[Cite as Bilbaran Farm, Inc. v. Sandusky St. Invests., L.L.C., 2018-Ohio-299.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 BILBARAN FARM, INC.                                    :    JUDGES:
                                                        :
                                                        :    Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                             :    Hon. John W. Wise, J.
                                                        :    Hon. Craig R. Baldwin, J.
 -vs-                                                   :
                                                        :    Case No. 17 CAE 06 0042
                                                        :
 SANDUSKY STREET INVESTMENTS,                           :
 LLC.                                                   :
                                                        :
                                                        :
        Defendant-Appellee                              :    OPINION


CHARACTER OF PROCEEDING:                                    Appeal from the Delaware County Court
                                                            of Common Pleas, Case No. 16-CVH-
                                                            11-0703



JUDGMENT:                                                   AFFIRMED




DATE OF JUDGMENT ENTRY:                                     January 24, 2018




APPEARANCES:

 For Plaintiff-Appellant:                                    For Defendant-Appellee:

 WILLIAM PAUL BRINGMAN                                       H. RITCHEY HOLLENBAUGH
 7100 North High Street, Suite 101                           RYAN S. BUNDY
 Worthington, OH 43085-2316                                  366 East Broad Street
                                                             Columbus, OH 43215
Delaware County, Case No. 17 CAE 06 0042
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Delaney, J.

          {¶1} Plaintiff-Appellant Bilbaran Farm, Inc. appeals the May 25, 2017 judgment

entry of the Delaware County Court of Common Pleas.

                          FACTS AND PROCEDURAL HISTORY

          {¶2} Defendant-Appellee Sandusky Street Investments, Inc. is the fee-simple

owner of property located at 17 West William Street in Delaware, Ohio. Plaintiff-Appellant

Bilbaran Farm, Inc. is the fee-simple owner of property located at 18 South Sandusky

Street in Delaware, Ohio. Both parties are subject to a July 30, 2001 easement agreement

where the 17 West William Street parcel would have a non-exclusive easement for

ingress and egress as well as limited parking over certain portions of the 18 South

Sandusky Street in return for an annual $300.00 payment.

          {¶3} On November 26, 2016, Bilbaran filed a complaint against Sandusky in the

Delaware County Court of Common Pleas alleging Sandusky failed to make the $300.00

easement payment for the 2016 calendar year. The complaint also sought declaratory

judgment that the easement was void and cancelled.

          {¶4} Sandusky filed an answer and counterclaim on December 28, 2016.

Sandusky alleged that on December 8, 2016, it sent a letter to Bilbaran along with two

$300.00 easement checks for the 2016 and 2017 calendar years. In its counterclaim,

Sandusky sought declaratory judgment asking the trial court to affirm the validity of the

easement or, if the trial court determined the easement was void, to determine that

Sandusky was entitled to an easement by necessity over portions of 18 South Sandusky

Street.
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       {¶5} Bilbaran voluntarily dismissed its complaint without prejudice on January

13, 2017.

       {¶6} On January 31, 2017, Bilbaran filed a motion for extension to respond to

Sandusky’s answer and counterclaim. The trial court granted the motion.

       {¶7} On February 27, 2017, Bilbaran filed a motion to dismiss pursuant to Civ.R.

12(B)(6) in lieu of an answer. Sandusky voluntarily dismissed its answer and counterclaim

two days later.

       {¶8} On March 25, 2017, Bilbaran filed a motion seeking sanctions against

Sandusky pursuant to R.C. 2323.51. In its motion, Bilbaran contended that Sandusky’s

counterclaim (1) was not supported by the evidence, (2) was merely meant to harass the

plaintiff and increase the cost of litigation, and (3) was not warranted under existing law.

       {¶9} On May 19, 2017, the trial court held an evidentiary hearing. The only

witness at the hearing was counsel for Sandusky. Counsel testified the counterclaim was

filed to preserve Sandusky’s right to utilize the easement. Bilbaran requested in its

complaint that the trial court declare the easement void. In the event the trial court found

the easement void, Sandusky requested the trial court find the easement existed by

necessity. While Bilbaran dismissed its complaint, counsel testified he was not confident

Bilbaran would accept the tendered easement payments and concerned that Bilbaran

would refile the complaint. It was for these reasons Sandusky was reluctant to dismiss its

counterclaim after Bilbaran voluntarily dismissed its complaint. After Bilbaran filed its

motion to dismiss, counsel consulted with Sandusky and determined the cost of pursuing

the counterclaim at that time outweighed the need to proceed with the counterclaim.

Sandusky’s counterclaim was then dismissed.
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       {¶10} On May 25, 2017, the trial court denied Bilbaran’s motion for sanctions.

       {¶11} It is from this judgment Bilbaran now appeals.

                               ASSIGNMENT OF ERROR

       {¶12} Bilbaran raises one Assignment of Error:

       {¶13} “THE TRIAL COURT ERRED IN DENYING THE MOTION OF APPELLANT

FOR    A   FRIVOLOUS       CONDUCT        SANCTIONS       AGAINST      DEFENDANT,        ITS

ATTORNEYS AND ITS ATTORNEYS’ LAW FIRM HEREIN.”

                                        ANALYSIS

       {¶14} Bilbaran contends in its sole Assignment of Error that the trial court erred in

denying its request for sanctions pursuant to R.C. 2323.51. We disagree.

       {¶15} Bilbaran based his frivolous conduct motion on R.C. 2323.51(B)(1), which

states as follows:

       Subject to divisions (B)(2) and (3), (C), and (D) of this section and except

       as otherwise provided in division (E)(2)(b) of section 101.15 or division

       (I)(2)(b) of section 121.22 of the Revised Code, 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. The court may assess

       and make an award to any party to the civil action or appeal who was

       adversely affected by frivolous conduct, as provided in division (B)(4) of this

       section.
Delaware County, Case No. 17 CAE 06 0042
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       {¶16} Frivolous conduct is statutorily 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, but not limited to, causing unnecessary delay or a needless

increase in the cost of litigation; (2) conduct that is not warranted under existing law, or

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; or (3) conduct that consists of allegations that have no evidentiary support.

Carbone v. Nueva Construction Group, L.L.C., 8th Dist. Cuyahoga No. 103942, 2017–

Ohio–382, ¶ 21, citing R.C. 2323.51(A)(2)(a).

       {¶17} We have recognized that “[n]o single standard of review applies in R.C.

2323.51 cases.” Croxton v. Maggiore, 5th Dist. Stark No. 2016CA00165, 2017–Ohio–

1535, ¶ 68, citing Wiltberger v. Davis, 110 Ohio App.3d 46, 51, 673 N.E.2d 628 (10th

Dist.1996). A determination that the conduct is not warranted under existing law and

cannot be supported by a good faith argument for an extension, modification, or reversal

of existing law requires a legal analysis. Croxton, supra, citing Ferron v. Video Professor,

Inc., 5th Dist. Delaware No. 08–CAE–09–0055, 2009–Ohio–3133, ¶ 44. With respect to

purely legal issues, we follow a de novo standard of review and need not defer to the

judgment of the trial court. Id. However, we do find some degree of deference appropriate

in reviewing a trial court's factual determinations and will not disturb such factual

determinations where the record contains competent, credible evidence to support such

findings. Id. A trial court's decision on whether to actually award sanctions under R.C.

2323.51 is reviewed under a standard of abuse of discretion. See State ex rel. Striker v.

Cline, 130 Ohio St.3d 214, 957 N.E.2d 19, 2011–Ohio–5350, ¶ 11.
Delaware County, Case No. 17 CAE 06 0042
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       {¶18} We have reviewed the record in this case and find the trial court’s May 25,

2017 judgment entry denying Bilbaran’s request for sanctions thoroughly analyzed each

of Bilbaran’s arguments.

       {¶19} Bilbaran first argued Sandusky’s counterclaim stating it was entitled to an

easement was not supported by the evidence. The trial court rejected this argument

because the facts established that counsel permissibly relied upon the representations of

its client that without the easement, its property would be landlocked. “It is not frivolous

conduct for an attorney to reasonably rely on the representations of his or her client.”

Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857, ¶ 31 (1st Dist.).

       {¶20} Bilbaran next argued Sandusky’s counterclaim merely served to harass

Bilbaran by causing unnecessary delay or a needless increase in the cost of litigation.

The trial court found Bilbaran failed to present any evidence to support his argument.

Further, the counterclaim was supported by law because counsel testified he filed the

counterclaim to preserve Sandusky’s right to the easement. Sandusky ultimately chose

to dismiss the counterclaim when considering the costs of litigation.

       {¶21} Bilbaran finally argued Sandusky’s counterclaim was on its face frivolous

because it did not sufficiently satisfy the elements for a declaratory judgment. The trial

court examined Sandusky’s claim that it was entitled to a declaration the easement was

valid, or in the alternative, it was entitled to an easement by necessity. Pursuant to R.C.

2721.02 and Civ.R. 8(A), the trial court found Sandusky’s counterclaim met the procedural

requirements for declaratory judgment and a counterclaim.

       {¶22} We have the reviewed the record and upon our consideration of the trial

court’s factual determinations and legal conclusions under our somewhat blended
Delaware County, Case No. 17 CAE 06 0042
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standard of review, we find no error by the trial court to deny Bilbaran’s request for

sanctions.

       {¶23} Bilbaran’s sole Assignment of Error is overruled.

                                    CONCLUSION

       {¶24} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

J. Wise, J. and

Baldwin, J., concur.
