Michael Lisath v. James Cochran
| Decision Date | 12 January 1994 |
| Docket Number | 93CA18,94-LW-2514 |
| Parties | Michael Lisath, et al., Plaintiffs-Appellants v. James Cochran, et al., Defendants-Appellees Case |
| Court | Ohio Court of Appeals |
Southeastern Ohio Legal Services Program, Richard E. Wolfson and Mark J Cardosi, Portsmouth, Ohio, for Appellants.
Moore Wolfe & Bentley, Richard F. Bentley, Ironton, Ohio, for Appellees.
DECISION
Michael and Patricia Lisath appeal from a judgment of the Lawrence County Court of Common Pleas ordering their counsel, Southeastern Ohio Legal Services Program (SOLSP) to pay James and Mary Cochran $2,317.25 in attorney's fees, expenses and costs.[1] Appellants assign two errors:
The record reveals the following pertinent facts. The parties are property owners in Upper Township, Lawrence County, Ohio. During the summer of 1989, appellees erected a fence on their property. Appellants believed that the fence encroached on an access easement to their property thereby obstructing the right-of-way to their home. Appellants sought the assistance of SOLSP which filed a complaint on July 31, 1990, alleging a continuing trespass and interference with property rights. Appellants sought an order to remove the fence, a permanent injunction against the erection of any further obstruction and $50,000 in compensatory and punitive damages. Appellees filed an answer admitting the existence of the fence but denying that it interfered with any legal easement or right-of-way held by appellants.
Appellants had difficulty substantiating their claims from the outset of this case. On September 5, 1990, the court's referee recommended that a motion for preliminary injunction be denied for lack of sufficient evidence of any easement or right-of-way over appellees' property. The trial court overruled subsequent objections and adopted the referee's position. On August 2, 1991, appellees moved for summary judgment attaching a survey plat and affidavit by Robert L. Rowe, a duly licensed professional surveyor, which revealed that the fence did not encroach on any easement held by appellants. Appellants did not file an affidavit or memorandum in opposition. The referee's report indicates that appellants conceded the absence of any genuine factual dispute.[2] The referee then recommended that summary judgment be granted.
Contemporaneously with their motion, appellees also moved for sanctions under Civ.R. 11 against SOLSP arguing that counsel wrongfully failed to investigate the matter and conduct a survey of the real estate prior to commencing suit. Appellees sought reimbursement of fees and expenses which, they argued, would never have been incurred if SOLSP had conducted a survey. The referee found no "malicious" conduct and recommended that the request for Civ.R. 11 sanctions be denied.
Both parties objected to the referee's report and recommendations. On December 4, 1991, the court below entered judgment overruling appellants' objections and sustaining those made by appellees. The lower court awarded attorneys' fees and surveyor costs based on its "inherent *** and *** equitable power(s) to make the parties whole[.]" Appellees were then ordered to submit a new motion and affidavit outlining those fees and costs being sought. Although this portion of the judgment entry was quite explicit, the trial court never expressly adopted the referee's recommendation of summary judgment.
Appellees filed materials regarding attorney's fees and costs and on February 4, 1992, the trial court ordered SOLSP to reimburse appellees for $2,317.25 in attorney's fees, surveying expenses and transcript costs. This court dismissed appellants' appeal because the trial court's failure to explicitly grant or deny summary judgment in its entry rendered the order for attorney's fees neither final nor appealable. Lisath v. Cochran (Apr. 15, 1993), Lawrence App. No. 92CA5, unreported. On May 17, 1993, the trial court expressly granted summary judgment and dismissed appellants' complaint. The lower court also repeated its order that SOLSP reimburse appellees' attorney's fees and costs.
We first consider the second assignment of error in which SOLSP argues that the lower court improperly ordered it to pay the $325 survey fees incurred by appellees. We agree. The general consensus is that the expense of surveying real property cannot be taxed as costs against a losing party without specific authority to do so. See, generally, 20 Corpus Juris Secundum (1990), Costs, Section 105; Annotation (1964), 97 A.L.R.2d 138, 177-184. This court recently concluded that there is no such authority under Ohio law and that survey expenses could not be taxed as costs. See Howard v. Wills (1991), 77 Ohio App.3d 133, 139. Accordingly, we sustain the second assignment of error.
In the first assignment of error, SOLSP argues that the lower court improperly ordered it to pay $1,976.25 in attorney's fees incurred by appellees. Ohio follows the so-called "American rule" which precludes a prevailing party from recovering attorney's fees as part of the cost of litigation absent specific statutory authorization to do so. See, generally, Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 556; Gahanna v. Eastgate Properties Inc. (1988), 36 Ohio St.3d 65, 66; Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177, 179. In other words, an award of attorney's fees must generally be sanctioned by some sort of statutory authority.
Recovery of attorney's fees is permitted under R.C. 2323.51 for frivolous conduct in any civil action, see, e.g., Estep v. Kasparian (1992), 79 Ohio App.3d 313, 317, and such recovery is also permitted for willful violations of Civ.R. 11. See Gordon Food Serv. Inc. v. Hot Dog John's Inc. (1991), 76 Ohio App.3d 105, 112-113.[3] The lower court, however, did not rely on these or any other statutory provisions to grant attorney's fees in this case. Instead, the court based the award on its "inherent power and its equitable power to make the parties whole ***." The lower court cites no authority in support of this deviation from the general rule and the parties themselves provide little explanatory guidance in their briefs.
Our own research indicates that there are, indeed, exceptions to the strictures of the "American rule." The courts in this state have long allowed for recovery of attorney's fees in the absence of statutory authorization where punitive damages are proper. See, e,g,, Digital & Analog Design Corp. v. North Supply Co. (1992), 63 Ohio St.3d 657, 664; Columbus Finance v. Howard (1975), 42 Ohio St.2d 178, 183. Attorney's fees may also be awarded when the opposing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. See, e.g., Russell v. Smith (1992), 81 Ohio App.3d 784, 787; Consun Food Industries, Inc. v. Fowkes (1991), 81 Ohio App.3d 63, 72. We need not determine whether courts possess some other type of "inherent power" to order attorney's fees because we believe the facts of this case support an award of attorney's fees under this exception.
When reviewing an award of attorney's fees under these exceptions, a reviewing court will not reverse the award unless the trial court abused its discretion. Russell, supra, at 788; Kemp, Schaeffer & Rowe Co.. L.P.A. v. Frecker (1990), 70 Ohio App.3d 493, 497. An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the court that is unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506; Wilmington Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122. When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 169. Above all, a reviewing court should be guided by a presumption that the findings of a trial court are correct, since the trial judge "*** is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use their observations in weighing the credibility of the proffered testimony." Jane Doe 1, supra, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80.
Filing a civil action maliciously and without probable cause may constitute acting in bad faith, vexatiously, wantonly, or for oppressive reasons, thus making an award of attorney's fees proper. See Kemp. Schaeffer & Rowe, supra, at 496, biting Broughman v. Breyfogle-Schaaf Partnership (Mar. 29, 1984), Franklin App. No. 83AP-1145, unreported.
In this case, SOLSP filed a complaint alleging trespass without first conducting a survey to determine whether appellees' fence did actually encroach on appellants' property. More relevant, we believe, is the fact that SOLSP did not voluntarily dismiss the complaint after the surveyor hired by SOLSP confirmed that appellees' fence did not interfere with appellants' property rights.
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