IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Billy J. Stafford,
:
Plaintiff-Appellant,
:
Cross-Appellee,
:
No. 07AP-900
v.
(C.P.C. No. 05CVA-05-5426)
:
Columbus Bonding Center dba
Columbus Bail Bonds,
:
(REGULAR CALENDAR)
Defendant-Appellee,
:
Cross-Appellant,
:
Clever Investigations, Inc. et al.,
:
Defendants-Appellees.
:
O P I N I O N
Rendered on August 5, 2008
Moore & Yaklevich
,
W. Jeffrey Moore
, and
John A. Yaklevich
,
for appellant/cross-appellee.
Keith O'Korn
, and
Gregg Slemmer
, for appellee/cross-
appellant.
APPEAL from the Franklin County Court of Common Pleas.
PER CURIAM.
{¶1}
Billy J. Stafford, plaintiff-appellant/cross-appellee, appeals from a judgment
of the Franklin County Court of Common Pleas, in which the court overruled appellant's
objections and affirmed the magistrate's decision finding appellant's attorney, W. Jeffrey
No. 07AP-900
2
Moore, had engaged in frivolous conduct. Columbus Bonding Center, dba Columbus Bail
Bonds ("CBC"), defendant-appellee/cross-appellant, appeals the same judgment.
{¶2}
On April 30, 2002, Brian S. Callahan was working as a bounty hunter for
Clever Investigations, Inc. ("Clever"). CBC hired Clever to locate and arrest appellant's
brother, John, whose failure to appear at several court appearances had resulted in his
bond being revoked. Callahan located appellant and originally believed him to be John.
Callahan physically restrained appellant and threatened him with a rifle before
determining he was not John. Callahan was later convicted of aggravated menacing as a
result of the incident.
{¶3}
On April 29, 2004, Moore, as attorney for appellant, filed an action against
CBC, Clever, and Callahan in federal court. Appellant voluntarily dismissed the action on
May 11, 2004. On May 16, 2005, appellant filed the present action against CBC, Clever,
and Callahan raising the same claims as he did in the federal court case, including direct
claims and respondeat superior claims against CBC for assault and battery, negligence,
recklessness, willful and wanton conduct, and intentional infliction of emotional distress.
On July 14, 2006, CBC filed a motion for summary judgment, claiming the applicable
statutes of limitations barred appellant's claims. On October 13, 2006, the trial court
granted CBC's motion for summary judgment, finding appellant's claims were time-
barred. With regard to appellant's claim for intentional infliction of emotional distress, the
court determined the claim was actually based upon assault and battery and, thus,
subject to a one-year statute of limitations, which had expired. On October 31, 2006, the
trial court entered a final judgment granting CBC summary judgment. Appellant appealed
the trial court's judgment, challenging only the dismissal of his claim for intentional
No. 07AP-900
3
infliction of emotional distress. Appellant asserted his claim for intentional infliction of
emotional distress arose from menacing and not assault and battery. This court found the
essential character of appellant's intentional infliction of emotional distress was assault
and battery and affirmed the trial court's judgment in
Stafford v. Clever Investigations,
Inc.
, Franklin App. No 06AP-1204, 2007-Ohio-5086.
{¶4}
On October 6, 2006, CBC filed a motion for attorney fees and sanctions in
the trial court against appellant's counsel, pursuant to R.C. 2323.51 and Civ.R. 11,
claiming appellant had filed the action frivolously knowing that the statutes of limitations
had expired on his claims, he had submitted frivolous pleadings, he had submitted
inadmissible documentary evidence, and he had misstated the law. A hearing before a
magistrate was held on February 5, 2007, with regard to the motion for sanctions. On
May 15, 2007, the magistrate filed her decision and found appellant had violated both
R.C. 2323.51 and Civ.R. 11. The magistrate ordered appellant to pay attorney fees and
sanctions totaling $5,095. Both appellant and CBC filed objections to the magistrate's
decision. CBC asserted in its objections that the sanctions ordered should be increased
by the amount of fees CBC incurred during the sanctions hearing, the fees incurred in
retaining an expert for the sanctions hearing to testify as to the reasonableness of the
legal fees, and the fees incurred preparing CBC's response to appellant's objections and
its own objections. The trial court overruled both parties' objections on October 2, 2007.
Appellant appeals the judgment of the trial court, asserting the following assignments of
error:
I. THE TRIAL COURT ERRED IN FINDING THAT THE
DEFENDANT PRESENTED SUFFICIENT EVIDENCE OF
PLAINTIFF'S COUNSEL ACTING FRIVOLOUSLY AND IN
VIOLATION OF RULE 11 TO WARRANT SANCTIONS.
No. 07AP-900
4
II. THE TRIAL COURT ERRED IN SUPPORTING THE
MAGISTRATE[']S DECISION THAT THE FILING OF
CAUSES OF ACTION OUTSIDE THE STATUTE OF
LIMITATIONS
IS
AUTOMATICALLY
FRIVOLOUS
CONDUCT AND IN VIOLATION OF RULE 11[.]
III. THE TRIAL COURT ERRED IN FINDING THAT THE
FILING OF THE INTENTIONAL INFLICTIONS OF
EMOTIONAL DISTRESS CLAIM WAS FRIVOLOUS AND IN
VIOLATION OF RULE 11.
IV. THE TRIAL COURT ERRED IN REFUSING TO RULE ON
THE ISSUE OF COLUMBUS BONDING CENTER INC.'S
VICARIOUS
LIABILITY
FOR
THE
ACTIONS
OF
DEFENDANT CALLAHAN AND WHETHER CALLAHAN'S
LEAVING THE STATE OF OHIO TOLLED THE STATUTE
OF LIMITATIONS AS TO CBC INC.
V. THE [TRIAL] COURT ERRED IN CONSIDERING THE
DEFENDANT APPELLEE[']S MOTION FOR SANCTION[S]
RIPE FOR HEARING AND DECISION[.]
VI. THE TRIAL COURT ERRED [IN] UPHOLDING THE
MAGISTRATE'S AWARD OF $5,095 AS SANCTIONS AND
ATTORNEY FEES[.]
CBC has filed a cross-appeal of the trial court's judgment, asserting the following
assignment of error:
The trial court erred when it overruled the Defendant's
objections to the Magistrate's Decision filed on June 8, 2007.
In overruling the objection, the trial court erred by finding that
the record did not contain competent, credible evidence to
support the inclusion in the overall sanctions award of the
following attorney fees and expenses incurred by the
Defendant: (1) attorney fees for its counsel's prosecution of
the sanctions hearing; (2) expenses and attorney fees for
retaining an expert witness, an attorney, to testify at the
sanctions hearing regarding the reasonableness of
Defendant's attorney fees in defending the underlying case;
and (3) attorney fees incurred for filing an objection to the
Magistrate's Decision and for filing a response to the Plaintiff's
own objection. Also in overruling the objection, the trial court
erred by finding that Defendant was not entitled to its attorney
No. 07AP-900
5
fees for responding to Plaintiff's objection to the Magistrate's
Decision or objecting to the Magistrate's Decision itself.
{¶5}
We will address appellant's first, second, third, and fourth assignments of
error together, as they are related. Appellant argues in his first assignment of error that
the trial court erred when it found CBC presented sufficient evidence of Moore's acting
frivolously and in violation of Civ.R. 11. Appellant argues in his second assignment of
error that the trial court erred when it found that the filing of a cause of action outside the
statute of limitations is automatically frivolous conduct and in violation of Civ.R. 11.
Appellant argues in his third assignment of error that the trial court erred when it found
that the filing of the intentional infliction of emotional distress claim was frivolous and in
violation of Civ.R. 11. Appellant argues in his fourth assignment of error that the trial court
erred when it refused to rule on the issue of CBC's vicarious liability for the actions of
Callahan and whether Callahan's leaving Ohio tolled the statutes of limitations as to CBC.
{¶6}
The trial court found Moore's conduct frivolous pursuant to R.C. 2323.51
and Civ.R. 11. R.C. 2323.51 provides that a party adversely affected by frivolous conduct
may file a motion for an award of court costs, reasonable attorney fees, and other
reasonable expenses incurred in connection with the civil action. The term "conduct" is
defined as the filing of a civil action; the assertion of a claim, defense, or other position in
connection with a civil action; or the taking of any other action in connection with a civil
action. R.C. 2323.51(A)(1)(a). The term "frivolous" is defined as conduct by a party to a
civil action that is not warranted under existing law and cannot be supported by a good-
faith argument for an extension, modification, or reversal of existing law. R.C.
2323.51(A)(2)(a)(ii). In determining whether the claim itself is frivolous, the test is whether
no reasonable lawyer would have brought the action in light of the existing law.
Orbit
No. 07AP-900
6
Electronics, Inc. v. Helm Instrument Co.
,
Inc
., 167 Ohio App.3d 301, 2006-Ohio-2317,
citing
Riston v. Butler
, 149 Ohio App.3d 390, 2002-Ohio-2308.
{¶7}
Similarly, under Civ.R. 11, a court may award a party attorney fees and
expenses if an opposing attorney filed a pleading or motion in violation of the rule. The
trial court's decision to impose sanctions, pursuant to Civ.R. 11, cannot be reversed
absent an abuse of discretion. See
State ex rel. Fant v. Sykes
(1987), 29 Ohio St.3d 65.
Abuse of discretion connotes an attitude that is unreasonable, arbitrary, or
unconscionable.
Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219. Civ.R. 11 states
that every pleading, motion, or other document of a party represented by an attorney
must be signed by at least one attorney of record in the attorney's individual name. The
attorney's signature constitutes certification by the attorney of the following: (1) that he or
she has read the pleading, motion, or document; (2) that to the best of the attorney's
knowledge, information, or belief, the pleading, motion, or document is supported by good
grounds; and (3) that the pleading, motion, or document is not interposed for delay. Civ.R.
11.
{¶8}
Thus, the relevant inquiry under Civ.R. 11 is whether the attorney's actual
intent or belief was of willful negligence. See
Ceol v. Zion Industries, Inc.
(1992), 81 Ohio
App.3d 286, 290. Civ.R. 11 applies a subjective bad-faith standard.
Riston
, supra, at ¶12,
citing
Stone v. House of Day Funeral Serv., Inc.
(2000), 140 Ohio App.3d 713, 721. The
attorney's actual intent or belief is consequently relevant to the determination of whether
he or she acted willfully. Id. In contrast, R.C. 2323.51 employs an objective standard in
determining whether sanctions may be imposed for frivolous conduct.
Stevenson v.
Bernard
, Lake App. No. 2006-L-096, 2007-Ohio-3192, at ¶41. Therefore, a finding of
No. 07AP-900
7
frivolous conduct under R.C. 2323.51 is determined without reference to what the
individual knew or believed.
City of Wauseon v. Plassman
(Nov. 22, 1996), Fulton App.
No. F-96-003. Accordingly, R.C. 2323.51 is broader in scope than Civ.R. 11.
State Farm
Ins. Cos. v. Peda
, Lake App. No. 2004-L-082, 2005-Ohio-3405, at ¶25.
{¶9}
In the present case, appellant argues his filing of the complaint in the
present case was not frivolous because: (1) there existed certain issues that affected the
tolling statute that would arguably rectify the late filing; (2) because the statute of
limitations is an affirmative defense, there was the possibility that CBC may have waived
it if it did not timely raise it; and (3) he believed his claim for intentional infliction of
emotion distress had a four-year statute of limitations.
{¶10}
Appellant first argues that his filing of the complaint was not frivolous
because there existed issues that affected the tolling statute that would arguably rectify
the late filing. Specifically, appellant contends in his fourth assignment of error that the
trial court erred when it refused to rule on the issue of CBC's vicarious liability for
Callahan's actions and, thus, whether Callahan's leaving Ohio tolled the statute of
limitations as to CBC pursuant to R.C. 2305.15(A). In addressing this issue, the trial court
first pointed out that appellant did not raise this tolling issue at any point during the
summary judgment proceedings or in the sanctions hearing before the magistrate. Our
own review of the record confirms that appellant did not raise the tolling theory until he
filed objections to the magistrate's decision. The trial court indicated it was unclear
whether it could consider the tolling theory when it had not been raised previously.
{¶11}
Notwithstanding, the trial court considered appellant's tolling argument
under R.C. 2305.15(A) and rejected it. R.C. 2305.15(A) provides:
No. 07AP-900
8
When a cause of action accrues against a person, if the
person is out of the state, has absconded, or conceals self,
the period of limitation for the commencement of the action as
provided in sections 2305.04 to 2305.14, 1302.98, and
1304.35 of the Revised Code does not begin to run until the
person comes into the state or while the person is so
absconded or concealed. After the cause of action accrues if
the person departs from the state, absconds, or conceals self,
the time of the person's absence or concealment shall not be
computed as any part of a period within which the action must
be brought.
We agree with the trial court that appellant demonstrated no reasonable basis for the
application of R.C. 2305.15(A). As indicated above, R.C. 2305.15(A) permits the tolling of
the statute of limitations when a party has absconded or concealed himself. In the present
case, appellant failed to present any evidence that Callahan was out of the state,
absconded, or concealed himself. Appellant had the burden of proving that Callahan was
absent from the state in a manner that would invoke the tolling statute.
Conway v. Smith
(1979), 66 Ohio App.2d 65. Therefore, we concur with the trial court's finding that
appellant's tolling argument did not provide a reasonable basis for filing the present action
outside the statute of limitations. We also note that whether vicarious liability actually
existed is irrelevant to a determination of whether appellant filed his complaint with the
subjective
belief that the tolling theory could afford him relief from the expiration of the
statute of limitations.
{¶12}
Appellant also contends that his filing of the complaint was not frivolous
because the statute of limitations is an affirmative defense, and there was the possibility
that CBC may have waived it if it did not timely raise it. We first note that, insofar as
appellant's argument under his first assignment of error specifically contends that the trial
court erred when it found that the filing of causes of action outside the statute of
No. 07AP-900
9
limitations is "automatically" frivolous conduct, such contention is without merit. Nowhere
in the trial court's or the magistrate's decisions did either conclude that any action filed
outside the statute of limitations is "automatically" deemed frivolously filed.
{¶13}
Notwithstanding, it is true that a statute of limitations is an affirmative
defense that is waived unless pled in a timely manner.
Lewis v. Trimble
(1997), 79 Ohio
St.3d 231. Thus, if it is not so pled, a court with subject-matter jurisdiction can proceed
with the case.
State ex rel. Jones v. Suster
(1998), 84 Ohio St.3d 70, 75. However,
although the filing of a claim beyond the statute of limitations does not always demand a
finding of frivolous conduct, in the present case, appellant's arguments must fail for
several reasons. Although appellant raised during the summary judgment phase of the
proceedings that the intentional infliction of emotional distress claim was subject to a four-
year statute of limitations instead of a one-year statute of limitations, as noted above,
appellant never presented any theory, prior to the sanctions stage of the proceedings, as
to why the other claims should not be subject to the one- and two-year statutes of
limitations. In its answer to appellant's complaint, CBC raised the statute of limitations
defense. Thus, at least as to the claims subject to the one- and two-year statutes of
limitations, it was clear to appellant at the time of the filing of CBC's answer that CBC had
not waived the statute of limitations defense. Under appellant's theory that a plaintiff may
assert claims past their statutes of limitations in hopes that the defendant will fail to raise
the affirmative defense, appellant's further pursuance of those claims after the point of
CBC's filing of its answer was, as found by the trial court, a violation of Civ.R. 11 and R.C.
2323.51.
No. 07AP-900
10
{¶14}
The only contention appellant raised in his memorandum contra CBC's
motion for summary judgment to escape the two-year statute of limitations was that,
because the federal court gave CBC until June 4, 2004 to respond to appellant's May 11,
2004 voluntary dismissal, the tolling provisions in R.C. 2305.19(A) gave him one year
from June 4, 2004, not May 11, 2004, to re-file the action. However, this argument lacks
any good-faith basis. Pursuant to R.C. 2305.19(A), if a plaintiff's action fails otherwise
than upon the merits, the plaintiff may commence a new action within one year after the
date of the failure otherwise than upon the merits or within the period of the original
applicable statute of limitations, whichever occurs later. In addition, Fed.R.Civ.P. 41
provides that a voluntary dismissal requires no further action by the court. Further, a
voluntary dismissal, pursuant to Fed.R.Civ.P. 41(a)(1)(B), constitutes failure otherwise
than upon the merits; see, also,
Frysinger v. Leech
(1987), 32 Ohio St.3d 38, 43 (a
voluntary dismissal pursuant to Civ.R. 41[A][1][b], which substantially mirrors
Fed.R.Civ.P. 41[a][1][B], constitutes a failure otherwise than upon the merits within the
meaning of the savings statute, R.C. 2305.19). In the present case, appellant filed his
voluntary dismissal on May 11, 2004; thus, there could be no dispute that the case failed
otherwise than upon the merits as of this date. Accordingly, this argument does not permit
appellant to escape the purview of Civ.R. 11.
{¶15}
As for the intentional infliction of emotional distress claim, appellant argues
that he presented a good-faith argument that the threats and intimidation by Callahan
levied against him were subject to the four-year statute of limitations for the independent
tort of intentional infliction of emotional distress, instead of the one-year statute of
limitations for the underlying offense of assault and battery, as this court found in
Stafford
.
No. 07AP-900
11
To prove a claim of intentional infliction of emotional distress, the plaintiff must show that
the defendant intentionally or recklessly caused him serious emotional distress by
extreme and outrageous conduct.
Yeager v. Local Union 20
(1983), 6 Ohio St.3d 369,
374. Generally, the applicable statute of limitations for a claim of intentional infliction of
emotional distress is four years. Id., at 375, applying R.C. 2305.09(D). The statute of
limitations for assault and battery is one year. See R.C. 2305.111. In tort, an assault is the
willful threat or attempt to harm or touch another offensively, which threat or attempt
reasonably places the other in fear of such contact.
Smith v. John Deere Co.
(1993), 83
Ohio App.3d 398, 406. Battery is an intentional contact with another that is harmful or
offensive.
Love v. Port Clinton
(1988), 37 Ohio St.3d 98, 99.
{¶16}
It is well-established that to determine whether the four-year statute of
limitations for intentional infliction of emotional distress claims or the one-year statute of
limitations for assault and battery claims applies, it is necessary to determine the actual
nature or subject matter of the acts giving rise to the complaint, rather than the form in
which the action is pled.
Doe v. First United Methodist Church
(1994), 68 Ohio St.3d 531,
536. It is also well-settled that assault and battery cannot be transformed into some other
cause of action subject to a longer statute of limitations, as such would circumvent the
statute of limitations for assault and battery.
Love
, supra, at 100.
{¶17}
Here, we cannot disagree
with the trial court that appellant had no good-
faith basis for continuing to pursue his claim for intentional infliction of emotional distress.
Moore specifically alleged in the complaint that Callahan intentionally pointed and held a
rifle to appellant's head and neck and threatened appellant's life, which caused appellant
fear. These facts fall within the definitions of assault and battery, as we found in
Stafford
.
No. 07AP-900
12
We do not suggest that filing a claim for intentional infliction of emotional distress when
the underlying nature of the claim meets the elements of another tort would always
constitute actionable conduct. However,
because appellant specifically alleged the
necessary elements for assault and battery in his complaint, we find it apparent
that he
was aware the underlying character of the alleged intentional infliction of emotional
distress claim was actual and threatened offensive contact, thereby rendering the
intentional infliction of emotional distress claim subject to the one-year statute of
limitations for assault and battery.
{¶18}
For all of the above reasons, we find there was sufficient evidence to
support the trial court's determination that appellant acted frivolously and in violation of
Civ.R. 11 and R.C. 2323.51 when he filed and maintained the present causes of action
when it was both subjectively and objectively clear they were all beyond their respective
statutes of limitations. Therefore, appellant's first, second, third, and fourth assignments of
error are overruled.
{¶19}
Appellant argues in his fifth assignment of error that the trial court erred
when it considered CBC's motion for sanctions ripe for hearing and decision. Specifically,
appellant argues that, according to R.C. 2323.51(B)(1), a party must file a motion for
attorney fees based upon frivolous conduct within the 30-day period after the judgment,
but, here, CBC filed its motion for sanctions on October 5, 2006, which was 26 days
before the judgment was filed. R.C. 2323.51(B)(1) provides, in pertinent part:
* * * at any time not more than thirty days after the entry of
final judgment in a civil action or appeal, any party adversely
affected by frivolous conduct may file a motion for an award of
court costs, reasonable attorney's fees, and other reasonable
expenses incurred in connection with the civil action or
appeal. * * *
No. 07AP-900
13
{¶20}
Appellant's reading of R.C. 2323.51(B)(1) is misguided. The provision
clearly permits the filing of a motion for sanctions based upon frivolous conduct at "any
time," as long as such motion is not filed more than 30 days after the judgment.
Therefore, CBC filed its motion for sanctions within the time permitted by R.C.
2323.51(B)(1). We also note that appellant failed to raise this issue in the trial court.
Accordingly, appellant waived the timeliness issue by failing to raise it and may not now
raise it for the first time on appeal. See
Thomas v. Cincinnati
, Hamilton App. No. C-
050643, 2006-Ohio-3598 (because the time requirements set forth in R.C. 2323.51[B][1]
are not jurisdictional, a party waives the timeliness issue by failing to raise it in the trial
court, and it may not raise it for the first time on appeal). Therefore, appellant's fifth
assignment of error is overruled.
{¶21}
Appellant argues in his sixth assignment of error that the trial court erred
when it upheld the magistrate's sanctions award of $5,095. Specifically, appellant cites
three grounds for his claim that the trial court's award of sanctions was improper: (1) CBC
failed to present evidence attributing certain attorney fees requested to certain causes of
action; (2) the attorney fees generated by CBC were excessive and unnecessary
because CBC could have filed a Civ.R. 12(B)(6) motion to dismiss when it filed its
answer, which would have avoided further attorney fees and mitigated damages; and (3)
CBC had "unclean hands" and should not be entitled to attorney fees.
{¶22}
We first note that appellant failed to raise any of these three arguments in
either his objections to the magistrate's decision or in his supplemental memorandum in
support of objections to the magistrate's decision. Pursuant to Civ.R. 53(D)(3)(b)(iv),
except for a claim of plain error, a party shall not assign as error on appeal the court's
No. 07AP-900
14
adoption of any factual finding or legal conclusion unless the party has objected to that
finding or conclusion. Notwithstanding, we find no error, plain or otherwise. With regard
to appellant's first argument, appellant claims that CBC should not be entitled to the full
amount of its attorney fees because appellant's claim for intentional infliction of emotional
distress was neither frivolous nor in violation of Civ.R. 11. However, because we have
found the trial court did not err in finding all of appellant's causes of action, including his
claim for intentional infliction of emotional distress, were frivolous, this argument is without
merit.
{¶23}
We also find appellant's second argument not well-taken. Appellant claims
CBC had a duty to mitigate damages by filing a Civ.R. 12(B)(6) motion at the time it filed
its answer in order to avoid further attorney fees. However, appellant fails to cite any
authority for his proposition, and we fail to find any requirement that a party file a Civ.R.
12(B)(6) motion to dismiss based upon the statute of limitations. In fact, generally, the
expiration of the statute of limitations is not properly raised in a Civ.R. 12(B)(6) motion, as
it typically requires reference to materials outside the complaint.
Steiner v. Steiner
(1993),
85 Ohio App.3d 513, 518. Only when a violation of the statute of limitations is apparent
from the face of the complaint may such an affirmative defense be raised in a Civ.R.
12(B)(6) motion.
Helman v. EPL Prolong, Inc.
(2000), 139 Ohio App.3d 231, 241. For
there to be a conclusive showing in that regard, the complaint must show both: (1) the
relevant statute of limitations; and (2) the absence of factors that would toll the statute or
make it inapplicable. Id. In the present case, the appropriate statute of limitations was not
apparent from his complaint. As such, because such a motion would have required
No. 07AP-900
15
reference to materials outside the complaint, a Civ.R. 12(B)(6) motion would have been
improper. Therefore, appellant's argument, in this respect, must fail.
{¶24}
With regard to appellant's third argument, he claims attorney fees should
not have been awarded to CBC because it had "unclean hands," as CBC would have
certainly been held vicariously liable for the behavior of Callahan, but for a mistake in the
late filing of the complaint. This argument is without merit for several reasons. Initially,
appellant cites no authority for such a position. Further, whether CBC would have
eventually been found liable for the underlying action is irrelevant to the analysis of
Moore's frivolous conduct. To find parties may engage in frivolous conduct so long as
their underlying claims have merit would render Civ.R. 11 and R.C. 2323.51 impotent. In
addition, presuming appellant would have been ultimately successful in his claims against
CBC would be highly speculative and force this court to wholly ignore the various
arguments CBC raised in defense. For all the above reasons, appellant's sixth
assignment of error is overruled.
{¶25}
CBC asserts in its sole assignment of error on cross-appeal that the trial
court erred when it failed to award certain costs and attorney fees in addition to the costs
and fees it did award. Specifically, CBC contends it should be compensated for: (1) legal
fees incurred in prosecuting the sanctions motion; (2) legal fees incurred in reviewing
appellant's objections to the magistrate's decision and preparing its own response and
objections; and (3) its expenses for retaining an expert witness attorney to testify at the
sanctions hearing.
{¶26}
With regard to the legal fees incurred in prosecuting the sanctions motion
and the expenses related to the expert witness attorney, the trial court found CBC could
No. 07AP-900
16
not recover these fees because it did not present evidence in the record regarding such
,
and we agree with the court's conclusion. CBC did not present any evidence at the
sanctions hearing of these fees, and it did not request such fees during the evidentiary
phase of the hearing. The only "evidence" that was presented on this issue was in CBC's
closing argument, when appellant requested such fees. It is axiomatic that closing
arguments are not evidence.
State v. Frazier
(1995), 73 Ohio St.3d 323, 338. Thus, we
find the trial court properly denied these fees as sanctions.
{¶27}
Further, with regard to CBC's legal fees incurred in reviewing appellant's
objections to the magistrate's decision and in preparing its own response and objections,
we likewise concur with the trial court's determination that CBC cannot recover these
fees. These fees were incurred for conduct that occurred after the magistrate's decision,
and CBC failed to demonstrate that appellant's objections were frivolous under R.C.
2323.51 or Civ.R. 11. Sanctions are inappropriate when a legitimate legal goal is asserted
that is not totally without justification under existing law.
Passmore v. Greene Cty. Bd. of
Elections
(1991), 74 Ohio App.3d 707. Here, CBC presented insufficient evidence that the
objections, in and of themselves, were filed without any legal justification or in pursuance
of an illegitimate legal goal. There was no evidence that appellant's objections were filed
to harass CBC or without a good-faith basis. See
Matter of Slavey
(Aug. 21, 1998),
Crawford App. No. 3-98-09 (no evidence that objections were filed for the purpose of
harassing other party or that the objections could not be supported by a good-faith
argument). Appellant also cited various legal authorities to support his objections. See id.
(appellant's counsel provided citations to prior cases as well as statutes in support of his
argument, and whether these citations were applicable to the facts before the court was
No. 07AP-900
17
the issue before the trial court). Therefore, we find the trial court did not abuse its
discretion when it failed to award these fees to CBC as sanctions. For the above reasons,
CBC's sole cross-assignment of error is overruled.
{¶28}
Accordingly, appellant's first, second, third, fourth, fifth, and sixth
assignments of error are overruled, CBC's cross-assignment of error is overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed
.
BROWN, BRYANT, and PETREE, JJ., concur.
____________________