trails End’s initial complaint rose “to the level of a frivolous conduct and

was, therefore, actionable.” The Village asserted that “to collect monies that were

unnecessarily expended due to the fault of a third party, clearly falls under the category

of being necessary or essential to the exercise of the powers of the political subdivision.”

The Village asserted that it was entitled to immunity, and although it can “be argued that

there are elements of malicious prosecution that may not be met under existing law, there

is also a good faith argument for an extension, modification, or reversal of existing law.”

According to the Village, “with the knowledge available to counsel, this instant matter was

not brought with any willful intent to violate Civil Rule 11 or any malicious intent against 13

Defendants herein.”

{¶ 23} On November 20, 2013, “Defendants’ Response to Plaintiff’s Motion for

Reconsideration and Supplemental Memorandum in Support of Motion for

Reconsideration and Defendants’ Reply to Plaintiff’s Memorandum Regarding

Defendants’ Motion for Partial Reconsideration” was filed. Therein Trails End asserted

that the Village performed a proprietary function in filing its complaint and not a

governmental function. According to Trails End, it “is the specific action itself that is

determinative, and the filing of malicious prosecution and abuse of process claims in

response to an allegedly baseless action is clearly not limited to governmental entities;

rather, such a response is routinely engaged in by nongovernmental persons.” Trails

End requested attorney fees and costs “pursuant to either Ohio Rev. Code § 2323.51,

Ohio R. Civ. P. 11, or both.”

{¶ 24} On February 21, 2014, the court ruled upon the motions for reconsideration.

The court initially noted that the motions for reconsideration were within its jurisdiction

since, “first, this Court did not certify pursuant to Civ.R. 54(B) that there was no just reason

for delay, and second, the Court requested additional response from the parties * * * .”

The court affirmed “its original finding of frivolous conduct on the part of [the Village] in

that its claim for malicious prosecution was not supported by existing law and [the Village]

presented no good faith arguments for changing several of the elements of malicious

prosecution.”

{¶ 25} The court found as follows regarding immunity:

R.C. § 2744.01(C)(1) defines the term “governmental function”, and

does not specifically include the filing of civil actions which are not actions 14

to enforce or prosecute an ordinance, regulation, or other law. [R.C.] §

2744.01(C)(2)(f),(i). Also not included in this list of exceptions is the

management of a government budget, however, this Court would assume

that effective management of a budget would be inherent to the success of

each of the excepted governmental functions. Arguably, creating and

abiding by a budget could be a function the “general assembly mandates a

political subdivision to perform”, but the Court could not find any such

provision in the Revised Code, nor did [the Village] provide the Court with

such a mandate. R.C. § 2744.01(C)(2)(x). The act of budgeting is highly

generic; [a]ny individual may budget their own personal finances and major

corporations often develop budgets for their business’ quarter or year.

[footnote omitted]. While only governmental employees develop and

control the government budget, the acts are not different than that of private

budgets. Similarly, a non-governmental person could not file suit in a court

of this jurisdiction on behalf of the municipality, yet the act of filing suit does

not become a governmental function when the government performs the

act. This is inapposite of many of the other “governmental functions.” For

example, private individuals are not able to regulate traffic, enforce the law,

or plan or design new city improvements. [footnote omitted]. Thus, the

Court is unconvinced that the act of budgeting is “governmental” in nature.

Even if managing the budget of a governmental entity is

governmental in nature, the Court must consider the relationship between

the underlying premise of the lawsuit and the act of filing the lawsuit itself. 15

[The Village] argues that this is akin to filing a breach of contract suit against

an individual who has contracted with the municipality, in that the

governmental function of contracting should translate to the suit in order to

recover damages. The apparent difference between this example and the

instant case is simply that the instant action was filed in tort. That is to say,

[the Village] did not perform any act (like contracting) related to the lawsuit

and would not otherwise have any reason to file the suit but for the alleged

acts of the Defendant and the subsequent alleged monetary damage. And

while the expenditure of funds to defend a legal action may indirectly relate

to and possibly change the management of the budget, the Court finds that

it is not one in the same as recovering on a breach of contract. Thus, the

Court concludes as it did previously that [the Village] was engaged in a

proprietary function when it filed the instant suit and qualifies as an

exception to statutory immunity.

{¶ 26} The court further found that R.C. 2744.03(A)(6) applies to employees and

“is not applicable to [the Village], and that none of the five grants of immunity protects [the

Village’s] conduct.” The court specifically examined R.C. 2744.03(A)(3) and (5) and

noted as follows:

* * *Both of these grants of immunity concern an employee’s

discretionary acts, however, they differ in two respects. First, §

2744.03(A)(3) requires that the employee be engaged in policy-making,

planning, or enforcement by virtue of the duties and responsibilities of the

office or position of the employee, meaning that not all employee conduct is 16

covered within the scope of their employment. Second, § 2744.03(A)(5)

contains a limit on its grant of immunity, in that only those decisions which

were made in order to “acquire, or how to use” equipment or other resources

of the government entity is protected. Elston v. Howland Local Sch., 113

Ohio St.3d 314, 320, 2007 Ohio 2070, 865 N.E.2d 845.

Here, [the Village] did not engage in any discretionary decision

making regarding the use of acquisition of equipment, materials, or the like.

Instances where discretionary decisions have been made in this regard

refer largely to the government employees’ decisions on which protective

helmets to use and how to use them, whether to build a wall enclosing a

gymnasium five or ten feet away from the end of a court, and or whether the

political subdivision should and has the right to acquire a piece of property

by eminent domain. Thus, this grant of immunity is inapplicable to this

case.

However, [the Village] may have engaged in discretionary policy-

making, planning, or enforcement. “The state cannot be sued for . . . the

exercise of an executive or planning function involving the making of a basic

policy decision which is characterized by the exercise of a high degree of

official judgment or discretion.” Reynolds v. State, Div. of Parole &

Community Servs., 14 Ohio St.3d 68, 471 N.E.2d 776 (1984), paragraph

one of the syllabus. But before a court can determine whether a political

subdivision is immune, the court must consider the duties and

responsibilities of the employees whose actions are at issue. Elston, 17

supra, at 321. A political subdivision cannot simply assert that all of its

decisions are “discretionary” in order to obtain protection under R.C. §

2744.03(A)(3). * * *

Here, the court finds that [the Village] engaged in no policy-making,

planning, or enforcement when it exercised its discretion to file suit against

[Trails End]. Yes, it was a matter of discretion when those involved in this

matter decided it was prudent to file a complaint against [Trails End].

However, no part of that exercise in discretion enhanced the development

of [the Village], and there were no laws to enforce by filing the instant

complaint. And if perception is to be believed, the only policy which [the

Village], by virtue of its employees, may have established or engaged in by

filing the instant Complaint is one of retaliation. It was not the General

Assembly’s intent to protect a political subdivision in through (sic) all of its

discretionary conduct, and the Court finds that the decision to file the instant

Complaint was not one which falls under those protections.

Finally, the court found “no cause to review its previous decision regarding the grant of

sanctions under Civ.R. 11.”

{¶ 27} The court then referred the matter to the Magistrate to conduct a hearing on

damages, and a hearing was scheduled for May 8, 2014. On May 2, 2014, the Village

filed a “Motion in Limine and Objections to Proposed Evidence.” The Village asserted that

the timesheets and invoices submitted by Trails End reflect “time expended in ¼ hour

increments,” and that the timesheets and invoices “require this Court to speculate as to

how much actual time was expended on any particular item of work by the attorney.” 18

After citing 23 “specific references” in various billing entries, the Village asserted that “a

great deal of the time expended by defense counsel relates to matters that had nothing

whatsoever to do with the issues that had previously been defined and raised by [Trails

End]. * * * [Trails End] simply wanted to go on a fishing expedition to try to find something

that [the Village] may have done incorrectly in order to divert attention from the frivolous

action that they had filed in 2011.” The Village asserted that the entries should not be

considered by the court.

{¶ 28} On May 7, 2014, Trails End filed “Defendants’ Memorandum in Opposition

to Plaintiff’s Motion in Limine.” Trails End asserted that the Village’s “objection to a

quarter-hour billing increment on the basis that it may result in overbilling ignores the fact

that any form of incremental billing may result in overbilling.” Trails End asserted the

“fees at issue are those incurred by Trails End in defending itself against this frivolous

action filed by Plaintiffs.”

{¶ 29} At the damages hearing, the Magistrate indicated that she would withhold

judgment on the motion in limine until after the hearing. Don Richard Smith testified that

he is “charged with representing the Trails End Lounge in their business affairs for the

most part, including contacting Taft to represent us.” He stated that he is empowered to

act on behalf of Trails End on legal matters. He stated that Trails End entered into an

hourly fee agreement with counsel, and that all of the bills received by Trails End have

been paid. On cross-examination, Smith stated that he was advised that the Village only

sought to recover $2,500.00 for their insurance deductible by means of their lawsuit.

Smith stated that he attended the depositions of the City Manager, George Markus, and

the Zoning Compliance Officer for the City. 19

{¶ 30} Timothy Pepper testified that he is lead counsel for Trails End. He stated

that he has “been practicing litigation in the Dayton area for about 15 years.” When

asked how the hourly rates of his firm compare to other firms in the community, counsel

for the Village stated, “If I might interject, if you just state your rates, I think I’ll stipulate

that your rates are reasonable and fair for an hourly rate.” Pepper stated that his hourly

rate for the majority of his work at issue was $290.00, and that the hourly rate for the

principal paralegal on the case was $170.00. He stated that an associate attorney’s rate

at his firm was “195’ish.” Counsel for the Village stipulated to the reasonableness of the

hourly rates.

{¶ 31} Pepper stated that he has had prior experience in determining the

reasonableness of attorney fees “as counsel to both plaintiffs and defendants in prior

cases.” He stated that he began representing Trails End in May, 2012. When asked

about the fee agreement with Trails End, Pepper testified as follows:

The firm bills by the hour for engagements like this. And so the agreement

with the Trails End Lounge was that we would record our time spent, all the

timekeepers that worked on the matter would, not everyone in the firm who works

on a case is a timekeeper quote unquote that would record his or her time. But

for those who do, we would record the time. I would review the bills or the

potential bills, make any adjustments I thought were necessary to make sure that

the bills were fair and reasonable and then pass them on to the client, which they

would then pay in due course. * * *

Pepper stated that in adjusting the bills, he only adjusts downward. For example, he

testified, if “we’re working on a motion and someone spent an hour doing something that 20

I thought was more appropriately done in a half an hour, I’ll mark it to half an hour.

Including my own time.”

{¶ 32} Pepper stated that as the case went on he “grew uncomfortable with the

amount of money that I was asking them to pay. So I changed my practice in the sense

that I started to not bill them for large amounts of time that was spent by my firm in

representing them.” Pepper testified that his “later bills in the case do not reflect all of

the hours worked. They reflect a portion of the hours worked * * *.” Pepper stated that

“all of this attorneys’ fees litigation that we’re going through right now, the motion for the

fees and then this proceeding and everything ancillary to it is not being billed.”

{¶ 33} When asked how his firm determines the hourly rates for lawyers and staff,

Pepper responded as follows:

There’s an annual review process we undergo where we take

everyone’s current hourly rate, we gather what information we can about

the market to look at what our peer firms are doing, we look at each

individual timekeeper’s experience and what that person can offer to clients.

And then just make a decision on what the appropriate value is for that

person’s time by the hour.

{¶ 34} Pepper identified as Exhibit A “the fee statements that my firm sent to the

Trails End Lounge for work done in connection with the defense of this case,” and he

stated that they were created in the regular course of business. He identified as Exhibit

B “a summary of the invoices that are contained in Exhibit A.” Pepper testified as follows

regarding Exhibit B:

* * * And so what we have on the chart is left-hand side (sic) is the 21

invoice number, it’s a seven digit number. You’ll find that same number on

the first page of each invoice in Exhibit A. And then next to that is the date

of the invoice and the amount of the invoice that is connected to this

litigation and is therefore being sought to recover. So for example, the first

four invoices all pertain to this litigation. So we’re asking for the entire

amount from those invoices. The fifth one down, only some entries from

that invoice pertain to this case. So we’re only seeking recovery for the

entries that are called out there in the chart.

The reason why there’s work in the invoice that doesn’t pertain to this

litigation, Your Honor, is that there were - - this dispute between the Trails

End and this family and the Village of New Lebanon encompasses a range

of things. There are criminal charges that were brought against them.

There are a couple other zoning issues that were not directly related to the

litigation at hand. So that’s why there are entries on that December 20,

2012 bill that don’t pertain to this case.

Once it became apparent how broad the dispute was going to be

between the parties, I created separate billing matters in my accounting

system so that other time for other matters never touched these bills.

**

And then the last one there is the final bill. There’s a chunk of time

between the next to the last and the last bill. The reason for the chunk of

time in there is that that was the period of time where I was just growing

increasingly uncomfortable with the amount of money that these people 22

were being required to pay. I did not bill them for quite a while and then in

September of 2013, I did issue one final last bill, which is what’s reflected

there.

{¶ 35} Pepper stated that he sought $24,622.85 in fees as reflected in Exhibit B,

an amount which he stated is the result of reasonable and necessary work. Finally,

Pepper identified as Exhibit C “a report generated by my accounting system that reflects

the payment history for this matter.” According to Pepper, “what the chart concludes is

that all the invoices that were sent from Exhibit A were paid by the client.”

{¶ 36} On cross-examination, when asked if the issues raised in Trails End’s

complaint involved “a zoning issue, a fire code report and a charge for mowing that was

added to their taxes,” Pepper responded, “It’s not a yes or no question. Those were

incidents that were alleged in the complaint. There were other matters that really related

to the filing of that previous lawsuit * * *.” According to Pepper, “there were other things,

other interactions between the Village and the Trails End that were a part of the reason

for filing that case,” and the “allegations in the complaint were not an exhaustive list of all

the things that were going on at the time.” Pepper stated that in filing a complaint, “it’s

necessary to allege enough to have the background to state a claim. It’s not necessary

to have the complaint contain a complete recitation of all the facts.” Pepper stated that

he reviewed the complaint, which was filed by Trails End’s previous counsel, and “it didn’t

surprise me that the complaint wasn’t an exhaustive compendium of all possible facts.”

{¶ 37} Pepper testified that his “understanding is that there’s been a history of

what the Trails End would call police harassment of the lounge. Of police activity that is

out of the norm and that in their view is aimed at harassing them.” He testified that the 23

initial complaint filed by Trails End was “dismissed almost immediately. There was no

discovery in that previous case. There was no opportunity in the previous case for the

Village to learn what all the other underlying things were because the case never got off

the ground.” Pepper stated that he denied the allegations in the complaint filed by the

Village, and that Trails End did not file a counterclaim alleging harassment against the

Village because “my clients were so sick of litigation, they were so sick of the whole

dispute, they wanted to find a constructive way to move forward. They didn’t think

litigation was the way to go.”

{¶ 38} Pepper acknowledged that at a meeting on July 18, 2012, the Village

indicated that it was willing to settle the matter for $2,500.00, and that at that time, Trails

End had spent over $4,000.00 in attorney fees. Pepper indicated that although the initial

pleadings herein do not reference police harassment, that “doesn’t mean it wasn’t a factor

in the case.” Pepper stated that “the Village’s complaint in this case that brings us here

today alleged that my clients abused process and filed a malicious case against your

client. Motivation matters. * * *And so if you’re going to make those allegations against

them, one has to look at the whole spectrum of what was going on on their side of the

fence when they filed that first case. And that’s why the police issue is relevant to this

case. That’s why we deposed Chief Dalton and Officer Chambers.”

{¶ 39} When asked to agree that there’s never been any indication or allegation

to the Village of police harassment, Pepper responded as follows:

* * * I think it was a topic of conversation in the meeting that we had

in my office. You and I on that July 18th meeting. * * * I also know that my

clients have spoken directly with people from the Village and those 24

conversations have not involved me or you. * * * There’s been

communication to the officers that show up multiple times every night asking

why are you parked in front of our lounge? There’s been other

communications with Mr. Marcus I believe about this. * * * But I do believe

that if the Village’s position is that it had no idea that police harassment was

a problem, I would not agree with that.

{¶ 40} Pepper testified that he conducted extensive discovery with respect to the

alleged police harassment, including subpoenaing the call reports from the Brookville

dispatcher. He stated that he questioned the chief of police in deposition about the “bar

checks” that he performs in the Village. Pepper stated that he subpoenaed the personal

emails of Village employees, including the Village Manager, because “the public records

request that I initially made to begin the discovery process in this case produced a number

of emails from Village employees that I had requested. And what I noticed on those

emails is that Village employees also used their personal email accounts to conduct

Village business.” Pepper stated that “once I observed that Mr. Marcus and * * * Mr.

Lunsford, who’s the zoning inspector, were using their personal email for business

purposes, yes, I requested their personal email only as it pertains to the Trails End

Lounge. The subpoenas I issued for personal email were highly specific, Trails End only

* * *.” Pepper stated, “I never sought a court order to have any kind of forensic exam

done of computers, I just issued a subpoena and then I took your word for it, Ron, when

you produced documents that you said were responsive.”

{¶ 41} The following exchange occurred:

Q. Is it accurate to say that the zoning matter that was enumerated 25

in your client’s original complaint had been disposed of by a no contest plea,

a finding of guilty more than a year before your clients filed their first

complaint?

A. * * * My recollection is that the zoning issue that we’re talking

about and for the most part is grass cutting. Grass being too high. My

recollection of it is that part of the harassing course of conduct that ends up

* * * bringing us here to today is that the Village charged the owners of the

Trails End over and over and over and over again with criminal violations

because the grass was too high. * * *

Q. - - unfortunately that’s the way the statute’s written.

A. Well - -

Q. Which was all resolved with one - - it was all plea bargained to

one violation.

A. Right. So to answer your question a little more succinctly then,

yeah, the Village for whatever reason chose to charge my client’s criminally

every day, day after day after day, until the grass got cut. And in my

experience, and I think in my client’s experience, that’s not typically a grass

cutting code is enforced (sic).

It certainly wasn’t the experience of the Judge in the case because

the Judge instructed your colleague Ryan Bronk, the Prosecutor, to never

ever do that again. And so yes, there was a plea to one charge * * *. * * 26

* That * * * whole episode of let’s charge them every day and see how many

criminal charges we can tack on, that was a part of the motivation to file that

first lawsuit.

{¶ 42} According to Pepper, “in addition to the criminal charges regarding grass

cutting, there were either threats for criminal prosecution or actual criminal citations

issued for alleged noise problems at the bar. And that was another motivating factor in

that first lawsuit.” He testified that “there were many, many instances where police officers

would come into the lounge and tell whoever was working behind the bar that the music

was too loud, it needed to be turned down.” According to Pepper, the “issue here was

that when the officers would come in, often they would actually admit to Shelly Singleton

who would often be behind the bar, that they were there at the direction of others. They

were there at the direction of Mr. Marcus in particular to go cite the Trails End Lounge.”

Pepper acknowledged that he did not observe or overhear such conversations. He stated

that “there were two actual criminal charges and dozens of warnings from officers” to turn

the music down.

{¶ 43} Pepper stated that while there were no criminal charges brought on fire

code violations, there is “quite an extensive report from a fire inspector of things that the

fire inspector had a problem with.” Pepper stated, “I don’t know for a fact as I sit here

that the Trails End did every single thing that was asked of it because there were things

that were asked of it that were not in violations (sic) of the code. * * * And again, in an

effort to be constructive and positive and have a good relationship, many things were

done that were not necessary.”

{¶ 44} Pepper stated that if “we were to take the time to go through Exhibit A, you 27

would see that I delegate to the lowest possible timekeeper everything in an effort to keep

the bill down,” and he indicated that his paralegal drafted the answer and discovery

requests herein. Finally, Pepper acknowledged that on an invoice dated September 13,

2013, “there’s a December 18th, 2012 time entry with the initials VMM,” who Pepper stated

is his paralegal. He acknowledged that the 2.25 hours that his paralegal spent on the

work reflected on that time entry does not relate to this litigation, and he withdrew the item

from his request for fees. Pepper stated that he makes “every possible effort to not ever

bill time if someone else in my firm is billing for that same time” with the same client. At

the end of the hearing, the Magistrate admitted the exhibits and granted the parties time

to file post-hearing briefs.

{¶ 45} On May 22, 2014, “Plaintiff’s Brief Following Damage Hearing” was filed.

According to the Village in part, “a vast bulk of the time expended relating to the instant

litigation was not in developing a defense which would support the charges that

Defendant made in the prior litigation when Defendant asked for a temporary restraining

order and a preliminary and permanent injunction.” The Village asserted that Trails End

never responded to the Village’s motion for summary judgment, and that the Motion “was

not ruled upon prior to [the Village] dismissing its action.” The Village asserted that Trails

End “elected not to proceed in a reasonable manner by submitting a Motion for Summary

Judgment but elected to proceed in an unreasonable manner by the inordinate amount

of time and effort put into the itemization set forth on Defendant’s Exhibit A.” Finally, the

Village’s post-hearing brief provides: “is it ever reasonable to expend $20,000.00+ to

defend litigation over a contested amount of $2500.00?”

{¶ 46} Trails End filed “Defendants’ Post-Hearing Brief on Fees” on May 22, 2014, 28

asserting that it sought $24,172.26 in fees. According to Trails End, the Village’s

characterization of the matter as a “ ‘$2,500.00 case’ is incorrect. A cursory review of

[the Village’s] Complaint demonstrates that [the Village] demanded $25,000.00, plus

attorney fees and costs in this action. Only later, after discovery had commenced and

[the Village] learned that [Trails End] would not be extorted, did the Village drop its

demand to $2,500.00.” Trails End noted that it withdrew the unrelated time entry at the

hearing.

{¶ 47} The Village filed “Plaintiff’s Reply Brief” on May 28, 2014, and Trails End

filed “Defendants’ Response to Plaintiff’s Brief Following Damages Hearing” on the same

day.

{¶ 48} After reviewing the testimony from the hearing, and the law governing an

award of attorney fees, the Magistrate, based upon the stipulation of the parties, accepted

that the hourly rates of the timekeepers at Pepper’s firm “are reasonable and within

market values for the Dayton legal community.” The Magistrate found that “the hours

actually expended by the time-keepers at the Taft Firm exceed (to at least a small degree)

the amount of work billed to the client.” The Magistrate noted that the “Lodestar amount”

as reflected in the invoices is $24,172.26, which is obtained by “multiplying the number

of hours spent by each time keeper by his or her hourly rate.” The Magistrate noted that

no argument was raised by the Village that the bills were duplicative or that excessive

time was spent on a particular task, so “no adjustment of the Lodestar figure is needed

for these reasons.”

{¶ 49} The Magistrate next considered the Village’s “claims that the fees are

unreasonable in relation to the amount in controversy and that the legal work performed 29

was not related to the specific allegations in the underlying complaint, and she considered

whether “adjustment of the Lodestar figure is required by other factors set forth in Rule

1.5 of the Ohio Rules of Professional Responsibility.” That rule provides the following

factors for consideration in determining the reasonableness of a fee:

(1) the time and labor required, the novelty and difficulty of the

questions involved, and the skill requisite to perform the legal service

properly;

(2) the likelihood, if apparent to the client, that the acceptance of the

particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal

services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the

client;

(7) the experience, reputation, and ability of the lawyer or lawyers

preforming the services;

(8) whether the fee is fixed or contingent.

{¶ 50} Regarding the time and labor required, the novelty and difficulty of the

questions and the requisite skill to properly perform the legal services, the Magistrate

determined that no adjustment to the Lodestar amount was warranted as follows:

The Magistrate notes that [the Village] has objected to the amount of

time expended by [Trails End’s] counsel for discovery related to the alleged 30

harassment of [Trails End] by City of New Lebanon Officers. The

Magistrate notes that the police were not specifically named as Defendants

in the underlying action. However, the underlying action did contain a

“catch all” for unknown defendants and alleged generally interference with

the business and harassment against all parties. Thus, had discovery

occurred in the underlying case, it is likely that these facts would have been

developed in that litigation. Because that case was dismissed prior to the

completion of extensive discovery, it was reasonable and necessary for

[Trails End] to develop the facts of the underlying action in this case. [Trails

End was] accused of frivolous conduct and malicious prosecution – thus,

said factual development was necessary to defend against [the Village’s]

claims.

{¶ 51} The Magistrate concluded that factors two and three above did not require

an adjustment of the Lodestar amount. Regarding the amount involved and the results

obtained, the Magistrate noted that counsel for Trails End “obtained excellent results –

i.e. dismissal of the claim” against Trails End. The Magistrate found that although “the

monetary amount in controversy was small (i.e. $2,500.00), [Trails End] previously felt

that they had been harassed by [the Village]. Thus, [Trails End] arguably had more at

stake than $2,500.00 and, under the totality of the circumstances, it was reasonable for

them to continue to contest [the Village’s] allegations.” The Magistrate concluded that

the fourth factor did not warrant a change in the Lodestar amount, and she further

concluded that the remaining factors did not warrant an adjustment. She awarded Trails

End $24,172.26 in fees. 31

{¶ 52} The Village filed “Objections to Magistrate’s Decision of July 28, 2014” on

August 8, 2014, and “Supplemental Objections to Magistrate’s Decision of July 28, 2014,”

on September 25, 2014. The Village asserted that the “Magistrate’s Decision makes

reference to prior Decisions of the Court relating to conclusions and, to the extent that

this Magistrate accepts, adopts, ratifies or condones any Findings of Fact previously

made or referenced by the Court, [the Village] objects.” The Village asserted that “for

more than a year there was nothing going on with respect to any zoning violations,” and

that “it must be recognized that the Fire Department worked with [Trails End] for almost

a year before all of those alleged Fire Code violations were resolved and during that year,

filed absolutely no citations whatsoever nor was any action taken to shut down the

business or do anything regarding the business.” The Village asserted that it was only

aware of “the three allegations” set forth in Trails End’s complaint, and that the Village’s

complaint was addressed “to those three specific allegations.” The Village asserted that

there “is neither factual nor legal basis nor foundation to treat [Trails End’s] previous case

as being an appeal,” since the zoning violation had been resolved more than a year prior

to the filing of Trails End’s complaint. The Village asserted that the trial court “has

focused solely on the issue of the allegation of malicious prosecution and has failed to

totally consider the issue of [Trails End’s] prior case being a frivolous claim.” The Village

asserted that “the Court indicated, in its September 26, 2013 Decision, that ‘[The Village]

did not have its person, its actions, nor its property seized.’ Although there was no Order

issuing a temporary or permanent injunction against [the Village], [the Village’s] actions

were, in fact, immediately inhibited by virtue of the filing of Defendant’s Complaint.”

{¶ 53} Regarding the Magistrate’s conclusions of law, the Village asserted that 32

“the elements of determination of what is a reasonable attorney fee must consider what

issues are clearly defined by the pleadings and not what issues may be in the mind or

perception of one of the parties. * * * [T]he Police Department was not named as a party-

defendant in [Trails End’s] initial Complaint * * *.” The Village asserted that Trails End

failed to amend their complaint or to “allege in an Answer that there were ‘justifications’

for bringing the initial Complaint that went beyond the allegations specifically set forth in

that Complaint.” The Village noted that Trails End did not file a counterclaim, and that

there “were no assertions or allegations pled relating to the Police Department actions,

the Building Code inspections or anything else that was relevant to the subject matter as

defined by the pleadings.” The Village asserted that contrary to Pepper’s assertion, he

subpoenaed all of the personal emails of several employees, and not just those

addressed to Trails End. Finally, the Village directed the court’s attention to its Motion

in Limine and asserted that the work performed was unreasonable.

{¶ 54} In its supplemental objections, the Village asserted that Trails End’s

“extensive discovery and extensive compilation of time for attorney fees to try to justify

the filing of a frivolous Complaint * * * revealed no facts whatsoever that actually resulted

in a justification.” According to the Village, “the information learned through that entire

discovery, * * * did not rise to the level of indicating any harassment or course of action

that could, in any way, justify the filing of an action for a restraining order against a

municipality restraining that municipality from enforcing the law.” The Village asserted

that although “discovery is permitted to be very liberal, it does not mean that all discovery

is immediately admissible during the court proceeding. It must be related to the

allegations of the Complaint.” 33

{¶ 55} Trails End filed “Defendants’ Response to Plaintiff’s Objections, and

Plaintiff’s Supplemental Objections to the Magistrate’s Decision” on October 9, 2014.

Trails End asserted as follows:

[The Village] is now attempting to re-litigate the fee award issue,

primarily by way of arguments about prior litigation. The issues in the prior

litigation are irrelevant to the fee award issue before the Court today. As

this Court has explained in detail, the fatal defects in [the Village’s] claims

in this case have nothing to do with [the Village’s] understanding (flawed or

otherwise) of the previous litigation. In other words, [the Village’s] conduct

in filing the claims in this case is not excusable simply because [the Village]

may have believed that a prior case was frivolous. [The Village] could have

moved for sanctions in that prior case pursuant to Ohio Rev. Code §

2323.51 if [the Village] thought the [Trails End] acted frivolously in that case.

Instead, [the Village] filed the separate and independent tort claims at issue

in this case, well after the previous litigation ended, and the Court has

already determined that [the Village] acted inappropriately in doing so.

{¶ 56} In overruling the Village’s objections, the trial court determined in part as

follows:

B. Objection 1: The Magistrate is in error on six separate

findings of fact used in the Magistrate’s Decision.

Having reviewed the Magistrate’s decision, the motions and

memorandum of the parties, and the transcript of the proceedings, the court

finds [the Village’s] first objection without merit. [The Village], once again, 34

attempts to argue the merits of the case by objecting to six separate factual

findings. The first three factual findings made by the Magistrate implicate

that the original complaint likely encompassed more facts than those

specifically stated in the original complaint: zoning issues, charges for

mowing grass, and fire inspection reports. The second three factual

findings made by the Magistrate are wholly adopted from the previous

decision of this Court. The Court will address the flaws of each group

separately.

(1) [The Village] objects to the Magistrate’s findings of fact that

the complaint in the original action could have included more factual

allegations than what was specifically alleged.

As the objection relates to the first three factual findings, [the Village]

continues to argue that the complaint in the underlying case failed to

adequately state a claim and was unsupported by probable cause.

Although [the Village] uses these facts to justify its own actions, the

argument truly relates to [the Village’s] ability to prove [Trails End’s]

malicious intent in filing the original complaint and the scope of expected

discovery in the instant matter. [The Village] even states in its objection:

“It was alleged [in [the Village’s] Complaint] that, as to the specific

allegations made by [Trails End] in [Trails End’s] Complaint, [Trails End’s]

Complaint constituted a frivolous action. There was no way for [the Village]

or anyone else to know any other factual allegations supporting Trail E[n]d’s

causes of action.” This is exactly the Court’s point. 35

{¶ 57} After noting that Ohio “is a notice pleading state,” and that Ohio law

accordingly does not require operative facts to be pled with particularity, the court again

noted that Trails End’s complaint alleged that the Village harassed Trail’s End and

interfered with its ability to operate its business. The court noted its previous finding that

the Village was put on notice that Trails End, “at the very least, alleged claims for

harassment and abuse of power.” Since the initial litigation ended so quickly, “neither

party could have actually determined the whole scope of the proceedings, nor was it

decided whether the pleading could have survived a motion to dismiss.” The court

further noted that there “was no time to file motions for a more definite statement, motions

to amend pleadings, or to adjudicate the matter on the merits. Therefore, after the

voluntary dismissal of the underlying action, there was no way to determine the full scope

of the case and complaint.”

{¶ 58} The court further determined as follows:

* * * Mr. Pepper[] testified at the Magistrate’s hearing that not all of

the facts forming the basis of the suit were alleged in the Complaint. Mr.

Pepper testified that Defendants were reportedly “harassed” by the police

for allegedly unfounded noise violations, and in the course of his

investigation into the former action he investigated [Trails End’s] interaction

with the local police. This Court agrees with the Magistrate’s finding that it

is extremely likely that these facts would have been discovered, had the

case carried on more than three months. However, since no discovery

took place, and [Trails End] decided to completely drop the underlying

lawsuit, those facts stayed hidden until [the Village] filed the instant matter. 36

This Court agrees with the Magistrate’s finding that it was reasonable and

necessary for [Trails End’s] counsel to develop the facts of [Trails End’s]

underlying action. Evidence of further harassment, including unfounded

noise violations, would be necessary to defend against [the Village’s] claim

of malicious prosecution.

Based on the procedural history of the underlying case, and the

necessity of the Defendants to develop their defense for the instant matter,

the Court finds [the Village’s] objections to the first three findings of fact are

without merit.

{¶ 59} The court then addressed the Village’s remaining objections to the

Magistrate’s factual findings as follows:

(2) [The Village] objects to the Magistrate’s findings of fact as

they are adopted from this Court’s previous decision.

[The Village’s] fourth, fifth and sixth facts to which it objects all relate

to facts found by this Court. * * *

[The Village’s] actual objections to each of the three facts are as

follows: (1) objection to the characterization of the underlying complaint

being an attempt to appeal the citations, (2) objection to the Court’s focus

on the instant matter rather than adjudicating [Trails End’s] underlying

complaint, (3) objection to the Court’s finding that [the Village] did not suffer

a seizure of its person, its actions, or its property in the underlying litigation.

The court will not reconsider, for a third time, its findings. 37

{¶ 60} The court noted that Civ.R. 11 and R.C. 2323.51(B) provide remedies for

victims of frivolous conduct, and that a meritless lawsuit can be addressed within the

lawsuit itself. The court noted that neither party prevailed in the initial lawsuit, and that

the Village could have addressed Trails End’s alleged frivolous conduct therein 30 days

after the voluntary dismissal, pursuant to R.C. 2323.51(B)(1). The court found that the

Village “knew or should have known that the elements for malicious prosecution differ

than (sic) the requirements for a motion for fees based on frivolous conduct” and that

“even if the Court assumed every single word of its Complaint was true, there was no

factual or legal basis for at least two, likely three, of the four elements of malicious

prosecution.” Finally, the court found that the Village “knew or should have known that it

could not, in good faith, argue for a drastic change in law established by the Ohio

Supreme Court on three of the four elements of malicious prosecution. [The Village’s]

objections to the findings of fact adopted from the Court’s own decision are without merit.”

{¶ 61} The court continued as follows:

C. Objection 2: The Magistrate erred when she concluded that

[Trails End’s] lodestar amount was $24,172.26.

(A) Calculation of the lodestar amount.

[The Village] argues that this matter was a simple case, and that the

attorneys fees far outweigh the amount in controversy, which it alleges is

two thousand five hundred dollars * * *. * * * However, the Court is mindful

that even a “simple” case can prove difficult when the plaintiff is met with

vigorous and professional opposition. * * * 38

Here, [the Village] may believe that the defense of its singular claim

should have been simple, but when mounting a defense over one-year’s

span any defense can become more intricate. Mr. Pepper testified at the

hearing that he and his staff conducted more work than that which was billed

to his client on this matter. * * * The court finds that the time accounted for

on the billing statements is an accurate amount of time expended on this

case. Except for a singular entry for an alternative matter which amounted

to $450.59, the Court finds that the lodestar amount for all work related to

this, $24,172.26 (sic).

In review of the transcript and exhibits, no particular hour billed was

duplicative.

In review of the transcript and exhibits, no particular hour billed was

extraordinary or excessive.

Therefore, the Court agrees with the Magistrate’s conclusion that the

lodestar amount for the Defendant’s attorney fees is $24,172.26.

{¶ 62} The court next considered whether the lodestar amount was subject to

adjustment. After setting forth factors in Rule 1.5 of the Ohio Rules of Professional

Conduct, as set forth above, the court addressed the first factor and noted that

extraordinary skill or specialty in the law was not required in the case, and that the issue

was not novel, and thus, the court “is left to consider the time and labor required to

adjudicate the matter.” The court noted that the Village objected to invoices addressed to

the discovery of alleged harassment by the police and Village as an unreasonable

expenditure of counsel’s time. The court further noted that “[c]ourts have always 39

recognized that while matters may not be admissible evidence in a civil proceeding, it

does not preclude the matter from being discovered through discovery procedures. The

Ohio Civil Rules provides (sic) procedures in which attorneys are permitted to investigate

both the favorable and unfavorable aspects of each case. Civ.R. 26(A).” The court noted

that parties “are permitted to obtain information regarding any matter that is relevant to

the subject matter involved in the pending action. Civ.R. 26(B)(1).” The court found that

just “because the underlying litigation ended before these facts could be discovered

through interrogatories and deposition, does not preclude [Trails End] from pursuing

these facts as a defense to the instant matter. Therefore, the Court concludes, as the

Magistrate did, that [Trails End’s] attorney’s fees were a necessary and reasonable

expenditure of fees.”

{¶ 63} Finally, the court concluded as follows:

The fourth factor set forth by Rule 1.5 requires the court to consider

the amount involved in the instant action and the results obtained. The

Complaint alleges the amount in controversy to be $25,000.00 plus attorney

fees and costs incurred in the prosecution of the instant action. * * * [The

Village] argues that the true amount in controversy is $2,500.00, an

insignificant number in comparison to [the] amount expended on attorneys

fees. However, the court concludes, as did the Magistrate, that [Trails End]

arguably had more at stake than $2,500.00 having felt harassed by [the

Village]. The Court notes that [Trails End] also received excellent results

in this respect, since the claims against [Trails End] have been dismissed.

Thus, the court concludes, as the Magistrate did, that the lodestar amount 40

does not need to be adjusted to be contemporaneous with the amount in

controversy and the result obtained.

In consideration of all other factors, the Court finds that the remaining

factors do not warrant a change in the lodestar amount.

III. CONCLUSION

Accordingly, based on the foregoing, [the Village’s] Objections to the

Magistrate’s Decision are hereby OVERRULED in their entirety. The

Magistrate’s Decision is hereby ADOPTED. The lodestar amount of

$24,172.26 is hereby awarded to [Trails End] as justifiable attorney’s fees.

{¶ 64} On September 29, 2015, this Court issued a Decision and Entry noting that

Exhibits A, B, and C from the damages hearing before the Magistrate were not included

in the record on appeal. Pursuant to this Court’s order issued in the September 29, 2015

Decision and Entry, the Village moved the trial court to determine whether the exhibits

were mistakenly omitted from the record. On October 21, 2015, the trial court issued an

“Order and Entry Finding Exhibits A, B, and C were Mistakenly Omitted; Order that

Exhibits be made part of the Record.” Exhibits A, B, and C are included in the record

before us.

{¶ 65} The Village asserts five assignments of error. For ease of analysis, we will

first consider the Village’s fourth assignment of error. It is as follows:

THE COURT BELOW ERRED IN DETERMINING THAT THE

PROVISIONS OF THE OHIO REVISED CODE DEALING WITH

SOVEREIGN IMMUNITY DO NOT APPLY TO THE VILLAGE OF NEW

LEBANON. 41

{¶ 66} The Village asserts that R.C. 2744.03(A)(2) and (5) apply and that the

actions of the Village are protected by political subdivisison immunity. R.C. 2744.02(A)(1)

provides: “* * * a political subdivision is not liable in damages in a civil action for injury,

death, or loss to person or property allegedly caused by any act or omission of the political

subdivision or an employee of the political subdivision in connection with a governmental

or proprietary function.” (Emphasis added). R.C. 2744.03(A) provides: “In a civil

action brought against a political subdivision * * * to recover damages for injury, death, or

loss to person or property allegedly caused by any act or omission in connection with a

governmental or proprietary function, the following defenses or immunities may be

asserted to establish nonliability:” (Emphasis added).

{¶ 67} We need not address the enumerated defenses and immunities in R.C.

2744.03. Civ.R. 3(A) provides: “A civil action is commenced by filing a complaint with

the court * * *.” The immunity conferred by the above statutes specifically applies in civil

actions initiated against a political subdivision or its employees for damages, and not to

Trails End’s motion for attorney fees pursuant to R.C. 2323.51. Accordingly, the Village’s

fourth assignment of error is overruled.

{¶ 68} We will next consider the Village’s second and third assigned errors

together. They are as follows:

THE COURT BELOW ERRED IN RULING THAT THE INSTANT

MATTER, [THE VILLAGE COMPLAINT] CONSTITUTED A FRIVOLOUS

CLAIM,

And,

THE COURT BELOW ERRED IN DETERMINING THAT 42

PLAINTIFF/APPELLANT KNEW OR SHOULD HAVE KNOWN IT COULD

NOT PROVE ALL OF THE ELMENTS OF MALICIOUS PROSECUTION

AND/OR THAT THERE WAS NO GOOD FAITH ARGUMENT FOR

MODIFICATION OR REVERSAL OF EXISTING LAW.

{¶ 69} In its second assigned error, the Village asserts that Trails End’s complaint

“did directly fall within the definitions included in R.C. Section 2323.51(B)(1),” and “the

trial court erred in categorizing the actions of [the Village] as being a frivolous claim.” In

the third assigned error, the Village asserts that Trails End’s complaint was “an effort to

restrain and enjoin a governmental agency from enforcing the law.” According to the

Village, although Trails End’s complaint “doesn’t necessarily fit within the normal

parameters of what constitutes a malicious action, there should be some recourse for the

filing of actions which, on their clear face, are aimed at inhibiting the enforcement of the

laws of the land.” The Village directs our attention to Lemieux v. Central Oil Field Supply

Co. of Logan, 11th Dist. Ashtabula No. 89-A-1479, 1990 WL 128277 (Sept. 7, 1990), and

asserts that “although current law as it relates to ‘seizure’ relates to the actual seizing of

money or property, it is submitted that a ‘property’ of the Village of New Lebanon is the

right to enforce the law. It is agreed that no injunction or restraining order had yet been

issued but the mere filing of the action requesting that relief inhibits the Village from

enforcing its laws and therefore, does ‘seize’ that right of enforcement.” The Village

asserts that its action against Trails End was a “viable action which, had the matter

proceeded to trial, would have * * * been successful. Only the mitigation of damages by

recovering from a secondary insurance company removed the matter from further action.”

Finally, the Village asserts that the trial court “may have concluded that the allegation of 43

malicious use of process did not meet the current criteria as set forth by existing case law

but it is error to fail to recognize [the Village’s] Complaint as a good faith argument for

modification or reversal of that case law.”

{¶ 70} Trails End responds that the Village “waived its right to appeal the award of

attorney fees pursuant to Ohio R. Civ.P. 11 by failing to raise the Rule 11 issue in its initial

brief. The Village did not present an assignment of error regarding the Civil Rule 11

sanction.” Trails End further asserts that the trial court properly found the Village

engaged in frivolous conduct under R.C. 2323.51, and that the Village was not engaged

in a good faith effort to change the law.

{¶ 71} In Reply, the Village notes that the trial court, in its decision of September

26, 2013, determined that Civ.R. 11 was violated and ordered the parties to “ ‘show cause

as to why costs, including attorney fees and expenses of defending the suit, should not

be awarded to Defendant.’ ” The Village asserts:

No further word was heard from the Court with respect to Rule 11

sanctions except in the Decision and Order of February 21, 2014 where, in

the Conclusion, the Court indicates that “the Court finds no cause to review

its previous Decision regarding the grant of sanctions under Civil Rule 11.”

There never has been a definition or a clarification of what sanctions the

Court was referring to. The language of Rule 11 provides that the party

“may be subjected to appropriate action.” There is no obligatory obligation

to impose any particular sanctions and in the case at bar no specific

sanction or imposition of attorney fees was ever referenced as it relates to

Civil Rule 11. It is submitted herewith that Appellant cannot appeal from 44

something that does not exist. The mere finding that there was a Rule 11

violation does not, in and of itself, require sanctions and does not, in and of

itself, define those sanctions.

{¶ 72} As this Court recently noted:

“The imposition of a sanction under Civ.R. 11 requires a

determination that the attorney filing the pleading: (1) has read the pleading;

(2) harbors good grounds to support it to the best of his or her knowledge,

information, and belief; and (3) did not file it for the purposes of delay.”

(Citation omitted.) Nat’l Check Bur. V. Patel, 2d Dist. Montgomery No.

21051, 2005-Ohio-6679, ¶ 14. “If any one of these requirements is not

satisfied, the trial court must then determine whether ‘the violation was

“willful” as opposed to merely negligent.’ ” Ponder v. Kamienski, 9th Dist.

Summit No. 23270, 2007-Ohio-5035, ¶ 36, quoting Ceol v. Zion Indus. Inc.,

81 Ohio App.3d 286, 290, 610 N.E.2d 1076 (9th Dist. 1992). “If the trial court

finds that the violation was willful, it may impose an appropriate sanction.”

(Citation omitted.) Id.

Namenyi v. Tomasello, 2d Dist. Greene No. 2013-CA-75, 2014-Ohio-4509, ¶ 14.

{¶ 73} “In contrast, the imposition of sanctions under R.C. 2323.51 requires a

finding of frivolous conduct.” Id., ¶ 15. R.C. 2323.51(B)(1) provides:

* * * [A]t 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 45

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)(4) provides that “[a]n award made pursuant to division (B)(1) of this

section may be made against a party, the party’s counsel of record, or both.”

{¶ 74} As this Court noted in Namenyi:

Prior to awarding damages under R.C. 2323.51, the trial court must

hold a hearing “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[.]” R.C. 2323.(B)(2)(a). “[W]e note that ‘[t]he finding of frivolous

conduct under R.C. 2323.51 is determined without reference to what the

individual knew or believed.’ ” Mitchell v. Mid-Ohio Emergency Servs.,

L.L.C., 10th Dist. Franklin No. 10AP – 374, 2010-Ohio-6350, ¶ 25, quoting

Bikkani v. Lee, 8th Dist. Cuyahoga No. 89312, 2008-Ohio-3130, ¶ 22.

(Other citation omitted.)

Id., ¶ 16.

{¶ 75} R.C. 2323.51(A)(1)(a) defines conduct as the “filing of a civil action, the

assertion of a claim, defense, or other position in connection with a civil action, the filing

of a pleading, motion, or other paper in a civil action, including, but not limited to, a motion

or paper filed for discovery purposes, or the taking of any other action in connection with

a civil action.” “Frivolous conduct” is the conduct of a party to a civil action that satisfies

in relevant part the following: 46

(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.

(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.

R.C. 2323.51(A)(2)(a).

{¶ 76} As noted in Namenyi:

This Court has previously noted “that the frivolous conduct implicated

by R.C. 2323.51(A)(2)[(a)](ii) involves proceeding on a legal theory which is

wholly unwarranted in law.” State v. Auto Mut. Ins. Co. v. Tatone, 2d Dist.

Montgomery No. 21753, 2007-Ohio-4726, ¶ 8. “Whether a claim is

warranted under existing law is an objective consideration.” (Citations

omitted.) Hickman v. Murray, 2d Dist. Montgomery No. CA 15030, 1996

WL 125916, *5. The test is “whether no reasonable lawyer would have

brought the action in light of the existing law. In other words, a claim is

frivolous if it is absolutely clear under the existing law that no reasonable

lawyer could argue the claim.” Id.

“[N]o single standard of review applies in R.C. 2323.51 cases.”

Wiltberger v. Davis, 110 Ohio App.3d 46, 51, 673 N.E.2d 628 (10th Dist. 47

1996). When the question regarding what constitutes frivolous conduct calls

for a legal determination, such as whether a claim is warranted under

existing law, an appellate court is to review the frivolous conduct

determination de novo, without reference to the trial court’s decision. Natl

Check Bur., 2d Dist. Montgomery No. 21051, 2005-Ohio-6679 at ¶ 10;

accord Riverview Health Inst., L.L.C. v. Kral, 2d Dist. Montgomery No.

24931, 2012-Ohio-3502, ¶ 33. “Similarly, whether a party had good

grounds to assert a claim under Civ.R. 11 also involves a legal

determination, subject to a de novo standard or review.” (Citation omitted).

ABN AMRO Mtge. Grp., Inc. v. Evans, 8th Dist. Cuyahoga No. 98777, 2013-

Ohio-1557, ¶ 14.

“In contrast, if there is no disputed issue of law and the question is

factual, we apply an abuse of discretion standard of review.” Riverview

Health Inst., L.L.C. at ¶ 33, citing Natl. Check Bur. at ¶ 11. Likewise, if the

trial court determines that a violation under R.C. 2323.51 or Civ.R. 11 exists,

the trial court’s imposition of sanctions for said violation will not be disturbed

absent an abuse of discretion. State ex rel. Fant v. Sykes, 29 Ohio St.3d

65, 505 N.E.2d 966 (1987); Lewis v. Powers, 2d Dist. Montgomery No.

15461, 1997 WL 335563, * 4 (June 13, 1997).

Id., ¶18-20.

{¶ 77} “A trial court abuses its discretion when the court's attitude was

unreasonable, arbitrary, or unconscionable. AAAA Enterprises, Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 48

(1990).” Bishop v. Bishop, 2d Dist. Montgomery No. 26397, 2015-Ohio-2711, ¶ 16.

{¶ 78} The trial court determined that the conduct of the Village was frivolous

pursuant to R.C. 2323.51(A)(2)(a)(ii) and (iii); in other words, its complaint for malicious

prosecution was unwarranted under existing law, could not be supported by a good faith

argument for a change in existing law, and was without evidentiary support.

{¶ 79} As this Court has noted:

In order to state a cause of action for malicious prosecution in Ohio,

four essential elements must be alleged by the plaintiff: 1) malicious

institution of prior proceedings against the plaintiff by defendant; 2) lack of

probable cause for the filing of the prior lawsuit; 3) termination of the prior

proceedings in plaintiff's favor; and 4) seizure of plaintiff's person or property

during the course of the prior proceedings. Crawford v. Euclid National Bank

(1985), 19 Ohio St.3d 135, 139.

Clemmons v. Yaezell, 2d Dist. Montgomery No. 11132, 1988 WL 142397, *3 (Dec. 29,

1988).

{¶ 80} We first conclude that the trial court correctly found that the Village’s claim

of malicious prosecution was frivolous. “A proceeding is terminated in favor of the

accused ‘only when its final disposition indicates that the accused is innocent.’ * * *.”

Malone v. Lowry, 2d Dist. Greene No. 06-CA-101, 2007-Ohio-5665, ¶ 17. “When a

prosecution is terminated by way of a voluntary settlement or agreement of compromise

with the accused, it is not indicative of guilt or innocence and thus, is not a termination in

favor of the accused.” Id. Trails End’s complaint was voluntarily dismissed and thus

the trial court correctly found that the Village’s complaint was not warranted under existing 49

law.

{¶ 81} We further find that the trial court did not err in finding that there was no

good faith argument for modification of the law, namely the seizure element of malicious

prosecution. “A cause of action for malicious civil prosecution will lie only in cases where

there is a prejudgment seizure of property, i.e., where there essentially has been a

judgment against, and a concomitant injury suffered by, a defendant before he has had a

chance to defend himself.” Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d

264, 270, 662 N.E.2d 9 (1996).

{¶ 82} The Robb Court, in distinguishing between malicious criminal prosecution,

which does not include a seizure requirement, and malicious civil prosecution, which

does, determined as follows:

We believe that the interests of justice and judicial economy are best

served by continuing to require the element of seizure of property in

malicious civil prosecution cases. The damages from being sued civilly are

of a different character than from being arrested or haled into court on a

criminal charge. A person's freedom is not at stake in a civil trial. Civ.R. 12

allows for the quick disposal of meritless claims, and Civ.R. 11 presents the

best avenue to deal early, quickly, and effectively with bogus lawsuits. Also,

R.C. 2323.51(B)(1) allows for the award of attorney fees to victims of

frivolous conduct in a civil case.

We echo this court's concern in [Crawford v. Euclid Natl. Bank, 19

Ohio St.3d 135, 483 N.E.2d 1168 (1985)] that removing the seizure

requirement from malicious civil prosecution claims would result in an 50

explosion of claims for malicious prosecution. There are opportunities

already built into the civil system to deal with a meritless lawsuit within that

same lawsuit, rather than instituting another suit. Every successful summary

judgment defendant should not be tempted to file a malicious prosecution

claim.

We therefore retain in malicious civil prosecution cases the long-held

and well-reasoned requirement of seizure of property, and leave to our

Rules of Civil Procedure, or the General Assembly, the method with which

to deal with meritless civil claims.

Id., 270. Given the reasoned holding of the Ohio Supreme Court, the Village’s conduct

cannot be supported by a good faith argument for a modification of existing law.

{¶ 83} Finally, we cannot conclude that the trial court erred in finding that the

Village’s allegations lacked evidentiary support; we note that the parties’ Joint Pre-Trial

Statement, in a section entitled “Facts Established,” provides: “No defendant in Case

No. 2011-CV-3635 was subject to any seizure of person or property in the course of, or

arising out of, that case.”

{¶ 84} Since the trial court correctly determined that the Village engaged in

frivolous conduct, its second and third assignments of error are overruled. Since the trial

court based its award of fees on the Village’s frivolous conduct, we need not address the

parties’ arguments regarding Civ.R.11.

{¶ 85} The Village’s fifth assignment of error is as follows:

THE COURT BELOW ERRED IN THE CALCULATION AND AWARD OF

ATTORNEY FEES. 51

{¶ 86} We initially note:

Pursuant to Civ.R. 53(D)(3)(b), a party who disagrees with a

magistrate's proposed decision must file objections to said decision. Claims

of trial court error must be based on the actions taken by the trial court,

itself, rather than the magistrate's findings or proposed decision. When

reviewing objections to a magistrate's decision, the trial court is not required

to follow or accept the findings or recommendations of its magistrate.

Breece v. Breece, 2d Dist. Darke No. 99–CA–1491, 1999 WL 999759 (Nov.

5, 1999); Seagraves v. Seagraves, 2d Dist. Montgomery Nos. 15047 and

15069, 1995 WL 559970 (Aug. 25, 1995). In accordance with Civ.R. 53, the

trial court must conduct an independent review of the facts and conclusions

contained in the magistrate's report and enter its own judgment. Dayton v.

Whiting, 110 Ohio App.3d 115, 118, 673 N.E.2d 671 (2d Dist.1996). Thus,

the trial court's standard of review of a magistrate's decision is de novo.

An “abuse of discretion” standard is the appellate standard of review.

* * * Presumptions of validity and deference to a trial court as an

independent fact-finder are embodied in the abuse of discretion standard.

Whiting, supra.

Lewis v. Lewis, 2d Dist. Greene No. 2013 CA 68, 2014-Ohio-958, ¶ 10-11.

{¶ 87} The Village asserts that the police department was not named as a party

and yet “a great deal of time and costs that were expended by Trails End were related to

subpoenaing dispatch information, bar checks by the Police Department, depositions of

Police Officers, and other such actions.” According to the Village, “the only issues that 52

were involved in this instant action are the specific three items that were set forth with

particularity” in Trails End’s complaint, namely “the actions of the Zoning Inspector with

respect to zoning violation citations and property maintenance regarding mowing of the

property and then the report of Fire Code violations by the Fire Inspector.” The Village

asserts that the fees awarded for time spent on discovery beyond the allegations in the

complaint were unreasonable.

{¶ 88} Trails End responds that the award is supported by the record, and that

once “the Village filed its Complaint, Trails End was entitled to conduct discovery as it

best saw fit to defend itself against the Village’s frivolous claims.” Trails End asserts that

“both the Magistrate and the Trial Court considered [the Village’s] argument that discovery

should have been restricted, [and] they unequivocally found the discovery undertaken by

Trails End to be not only reasonable but necessary.”

{¶ 89} As this Court has noted:

Civ.R. 8(A) requires pleadings to contain “(1) a short and plain

statement of the claim showing that the party is entitled to relief, and (2) a

demand for judgment for the relief to which the party claims to be entitled.”

Under Civ. R. 8(A)(1), a plaintiff is only required to plead “sufficient,

operative facts to support recovery under his claims. To constitute fair notice

to the opposing party, however, the complaint must still allege sufficient

underlying facts that relate to and support the alleged claim, and may not

simply state legal conclusions.” (Citations omitted.) State ex rel. Rogers v.

Republic Environmental Sys., Inc., 2d Dist. Montgomery Nos. 23513, 23644

& 23723, 2010-Ohio-5523, ¶ 27. Each averment of a pleading must be 53

“simple, concise, and direct. No technical forms of pleading or motions are

required.” Civ.R. 8(E)(1). Pleadings are to be construed as to do substantial

justice. Civ.R. 8(F).

Springfield v. Palco Invest. Co., 2013-Ohio-2348, 992 N.E.2d 1194, ¶ 34 (2d Dist.).

{¶ 90} “Civ. R. 26(B)(1) provides that ‘[p]arties may obtain discovery regarding

any matter, not privileged, which is relevant to the subject matter involved in the pending

action * * *.’ ” Marcum v. Miami Valley Hospital, 2015-Ohio-1582, 32 N.E.3d 974, ¶ 8

(2d Dist.). “Civ. R. 26(B)(1) further provides that ‘[i]t is not ground for objection that the

information sought will be inadmissible at the trial if the information sought appears

reasonably calculated to lead to the discovery of admissible evidence.’ ” Id.

{¶ 91} Finally, as this Court has previously noted:

A court calculates reasonable attorney's fees by first calculating the

“lodestar,” “the number of hours reasonably expended on the case times an

hourly fee.” Bittner v. Tri–County Toyota, Inc., 58 Ohio St.3d 143, 145, 569

N.E.2d 464 (1991). In this calculation, the court must exclude “any hours

that were unreasonably expended, e.g., hours that were redundant,

unnecessary or excessive in relationship to the work done.” (Citation

omitted.) Miller v. Grimsley, 197 Ohio App.3d 167, 2011–Ohio–6049, 966

N.E.2d 932, ¶ 14 (10th Dist.). Then the court may modify the lodestar by

applying the factors listed in Prof.Cond.R. 1.5, Bittner at 145, one of which

is “the amount involved and the results obtained,” Prof.Cond.R. 1.5(a)(4).

Still, “ ‘[a] “reasonable” fee must be related to the work reasonably

expended on the case and not merely to the amount of the judgment 54

awarded.’ ” Miller at ¶ 16, quoting Roth Produce Co. v. Scartz, 10th Dist.

Franklin No. 01AP–480, 2001 WL 1654555 (Dec. 27, 2001).

Spring Hill Townhomes v. Pounds, 2d Dist. Montgomery No. 25887, 2014-Ohio-1980, ¶

18.

{¶ 92} As the trial court noted, counsel for the Village stipulated to the

reasonableness of the timekeepers’ rates at Pepper’s firm. We cannot conclude, as the

Village asserts, that Trails End’s complaint failed to provide sufficient notice to the Village,

or that Trail’s End’s discovery was limited by the allegations in the complaint; as the trial

court noted, pursuant to Civ.R. 26, parties are entitled to broad discovery. We agree with

the trial court’s determination that simply “because the underlying litigation ended before

these facts could be discovered through interrogatories and deposition, does not preclude

Defendants from pursuing these facts as a defense to the instant matter.” The court noted

Pepper’s testimony that he and his staff “conducted more work than that which was billed

to his client,” that no invoice was duplicative, and that no particular time billed was

excessive. We agree with the trial court that counsel for Trails End achieved an excellent

result, and that Trails End “arguably had more at stake than $2,500.00 having felt

harassed by [the Village].” The court determined the lodestar amount of $24,172.26, and

then properly considered, pursuant to Prof. Cond. R. 1.5, if the lodestar amount was

subject to adjustment. For the foregoing reasons, we conclude that an abuse of

discretion is not established, and that an award of $24,172.26 was reasonable and

necessary. The Village’s fifth assignment of error is overruled.

{¶ 93} Finally, the Village’s first assigned error is as follows:

THE COURT BELOW ERRED IN OVERRULING 55

PLAINTIFF/APPELLANT’S MOTION FOR SUMMARY JUDGMENT FILED

IN THIS MATTER ON OCTOBER 30, 2012 AND CONSIDERING [TRAILS

END’S] COMPLAINT AS AN ATTEMPT TO APPEAL OR HAVING A

MOTIVE TO APPEAL ACTIONS BY THE STATE FIRE MARSHALL AND

THE BOARD OF ZONING APPEALS.

{¶ 94} The Village mischaracterizes the record; the trial court did not rule upon the

Village’s motion for summary judgment, as the Village noted in its brief following the

damages hearing. The Village dismissed its case while its motion was pending, and

there is no judgment for this Court to review. The trial court’s classification of Trails End’s

dismissed complaint as an appeal is irrelevant to the issue that was before the court,

namely Trails End’s entitlement to an award of attorney fees based upon the frivolous

conduct of the Village. The Village’s first assignment of error is overruled.

{¶ 95} Having overruled each of the Village’s assigned errors, the judgment of the

trial court is affirmed.

..........

FROELICH, P.J. and WELBAUM, J., concur.

Copies mailed to:

Ronald D. Keener Timothy G. Pepper Valerie M. Talkers Hon. Gregory F. Singer