Weaver v. Pillar ( 2013 )

[Cite as Weaver v. Pillar, 2013-Ohio-1052.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
BRIAN WEAVER, ET AL : Hon. W. Scott Gwin,, P.J.
: Hon. William B. Hoffman, J.
Plaintiffs-Appellants/Cross-Appellees : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2012-CA-32
MILES PILLAR :
:
Defendant-Appellee/Cross-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County
Court of Common Pleas, Case No.2010-
CT-0247
JUDGMENT: Reversed
DATE OF JUDGMENT ENTRY: March 18, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
DAN GUINN MATTHEW MULLEN
118 West High Avenue Krugliak, Wilkins, Griffiths & Dougherty
New Philadelphia, OH 44663 Co., L.P.A.
158 North Broadway
New Philadelphia, OH 44663
[Cite as Weaver v. Pillar, 2013-Ohio-1052.]
Gwin, P.J.
{¶1} Appellant Dan Guinn appeals from the April 9, 2012 Judgment Entry
issued by the Tuscarawas County Court of Common Pleas. Appellee Miles Pillar filed a
Cross-Appeal.
FACTS & PROCEDURAL HISTORY
{¶2} Miles Pillar (“Pillar”) is the owner of NCG/Red Hill Crane, a company that
operates a crane and equipment rental service. At some point in the fall of 2008, Brian
Weaver, on behalf of his business Number One Affordable Tree Service, rented some
heavy equipment from Red Hill to use in his business. Thereafter, a heated dispute
arose between the two entities as to payment for the use of the equipment.
{¶3} Pillar made multiple calls to the residence of Weaver and Jennifer Paisley,
Weaver’s fiancée. Pillar contends the calls were all to the business phone number in
furtherance of collecting the debt Weaver owed him. Weaver and Paisley state the calls
were frequent and caused them to fear for their safety. Pillar was found guilty of three
counts of telecommunications harassment after he repeatedly called Weaver in August
of 2009, after the Dover police told Pillar to cease making the calls. This court affirmed
the trial court’s decision finding Pillar guilty in State of Ohio v. Pillar, 5th Dist. No. 2012
AP 01 0007, 2012-Ohio-3926.
{¶4} Paisley and Weaver state Pillar drove by their home on several occasions.
Weaver’s business is located in their home. Pillar admits to driving by the home and
business, but states this is because the house fronts a main street in Dover.
{¶5} In August of 2009, Pillar removed Weaver’s wood chipper from Weaver’s
property. Pillar states he did not know this was a criminal activity; he only did so to
Tuscarawas County, Case No. 2012-CA-32 3
encourage Weaver to pay his debt, and did not damage the wood chipper. Weaver
contends Pillar tampered with the wood chipper by removing a gas line and placing an
unknown substance in the gas tank. In August of 2010, Pillar pled guilty to an amended
indictment of one count of theft based upon his removal of Weaver’s wood chipper from
Weaver’s property.
{¶6} In November of 2009, Pillar filed a small claims suit against Weaver in the
New Philadelphia Municipal Court. The magistrate issued a decision finding Weaver
failed to pay for services rendered and awarded judgment for $1,828.00 plus interest on
January 25, 2010. Weaver filed objections to the Magistrate’s decision on February 5,
2010. The trial court approved and adopted the magistrate’s decision on December 29,
2011. Weaver appealed the trial court’s order on January 30, 2012, arguing the trial
court abused its discretion in finding that he did not satisfy the terms of the contract
between the parties. This Court affirmed the trial court’s decision on October 30, 2012,
in NCG/Red Hill, Inc. v. Weaver, 5th Dist. No. 12 AP 01 0008, 2012-Ohio-5093.
{¶7} On February 23, 2010, Attorney Dan Guinn (“Appellant”) filed a complaint
on behalf of his clients, Brian Weaver dba Number One Affordable Tree Service, LLC
and Jennifer Paisley (“Plaintiffs”) against Miles Pillar for conversion, intentional infliction
of emotion distress, invasion of privacy, and defamation. Pillar filed a Motion for
Summary Judgment, covering all of Plaintiffs’ claims, on February 11, 2011. The trial
court held an oral hearing on Pillar’s Motion for Summary Judgment. Neither Plaintiffs
nor Appellant appeared at the hearing or responded to the Motion for Summary
Judgment. Therefore, the trial court granted Pillar’s Motion for Summary Judgment.
Tuscarawas County, Case No. 2012-CA-32 4
This court affirmed the trial court’s entry granting summary judgment in Weaver v. Pillar,
5th Dist. No. 2011 AP 03 0017, 2012-Ohio-33, on January 4, 2012.
{¶8} On March 11, 2011, Pillar filed a motion for sanctions pursuant to R.C.
2323.51, stating that Plaintiffs and Appellant filed a complaint with false statements
merely to harass or maliciously and financially injure him, the claims were not warranted
under existing law and cannot be supported by a good faith argument for an extension,
modification, or reversal of existing law, and contained false allegations with no factual
support. Pillar requested the trial court order Plaintiffs and Appellant to jointly and
severally pay $5,041.25 to Pillar for legal fees expended and costs. On April 8, 2011,
Appellant filed a motion for relief from the summary judgment entry pursuant to Rule
60(B) and a response to the motion for sanctions. The trial court deferred consideration
of the motions until this court ruled on the appeal of the summary judgment entry.
{¶9} A hearing was held on Plaintiffs’ Motion for Relief pursuant to Rule 60(B)
and Pillar’s Motion for Sanctions on February 21, 2012. Neither party presented any
testimony or witnesses during the hearing. Pillar submitted the deposition of his
previous Attorney Steven A. Anderson regarding the reasonableness of his bill and fees
requested.
{¶10} On April 9, 2012, the trial court issued a judgment entry denying Plaintiffs’
motion for relief pursuant to Rule 60(B) and granting Pillar’s motion for sanctions. The
trial court found “that some of the claims in Plaintiffs’ Complaint were frivolous, and that
Plaintiffs have engaged in frivolous conduct.” The trial court further found that Pillar was
adversely affected by frivolous conduct. After reviewing the billing statement attached
to the motion for sanctions and the deposition of Attorney Steven Anderson, the court
Tuscarawas County, Case No. 2012-CA-32 5
found an additional $1,000.00 in attorney fees were reasonably incurred by Pillar in
defense of Plaintiffs’ frivolous claims and appropriate pursuant to R.C. 2323.51. The
trial court granted Pillar’s motion for sanctions, in part, requiring Plaintiffs and Appellant
to jointly and severally pay $1,000.00 in attorney’s fees to Pillar.
{¶11} Attorney Guinn filed an appeal of the trial court’s April 9, 2012 judgment
entry. Plaintiffs did not file an appeal of the trial court’s judgment entry requiring them to
pay $1,000.00 in attorney fees to Pillar.
{¶12} Appellant Guinn now raises the following assignments of error on appeal:
{¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING
THAT FRIVOLOUS CONDUCT OCCURRED UNDER ORC 2323.51 SINCE THERE
WAS A VALID BASIS FOR EACH CLAIM UNDER THE LAW.
{¶14} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING
THAT THE DEFENDANT WAS ADVERSELY AFFECTED BY DEFENDING THIS
LAWSUIT.
{¶15} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING
THAT ATTORNEY FEES SHOULD BE AWARDED AGAINST THE PLAINTIFFS’
COUNSEL SINCE IT WAS REASONABLE FOR COUNSEL TO PURSUE THIS
LAWSUIT BASED UPON THE EVIDENCE PRESENTED TO HIM.”
{¶16} Appellee/Cross-Appellant Miles Pillar assigns a single error on cross-
appeal:
Tuscarawas County, Case No. 2012-CA-32 6
Cross-Assignment of Error
{¶17} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING
THAT APPELLEE WAS ONLY ENTITLED TO $1,000.00 IN DAMAGES ON ITS CLAIM
OF FRIVOLOUS CONDUCT UNDER O.R.C. 2323.51.”
I.
{¶18} R.C. 2323.51 provides that a court may award court costs, reasonable
attorney fees, and other reasonable expenses incurred in connection with the civil
action or appeal to any party to the civil action or appeal who was adversely affected by
frivolous conduct. In R.C. 2323.51(A)(2)(a), “frivolous conduct” is defined as follows:
“(i) * * * [conduct that] 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) * * * [conduct 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.
(iii) * * * [conduct that] consists of allegations or other factual
contentions that have no evidentiary support or, if specifically identified,
are not likely to have evidentiary support after a reasonable opportunity for
further investigation or discovery.”
{¶19} A motion for sanctions pursuant to R.C. 2323.51 requires a three-step
analysis by the trial court: (1) whether the party engaged in frivolous conduct, (2) if the
conduct was frivolous, whether any party was adversely affected by it, and (3) if an
Tuscarawas County, Case No. 2012-CA-32 7
award is to be made, the amount of award. Ferron v. Video Professor Inc., 5th Dist. No.
08-CAE-09-0055, 2009-Ohio-3133. The question of what constitutes frivolous conduct
may be either a factual determination, or a legal determination. Pingue v. Pingue, 5th
Dist. No. 06-CAE-10-0077, 2007 WL 2713763 (Sept. 18, 2007), citing Wiltberger v.
Davis, 110 Ohio App.3d 46, 673 N.E.2d 628 (10th Dist. 1996). A determination that the
conduct is not warranted under existing law and cannot be supported by a good faith
argument for an extension, modification, or reversal of existing law requires a legal
analysis. Lable & Co. v. Flowers, 104 Ohio App.3d 227, 661 N.E.2d 782 (9th Dist.
1995). Thus,
While the abuse of discretion standard is appropriate when
reviewing a trial court’s determination of whether a party has engaged in
conduct merely to harass or maliciously injure another, an issue that
necessarily involves factual considerations, it is improper for a reviewing a
trial court’s determination whether a party has pursued a legally
groundless claim. Because legally groundless frivolous conduct involves
a question of law, we review it de novo.
{¶20} Riston v. Butler, 149 Ohio App.3d 390, 397-398, 2002-Ohio-2308, 777
N.E.2d 857 (1st Dist). A purely legal issue is reviewed de novo. Wiltberger, 110 Ohio
App.3d 46, 673 N.E. 2d 628 (10th Dist. 1996). However, some degree of deference is
appropriate in reviewing a trial court’s factual determinations and we will not disturb
factual determinations where the record contains competent, credible evidence to
support these findings. Id.Tuscarawas County, Case No. 2012-CA-32 8
{¶21} R.C. 2323.51 was designed to chill egregious, overzealous, unjustifiable
and frivolous actions, not to chill legitimate claims or punish misjudgment or tactical
error. Ferron, 5th Dist. No. 08-CAE-09-0055, 2009-Ohio-3133; Riston, 149 Ohio App.3d
390, 2002-Ohio-2308, 777 N.E.2d 857. The test in determining whether the claim itself
is frivolous is whether no reasonable lawyer would have brought the action in light of the
existing law. Riston, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857, citing
Hickman v. Murray, 2nd Dist. No. CA 15030, 1996 WL 125916 (March 22, 1996). “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. at 400, quoting Hickman v. Murray.
Further, simply because a claim is unsuccessful, a finding of frivolous conduct for
bringing the claims is not automatically warranted. Ferron, 5th Dist. No. 08-CAE-09-
0055, 2009-Ohio-3133; See also Lable & Co., 104 Ohio App.3d 227, 661 N.E.2d 782(9th Dist. 1995) (finding sanctions were not appropriate even though summary judgment
was granted).
R.C. 2323.51(A)(2)(a)(i)
{¶22} In his motion for sanctions, Pillar argues he is entitled to attorney fees
pursuant to R.C. 2323.51 because Appellant engaged in conduct that 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.
{¶23} The trial court found that “some” of the claims in Plaintiffs’ complaint were
frivolous. However, it is unclear what the trial court determined was frivolous and there
is no specific finding by the trial court that the filing of the complaint was done to “harass
Tuscarawas County, Case No. 2012-CA-32 9
or maliciously injure” Pillar. Further, there is no evidence in the record that Plaintiffs or
Appellant intended to harass or maliciously injure Pillar. Accordingly, we cannot
conclude that the trial court based its decision to impose sanctions on R.C.
2323.51(A)(2)(a)(i).
Conversion
{¶24} Pillar states the filing of a claim for conversion and the failure to make a
reasonable inquiry of the facts of the complaint regarding conversion by Appellent
constitutes frivolous conduct because there is no physical evidence Pillar tampered with
the wood chippers. We disagree. Conversion is defined as the “wrongful exercise of
dominion over property to the exclusion of the rights of the owner, or withholding it from
his possession under a claim inconsistent with his rights.” Heflin v. Ossman, 5th Dist.
No. 05CA17, 2005-Ohio-6876, quoting Joyce v. General Motors Corp., 49 Ohio St.3d
93, 96, 551 N.E.2d 172 (1990).
{¶25} We find a reasonable lawyer might have brought and argued Plaintiffs’
action for conversion in light of the existing law. Pillar admitted to taking the wood
chipper without permission and pled guilty to an amended indictment of one count of
theft based upon his removal of Weaver’s wood chipper from Weaver’s property. In his
discovery responses, Weaver states the wood chipper that was fully operational prior to
Pillar’s removing it from Weaver’s property had a gas line removed and a substance
added to the oil. Weaver also states a second wood chipper was damaged in the same
fashion as the first wood chipper that Pillar admitted to removing from Weaver’s
property.
Tuscarawas County, Case No. 2012-CA-32 10
Intentional Infliction of Emotional Distress
{¶26} Pillar argues the filing of a claim for intentional infliction of emotional
distress and the failure to make a reasonable inquiry of the facts of the complaint
regarding intentional infliction of emotional distress by Appellant constitutes frivolous
conduct because Plaintiffs’ medical records demonstrate Pillar was not the cause of any
emotional distress and Plaintiffs should have expected business collection calls to be
made to their combined business/home phone line. We disagree. “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.” Stafford v. Columbus Bonding Ctr., 177 Ohio App.3d 799, 809,
2008-Ohio-3948, 896 N.E.2d 191 (10th Dist.), citing Yeager v. Local Union 20, 6 Ohio
St.3d 369, 453 N.E.2d 666 (1983).
{¶27} We find a reasonable lawyer could have brought and argued Plaintiffs’
action for intentional infliction of emotional distress in light of the existing law. Pillar
admits in an affidavit he contacted Weaver’s business phone number numerous times,
but he was always attempting to collect a debt and never harassed or threatened
Weaver or his fiancée. In their answers to interrogatories, both Weaver and Paisley
state Pillar phoned them numerous times. Paisley states she saw Pillar drive by the
residence on at least two occasions, she had panic attacks, and feared for the safety of
her family due to the actions of Pillar. While the medical records demonstrate Weaver
and Paisley were on anti-anxiety medication prior to the incidents with Pillar, this fact
alone would not make the filing of the compliant for intentional infliction of emotional
distress frivolous.
Tuscarawas County, Case No. 2012-CA-32 11
{¶28} Further, at the time of the filing of the complaint, Appellant had available to
him records of two separate criminal convictions of Pillar. In one case, Pillar was found
guilty of three counts of telecommunications harassment stemming from calls made to
Plaintiffs. In the other case, Pillar pled guilty to an amended indictment of one count of
theft based upon his removal of Weaver’s wood chipper from Weaver’s property. It is
feasible that the victims in these cases might have been able to show that Pillar
intentionally or recklessly caused them serious emotional distress by extreme and
outrageous conduct.
Invasion of Privacy
{¶29} Pillar argues the filing of a claim for invasion of privacy and the failure to
make a reasonable inquiry of the facts of the complaint regarding invasion of privacy by
Appellent constitutes frivolous conduct because Plaintiffs should expect collection calls
to come to their combined business/home phone line. We disagree. The tort of
invasion of privacy includes four separate torts: “(1) intrusion upon the plaintiff’s
seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing
private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in
the public eye; and (4) appropriation.” Peterman v. Stewart, 5th Dist. No. 05-CAE-12-
0082, 2006-Ohio-4671, citing Henson v. Henson, 9th Dist. No. 22772, 2005-Ohio-6321.
{¶30} Plaintiffs did not claim Pillar misappropriated their name or likeness,
publicized their affairs, or portrayed them in a false light. Rather, Plaintiffs claimed Pillar
made an unreasonable intrusion upon their right to seclusion. “One who intentionally
intrudes, physically or otherwise, upon the solitude or seclusion of another or his private
affairs or concerns, is subject to liability to the other for invasion of his privacy if the
Tuscarawas County, Case No. 2012-CA-32 12
intrusion would be highly offensive to a reasonable person.” Sustin v. Fee, 69 Ohio
St.2d 143, 145, 431 N.E.2d 992 (1982).
{¶31} We find a reasonable lawyer could have brought and argued Plaintiffs’
action for invasion of privacy in light of the existing law. As noted above, Pillar states in
an affidavit that he contacted Weaver’s business phone number numerous times to
collect a debt and both Weaver and Paisley state Pillar phoned them numerous times.
Paisley states she saw Pillar drive by the residence on at least two occasions, she had
panic attacks, and feared for the safety of her family due to the actions of Pillar. Pillar
was found guilty of three counts of telecommunications harassment stemming from calls
made to Weaver and pled guilty to an amended indictment of one count of theft based
upon his removal of Weaver’s wood chipper from Weaver’s property. It is feasible that
such intrusion might be highly offensive to a reasonable person.
Defamation
{¶32} Pillar argues the filing of a claim for defamation and the failure to make a
reasonable inquiry of the facts of the complaint regarding defamation by Appellent
constitutes frivolous conduct because Pillar’s true statements made against Plaintiffs
could not constitute defamation. We disagree. The following elements are needed to
establish a defamation claim:
“(a) a false and defamatory statement concerning another; (b) an
unprivileged publication to a third party; (c) fault amounting at least to
negligence on the part of the publisher; and (d) either actionability of the
statement irrespective of special harm or the existence of special harm
caused by the publication.” (Internal citations and quotations omitted).
Tuscarawas County, Case No. 2012-CA-32 13
{¶33} Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv. Inc., 81 Ohio
App.3d 591, 601, 611 N.E.2d 955 (9th Dist. 1992).
{¶34} In Plaintiffs’ complaint, they allege that in August of 2009, Pillar went to
the homes of different individuals and told them Plaintiffs owed him money, that these
statements were false and defamatory because Plaintiffs paid the debt owed to Pillar,
and that Pillar’s statements caused these individuals to believe Plaintiffs were not
trustworthy in their business dealings. In his answers to interrogatories, Weaver
identifies John Bitikofer and James Pietro as the individuals Plaintiffs allege Pillar told
Plaintiffs owed him money. Pillar argues the New Philadelphia Court’s judgment in
favor of Pillar and this court’s subsequent judgment entry affirming the New Philadelphia
Municipal Court’s judgment demonstrates the defamation claim was frivolous.
{¶35} We agree with Pillar that the truth is a complete defense to defamation.
See Croskey v. Universal Health Serv., 5th Dist. No. 09 CA 37, 2009-Ohio-5951.
However, in this case, the issue as to whether a debt was owed by Plaintiffs to Pillar
was not settled until October 30, 2012. In his answers to interrogatories, Weaver
maintains he paid Pillar for the equipment and work done. Weaver correctly states that,
at the time of his answering the interrogatories, the magistrate had issued a decision
finding him liable, but Weaver had filed objections to the magistrate’s decision. The trial
court did not approve and adopt the magistrate’s decision until December 29, 2011,
over a year after the complaint filed by Plaintiffs on February 23, 2010. Further, the trial
court had not approved and adopted the magistrate’s decision prior to the filing of
Pillar’s Motion for Summary Judgment on February 11, 2011. Weaver continued to
Tuscarawas County, Case No. 2012-CA-32 14
dispute whether he paid Pillar when he appealed the New Philadelphia Municipal
Court’s order on January 30, 2012.
{¶36} At the time of the filing of the complaint and when a judgment was
rendered by the trial court on the summary judgment motion, the question of whether
Plaintiffs paid Pillar was being litigated and no final conclusion had been reached.
Thus, Appellant could not know, with reasonable inquiry, whether the defense of truth
would prevent his defamation claim from being actionable. Therefore, we find a
reasonable lawyer might have brought and argued Plaintiffs’ action in light of the
existing law.
{¶37} We find that while the claims in Plaintiffs’ complaint may have been
unsuccessful, the claims for conversion, intentional infliction of emotional distress,
invasion of privacy, and defamation were not wholly unwarranted, could be supported
by a good faith argument, did not lack evidentiary support, and Appellant made a
reasonable inquiry of the facts of the complaint regarding the claims. We therefore
reverse the trial court on its determination that Appellant engaged in frivolous conduct
and sustain Appellant’s First Assignment of Error.
II.
{¶38} “Where a determination has been made that an entire lawsuit, a certain
claim or claims, or a defense or defenses asserted in a civil action were frivolous, the
party seeking R.C. 2323.51 attorney fees must affirmatively demonstrate that he or she
incurred additional attorney fees as a direct, identifiable result of defending the frivolous
conduct in particular.” Wiltberger, 110 Ohio App.3d at 54, 673 N.E.2d 628 (10th Dist.
Tuscarawas County, Case No. 2012-CA-32 15
1996). A party is not adversely affected only “upon the fundamental necessity to
expend attorney fees to defend a lawsuit in general.” Id.{¶39} In this case, Pillar submitted a deposition by Attorney Steven
Anderson and a billing statement with a breakdown of the requested $5,041.25 amount.
This billing statement includes time for: reviewing the complaint, preparing an answer,
preparing discovery, reviewing medical records, conferencing with his client,
researching issues related to the motion for summary judgment, preparing of the motion
for summary judgment, and attendance at the summary judgment hearing. Attorney
Anderson testified he prepared the billing statement and the fees charged by his firm in
this case are reasonable and necessary. However, the services listed by Attorney
Anderson in the billing statement cover the types of actions necessary to defend the
lawsuit in general, rather than being directly related to the alleged frivolous conduct.
{¶40} We find the record lacks evidence that Pillar was adversely affected by
having to defend allegedly frivolous claims, as distinguished from the need to defend
the lawsuit in general. Accordingly, we sustain Appellant’s Second Assignment of Error.
III. & Cross-Assignment of Error
{¶41} The trial court determined the amount requested by Pillar of $5,041.25
was not reasonable and instead found $1,000.00 in attorney fees were reasonably
incurred by Pillar in defense of Plaintiffs’ frivolous claims and was appropriate pursuant
to R.C. 2323.51. Pillar argues the trial court abused its discretion in only awarding
$1,000.00 in attorney fees. Appellant argues the trial court abused its discretion by
awarding any attorney fees.
Tuscarawas County, Case No. 2012-CA-32 16
{¶42} As noted above, when a determination is made that a claim or lawsuit is
frivolous, the party seeking fees must show that additional fees were incurred “as a
direct, identifiable result of defending the conduct in particular.” Wiltberger, 110 Ohio
App.3d at 54, 673 N.E.2d 628 (10th Dist. 1996). The trial court’s judgment entry does
not describe with specificity how it arrived at the lower figure. Thus, this court cannot
determine if the attorney fees are directly related to actions necessitated by the alleged
frivolous conduct. However, since we sustained Assignments of Error I and II, it is not
necessary to remand the matter to the trial court to state with specificity which portion of
the attorney fees are directly related to the claim alleged to be frivolously brought under
R.C. 2323.51.
{¶43} Upon our review of the record, we find the trial court erred in finding
Appellant Dan Guinn engaged in frivolous conduct and in finding that Pillar was
adversely affected by the alleged frivolous conduct.
Tuscarawas County, Case No. 2012-CA-32 17
{¶44} The judgment of the Tuscarawas County Court of Common Pleas is
reversed.
By Gwin, P.J., and
Wise, J., concur;
Hoffman, J., concurs
separately
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
WSG:clw 0227
Tuscarawas County, Case No. 2012-CA-32 18
Hoffman, J., concurring
{¶45} I concur in the majority’s analysis and disposition of Appellant/Cross-
Appellee’s first assignment of error and Appellee/Cross-Appellant’s cross-assignment
of error.
{¶46} Based thereon, I would find Appellant/Cross-Appellee’s second and third
assignments of error moot.
________________________________
HON. WILLIAM B. HOFFMAN
[Cite as Weaver v. Pillar, 2013-Ohio-1052.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BRIAN WEAVER, ET AL :
:
Plaintiffs-Appellants/Cross-Appellees :
:
:
-vs- : JUDGMENT ENTRY
:
MILES PILLAR :
:
:
Defendant-Appellee/Cross-Appellant : CASE NO. 2012-CA-32
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Tuscarawas County Court of Common Pleas is reversed as to appellant
Guinn only. Appellee to pay court costs.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE