State ex rel. Squire v. Phipps

Citation2023 Ohio 3950
Docket Number23AP-137
Decision Date31 October 2023
PartiesState ex rel. Percy Squire, Relator, v. The Honorable Karen Phipps, Franklin County Court of Common Pleas, Respondent.
CourtUnited States Court of Appeals (Ohio)



State ex rel. Percy Squire, Relator,

The Honorable Karen Phipps, Franklin County Court of Common Pleas, Respondent.

No. 23AP-137

Court of Appeals of Ohio, Tenth District

October 31, 2023

On brief: Percy Squire, pro se.

On brief: G. Gary Tyack, Prosecuting Attorney, and Brian D. Zagrocki, for respondent.



{¶ 1} Relator, Percy Squire, has filed this original action requesting this court issue a writ of prohibition against respondent, Judge Karen Held Phipps of the Franklin County Court of Pleas that: (1) prohibits respondent from holding a prevailing party attorney fees hearing or engaging in any other fee-related proceedings, and (2) vacates, nullifies, and invalidates any action taken by respondent in connection with a prevailing party attorney fees hearing. Relator's cause of action stems from a breach of contract action filed by Donna Keels, L.L.C. ("Donna Keels") against Nofal Foods, L.L.C. ("Nofal Foods") in Donna Keels,


L.L.C. v. Nofal Foods, L.L.C., Franklin C.P. No. 20CV-225.[1] Respondent filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate determined that relator's complaint failed to state a cause of action in prohibition and, accordingly, recommended this court grant respondent's motion to dismiss and dismiss the complaint. It is well established that "[i]n order to dismiss a complaint for a writ under Civ.R. 12(B)(6), it must appear beyond doubt from the complaint, after presuming the truth of all material factual allegations and making all reasonable inferences in favor of the relator, that the relator can prove no set of facts warranting extraordinary relief." State ex rel. Lewis v. Holbrook, 10th Dist. No. 07AP-5, 2007-Ohio-4459, ¶ 7, citing State ex rel Hunter v. Patterson, 75 Ohio St.3d 512, 513-14 (1996).

{¶ 3} In the underlying action,[2] Donna Keels alleged that Nofal Foods, the tenant, had failed to comply with the terms of the lease by not paying "additional rent insurance costs, real estate taxes, landlord's maintenance costs and the landlord's costs, and the landlord's costs to cure Tenant's failure to perform certain nonmonetary obligations." (Case No. 20CV-225, Compl. at ¶ 6.) Nofal Foods filed an answer asserting numerous defenses as well as counterclaims for declaratory judgment, abuse of process, and breach of contract and the covenant of quiet enjoyment. Nofal Foods then filed a motion for summary judgment asking the trial court to dismiss the claims of Donna Keels against Nofal Foods. The trial court issued an entry granting in part and denying in part Nofal Foods' motion for summary judgment; specifically, the trial court granted summary judgment in favor of Nofal Foods on Donna Keels' claims that Nofal Foods had failed to comply with the terms of the lease by not paying additional rent insurance costs and denied summary judgment as to the remaining claims in the complaint.


{¶ 4} Subsequent to the trial court's ruling on summary judgment, on February 21, 2022, Donna Keels voluntarily dismissed "this action without prejudice" pursuant to Civ.R. 41(A). (Case No. 20CV-225.) Three days later, on February 24, 2022, Nofal Foods filed a motion for payment of attorney fees "as the prevailing party." (Case No. 20CV-225 Mot. for Payment at 1.) On March 10, 2022, the trial court reinstated the case noting that the case had been terminated in error after Donna Keels had filed a dismissal pursuant to Civ.R. 41(A) because Nofal Foods still had counterclaims pending. On May 25, 2022, the trial court denied Nofal Foods' motion for attorney fees. On July 11, 2022, Donna Keels filed a motion for an award of attorney fees pursuant to R.C. 2323.51 and Civ.R. 11. On July 22, 2022, Nofal Foods voluntarily dismissed its counterclaims without prejudice pursuant to Civ.R. 41(A). Thereafter, on August 8, 2022, Nofal Foods filed a request for payment of attorney fees under the prevailing party provision of the contract, and under Civ.R. 11, 37, and R.C. 2323.51.

{¶ 5} On October 3, 2022, the trial court denied Donna Keels' request for attorney fees and granted Nofal Foods' request for attorney fees pursuant only to the prevailing party contractual provision and thereafter referred the matter to a magistrate for an evidentiary hearing. The trial court held:

Here, Nofal Foods was granted summary judgment as to two of the three claims brought by Donna Keels, for alleged amounts due under the provisions of the Lease. Donna Keels later dismissed its third claim without proceeding to trial. Nofal Foods later dismissed its counterclaims without proceeding to trial. In total, Nofal Foods was granted judgment as to two of Donna Keels' claims, while Donna Keels was not granted judgment as to any of its claims or Nofal Foods' counterclaims. As a result, the Court finds that Nofal Foods is the prevailing party in this action, as it prevailed on the main, and only, issues which proceeded to adjudication See EAC Props., LLC v. Brightwell, 10th Dist. No 13AP-773, 2014-Ohio-2078, ¶ 13 (courts must look to which party prevailed on the "main issue" in the case). Because Nofal Foods is the prevailing party, Section 20.08 of the Lease requires Donna Keels to pay, among other items, the reasonable attorney fees of Nofal Foods. Therefore, Nofal Foods' Motion for Payment of Attorney Fees is well-taken and is hereby GRANTED.

(Emphasis sic.) (Case No. 20CV-225 Oct. 3, 2022 trial court entry at 3-4.)


{¶ 6} Addressing relator's request for a writ of prohibition, the magistrate cited case law which would support a conclusion that when a notice of voluntary dismissal is filed after summary judgment is entered, a trial court does not lack jurisdiction to consider issues related to a prevailing party, including attorney fees, because the notice of voluntary dismissal is a nullity.[3] The magistrate recognized, however, that summary judgment was granted in favor of Nofal Foods on only part of Donna Keels' breach of contract claims.[4] The magistrate determined that although there may be a genuine question as to whether the common pleas court properly exercised jurisdiction in determining there was a prevailing party, such fact did not lead to the conclusion that the court patently and unambiguously lacked jurisdiction to consider Nofal Foods' prevailing party attorney fee request; rather, the issue was resolvable through appeal.[5]

{¶ 7} Relator has filed four objections to the magistrate's decision. Relator first objects to an assertion made in the second full paragraph on page five of the magistrate's decision:

On February 24, 2022, Nofal filed a motion for attorney fees under both Civ.R. 37 and the terms of the lease agreement as the prevailing party. On July 11, 2022 Nofal filed a notice of voluntary dismissal…

(Relator's Objs. at 1.)

{¶ 8} Relator contends the magistrate "glosses over the fact" that Nofal Foods' February 24, 2022 fee request was denied on May 25, 2022; as such, argues relator, at the time Nofal Foods voluntarily dismissed its counterclaims on July 11, 2022, Nofal Foods had


no pending claim for attorney fees. Relator asserts that Nofal Foods' attorney fees claim was not filed until August 8, 2022.

{¶ 9} We have acknowledged the May 25, 2022 denial of Nofal Foods' February 24, 2022 fee request in our summary of the procedural facts. Nevertheless, the magistrate's omission of the same from the decision does not alter our conclusion that the criteria for prohibition have not been met. We still cannot say that the common pleas court patently and unambiguously lacks jurisdiction.

{¶ 10} Relator next objects to an averment in the first full paragraph on page seven of the magistrate's decision:

Here, relator argues the common pleas court lacks jurisdiction because it is proceeding after voluntary dismissal under Civ.R. 41(A) not on the basis of collateral issues, but on the basis of a determination that there was a prevailing party.

(Relator's Objs. at 2.)

{¶ 11} Relator claims the magistrate misconstrued his argument. Relator maintains he did not file the petition for a writ because respondent proceeded on the basis of a determination that there was a prevailing party; rather, he filed the petition "because following the voluntary dismissal of the action [respondent] did not confine its adjudication of the parties' rights and liabilities to collateral issues, [Civ.R.] 11 and Civ.R. 37, which as collateral issues were the only matters that [respondent] had jurisdiction over following voluntary dismissal. Here [respondent] exercised jurisdiction to make a prevailing party determination after having been divested of jurisdiction by reason of Nofal's voluntary dismissal." (Relator's Objs. at 2.)

{¶ 12} We find no error in the magistrate's interpretation of relator's argument, as it accurately reflects the contention asserted by relator in his complaint for a writ of prohibition:

The upshot of the above authorities is Nofal's fee request as a "prevailing party" did not survive its voluntary dismissal of the action. The trial court was patently and unambiguously without jurisdiction to make a prevailing party fee award after the action was voluntarily dismissed. A fee request under [Civ.] Rules 11 and 37 and R.C. 2323.51, are collateral matters that survive dismissal, however, the Court's October 3, 2022 Order did not grant fees on any basis other than under the "prevailing party" lease provision. The Court's jurisdiction
under the prevailing party provision did not survive voluntary dismissal of

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