[Cite as Ohio Power Co. v. Ogle, 2013-Ohio-1745.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
OHIO POWER COMPANY, : : Plaintiff-Appellee, : Case No. 12CA14 : vs. : : DECISION AND JUDGMENT CHARLES R. OGLE, et al., : ENTRY : Defendant-Appellants. : Released: 04/19/13 _____________________________________________________________ APPEARANCES:
Charles R. and Melanie A. Ogle, Rockbridge, Ohio, Appellants, pro se.
Bryan L. Buzby, Porter Wright Morris & Arthur, LLP, Columbus, Ohio, for Appellee. _____________________________________________________________
McFarland, P.J.
{¶1} Appellants, Charles and Melanie Ogle, appeal the decision of
the Hocking County Court of Common Pleas concluding their appropriation
action and denying several of their pending motions, without calculating and
requiring Appellee to pay post-judgment interest on the jury award. On
appeal, Appellants contend that the trial court 1) erred to their prejudice in
denying their pending motion for distribution and interest in the
appropriation case; 2) erred as a matter of law in concluding this action prior
to and without the court’s calculation and Appellee’s deposit of interest on Hocking App. No. 12CA14 2
the jury award in the appropriation case; 3) erred to their prejudice in
denying their pending motion for attorney’s fees; 4) erred as a matter of law
in concluding the action prior to and without awarding them attorney’s fees;
5) erred to their prejudice in denying their pending motion for compensation
of personal property, which they claim was stolen by Appellees; and 6)
abused its discretion in denying their pending motion for sanctions against
Appellee.
{¶2} In light of our finding that Appellants were not entitled to post-
judgment interest on the jury verdict under R.C. 163.17, Appellants’ first
and second assignments of error are overruled. Because we have determined
that Appellants’ motion for attorney’s fees and sanctions related to the
contempt proceedings was untimely, Appellant’s third and fourth
assignments of error are overruled. Finally, as we have determined that the
arguments raised under Appellants’ fifth and sixth assignments of error were
moot in part, and barred by res judicata in part, these assignments of error
are also overruled. Accordingly, the decision of the trial court is affirmed.
FACTS
{¶3} Appellee, Ohio Power Company, commenced this action in June
2007 to obtain an easement across real property owned by Appellants,
Charles and Melanie Ogle. Appellee sought the easement in order to install a Hocking App. No. 12CA14 3
power line which would serve a communications tower being constructed on
property adjacent and to the south of Appellants’ property. Pursuant to R.C.
163.09, the trial court bifurcated the matter, first holding a hearing to
determine if the proposed easement was a public necessity and reserving for
later the issue of compensation.
{¶4} Appellee’s easement would be approximately 1,500 feet long
and 30 feet wide, constituting approximately one acre in total. After a full
hearing on the matter, the trial court determined the taking was necessary.
Subsequently, a jury trial was held to determine the amount of compensation
Appellants would receive for the easement and for the damage to the
residue. Ultimately, the jury awarded Appellants $4,000 for the market
value of the granted easement and $50,000 for damages to the residue of the
property. The trial court entered its final judgment entry in the case on
December 11, 2008.
{¶5} Both parties appealed the trial court's decision to this Court.
During the pendency of the appeal, Appellants moved multiple times to stay
execution of judgment. On April 4, 2009, after all stays had expired,
Appellee deposited the $54,000.00 jury award with the clerk of courts. It
appears that the money was not immediately released to Appellants, but
rather stayed on deposit with the clerk. This Court affirmed both the Hocking App. No. 12CA14 4
granting of the easement and the award of compensation in a decision issued
on November 3, 2009. Ohio Power Co. v. Ogle, 4th Dist. Nos. 09CA1,
09AP1, 2009-Ohio-5953. Appellants then appealed our decision to the
Supreme Court of Ohio, but the Court denied the appeal.
{¶6} Meanwhile, On August 6, 2009, while the initial appeal was still
pending, Appellee moved to compel Appellants to show cause for contempt
of court. Appellants also moved for an injunction restraining Appellants
from interfering with the trial court's final judgment. Appellee claimed that
Appellants had totally blocked access to the granted easement, thus
preventing preparations for the installation of the power line. On August 12,
2009, the trial court conducted a hearing on Appellee’s motion. After a full
hearing, including post-hearing briefs, the court found Appellants in
contempt.
{¶7} Ohio Power subsequently moved for attorney's fees and
damages in the amount of $25,136.78, related to the contempt of court.
After this Court’s decision was released affirming the easement and award
of compensation, on December 9, 2009, the trial court went ahead and
ordered distribution of $28,863.22 of the $54,000.00 jury award be made to
Appellants, but ordered the balance of $25,136.78 be retained by the clerk
pending the resolution of the contempt proceedings. Then, on June 22, Hocking App. No. 12CA14 5
2010, the court entered judgment against Appellants in the amount of
$25,136.78, as sanctions in the contempt proceedings. When Appellants did
not pay the judgment within thirty days, the clerk distributed $25,136.78 to
Appellee pursuant to the court’s order.
{¶8} Appellant subsequently appealed the finding of contempt and
the award of sanctions. In a decision dated July 27, 2011, this Court
reversed the trial court’s contempt finding and remanded the matter to the
trial court. Ohio Power Company v. Ogle, 4th Dist. No. 10CA13, 10AP13,
2011-Ohio-3903. On August 5, 2011, Appellants then began filing the first
of what would become a series of post-remand motions. Specifically,
Appellants filed a motion for distribution and interest on August 5, 2011, a
motion for attorney’s fees and sanctions on June 5, 2012, and a motion for
compensation and additional sanctions on July 3, 2012.
{¶9} The record indicates that as a result of there being a visiting
judge, the trial court did not become aware of and did not act on this Court’s
remand order until June 15, 2012. Subsequently, on June 27, 2012, the trial
court issued an entry ordering Appellee to “forthwith deposit with the Clerk
of Court the sum of $25,136.78[,]” noting that Appellee had made a deposit
of $12,451.45 on June 26, 2012, and ordering that Appellee deposit the
remaining sum of $12,685.33. Appellee, though it disputed the amount it Hocking App. No. 12CA14 6
should return to Appellants because of sanctions ordered against Appellants
in another, related case, deposited the rest of the money as ordered by the
court, on July 12, 2012.
{¶10} Finally, on July 20, 2012, the trial court issued a final,
judgment entry finding that distribution had been completed by the clerk and
that the action had been concluded. In its entry, the trial court expressly
denied all pending motions. It is from this decision that Appellants now
bring their timely appeal, assigning the following errors for review.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS IN DENYING DEFENDANTS’ PENDING MOTION FOR DISTRIBUTION AND INTEREST IN THIS APPROPRIATION CASE.
II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN CONCLUDING THIS ACTION PRIOR TO AND WITHOUT THE COURT’S CALCULATION AND PLAINTIFF’S DEPOSITING OF INTEREST ON THE JURY AWARD IN THIS APPROPRIATION CASE.
III. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS IN DENYING DEFENDANTS’ PENDING MOTION FOR ATTORNEY FEES IN THIS APPROPRIATION CASE.
IV. THE TRIAL COURT ERRED AS A MATTER OF LAW IN CONCLUDING THIS ACTION PRIOR TO AND WITHOUT DEFENDANTS BEING AWARDED ATTORNEY FEES IN THIS APPROPRIATION CASE. Hocking App. No. 12CA14 7
V. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS IN DENYING DEFENDANTS’ PENDING MOTION FOR COMPENSATION OF PERSONAL PROPERTY OF DEFENDANTS STOLEN BY PLAINTIFF.
VI. THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF DEFENDANTS IN DENYING DEFENDANTS’ PENDING MOTIONS FOR SANCTIONS AGAINST PLAINTIFF FOR INTENTIONAL MISREPRESENTATION TO THE COURT, IGNORING THIS COURT’S AUGUST 12, 2009 HEARING INSTRUCTIONS AND OHIO LAW IN REGARD TO NOTICE OF ENTRY ONTO AGRICULTURAL LAND, AND FOR STEALING DEFENDANTS’ PERSONAL PROPERTY.
ASSIGNMENTS OF ERROR I AND II
{¶11} Appellants’ first and second assignments of error challenge the
trial court’s decision denying their motion for distribution and concluding
the action prior to calculating post-judgment interest on their $54,000.00
jury award. Because Appellants argue these two assignments of error
together, and because the same legal principles apply to both assignments of
error, we have combined them for ease of analysis.
{¶12} Initially, we note that Appellants’ motion for distribution of the
jury award has arguably been rendered moot to the extent that it requested
that the $54,000.00 jury award on deposit with the clerk of courts to be
distributed. A review of the record indicates that $28,863.22 of the
$54,000.000 was distributed by the clerk to Appellants on January 4, 2010.
The remaining $25,136.78 had already been distributed to Appellants when Hocking App. No. 12CA14 8
the trial court issued its final entry on July 20, 2012. Thus, at the time the
action was concluded, distribution of the $54,000.00 jury award had been
made to Appellants and the issue of distribution, in general, was moot.
{¶13} This observation leads us to another issue of importance, which
is Appellee’s argument that Appellants’ acceptance of the complete
distribution of the $54,000.00 jury award constitutes a satisfaction of
judgment, thereby rendering Appellants’ appeal moot. The Supreme Court
of Ohio, in Blodgett v. Blodgett, 49 Ohio St.3d 243, 245, 551 N.E.2d 1249,
stated as follows:
“It is a well-established principle of law that a satisfaction of
judgment renders an appeal from that judgment moot. ‘
“Where the court rendering judgment has jurisdiction of the
subject-matter of the action and of the parties, and fraud has not
intervened, and the judgment is voluntarily paid and satisfied,
such payment puts an end to the controversy, and takes away
from the defendant the right to appeal or prosecute error or even
to move for vacation of judgment.” ’ Rauch v. Noble (1959),
169 Ohio St. 314, 316, 8 O.O.2d 315, 316, 159 N.E.2d 451,
453, quoting Lynch v. Lakewood City School Dist. Bd. of Edn.
(1927), 116 Ohio St. 361, 156 N.E. 188, paragraph three of the Hocking App. No. 12CA14 9
syllabus. See, also, Seifert v. Burroughs (1988), 38 Ohio St.3d
108, 526 N.E.2d 813.”
{¶14} This Court has since adhered to the reasoning espoused by the
Blodgett Court. See Slovak v. University Off-Campus Housing, 4th Dist. No.
99CA50, 2000 WL 680479, *1 (May 19, 2000) (deciding not to address the
merits of appellant’s claim where record indicated court’s judgment had
been satisfied); see also Atlantic Veneer Corp. v. Robbins, 4th Dist. No.
03CA719, 2004-Ohio-3710, ¶ 8 and 17 (acknowledging the holding in
Blodgett and also adhering to our prior reasoning in Slovak “that satisfaction
of a judgment renders an appeal moot where an appellant may preserve her
appeal rights by seeking a stay of execution pending appeal.). Although
several stays were granted early on in this litigation, any and all stays had
expired and there was no pending request for a stay at the times when
Appellants accepted the distributions of the jury award from the clerk of
courts. Nonetheless, in light of the long history of this case and in the
interests of justice, we will address Appellants appeal on the merits to the
extent these issues have not been rendered moot for other reasons, as noted
above and which we will discuss more fully as needed below.
{¶15} In addition to requesting distribution of the $54,000.00 jury
award, Appellants’ trial court motion also requested that interest on the jury Hocking App. No. 12CA14 10
award be calculated and distributed as well. Having already determined
Appellants’ motion is moot with respect to the distribution of the
$54,000.00, we limit our review to the question of whether Appellants were
entitled to post-judgment interest on the jury award. Thus, we turn our
attention to the applicable law which governs the accrual of interest in
appropriation proceedings.
{¶16} The appropriation procedure followed in this case was pursuant
to R.C. Chapter 163, which governs the appropriation of property. R.C.
163.17 governs the accrual of interest in an appropriation action. Because
this assignment of error calls for us to review a legal question, we review it
de novo. Ohio Dept. of Natural Resources v. Hughes, 145 Ohio App.3d 202,
206, 762 N.E.2d 422 (6th Dist. 2001); citing Castlebrook, Ltd. v. Dayton
Properties L.P., 78 Ohio App.3d 340, 346, 604 N.E.2d 808, 811-812 (1992).
R.C. 163.17 provides, in pertinent part, as follows:
“Where the agency has no right to take possession of the
property before the verdict, if the award is not paid to the owner
or deposited in court within twenty-one days after
journalization of the verdict, interest thereafter shall accrue,
except that where the owner appeals, interest shall not accrue
until the agency takes possession.” Hocking App. No. 12CA14 11
{¶17} To award interest under R.C. 163.17, the trial court must
determine certain dates, including the date that the agency took possession
of the property and the date that the landowner was paid. Ohio Dept. of
Natural Resources v. Hughes at 210. Here, the trial court denied Appellants’
motion without citing its reasoning. Thus, we look to the record to
determine the pertinent dates to be considered in determining this issue.
{¶18} According to its plain language, R.C. 163.17 provides that
interest begins to accrue if payment is not made within twenty-one days after
the verdict. However, it also provides that where a landowner appeals,
“interest shall not accrue until the agency takes possession.” R.C. 163.17.
Further, after interest begins to accrue, it stops accruing when an agency
places the funds on deposit with the clerk. Ohio Dept. of Natural Resources
v. Hughes at 21. Further, in City of Athens v. Warthman, 25 Ohio App.2d
91, 266 N.E.2d 583, we reasoned as follows with respect to the accrual of
post-judgment interest when funds had been placed on deposit with the
clerk:
“[T]he running of statutory interest upon the award * * * is
inapplicable when a deposit is made and the agency requests it
to be withheld-it being required only to pay interest upon the
award from the taking of possession until payment or deposit.” Hocking App. No. 12CA14 12
{¶19} Here, Appellants obtained a jury verdict in the amount of
$54,000.00 against Appellee on December 11, 2008. Appellee deposited
$54,000.00 with the clerk of courts on April 1, 2009; thus, the jury award
was not deposited within twenty-one days after the verdict. However,
Appellant filed an appeal of the trial court’s decision. As such, interest did
not begin to accrue at that time.
{¶20} This Court issued a decision affirming the appropriation of
Appellants’ property, as well as the amount of the jury award on November
3, 2009. However, as indicated above, while that appeal was pending and
after all stays had expired, on August 6, 2009, Appellee filed a contempt
action against Appellants claiming they had blocked access to the
appropriated easement when Appellee had tried to take possession in order
to begin the tree removal process. Appellee alleged it had incurred expenses
and attorney’s fees of $25,136.78 in connection with pursuing the contempt
matter. Throughout the appeal, and until the contempt proceedings were
decided at the trial court level, the $54,000.00 remained on deposit with the
clerk.
{¶21} Meanwhile, after our decision affirming the jury award was
issued on November 3, 2009, the trial court approved a distribution in the
amount of $28,863.22 to Appellants, but it ordered that the remainder of the Hocking App. No. 12CA14 13
$54,000.00, or $25,136.78, be held pending resolution of the contempt
matter. After finding Appellant in contempt, the trial court ordered
Appellants pay $25,136.78 to Appellee as sanctions for their contempt
within thirty days. When Appellants did not pay the sanctions, the
$25,136.78 still on deposit with the clerk was distributed to Appellee per the
trial court’s order. Appellant again appealed.
{¶22} As set forth above, this Court reversed the trial court’s decision
finding Appellants in contempt by decision dated July 27, 2011. Our
decision made no express finding or directive related to the $25,136.78 that
had been awarded to Appellee as part of the contempt proceedings. Further,
it appears due to a visiting judge situation in the lower court after the matter
was remanded, the trial court was not made aware of the contempt reversal
or our remand order until June 15, 2012.
{¶23} As a result, on June 27, 2012, the trial court ordered Appellee
to forthwith deposit $25,136.78 with the clerk of courts. As indicated above,
Appellee had already deposited $12,451.45 with the clerk of courts the day
before. The remaining $12,685.33 was deposited on July 12, 2012.
Although the record does not specify when the $25,136.78 was distributed to
Appellants, it appears it must have been distributed sometime after July 12, Hocking App. No. 12CA14 14
2012, and before July 20, 2012, when the trial court issued its final entry
noting distribution had been completed by the clerk.
{¶24} Thus, the record reveals that Appellants appealed the initial
appropriation action, and thus, interest would not have begun to accrue until
Appellee took possession. However, prior to attempting to take possession,
and while the initial appeal was still pending, Appellee placed the jury award
on deposit with the clerk of courts. These funds stayed on deposit until a
portion was awarded back to Appellee as a subsequent contempt sanction
against Appellants. Then, nearly immediately after the trial court ordered it
to re-deposit the funds upon our reversal and remand of the contempt
finding, Appellee complied, re-deposited the funds, and the funds were
distributed to Appellants. Based upon our consideration of the facts herein,
in light of the applicable statute as well as the above cited case law, we find
Appellants were not entitled to post-judgment interest in this matter.
Therefore, Appellant’s first and second assignments of error are overruled
and the decision of the trial court is affirmed.
ASSIGNMENTS OF ERROR III AND IV
{¶25} Appellants' third and fourth assignments of error challenge the
trial court's decision denying their motion for attorney’s fees and conclusion
of the action without awarding attorney’s fees. Because Appellants argue Hocking App. No. 12CA14 15
these two assignments of error together, and because the same legal
principles apply to both assignments of error, we have combined them for
ease of analysis.
{¶26} Although the wording of Appellants’ assignments of error
suggests that they requested attorney’s fees for the entire appropriation
action, a review of the record indicates that the motion for attorney’s fees
and sanctions Appellants filed in the trial court requested attorney’s fees and
sanctions related to the filing of a “frivolous motion for contempt[,]” and
for Appellee’s “intentional misrepresentation to [the] Court in a hearing on
December 9, 2009 that [Appellee] had complied with the road work permit
requirement for Donaldson road, in order to secure an order for sanctions
against [Appellants] and to withhold the appropriation award in this case.”
Thus, our review is limited to whether Appellants were entitled to attorney’s
fees, as a sanction for frivolous conduct by Appellee with respect to
Appellee’s filing of a contempt action against Appellants, which claimed
Appellants were blocking access to their appropriated easement.
{¶27} Appellants cite no authority in support of their claim for
attorney’s fees or sanctions on appeal. Further, the argument portion of their
brief under these assignments of error contains no actual legal arguments,
but rather simply catalogues a long list of alleged factual and legal Hocking App. No. 12CA14 16
conclusions, many of which challenge the validity of the original
appropriation action, which was already considered and upheld on appeal.
Nonetheless, we note that R.C. 2323.51 governs the award of attorney’s fees
as a sanction for frivolous conduct, which appears to be the rationale upon
which Appellants base their claims.
R.C. 2323.51(A)(2) defines “frivolous conduct” to mean:
“(a) Conduct of [a] * * * party to a civil action, * * * or of the *
* * party's counsel of record that satisfies any of the following:
(i) It obviously serves merely to harass or maliciously injure
another party to the civil action or appeal or is for another
improper purpose, including, but not limited to, causing
unnecessary delay or a needless increase in the cost of
litigation.
(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 Hocking App. No. 12CA14 17
so identified, are not likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery.
(iv) The conduct consists of denials or factual contentions that
are not warranted by the evidence or, if specifically so
identified, are not reasonably based on a lack of information or
belief.”
{¶28} R.C. 2323.51(B) authorizes a trial court to award attorney’s
fees to any party adversely affected by frivolous conduct; however, section
(B)(1) specifies that a party make a motion for such award “not more than
thirty days after the entry of final judgment in a civil action or appeal.”
{¶29} Courts must carefully apply R.C. 2323.51 “ ‘so that legitimate
claims are not chilled.’ ” Burchett v. Larkin, 192 Ohio App.3d 418, 2011-
Ohio-684, 949 N.E.2d 516, ¶ 20 (4th Dist.); quoting Hickman v. Murray, 2nd
Dist. No. CA15030, 1996 WL 125916, *5 (Mar. 22, 1996). As we noted in
Burchett, the Hickman court explained that:
“A party is not frivolous merely because a claim is not
well-grounded in fact. Richmond Glass & Aluminum Corp. v.
Wynn (Sept. 5, 1991), Columbiana App. No. 90-C-46, [1991
WL 172902, at *2]. Furthermore, the statute was not intended
to punish mere misjudgment or tactical error. Turowski v. Hocking App. No. 12CA14 18
Johnson (1991), 70 Ohio App.3d 118, 123 [590 N.E.2d 434],
quoting Stephens v. Crestview Cadillac (1989), 62 [64] Ohio
App.3d 129, 134 [580 N.E.2d 842]. Instead, the statute was
designed to chill egregious, overzealous, unjustifiable, and
frivolous action. Turowski v. Johnson (1990), 68 Ohio App.3d
704, 706 [589 N.E.2d 462].
{¶30} Whether a claim is warranted under existing law is an
objective consideration. Lewis v. Celina Fin. Corp. (1995), 101 Ohio
App.3d 464, 473 [655 N.E.2d 1333], citing Ceol v. Zion Indust. Inc.
(1992), 81 Ohio App.3d 286, 291 [610 N.E.2d 1076]. The test, we
find, 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.
{¶31} We have held that the question of whether conduct is frivolous
is a question of law that an appellate court independently reviews. Burchett
at ¶ 22; see also Passmore v. Greene Cty. Bd. of Elections, 74 Ohio App.3d
707, 712, 600 N.E.2d 309 (2nd Dist. 1991); Burns v. Henne, 115 Ohio
App.3d 297, 685 N.E.2d 294 (2nd Dist. 1996); Wiltberger v. Davis, 110 Ohio
App.3d 46, 51, 673 N.E.2d 628 (10th Dist. 1996); Tomb & Assoc., Inc. v. Hocking App. No. 12CA14 19
Wagner, 82 Ohio App.3d 363, 366, 612 N.E.2d 468 (2nd Dist. 1992).
However, if a reviewing court finds that the trial court's frivolous-conduct
finding is substantiated, the decision to award attorney’s fees as a sanction
for that conduct rests within the trial court's sound discretion. Consequently,
we will not reverse a trial court's decision to award attorney’s fees for
frivolous conduct under R.C. 2323.51 absent an abuse of that discretion.
Burchett at ¶ 22; citing Riley v. Langer, 95 Ohio App.3d 151, 159, 642
N.E.2d 1 (1st Dist. 1994), overruled on other grounds in Riston v. Butler, 149
Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857, at ¶ 22, fn. 16 (1st
Dist.); Blackburn v. Lauder (Nov. 12, 1996), 4th Dist. No. 96CA5, 1996 WL
666658 (Nov. 12, 1996). An abuse of discretion connotes more than a mere
error of law or judgment; rather, it implies an unreasonable, arbitrary, or
unconscionable attitude on the part of the trial court. See, e.g., Franklin Cty.
Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 506, 589
N.E.2d 24 (1992); Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum.
Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991).
{¶32} In the case sub judice, our review of the record indicates that
the trial court did not err in denying Appellants’ motion for attorney’s fees
and sanctions related to Appellee’s contempt action. Initially, we note that
Appellants did not file their motion for attorney’s fees and sanctions until Hocking App. No. 12CA14 20
June 5, 2012. As set forth above, R.C. 2323.51(B)(1) specifies that a party
must make a motion for such award “not more than thirty days after the
entry of final judgment in a civil action or appeal.” As already indicated,
Appellants’ motion for attorney’s fees and sanctions was related to
Appellee’s contempt action. The trial court issued a final, appealable order
on August 31, 2009, finding Appellants in contempt. Appellants appealed
that decision and this Court reversed the finding of the trial court in a
decision dated July 27, 2011. Thus, Appellants motion for attorney’s fees
and sanctions, which wasn’t filed until nearly a year after the appeal was
decided was untimely filed and we need not reach the merits of Appellant’s
motion. As such, we find no error on the part of the trial court in denying
Appellants’ motion for attorney’s fees and sanctions in relation to the
contempt action.
{¶33} Further, as noted by the Tenth District in Real Estate
Appraisal, Inc. v. Starks, et al., 10th Dist. No. 02AP-377, 2002-Ohio-6752, ¶
27, R.C. 2323.51 does not require a trial court to conduct a hearing prior to
denying a motion for attorney’s fees. See also, Ohio Dept. of Adm. Serv. v.
Robert P. Madison Internatl., Inc., 138 Ohio App.3d 388, 399, 741 N.E.2d
551 (10th Dist. 2000); citing Tosi v. Jones, 115 Ohio App.3d 396, 401, 685
N.E.2d 580 (10th Dist. 1996). The trial court must only schedule a hearing on Hocking App. No. 12CA14 21
those motions which demonstrate arguable merit. Justice v. Lutheran Social
Serv. of Cent. Ohio, 79 Ohio App.3d 439, 444, 607 N.E.2d 537 (10th Dist.
1992). The trial court should examine the motion to determine whether it
warrants an evidentiary hearing, and where the trial court determines that
there is no basis for the imposition of sanctions, it may deny the motion
without a hearing. Id. See, also, Pisani v. Pisani, 101 Ohio App.3d 83, 87-
88, 654 N.E.2d 1355 (8th Dist. 1995). In light of our determination that
Appellants’ motion was untimely filed, we find no error on the part of the
trial court in concluding the action without holding a hearing on Appellants’
pending motion.
{¶34} Accordingly, we find Appellant’s third and fourth assignments
of error are overruled.
ASSIGNMENTS OF ERROR V AND VI
{¶35} Appellants’ fifth assignment of error challenges the trial court’s
denial of their “motion for compensation of personal property of defendants
stolen by plaintiff.” Appellant’s sixth assignment of error challenges the
trial court’s denial of their motion for additional sanctions, which was filed
as part of their motion for compensation. Because Appellants argue these
two assignments of error together, we have combined them as well for ease
of analysis. Hocking App. No. 12CA14 22
{¶36} Appellants’ arguments under these assignments of error
essentially challenge the original appropriation action and determination of
damages, which have already been considered on appeal. The brief also
contains a re-argument of the issues that were covered during the contempt
action, which were also already appealed. Thus, we find it helpful to instead
consider the arguments raised in the actual trial court motion, in order to
better understand Appellant’s arguments on appeal, and to determine if there
was error by the trial court in denying this motion.
{¶37} A review of the record indicates that Appellants’ trial court
“motion for compensation and additional sanctions” was essentially
comprised of three arguments. First, Appellants argued they were entitled to
“additional sanctions” against Appellee for Appellee’s “intentional
misrepresentation” to the court in its memorandum contra Appellants’
motion for attorney’s fees and sanctions that “this case is over,” in support
of their argument that Appellants were not entitled to attorney’s fees.
Having already determined that Appellants motion for attorney’s fees and
sanctions was untimely filed and thus, that the trial court did not err in
denying the motion, we find this portion of Appellant’s argument to be
moot. Thus, we will not address it. Hocking App. No. 12CA14 23
{¶38} Second, Appellants’ motion argued that Appellee made
intentional misrepresentations to the court regarding the notice of deposit
filed after this Court reversed the contempt matter. Specifically, Appellant
alleged that Appellee misrepresented to the court information related to
sanctions awarded it as against Appellants in another related case. Again, to
the extent that this argument related to Appellee’s deposit of the $25,136.78
which had been previously awarded to it in the contempt matter, the issue
has now been rendered moot.
{¶39} Appellants’ motion for compensation and additional sanctions
was filed on July 3, 2012. At that time, Appellees had filed a notice of
deposit of $12,451.45, dated June 26, 2012, reasoning at the time that it was
entitled to withhold the rest of the money in satisfaction of sanctions
awarded it as against Appellants in another, related matter. However, the
trial court issued an entry on June 27, 2012, ordering Appellee to deposit the
full $25,136.78 with the Clerk, which Appellee complied with as indicated
in its notice of further deposit filed on July 12, 2012. Finally, as indicated in
the trial court’s final entry issued on July 20, 2012, Appellee complied with
the order to deposit the full amount, and distribution of the funds had been
completed by the clerk. As Appellee has deposited the full amount ordered
by the court, including the amount they argued they were entitled to Hocking App. No. 12CA14 24
withhold in relation to the sanctions awarded in the other matter, Appellants’
argument has been rendered moot.
{¶40} Third, Appellants’ motion argued they were entitled to
additional compensation “for theft of their trees from their property.”
Appellants cited the court to the testimony given at the August 12, 2009,
hearing on the contempt motion in support of their argument. On appeal,
Appellants argue as follows:
“During the August 12, 2009 hearing on Appellee’s motion for
contempt, the trial court indicated that the trees Appellee had
already cut and removed from Appellant’s property and those
trees yet to be cut, were the property of Appellants.”
In reviewing the transcript from the contempt hearing, it appears Appellants
argued that Appellee had cut some trees outside of their appropriated
easement. Appellants also seemed to argue that by removing and/or
otherwise disposing of the trees, or the cut wood from the trees within the
easement, that Appellee was stealing Appellants’ property.
{¶41} However, our review of the record leads us to a different
conclusion. After hearing all of the evidence presented, the trial court found
Appellants in contempt of the previous order of the court granting Appellant
an easement. There is no indication that after hearing the testimony Hocking App. No. 12CA14 25
presented, the trial court determined any trees cut were actually outside of
the easement. The trial court did make a statement regarding Appellants’
request that the cut timber be given to them instead of removed. In
particular, the trial court stated as follows:
“* * * I would encourage the parties to the extent there might
still be any trees that are to be removed if Mr. and Mrs. Ogles
[sic] do wish to have those trees delivered to some spot, on their
property, Mr. Michalski, I would certainly encourage – I don’t
know that it’s going to be part of the order, but I would
encourage you to communicate that to Mr. Buzby and I would
encourage Ohio Power to make all possible arrangements to
accomplish that if they wish that to be done. And if not, then
the court understands some other procedure has been followed.
Apparently it is being chipped and moved and taken away or
whatever. Whatever that is. It doesn’t really matter.”
Thus, although the court seemed to suggest that Appellee should deliver the
cut wood to Appellants as a courtesy, it made no finding that Appellants
were entitled to compensation for the value of the removed wood.
{¶42} Additionally, and of importance, we note that although
Appellants presented the issue of Appellee going outside of the easement Hocking App. No. 12CA14 26
and “stealing trees” as a defense to the contempt action, they did not, at that
time, file a claim seeking damages for the value of that property. Further, if
they were expecting to be awarded any compensation via presentation of this
testimony at the contempt hearing, they did not raise the issue of their
entitlement to compensation during their direct appeal of the contempt
finding. Finally, the following exchange took place between Appellee’s
counsel and Charles Ogle during the 2009 contempt hearing in response to
Charles Ogle’s argument that his trees were a crop that Appellee had not
paid him for after removing them from the easement area:
“A. I understand that easement holder has the right to clear
the thirty foot. Okay. Those trees are still my personal
property and I should have been asked where they would
like me – or where I would have liked them to put my
personal property, my trees once they were removed
from the easement. I don’t recall AEP paying me
anything the trees. The trees are a crop and I don’t recall
I’m being paid anything for the trees.
Q. Well, we had an entire trial on the amount that’s been
paid to you and that amount is over in the Clerk of Courts
office, isn’t it? Hocking App. No. 12CA14 27
A. Is there anything for the trees there?
Q. The court knows what the compensation was for and
what the final judgment says. Now, if you disagreed then
with the analysis in the final judgment entry about the
right to remove the trees, did you consult with your
attorney and ask that this issue be raised with AEP?
A. No, we didn’t do it. We just appealed the case.”
A review of the record further indicates that the value of the trees was taken
into consideration in arriving at the initial damage award of $54,000.00,
which amount was upheld on appeal. Ohio Power Company v. Charles R.
Ogle, et al., 4th Dist. No. 09CA1, 09AP1, 2009-Ohio-5953, ¶24 and 27.
{¶43} In light of the foregoing, and based upon the following, we find
no error on the part of the trial court in denying Appellants’ motion for
additional compensation and sanctions. As set forth above, Appellant’s
motion for sanctions based upon alleged misrepresentations made by
Appellee regarding Appellants’ entitlement to attorney’s fees and Appellee’s
notice of deposit have been rendered moot, and were moot at the time the
trial court issued its final entry denying the pending motions.
{¶44} Further, with respect to Appellants’ claim for additional
compensation, Appellants were aware that Appellee had possibly cut trees Hocking App. No. 12CA14 28
outside of the easement area, and had removed the trees cut within the
easement in the summer of 2009. Thus, although a cause of action for
alleged damages accrued at that time, Appellants never filed a separate
action seeking compensation and damages. Further, to the extent Appellants
sought additional damages related to Appellee’s removal of the trees within
the easement as part of the contempt proceedings, certainly that issue could
have been raised as part of the appeal from the contempt decision. However,
it was not.
{¶45} The doctrine of res judicata bars claims that the defendant
raised or could have raised on direct appeal. In re B.C.S., 4th Dist. No.
07CA60, 2008-Ohio-5771, ¶ 14. “[T]he doctrine serves to preclude a
defendant who has had his day in court from seeking a second on that same
issue. In so doing, res judicata promotes the principles of finality and
judicial economy by preventing endless relitigation of an issue on which a
defendant has already received a full and fair opportunity to be heard.” State
v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18.
Based upon the facts before us, we conclude that the doctrine of res judicata
serves as a bar to Appellants raising this motion after the conclusion of the
contempt action and nearly a year after the direct appeal thereof was Hocking App. No. 12CA14 29
concluded. Accordingly, we find no merit to Appellant’s fifth and sixth
assignments of error and they are therefore overruled.
{¶46} Having found no merit in any of the assignments of error raised
by Appellants, the decision of the trial court is affirmed.
JUDGMENT AFFIRMED. Hocking App. No. 12CA14 30
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellants costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________ Matthew W. McFarland Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.