[Cite as Vogel v. Albi, 2020-Ohio-5242.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
JOE VOGEL, : APPEAL NO. C-190746 TRIAL NO. A-1806867 Plaintiff-Appellant/Cross- : Appellee, O P I N I O N. : vs. : FRANK J. ALBI, : and : THIRD STREET ASSOCIATES, LLC, : Defendants-Appellees/Cross- Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 10, 2020
Holzapfel Law, LLC, and Eric C. Holzapfel, for Plaintiff-Appellant/Cross-Appellee,
Eberly McMahon Copetas, LLC, and Robert A. McMahon, for Defendants- Appellees/Cross-Appellants. OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} In this appeal, we are asked to determine whether a series of emails
formed a binding contract between plaintiff-appellant/cross-appellee Joe Vogel and
defendants-appellees/cross-appellants Frank Albi and Third Street Associates, LLC,
(“Third Street”) for the sale of a piece of real estate.
{¶2} Because the emails failed to demonstrate a meeting of the minds
between the parties, and because any acceptance of an offer by seller was contingent
upon execution of a written contract, we hold that the trial court did not err in
granting judgment in favor of Albi and Third Street on Vogel’s claim for breach of
contract. We further find that the trial court did not err in granting judgment in
favor of Vogel on the counterclaims asserted by Albi and Third Street for tortious
interference with a contract and business relationship, slander of title, abuse of
process, and frivolous conduct, and we affirm the trial court’s judgment in its
entirety.
Factual and Procedural Background
{¶3} Third Street owns the property located at 318 West Third Street in
downtown Cincinnati. Albi is the manager of Third Street, which is owned by the
Albi Family Trust. Albi hired Joe Janszen, a local real estate agent, to sell 318 West
Third Street. Janszen was unable to sell the building, and Albi engaged Williams and
Williams, an auction company located in Tulsa, Oklahoma, to sell the property at
auction. The property failed to sell at an auction held in November of 2018.
{¶4} On December 3, 2018, Vogel emailed Williams and Williams to inquire
about the property. Vicky Blackmon responded to Vogel on behalf of Williams and
Williams, informing him that the property had not sold at auction and asking him if
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he wanted to make an offer. Vogel and Blackmon proceeded to exchange the
following emails:
Vogel to Blackmon (December 3, 2018, at 4:49 p.m.): It didn’t
get a bid over $500K?
Blackmon to Vogel (December 3, 2018, at 5:55 p.m.)1: No it did
not. Would you like to make an offer over 500K?
Vogel to Blackmon (December 4, 2018, at 8:37 a.m.): I don’t
have to contact the bank of my wife and can have you the
money in 24 hours. $400,000[.]
Blackmon to Vogel (December 4, 2018, at 12:47 p.m.): Will you
be paying cash for the property? Will you be able to close in 30
days? Once I have this information I will present your offer and
see if the seller will entertain the offer.
Vogel to Blackmon (December 4, 2018, at 12:57 p.m.): Cash,
close in 30 day[s]. I sent it to my lawyer, if nothing is wrong
per him, it’s a done deal[.]
Blackmon to Vogel (December 4, 2018, at 1:58 p.m.): I will
present your offer to the seller to see if this is something that he
will entertain and get back to you. Below is a link to our
website that has a copy of the contract, Disclosures, Terms of
Sale.
Vogel to Blackmon (December 4, 2018, at 5:30 p.m.): ok, let
me know.
Blackmon to Vogel (December 5, 2018, at 7:49 a.m.): The seller
is considering your offer of $400,000.00 and will let me know
1 Because Blackmon was located in Tulsa, Oklahoma, the time stamp on her emails reflects the Central Daylight Time Zone.
3 OHIO FIRST DISTRICT COURT OF APPEALS
something by Friday. Please make arrangements to be
prepared to sign the contract on Friday and wire down payment
funds that day. The down payment will be $42,000.00 and I
will provide wire instructions and a contract via email/docusign
as soon as I hear from the seller. Please note that you will be
responsible for the closing costs as listed in the contract.
400,000.00 Purchase Price[,] 20,000.00 Buyer’s Premium[,]
420,000.00 Total Purchase Price[,] 42,000.00 Down payment.
Let me know if you have any questions.
Vogel to Blackmon (December 5, 2018, at 8:40 a.m.): ok, let
Blackmon to Vogel (December 5, 2018, at 8:52 a.m.): Will do[.]
Blackmon to Vogel (December 6, 2018, at 3:03 p.m.): Below is
the link to the Website as well as a link to the due diligence. I
have also attached a copy of the title work for your convenience.
Let me know if you have any questions. This should be
everything your attorney needs to review the property.
Blackmon to Vogel (December 7, 2018, at 9:40 a.m.): Good
morning and Happy Friday! The seller has accepted your offer
of 400K on the property. I will talk to you on Monday after you
speak to your attorney. Please confirm that you received my
email yesterday with the due diligence documents, link to the
website and title commitment.
{¶5} At the bottom of each email from Blackmon below her signature was
the following language, contained within a bold, black, box, as depicted below:
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Any written or verbal acceptance of an offer amount as relayed by
Seller’s agent is contingent upon receipt by Seller’s agent of the
required written contract and any Seller required addenda, fully
executed by both Buyer and Seller.
{¶6} Following the unsuccessful auction, and during the same time period
that Blackmon engaged in discussions with Vogel, Janszen also continued to look for
a buyer for the property. One potential buyer that Janszen engaged in discussions
with was the Loring Group, via its representative Ryan Dean. On December 6, 2018,
Dean submitted an offer on the property, but Third Street rejected that offer because
it included an inspection contingency and he did not want to accept an offer that
contained a contingency.
{¶7} On December 7, 2018, Dean submitted a revised offer that did not
include any contingencies. This offer was received subsequent to the email sent from
Blackmon to Vogel conveying that the seller accepted his offer. After the offer from
Dean was received, Janszen called Blackmon and asked her if the offer was received
too late. Blackmon indicated that Vogel wanted to inspect the property. She
suggested that Janszen wait to present Dean’s offer to Albi until after Vogel had
inspected the property and they knew if he was still interested in purchasing.
Janszen was not in agreement with Blackmon’s recommendation. A conference call
was held between Albi, Blackmon, and Janszen on the afternoon of December 7.
After that conference call, Albi emailed Blackmon at 4:45 p.m. and instructed her to
tell Dean and the Loring Group that he was willing to accept the contingency-free
offer.
{¶8} Blackmon then sent an email to Vogel on December 7, 2018, at 5:37
p.m. This email stated:
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While I confirmed verbally that the seller would accept your offer of
400,000.00 as previously email[ed] to you below: 400,000.00
Purchase Price[,] 20,000.00 Buyer’s Premium[,] 420,000.00 Total
Purchase Price[,] 42,000.00 Down payment. You and I both know
that it is not done until I receive a written contract and funds from you
that I can present to my seller to execute. I have had an additional
verbal offer today and provided a contract to them. I would urge you
to complete the contract with your highest and best as soon as
possible. I will provide wire instructions in a separate email. Let me
know if you have any questions.
{¶9} Vogel responded that his attorney had been in court all day and would
“work on this tomorrow.” Blackmon attempted to follow up with Vogel on his
attorney’s review of the contract over the course of several days. The following
emails were exchanged between Blackmon and Vogel:
Blackmon to Vogel (December 11, 2018, at 1:59 p.m.): Has your
attorney reviewed the contract?
Vogel to Blackmon (December 11, 2018, at 3:34 p.m.): I don’t
know? Have you talked to him?
Blackmon to Vogel (December 11, 2018, at 3:37 p.m.): Please
reach out to your attorney and let me know if you are interested
in signing the contract and wiring funds[.]
Vogel to Blackmon (December 11, 2018, at 5:21 p.m.): What is
the total income on the billboard. It looks like the lease is
#81774 but the accounting of the billboard revenue is on an I-
75 at W. Hills Viaduct Lease #81678?
{¶10} On December 12, 2018, Vogel’s attorney, Eric Holzapfel, reached out to Blackmon via email. Holzapfel wrote that “I represent Joe Vogel, who is interested
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in purchasing the above referenced property subject to an inspection. Who do I
contact to obtain access to the building so that our inspector can look at it?”
{¶11} At about the same time, Dean submitted a signed contract and the purchase amount of his offer. On December 17, 2018, Blackmon emailed Holzapfel
and informed him that “I received your message on Friday that you would like to
have an inspector visit the site on Tuesday of this week. The seller has signed
another offer on this property. Thank you for your time.” Holzapfel responded to
Blackmon via email the following day, stating that the seller had contracted to sell
the property to Vogel, and that any attempt to sell the property to another party
would be met with a lawsuit. Vogel also emailed Blackmon, stating in relevant part
that “I know we never signed the contract but I told you that as long as the title work
and the inspection was o.k. then we would do the deal (i.e. a verbal commitment).”
{¶12} After Albi, on behalf of Third Street, signed the contract submitted by Dean, Vogel filed a complaint against Albi and Third Street. The complaint asserted
a claim for breach of contract and sought injunctive relief. It specifically requested
that Albi and Third Street be enjoined from selling the property to anyone but Vogel
and be ordered to specifically perform the contract that he claimed had been entered
into with Vogel. Vogel additionally filed a motion for a temporary restraining order
to prevent Albi and Third Street from selling the property.
{¶13} Along with their answer to the complaint, Albi and Third Street filed counterclaims against Vogel for quiet title, tortious interference with a contract and
business relationship, slander of title, abuse of process, and frivolous conduct in
filing civil claims.
{¶14} The trial court granted the motion for a temporary restraining order. The preliminary-injunction hearing was consolidated with a bench trial on the merits
of the case.
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{¶15} Blackmon testified at trial regarding her email exchange with Vogel. She explained that her December 7, 2018 email stating that the seller would accept
Vogel’s offer did not result in a completed deal between the parties because there
could not be a “done deal” until she received the signed contract she previously sent,
along with the funds. Blackmon testified that only Albi, as a representative of Third
Street, had authority to accept a written offer. Blackmon also discussed her multiple
attempts to follow up with Vogel after sending the December 7, 2018 email to see if
he intended to submit the required contract and funds. She acknowledged that
Vogel’s initial offer made no mention of an inspection or any other contingency.
{¶16} Vogel testified that his offer to purchase the property included a purchase price of $400,000, in cash, with a closing date in 30 days, subject to
approval by his lawyer. He stated that his offer did not include an inspection
contingency, a $20,000 buyer’s premium, or a down payment. Vogel testified that
he believed a valid contract had been formed when he received Blackmon’s email
stating that the seller had accepted his offer. He acknowledged that he had seen the
language at the bottom of each of Blackmon’s emails referencing the execution of a
written contract, but testified that “I never read it. I read it after my attorney got in
contact with their attorney and said, hey, this is our legal way out, and that’s when I
read it, but I never read it prior. * * * I never read those things, but maybe I’m
wrong.”
{¶17} Albi testified that he had hired Williams and Williams to find a buyer for the property and to engage in negotiations, but that only he had authority to sign
a contract. Albi acknowledged that Vogel’s offer did not contain an inspection
contingency, but explained that Vogel and his attorney later indicated that he wanted
an inspection after being told that Albi would accept his offer. This changed the offer
that Albi had initially agreed to, as he refused to accept any offers containing
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contingencies. Albi testified that, in his opinion, a contract was never formed with
Vogel because Vogel never submitted the required contract or down payment.
{¶18} Following the bench trial, the trial court found in favor of Albi and Third Street on Vogel’s claim for breach of contract. It additionally found in favor of
Albi and Third Street on their counterclaim for quiet title, but found in favor of Vogel
on all remaining counterclaims.
{¶19} Vogel and Albi and Third Street appeal the trial court’s ruling.
Vogel’s Appeal
{¶20} In two assignments of error, Vogel challenges the trial court’s finding that there was no binding contract between the parties. We address these
assignments together.
{¶21} The existence of a contract is a question of law that we review de novo. North Side Bank & Trust Co. v. Trinity Aviation, LLC, 1st Dist. Hamilton Nos. C-
190021 and C-190023, 2020-Ohio-1470, ¶ 17. For a contract to exist, there must be a
meeting of the minds between the parties, as evidenced by an offer, acceptance, and
consideration. Id. at ¶ 15. The essential terms of the agreement must also be
reflected in the contract with definiteness and certainty. Id. Typically, the essential
terms of a contract “include the subject matter, identity of the parties bound,
consideration, price, and quantity.” Id.
{¶22} Because the alleged contract in this case was one for a sale of lands, it was required to be in writing to comply with the statute of frauds. R.C. 1335.05;
Mezher v. Schrand, 1st Dist. Hamilton No. C-180071, 2018-Ohio-3787, ¶ 8. A
writing is in compliance with the statute of frauds where it “(1) identifies the subject
matter, (2) establishes that a contract has been made, and (3) states the essential
terms with reasonable certainty.” Mezher at ¶ 8.
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{¶23} A written contract can be established through an email or a series of emails construed together. See id. at ¶ 10; North Side Bank & Trust at ¶ 18. In
determining whether a contract was formed by an exchange of emails, we must
evaluate the emails to “ascertain whether they ‘connote[ ] an exchange of promises
where the parties have communicated in some manner the terms to which they agree
to be bound.’ ” North Side Bank & Trust at ¶ 18, quoting Cuyahoga Cty. Hosp. v.
Price, 64 Ohio App.3d 410, 415, 581 N.E.2d 1125 (8th Dist.1989).
{¶24} Following our review of the record, we find that the emails did not form a binding contract because the record clearly demonstrates that the parties
contemplated the execution of a formal contract and did not intend to be bound by
the email exchange.
{¶25} As this court explained in Mezher: An agreement can be specifically enforced even where the parties
contemplated execution of a formal written document, so long as the
parties have manifested an intent to be bound and their intentions are
sufficiently definite. Normandy Place Assoc. v. Beyer, 2 Ohio St.3d
102, 105-106, 443 N.E.2d 161 (1982). In determining whether the
parties intended to be bound, courts can look at the circumstances
surrounding the parties’ discussion. 26901 Cannon Rd. LLC v. PSC
Metals, Inc., 8th Dist. Cuyahoga No. 80986, 2002-Ohio-6050, ¶ 17.
Moreover, the question of whether the parties intended a contract is a
factual question for the finder of fact. Normandy Place at 105,
citing Arnold Palmer Golf Co. v. Fuqua Indus., Inc., 541 F.2d 584, 588
(6th Cir.1976) (applying Ohio law).
Mezher at ¶ 11.
{¶26} Here, the trial court specifically found that “the parties[’] intent to be bound was not present until the required contract form was initiated.”
10 OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} Every email sent from Blackmon to Vogel contained the following clause, located inside a black box as depicted below, at the end of the email following
the signature line:
Any written or verbal acceptance of an offer amount as relayed by
Seller’s agent is contingent upon receipt by Seller’s agent of the
required written contract and any Seller required addenda, fully
Vogel acknowledged that the emails contained this language.
{¶28} Before emailing Vogel to let him know that the seller had accepted his offer, Blackmon sent Vogel two separate emails referencing the execution of a formal
contract. She first emailed him on December 4, 2018, to let him know that she would
present his offer to the seller, and she included in that email a copy of the required
written contract for Vogel to review. Blackmon then emailed Vogel on December 5,
2018, to let him know that, should the offer be accepted, he needed to be prepared to
sign a contract that same day. Vogel received notice on December 7, 2018, that his
offer had been accepted, and later that same day received an email from Blackmon
stating that the deal would not be completed until she received a written contract and
funds to present to the seller. Vogel sent neither. On December 11, 2018, Blackmon
emailed Vogel to inquire about the execution of the written contract, which had not
yet been submitted, stating “Please reach out to your attorney and let me know if you
are interested in signing the contract and wiring funds[.]”
{¶29} The record clearly supports the trial court’s factual finding that the parties’ did not intend to be bound by the emails and contemplated the execution of a
formal, written contract.
{¶30} We further find that the emails failed to demonstrate that the parties had reached a “meeting of the minds.” As set forth in his email to Blackmon on
11 OHIO FIRST DISTRICT COURT OF APPEALS
December 4, 2018, Vogel offered to purchase the property for $400,000 cash, with a
closing date in 30 days, subject to approval by his lawyer. The following day,
Blackmon informed Vogel that the seller was considering his offer, and that, should
the offer be accepted, Vogel would be responsible for closing costs set forth in the
contract and for a buyer’s premium of $20,000, resulting in a total purchase price of
$420,000. Vogel responded with an email stating “ok, let me know.” This email
from Blackmon to Vogel informing him of the buyer’s premium was essentially a
counter offer. And Vogel’s response was not a definitive acceptance of that counter
offer or acquiescence to a $420,000 purchase price. We cannot find that the emails
reflect with definiteness and certainty the purchase price agreed upon by the parties.
See North Side Bank & Trust, 1st Dist. Hamilton Nos. C-190021 and C-190023,
2020-Ohio-1470, at ¶ 15; Mezher at ¶ 8.
{¶31} The record further indicates that the parties contemplated an additional term that was not set forth in the email exchange, specifically an
inspection of the property. Vogel’s email on December 4, 2018, offering a $400,000
purchase price, did not mention an inspection. But after Blackmon emailed Vogel on
December 7, 2018, to inform him that his offer had been accepted, she sent an email
to Albi and Janszen stating that “The buyer also wants to schedule an inspection on
the property. I will get back to you with a date and time.” While the record is silent
as to how or when the subject of an inspection was first raised, it is apparent that,
despite his testimony at trial to the contrary, Vogel did want to inspect the property
before purchasing. The record supports a reasonable inference that Vogel mentioned
the inspection in a phone call to Blackmon after he received her acceptance email.
Further supporting the fact that Vogel wanted an inspection is his attorney’s email to
Blackmon stating that Vogel was interested in purchasing the property “subject to an
inspection.” And after being informed that the seller had accepted a different offer,
12 OHIO FIRST DISTRICT COURT OF APPEALS
Vogel sent Blackmon an email stating that he would have followed through with the
deal “as long as the title work and the inspection was o.k.”
{¶32} Because the series of emails containing the terms of the contract made no mention of an inspection and did not definitively establish a purchase price, we
cannot find that the parties had reached a meeting of the minds. See North Side
Bank & Trust at ¶ 15.
{¶33} We therefore hold that, because any agreement reached between the parties was contingent upon the execution of a written contract, and because the
emails failed to demonstrate a meeting of the minds, the trial court did not err in
finding that there was no binding contract between the parties and in granting
judgment to Albi and Third Street on Vogel’s claim for breach of contract.
{¶34} Vogel’s first and second assignments of error are overruled.
Cross-Appeal
{¶35} In a single assignment of error, Albi and Third Street argue that the trial court’s finding in favor of Vogel on their counterclaims for tortious interference
with a contract and business relationship, slander of title, abuse of process, and
frivolous conduct in filing civil claims was against the manifest weight of the
evidence.
{¶36} When reviewing the manifest weight of the evidence of a trial court’s judgment in a civil case, this court “weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the finder of fact clearly lost its way and created
such a manifest miscarriage of justice that the judgment must be reversed.” Battle
Axe Constr., L.L.C. v. H. Hafner & Sons, Inc., 1st Dist. Hamilton No. C-180640,
2019-Ohio-4191, ¶ 11, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
13 OHIO FIRST DISTRICT COURT OF APPEALS
2179, 972 N.E.2d 517, ¶ 20. We must make all reasonable presumptions in favor of
the trial court’s finding of facts and judgment. Id. at ¶ 12. “If the evidence is
susceptible of more than one construction, we must give it that interpretation which
is consistent with the verdict and judgment, most favorable to sustaining the trial
court’s verdict and judgment.” Id., quoting Karches v. City of Cincinnati, 38 Ohio
St.3d 12, 19, 526 N.E.2d 1350 (1988).
1. Tortious Interference With Contract and Business Relationship
{¶37} To prove tortious interference with a business relationship, a plaintiff must establish “that the defendant intentionally and improperly interfered with the
plaintiff’s prospective business relations by either (1) inducing or otherwise causing a
third person not to enter into or continue the prospective relation, or (2) preventing
the plaintiff from acquiring or continuing the prospective relation.” Alexander v.
Motorists Mut. Ins. Co., 1st Dist. Hamilton No. C-110836, 2012-Ohio-3911, ¶ 30. A
plaintiff is not required to establish that the defendant acted with malice, but bears
the burden of showing that the interference lacked justification or privilege. Id. at ¶
30-31.
{¶38} To prove tortious interference with contract, a plaintiff must establish “(1) the existence of a contract, (2) the wrongdoer’s knowledge of the contract, (3) the
wrongdoer’s intentional procurement of the contract’s breach, (4) lack of
justification, and (5) resulting damages.” See id. at ¶ 33. As with the tort of tortious
interference with a business relationship, the plaintiff bears the burden of
establishing a lack of justification or privilege. Id. “[O]ne is privileged to purposely
cause another not to perform a contract with a third person where he in good faith is
asserting a legally protected interest of his own, which he believes will be impaired or
destroyed by the performance of the contract.” Smith v. Natl. Western Life, 2017-
14 OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-4184, 92 N.E.3d 169, ¶ 21 (8th Dist.), quoting Pearse v. McDonald’s Sys. of
Ohio, Inc., 47 Ohio App.2d 20, 25, 351 N.E.2d 788 (10th Dist.1975).
{¶39} Albi and Third Street contend that the evidence presented at trial established that Vogel, with knowledge that he had not signed his own contract to
purchase the property or tendered the required down payment, committed tortious
interference with their contract or business relationship with Dean by creating a title
problem to the property that could not be remedied, resulting in termination of that
contract.
{¶40} Vogel testified that he believed a valid contract with Albi and Third Street had been formed when he received Blackmon’s email on December 7, 2018,
stating that the seller had accepted his offer. Interpreting this testimony and
reasonable presumptions in favor of the trial court’s judgment, see Battle Axe Constr.
L.L.C., 1st Dist. Hamilton No. C-180640, 2019-Ohio-4191, at ¶ 12, we find that the
evidence could reasonably have established that Vogel’s actions were privileged and
were taken to protect his own business interests, which he believed would be
impaired by performance of the seller’s contract with Dean. See Smith at ¶ 21.
{¶41} Because Albi and Third Street failed to meet their burden to prove that Vogel acted without privilege, we find that the trial court’s judgment in favor of Vogel
on the counterclaim for tortious interference with a contract or business relationship
was not against the manifest weight of the evidence.
2. Slander of Title
{¶42} To prove the tort of slander of title, a claimant must establish that “(1) there was a publication of a slanderous statement disparaging claimant’s title; (2) the
statement was false; (3) the statement was made with malice or made with reckless
disregard of its falsity; and (4) the statement caused actual or special damages.”
15 OHIO FIRST DISTRICT COURT OF APPEALS
Whitman v. Gerson, 1st Dist. Hamilton Nos. C-140592 and C-140595, 2016-Ohio-
311, ¶ 27, quoting Green v. Lemarr, 139 Ohio App.3d 414, 430-431, 744 N.E.2d 212
(2d Dist.2000).
{¶43} Albi and Third Street argue that the evidence established that Vogel committed slander of title when his attorney, with knowledge that Vogel did not have
a valid contract on the property, asserted in an email dated December 18, 2018, that
Vogel had a valid contract to purchase the property and threatened to file suit if the
property was sold to another buyer.
{¶44} Construing the evidence presented at trial in a manner consistent with the trial court’s judgment, we find that Albi and Third Street failed to establish that
Vogel acted with the requisite malice or reckless disregard for a statement’s falsity
that is necessary to prove slander of title. See Battle Axe Constr. L.L.C., 1st Dist.
Hamilton No. C-180640, 2019-Ohio-4191, at ¶ 12. Vogel testified that he believed a
valid contract with Albi and Third Street had been formed when he received
Blackmon’s email on December 7, 2018, stating that the seller had accepted his offer.
If the trial court found this testimony credible, it could reasonably have found that
Vogel acted to protect his own business interest, and not with malice or with reckless
disregard for the falsity of the statement that the property could not be sold to
another buyer because Vogel had a contract to purchase it.
{¶45} The trial court’s judgment in favor of Vogel on the counterclaim for slander of title was not against the manifest weight of the evidence.
3. Abuse of Process
{¶46} To establish abuse of process, a plaintiff must prove “(1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that
the proceeding has been perverted to attempt to accomplish an ulterior purpose for
16 OHIO FIRST DISTRICT COURT OF APPEALS
which it was not designed; and (3) that direct damage has resulted from that
wrongful use of process.” City of Cincinnati v. Triton Servs., Inc., 2019-Ohio-3108,
140 N.E.3d 1249, ¶ 75 (1st Dist.).
{¶47} Albi and Third Street argue that the evidence presented at trial established that Vogel, with knowledge that he did not have a valid contract, used the
lawsuit to force Third Street to sell him the property.
{¶48} Following our review of the record, we cannot find that the trial court’s ruling in favor of Vogel on this counterclaim was against the manifest weight of the
evidence. If the trial court found credible Vogel’s testimony that he believed a valid
contract had been formed when he received Blackmon’s email on December 7, 2018,
stating that the seller had accepted his offer, it could reasonably have found that
Vogel initiated the lawsuit to protect what he believed to be his own legal interests
and not to accomplish an ulterior purpose. See Battle Axe Constr. L.L.C., 1st Dist.
Hamilton No. C-180640, 2019-Ohio-4191, at ¶ 12.
R.C. 2323.51
{¶49} Albi and Third Street last challenge the trial court’s finding in favor of Vogel on their counterclaim for frivolous conduct in filing civil claims pursuant to
R.C. 2323.51. They contend that Vogel committed frivolous conduct under R.C.
2323.51(A)(2) by, among other things, using the lawsuit to harass them, asserting
claims that were not warranted under existing law, and by making multiple
allegations of fact that had no evidentiary support.
{¶50} R.C. 2323.51(B)(1) provides in relevant part that “at any time not more than thirty days after the entry of final judgment in a civil action or appeal, any party
adversely affected by frivolous conduct may file a motion for an award of court costs,
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reasonable attorney’s fees, and other reasonable expenses incurred in connection
with the civil action or appeal.”
{¶51} As this court recognized in Triton, “[a] split of authority exists as to the proper procedure to raise a claim of frivolous conduct. Some courts have held that a
request for sanctions under R.C. 2323.51 must be made by motion after the trial and
some have held that it may be made by counterclaim as well as by motion.” Triton,
2019-Ohio-3108, 140 N.E.3d 1249, at ¶ 82. The Triton court ultimately concluded
that the issue was moot because it had remanded the matter on other grounds and
Triton was not foreclosed from raising the issue again in the trial court. Id. at ¶ 84.
We resolve the issue now.
{¶52} R.C. 2323.51(B)(1) is not ambiguous. It clearly states that within 30 days of the entry of a final judgment, a party adversely affected by frivolous conduct
“may file a motion for an award of court costs, reasonable attorney’s fees, and other
reasonable expenses.” (Emphasis added.) R.C. 2323.51(B)(1). “[W]here the terms of
a statute are clear and unambiguous, the statute should be applied without
interpretation.” Wilson v. Lawrence, 150 Ohio St.3d 368, 2017-Ohio-1410, 81
N.E.3d 1242, ¶ 11, quoting Wingate v. Hordge, 60 Ohio St.2d 55, 58, 396 N.E.2d 770
(1979). In other words, an unambiguous statute is to be applied, not interpreted. Id.
“When the statutory language is plain and unambiguous, and conveys a clear and
definite meaning, we must rely on what the General Assembly has said.” Id., quoting
Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784
N.E.2d 1172, ¶ 12.
{¶53} R.C. 2323.51(B)(1) clearly and unequivocally provides that a request for costs and fees based on frivolous conduct should be made by motion. If the
General Assembly had intended for such an issue to be raised in a counterclaim, it
could have so provided. We accordingly hold that a motion for fees and costs under
R.C. 2323.51(B)(1) based on another party’s frivolous conduct must be raised by
18 OHIO FIRST DISTRICT COURT OF APPEALS
motion. See Wochna v. Mancino, 9th Dist. Medina No. 07CA0059-M, 2008-Ohio-
996, ¶ 29 (“R.C. 2323.51 does not create a separate cause of action for frivolous
conduct”); Shaver v. Wolske & Blue, 138 Ohio App.3d 653, 673, 752 N.E.2d 164 (10th
Dist.2000); Scrap Yard, LLC v. Cleveland, 513 Fed.Appx. 500, 506 (6th Cir.2013) fn.
1; contra Texler v. Papesch, 9th Dist. Summit No. 18977, 1998 WL 597870, *2 (Sept.
2, 1998) (“Although the statute does not specify whether a party can make a claim for
attorney’s fees in the form of a counterclaim, the case law makes clear that it is an
accepted method”); Scheel v. Rock Ohio Caesars Cleveland, LLC, 8th Dist. Cuyahoga
No. 105037, 2017-Ohio-7174, ¶ 16.
{¶54} Because a request for fees and costs based on frivolous conduct pursuant to R.C. 2323.51(B)(1) cannot be raised in a counterclaim, we hold that the
trial court did not err in granting judgment to Vogel, and we overrule Albi and Third
Street’s assignment of error.
Conclusion
{¶55} Having overruled all assignments of error raised in the appeal and cross-appeal, we accordingly affirm the trial court’s judgment to Albi and Third
Street on the claim for breach of contract and their counterclaim for quiet title, as
well as its judgment in favor of Vogel on all remaining counterclaims.
Judgment affirmed.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.