[Cite as Cooke v. Logan Insulating & Foam Serv., L.L.C., 2016-Ohio-1424.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



ANDREW P. COOKE                                  :            JUDGES:
                                                 :            Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                       :            Hon. William B. Hoffman, J.
                                                 :            Hon. Craig R. Baldwin, J.
-vs-                                             :
                                                 :
LOGAN INSULATING AND                             :            Case No. 15-CA-47
FOAM SERVICE, LLC, ET AL.                        :
                                                 :
        Defendants-Appellants                    :            OPINION




CHARACTER OF PROCEEDING:                                      Appeal from the Court of Common
                                                              Pleas, Case No. 2013CV121




JUDGMENT:                                                     Reversed and Remanded




DATE OF JUDGMENT:                                             March 31, 2016




APPEARANCES:

For Plaintiff-Appellee                                        For Defendants-Appellants

ANDREW P. COOKE                                               SAMIR B. DAHMAN
260 Market Street                                             10 West Broad Street
Suite F                                                       Suite 1900
New Albany, OH 43054                                          Columbus, OH 43215
Fairfield County, Case No. 15-CA-47                                                         2

Farmer, P.J.

       {¶1}    On May 20, 2012, appellant, Logan Insulating and Foam Service, LLC, and

appellee, Andrew Cooke, entered into a contract whereby appellant would provide

insulating material and labor to appellee's home. The estimated cost for the project was

$8,000. Appellee paid a fifty percent deposit of $4,000 via a credit card. A dispute arose

as to the work performed and the contract was terminated on June 1, 2012. Thereafter,

appellant charged appellee's credit card $7,350. Appellee disputed the charge with his

credit card company, but the dispute was denied.

       {¶2}    On June 29, 2012, appellant recorded a mechanic's lien against appellee's

home in the amount of $7,800.

       {¶3}    On February 6, 2013, appellee filed a complaint against appellant and its

agent, David Kornmiller, claiming breach of contract, civil theft pursuant to R.C. 2307.60,

slander of title, action to void and release invalid and fraudulent mechanic's lien, action to

quiet title, and violations of the Ohio Consumer Sales Practices Act (hereinafter "CSPA").

       {¶4}    On May 15, 2013, appellants released the mechanic's lien.

       {¶5}    On December 20, 2013, appellee filed a motion for summary judgment on

his claims for civil theft, slander of title, and violations of the CSPA. By entry filed April

30, 2014, the trial court denied the motion.

       {¶6}    A jury trial commenced on November 18, 2014. The jury found in favor of

appellants on appellee's claims for breach of contract, civil theft, slander of title, and

violations of the CSPA. By judgment entry filed November 21, 2014, the trial court entered

judgment for appellants on these claims and ordered appellee to pay costs.
Fairfield County, Case No. 15-CA-47                                                      3


       {¶7}   On December 18, 2014, appellants filed a motion for hearing on attorney's

fees and costs to determine what appellee owed appellants under R.C. 2307.61(B) and

the November 21, 2014 judgment entry. By judgment entry filed February 3, 2015, the

trial court denied the motion.

       {¶8}   By entry filed August 3, 2015, the trial court dismissed appellee's action to

void and release invalid and fraudulent mechanic's lien and action to quiet title.

       {¶9}   Appellants filed an appeal of the trial court's February 3, 2015 judgment

entry, and this matter is now before this court for consideration. Assignments of error are

as follows:

                                             I

       {¶10} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO

AWARD COSTS AND REASONABLE ATTORNEY'S FEES TO DEFENDANTS-

APPELLANTS ('APPELLANTS') PURSUANT TO R.C. § 2307.61(B) GIVEN THAT

PLAINTIFF-APPELLEE ('APPELLEE') BROUGHT A CIVIL THEFT CLAIM UNDER R.C.

§§ 2307.60 AND 2307.61(A)(2), ATTEMPTED TO COLLECT HIS COSTS AND

ATTORNEY'S FEES IN A MOTION FOR SUMMARY JUDGMENT, WHICH THE TRIAL

COURT DENIED, AND THE JURY UNANIMOUSLY REJECTED APPELLEE'S CIVIL

THEFT CLAIM."

                                             II

       {¶11} "TO THE EXTENT THAT THE TRIAL COURT DID AWARD STATUTORY

ATTORNEY'S FEES AS COSTS IN ITS JUDGMENT ENTRY, THE TRIAL COURT

ERRED BY FAILING TO CLEARLY DEFINE THE COSTS ASSESSED AGAINST

APPELLEE AND INCLUDE ATTORNEY'S FEES THEREIN."
Fairfield County, Case No. 15-CA-47                                                        4


                                             I, II

       {¶12} Appellants' two assignments of error challenge the trial court's denial of

attorney's fees and will be addressed collectively.

       {¶13} Appellants claim they are entitled to attorney's fees on appellee's R.C.

2307.60 civil theft claim under R.C. 2307.61(B).         During oral argument, appellants

requested that the case be remanded to the trial court for a hearing to determine what

attorney's fees are applicable to the civil theft claim. We agree.

       {¶14} R.C. 2307.61(B) states the following:



              If a property owner who brings a civil action pursuant to division (A)

       of section 2307.60 of the Revised Code to recover damages for willful

       damage to property or for a theft offense attempts to collect the reasonable

       administrative costs, if any, of the property owner that have been incurred

       in connection with actions taken pursuant to division (A)(2) of this section,

       the cost of maintaining the civil action, and reasonable attorney's fees under

       authority of that division and if the defendant prevails in the civil action, the

       defendant may recover from the property owner reasonable attorney's fees,

       the cost of defending the civil action, and any compensatory damages that

       may be proven.



       {¶15} Appellants argue appellee specifically made a claim for attorney's fees and

costs on his civil theft claim in his complaint filed February 6, 2013 at ¶ 39: "On or about

June 2, 2012, Defendant Logan charged Plaintiff's credit card $3,350.00 above the
Fairfield County, Case No. 15-CA-47                                                        5


authorized $4,000.00 and is liable for damages pursuant to R.C. 2307.61." Appellee

demanded judgment for "[a]ll recovery allowed pursuant to R.C. 2307.61."

         {¶16} Appellants also argue in appellee's December 20, 2013 motion for summary

judgment, he prayed for attorney's fees and costs on his civil theft claim. In his motion at

pages 8-10, appellee specifically claimed his right of action under R.C. 2307.60(A)(1) and

R.C. 2307.61.

         {¶17} The jury instructions filed by the trial court on November 20, 2014 includes

a charge for "Civil Theft." A specific jury interrogatory (Jury Interrogatory 6) was filed on

the civil theft claim and was answered in the negative. A specific verdict form on the civil

theft claim in favor of appellants was entered by the jury.

         {¶18} The docketed evidence in this case establishes that appellee sought a claim

for damages, including attorney's fees and costs, for civil theft under R.C.2307.60/61, and

pursued that claim via summary judgment and a jury trial. The jury rejected appellee's

claim for damages under said statute and found for appellants.

         {¶19} We find all of the conditions of R.C. 2307.61(B) have been fulfilled. It is

clear that because other claims were tried to the jury (breach of contract, slander of title,

violation of the CSPA), not all the attorney's fees may be attributable to the civil theft

claim.

         {¶20} The assignments of error are granted, and the matter is remanded to the

trial court to conduct a hearing to determine what attorney's fees, if any, are solely

attributable to the civil theft claim. In addition, the trial court should address the amount

of costs assessed to appellee.

         {¶21} Assignments of Error I and II are granted.
Fairfield County, Case No. 15-CA-47                                              6


       {¶22} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby reversed, and the matter is remanded to said court for further proceedings

consistent with this opinion.

By Farmer, P.J.

Hoffman, J. and

Baldwin, J. concur.




SGF/sg 317
