Hancock Cty. Treasurer v. Barger ( 2023 )

[Cite as Hancock Cty. Treasurer v. Barger, 2023-Ohio-1707.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
J. STEVE WELTON, HANCOCK
COUNTY TREASURER,
PLAINTIFF-APPELLEE, CASE NO. 5-22-30
v.
ANNE M. BARGER,
DEFENDANT-APPELLANT,
-and-
CHRISTINA MURYN AS MAYOR, OPINION
CITY OF FINDLAY, ET AL.,
THIRD-PARTY DEFENDANTS-
APPELLEES.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2019 F 00338
Judgment Affirmed
Date of Decision: May 22, 2023
APPEARANCES:
G Q Buck Vaile for Appellant
Robert E. Feighner, Jr. for Appellee City of Findlay
Case No. 5-22-30
WILLAMOWSKI, J.
{¶1} Defendant-appellant Anne M. Barger (“Barger”) brings this appeal
from the judgment of the Court of Common Pleas of Hancock County denying her
motion for attorney fees. Barger claims on appeal that she should have been granted
an award of attorney fees. For the reasons set forth below, the judgment is affirmed.
{¶2} This case arises out of Barger’s failure to pay assessments added to her
real estate taxes for the City of Findlay cutting her grass. On September 9, 2019,
the plaintiff-appellant J. Steve Welton (“Welton”), acting in his capacity as Hancock
County Treasurer, filed a complaint for foreclosure on the real estate owned by
Barger. Service of the complaint was unsuccessful and the county prosecutor was
notified of such. On October 15, 2019, an amended complaint for foreclosure was
filed and service was sent via ordinary mail. Barger filed an answer to the complaint
on February 27, 2020. Barger also filed a third party complaint against the City of
Findlay (“City”). Barger eventually claimed that the City had failed to properly
serve her regarding the City’s intent to mow the grass as required by Ordinance
521.07. Since Barger did not reside within the Findlay City limits, the notice was
required to be sent via certified mail, or through publication if the address is
unknown. R.C. 731.05. Barger’s primary argument was that the City did not
comply with the statutory service requirements. Barger argued that the failure to
-2-
Case No. 5-22-30
properly serve her notice prevented the City from charging her for the mowing of
the grass and subsequently adding it to her tax bill.
{¶3} On February 10, 2022, a consent judgment entry was filed indicating
that Barger, Welton, and the City had reached a settlement. Per the agreement, the
special assessments resulting from the cost of mowing Barger’s property which the
City added to Barger’s real estate taxes were removed. The entry reserved Barger’s
right to request attorney fees from the City. Finally, the entry granted an order of
foreclosure to Welton for the remainder of the outstanding taxes owed. Barger then
filed a motion for a hearing regarding the award of attorney fees. The trial court
held a hearing on attorney fees on April 29, 2022. Subsequently, the trial court
entered judgment on May 10, 2022, denying the request for attorney fees on the
grounds that there was no authority to support Barger’s claim that she was entitled
to attorney fees so she could only recover if the City’s actions imposing the special
assessments and continuing the suit were frivolous. The trial court determined the
record did not support a finding of frivolous conduct. Barger appealed from that
judgment and on appeal raised the following assignments of error.
First Assignment of Error
The [trial court] ruled incorrectly when it denied [Barger] an
award of attorney fees because the city’s actions were by
definition frivolous.
-3-
Case No. 5-22-30
Second Assignment of Error
The [trial court] incorrectly denied [Barger] an award of attorney
fees because the City maintained the lawsuit violating [Barger’s]
due process for more than two years after being notified of their
deficiency in service.
Third Assignment of Error
The [trial court] failed to provide attorney fees even though the
parties specifically reserved the right of [Barger] to request these
fees in the consent judgment entry.
Fourth Assignment of Error
The [trial court] erred when it failed to award [Barger] attorney
fees, which action was inequitable and unjust.
Fifth Assignment of Error
The [trial court] ruled improperly, in that public policy in this
case favors the award of attorney fees to avoid a very significant
chilling effect.
As all of the assignments of error argue that the trial court erred by failing to award
attorney fees, we will address them together.
{¶4} When addressing the claim for attorney fees, the first step is to
determine whether a party is entitled to recover attorney fees. Once a party
establishes that an award of attorney fees is appropriate, the court then determines
if the fees requested are reasonable. In general, Ohio follows the American rule,
which does not permit a prevailing party to recover attorney fees. Cruz v. English
Nanny & Governess School, 169 Ohio St.3d 716 2022-Ohio-3586, 207 N.E.3d 742.
There are three well-established exceptions to this rule: 1) a statutory duty to pay
-4-
Case No. 5-22-30
attorney fees; 2) a party has acted in bad faith; and 3) a contractual duty to pay
attorney fees. Id. at ¶ 36. In this case, there is no specific statutory duty to pay
attorney fees. Thus, that exception does not apply.
{¶5} The second exception to the American rule is Barger’s claim that the
City acted in bad faith. Barger argues that the city acted in bad faith by engaging in
frivolous conduct. R.C. 2323.51 sets forth when an award of attorney fees may be
made as a sanction for frivolous conduct.
(2) “Frivolous conduct” means either of the following:
(a) Conduct of an inmate or other party to a civil action, of an inmate
who has filed an appeal of the type described in division (A)(1)(b) of
this section, or of the inmate's or other 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 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.
-5-
Case No. 5-22-30
(b) An inmate's commencement of a civil action or appeal against a
government entity or employee when any of the following applies:
(i) The claim that is the basis of the civil action fails to state a claim
or the issues of law that are the basis of the appeal fail to state any
issues of law.
(ii) It is clear that the inmate cannot prove material facts in support of
the claim that is the basis of the civil action or in support of the issues
of law that are the basis of the appeal.
(iii) The claim that is the basis of the civil action is substantially
similar to a claim in a previous civil action commenced by the inmate
or the issues of law that are the basis of the appeal are substantially
similar to issues of law raised in a previous appeal commenced by the
inmate, in that the claim that is the basis of the current civil action or
the issues of law that are the basis of the current appeal involve the
same parties or arise from the same operative facts as the claim or
issues of law in the previous civil action or appeal.
R.C. 2323.51(A)(2). A party adversely affected by frivolous conduct may file a
motion for an award of reasonable attorney fees. R.C. 2323.51(B)(1). If the trial
court finds that the opposing party engaged in frivolous conduct, it may award
attorney fees to the moving party. Id.
When the question regarding what constitutes frivolous conduct calls
for a legal determination, such as whether a claim is warranted under
existing law, an appellate court is to review the frivolous conduct
determination de novo, without deference to the trial court's decision.
***
“In contrast, if there is no disputed issue of law and the question is
factual, we apply an abuse of discretion standard of review.” * * *
Likewise, if the trial court determines that a violation under R.C.
2323.51 or Civ.R. 11 exists, the trial court's imposition of sanctions
for said violation will not be disturbed absent an abuse of discretion.
(Citation omitted).
-6-
Case No. 5-22-30
Reddy v. Singh, 3d Dist. Marion No. 9-14-29, 2015-Ohio-1180, ¶ 67-68. “In
determining whether a claim itself is frivolous under the statute, the test is whether
no reasonable lawyer would have brought the action in light of the existing law.”
Id. at ¶ 71.
{¶6} In this case, Barger alleges that the City’s frivolous conduct was not
admitting the failure of service earlier and requiring her to extend her suit. Barger
claims that the City should have known it did not perfect service when it had no
record of certified mail or of publication. Barger also claims that the two and a half
year delay between the filing of the third party complaint and the time when the City
conceded the lack of service caused unnecessary delay and a needless increase in
the cost of litigation. A review of the record shows that at the hearing, the City’s
attorney gave a professional statement that for the majority of the case, the City was
under the impression that a certified mail document had been sent to Barger. Once
the City realized it had no evidence in the record of proper service, the City agreed
to the consent entry removing the fees from Barger’s real estate taxes.
{¶7} The question before the trial court in this case is not a legal one, but
rather a factual one: Did the City unnecessarily delay the proceedings? Since it is
a factual question, the standard of review is abuse of discretion. The professional
statement of the City’s counsel showed that the City did not act for the improper
purpose of causing unnecessary delay, but rather because the City had a good faith
belief that it had properly served Barger with notice of the need to mow her property.
-7-
Case No. 5-22-30
As the trial court’s determination that the City did not engage in frivolous conduct
is supported by some competent, credible evidence in the record, this Court does
not find it to be an abuse of discretion.
{¶8} Barger also argues that there was a contractual agreement in the consent
entry for the City to pay her attorney fees. This claim is based upon the language
of the entry, which permitted Barger to request a hearing on attorney fees. However,
the specific language does not guarantee attorney fees, but instead states as follows.
Within Sixty (60) days of the filing of this Consent Judgment Entry,
[Barger] may file a request for an award of attorney fees expended in
the defense of this action relative to the Three thousand Three hundred
Eight and 28/100 Dollars ($3,380.28) [sic] that is to be removed from
the tax duplicate, and is not owed by the Defendant property owner
personally to the City, nor shall it be a lien upon the real property. If
such a request is filed, a convenient time for a hearing before the Court
shall be determined by the Court in conjunction with counsel for the
parties.
Doc. 51 at 3. The consent entry does not agree that an attorney fee award will be
granted, only that Barger may request a hearing on the issue. Thus there is no
contractual agreement for the City to pay attorney fees.
{¶9} Having determined that no exception to the American rule is present in
this case, Barger is not entitled to an award of attorney fees. For this reason, the
assignments of error are overruled.
-8-
Case No. 5-22-30
{¶10} Having found no error prejudicial to the Appellant in the particulars
assigned and argued, the judgment of the Court of Common Pleas of Hancock
County is affirmed.
Judgment Affirmed
WALDICK and ZIMMERMAN, J.J., concur.
/hls
-9-