McClure v. Fischer Attached Homes
| Decision Date | 05 March 2008 |
| Docket Number | No. 2006 CVH 1807.,2006 CVH 1807. |
| Citation | 889 N.E.2d 602,146 Ohio Misc.2d 57,2008 Ohio 2676 |
| Parties | McCLURE et al., Plaintiffs, v. FISCHER ATTACHED HOMES et al., Defendants. |
| Court | Ohio Court of Common Pleas |
{¶ 1} This cause is before the court on separate motions for attorney fees filed by the defendants Mark Wilder and Mort Simpson. Upon consideration of the oral arguments of the parties, the evidence presented in the pending case, and pursuant to the Relief from Stay issued by the bankruptcy court, the court now renders the following decision.
{¶ 2} The first action that the plaintiffs filed in the Clermont County Court of Common Pleas occurred on January 6, 2006, in case number 2006 CVH 0027, and was premised upon an increase in homeowners' association fees that the plaintiffs felt they were not obligated to pay. The defendant Villas in the Park Homeowners' Association filed a counterclaim/third-party complaint against the plaintiffs for past-due fees and moved to foreclose on the plaintiffs' home. The defendant then filed a motion for summary judgment on the plaintiffs' claims, as well as on their counterclaim/third-party complaint against the plaintiffs, and the court granted their motion on December 22, 2006.
{¶ 3} On January 12, 2006, while case number 2006 CVH 0027 was pending, the plaintiffs filed a lien in the Clermont County Recorder's Office on Mort Simpson's personal residence, located at 1238 Villa Parke, Amelia, Ohio, allegedly as a result of both Simpson's cutting down and removing trees from behind the plaintiffs' residence and the defendants' failure to render services. The plaintiffs alleged that Simpson owes an estimated $20,000 for services not rendered and for damages.
{¶ 4} While the motion for summary judgment was pending in case number 2006 CVH 0027, the plaintiffs brought the present action, case number 2006 CVH 180, against the defendants, alleging malicious prosecution. The court rendered a decision on the record on April 6, 2007, granting Wilder's motion for summary judgment and Simpson's motion to dismiss. Final judgments memorializing this decision were filed on April 17, 2007. Wilder then filed a motion for attorney fees on May 15, 2007.
{¶ 5} Included within Simpson's motion to dismiss were four counterclaims against the plaintiffs. The defendants sought summary judgment on all counterclaims against the plaintiffs. Those counterclaims consisted of the following: (1) a claim to quiet title, (2) a claim for slander of title, (3) a claim for fraudulent filing of a mechanic's lien, and (4) an action requesting that this court declare the plaintiffs vexatious litigators. In a written decision filed on October 29, 2007, the court granted summary judgment as to the defendant's first counterclaim and quieted Simpson's title. The court denied summary judgment as to the remaining counterclaims, and those claims are pending. Simpson then filed his motion for attorney fees on January 24, 2008, requesting an award of fees for the counterclaim upon which the court granted summary judgment.
{¶ 6} The court notes that the plaintiffs filed bankruptcy in the United States Bankruptcy Court, Southern District of Ohio, Cincinnati Division, case Number 1:07-bk-12680, while Simpson's motion for summary judgment and Wilder's motion for attorney fees were pending. All proceedings in Clermont County were stayed at that point, pending the outcome of the bankruptcy. The court was notified on October 9, 2007, that Simpson had obtained a Relief from Stay of Bankruptcy, as evidenced by the October 2, 2007 Order Granting Amended Motion for Relief from the Automatic Stay issued by the bankruptcy court. The court then received, on December 21, 2007, a motion to reactivate the case as to Wilder's pending motion for attorney fees. Attached was an order from the bankruptcy court stating that Wilder's claims were related to those of Simpson and the homeowner's association; therefore, the automatic stay was lifted as to Wilder as well.
{¶ 7} Wilder's motion for attorney fees is premised upon R.C. 2323.51, which provides 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, reasonable attorney's fees, and other reasonable expenses incurred in connection with the civil action or appeal." R.C. 2323.51(B)(1). Frivolous conduct is defined as conduct that:
(1) serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including * * * causing unnecessary delay or a needless increase in the cost of litigation;
(2) 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;
(3) 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; or
(4) 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. R.C. 2323.51(A)(2)(a)(i), (ii), (iii), and (iv).
{¶ 8} Further, a motion for an award of attorney fees under R.C. 2323.51 must be decided only upon the evidence presented at the hearing and not the evidence attached to the motion. Murrell v. Williamsburg Local School Dist. (1993), 92 Ohio App.3d 92, 96, 634 N.E.2d 263, citing Pisanick-Miller v. Roulette Pontiac-Cadillac GMC, Inc. (1991), 62 Ohio App.3d 757, 761, 577 N.E.2d 446. However, the statute does not obligate the parties to present into evidence documents and proceedings already in the record. Id., citing State ex rel. Freeman v. Wilkinson (1992), 64 Ohio St.3d 516, 517-518, 597 N.E.2d 126, and State ex rel. Ward v. The Lion's Den (Nov. 25, 1992), Ross App. No. 1867, 1992 WL 487197.
{¶ 9} Wilder argues that the plaintiffs' complaint for malicious prosecution and pursuit of their case in this court served merely to harass and maliciously injure the defendant, causing a needless increase in costs, and in hopes of causing a delay or ceasing of the underlying foreclosure action in case No. 2006 CVH 0027. He further argues that the plaintiffs' pursuit of this case was and continues to be unwarranted under the existing law and cannot be supported by a good-faith argument for modification of the existing law or establishment of a new law. He also asserts that the allegations in the complaint alleging that he engaged in illegal conduct, including conspiring with other defendants to illegally foreclose on the plaintiffs' home, was not supported by the evidence. Finally, Wilder argues that the plaintiffs' contentions in the complaint, motions, and other briefs were never warranted by the evidence. He asserts that the plaintiffs used this lawsuit as a vehicle for venting their dissatisfaction with the outcome of case No. 2006 CVH 0027.
{¶ 10} The plaintiffs responded on June 4, 2007, alleging that the defendants in case No. 2006 CVH 0027, also the defendants in this case, have continued "Illegal and Unethical Malicious Prosecution, Persecution, Harassment, Criminal Mischief, and Mayhem!"1 They further allege that the "Defendant's [sic] have also illegally opened up past * * * litigation causing even more prejudice to plaintiffs case also, even though defendants themselves are the ones who have violated over two injunctions, refused jury trials 19 times, and over 27 filings in losing this case, forcing plaintiffs to comment on it at times since they allude to it so much * * *."2 The court notes that much of the plaintiffs' response, as well as the complaint, refers to the plaintiffs' dissatisfaction with case No. 2006 CVH 0027 and the fact that the plaintiffs were unable to attend the oral argument on summary judgment in that case due to McClure's medical incapacitation. The plaintiffs feel that this constituted an ex parte communication between the defendants and the court. The court also notes that the plaintiffs' conclusion to their response sums up their purpose for filing this lawsuit: "As you can see the plaintiffs had the legal moral right to sue Mark Wilder and any and all defendants for breaking over two contracts * * * and over 14 pages of federal and Ohio laws plus many civil rights law and more, * * * the man is sick he should be disbarred from the `Bar Association.'"3
{¶ 11} The first requirement that the defendant must establish in order to recover attorney fees is that his motion was filed within 30 days of the final judgment entry. R.C. 2323.51(B)(1). The final judgment entry was entered on April 17, 2007. The defendant filed his motion for attorney fees on May 15, 2007, 28 days after final judgment was entered in the case. Therefore, the court finds that the defendant filed his motion within the time period required by the statute.
{¶ 12} The court must now determine whether the plaintiffs' actions constitute "frivolous conduct" under R.C. 2323.51. The first definition involves conduct that serves merely to harass or maliciously injure another party to the civil action or is for another improper purpose, including causing unnecessary delay or a needless increase in the cost of litigation. The court cannot be certain that the plaintiffs' conduct served merely to harass or injure the defendant. Further, it is unclear whether the plaintiffs filed this action for an improper purpose, such as causing unnecessary delay or a needless increase in the cost of...
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