[Cite as Barker v. McCoy, 2015-Ohio-3127.]


                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                      PIKE COUNTY

James Barker, et al.,                           :    Case No. 14CA849

        Plaintiffs-Appellees,                   :

        v.                                      :    DECISION AND
                                                     JUDGMENT ENTRY
Dale McCoy, et al.,                             :

        Defendants-Appellants.                  :    RELEASED: 7/29/2015

                                             APPEARANCES:

Thomas M. Spetnagel, Chillicothe, Ohio, for appellants.

J.B. Marshall, Jr., Portsmouth, Ohio, for appellees.


Harsha, J.
        {¶1}    James, Paul and Viola Barker filed a complaint against Dale and Robert

McCoy to quiet title to 50 acres of land in Pike County and seeking damages for theft of

timber. McCoys counterclaimed to quiet title, alleging that they were the fee simple

owners of the disputed 50 acres. Later both sides amended their claims to include

allegations of ownership through adverse possession. After a bench trial the court ruled

in favor of the Barkers and awarded them compensatory and punitive damages, as well

as attorney fees.

        {¶2}    The McCoys assert that the trial court erred when it quieted title to the

disputed property to the Barkers. The McCoys argue that because the Barkers’ surveyor

failed to follow the applicable standards for determining property boundaries, the trial

court erred as a matter of law in considering the survey. The McCoys argue that without

the survey the trial court’s decision is against the manifest weight of the evidence. To
Pike App. No. 14CA849                                                                    2


the extent the McCoys argue that the survey should not have been admitted into

evidence, they forfeited this argument because they offered no objection to it at trial.

And based on the survey there is substantial competent, credible evidence that the

Barkers owned the 50 acres by virtue of their deed. Accordingly, we overrule the

McCoys’ first assignment of error.

        {¶3}   Next the McCoys claim that the trial court erred when it permitted the

Barkers to amend their pleading to conform to the evidence to assert ownership of the

property through adverse possession, and that the court further erred in ruling in the

Barkers’ favor on that claim. Because we affirm the trial court’s finding that the Barkers

were the legal titleholders of the disputed property by deed, this assignment of error is

moot.

        {¶4}   The McCoys’ remaining claims concern the court’s damages award. First,

they contend that there was insufficient evidence to find Robert McCoy individually

liable to the Barkers. However, the record contains substantial competent, credible

evidence of Robert McCoy’s personal involvement in the trespass and tree removal

operation. Therefore, we affirm the trial court’s award of damages against Robert

McCoy, individually. Additionally the record contains competent credible evidence that

Robert McCoy’s conduct was characterized by ill will, a spirit of revenge, and a

conscious disregard for the rights of the Barkers. Therefore, the trial court properly

assessed punitive damages. However, there was no evidence in the record of the

reasonableness of the attorney fees awarded, thus the trial court abused its discretion in

awarding them. We overrule the McCoys’ fourth and fifth assignments of error
Pike App. No. 14CA849                                                                          3


concerning Robert McCoy’s individual liability and punitive damages, but find merit in

the McCoys’ sixth assignment of error concerning the attorney fees award.

                                             I. FACTS

       {¶5}    James, Paul and Viola Barker claim ownership of a 50 acre tract of land in

Pike County, Ohio.1 They assert that James’s father, Floyd Barker, received title to the

land by deed in 1942. The 50 acre tract, which is one of four contiguous parcels owned

by the Barkers, is the only one involved in the dispute. Dale McCoy and his brother

Robert McCoy own a 90 acre tract of land contiguous to the disputed 50 acre tract,

which they also claimed to own. The dispute reached full bloom in late 2001 and early

2002. The Barkers testified that they were considering selling their entire holdings and

had the property surveyed. Dale and Robert McCoy believed that 50 acres belonged to

them and disagreed with the Barkers’ survey. The McCoys decided to commence

harvesting timber on the 50 acres despite the ongoing dispute. The Barkers filed a

lawsuit and sought a preliminary injunction against the McCoys to prevent them from

continuing their timber harvesting operations pending a court decision to determine

ownership of the 50 acres. The trial court granted the Barkers a preliminary injunction

and ultimately awarded them ownership of the 50 acres, compensatory damages

including attorney fees, and punitive damages. The McCoys appealed.

                                II. ASSIGNMENTS OF ERROR

       {¶6}    The McCoys assign the following errors for our review:

        1. The Trial Court Erred In Quieting Title to the Disputed Property in
           Favor of Appellees.



1
 The parties refer to the acreage interchangeably as 49.5 acres and 50 acres. Subsequent surveys have
calculated the acreage to be 53.4454 acres. For consistency, we refer to it as 50 acres.
Pike App. No. 14CA849                                                                 4


       2. The Trial Court Erred In Permitting Appellees to Amend Their
          Pleadings to Conform to the Evidence.


       3. The Trial Court Erred In Finding in Favor of Appellees on Their Claim
          for Adverse Possession.


       4. The Trial Court Erred In Awarding Damages Against Appellee Robert
          McCoy, Individually.


       5. The Trial Court Erred In Awarding Punitive Damages to Appellees.


       6. The Trial Court Erred In Making an Award of Attorney Fees to
          Appellees.

                                 III. LAW AND ANALYSIS

         A. The Evidence Supports Quieting Title by deed in Favor of the Barkers

       {¶7}   In arguing it was error to quiet title in favor of the Barkers, the McCoys

contend that the trial court improperly relied upon the Barkers’ survey evidence because

their surveyor, Hubert M. Crabtree, failed to follow the applicable standards for

boundary surveys. They argue that the Ohio State Board of Registration for

Professional Engineers and Surveyors has established minimum standards for

boundary surveys and that the evidence shows that the Barkers’ surveyor failed to

follow the acceptable principles for resurveying boundary lines. They contend that the

trial court erred as a matter of law in relying on this survey; and without the contested

survey, they further contend the court’s decision to award the property to the Barkers

was against the manifest weight of the evidence.

       {¶8}   The McCoys argue that they are not challenging the weight given by the

trial court to the survey, but rather its admissibility as competent evidence (“the
Pike App. No. 14CA849                                                                     5


dispositive issue does not concern the weight given by the trial court to Appellees’

survey, rather the issue is whether the court erred as a matter of law in considering that

evidence…”). However, in spite of arguing now that the survey should not have been

admitted, they offered no objection to it at trial. The record contains several survey

exhibits, some of which are survey maps prepared by Crabtree. The McCoys stipulated

to Crabtree’s qualifications as an expert witness and did not object to the admission of

any of the survey exhibits prepared by Crabtree. The trial court adopted the legal

description and plat prepared by Crabtree in its decision, attaching a copy as Exhibit A

to the judgment entry.

       {¶9}    A party forfeits any error that arises during the trial court proceedings if

that party fails to bring the error to the court's attention at a time when the trial court

could avoid or correct the error. Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997–

Ohio–401, 679 N.E.2d 1099. A failure to object at trial forfeits all but plain error on

appeal. Id. The plain error doctrine is applicable in civil cases only where the error

“seriously affects the basic fairness, integrity, or public reputation of the judicial

process[.]” Id. at syllabus. Thus, the McCoys forfeited any argument challenging the

admissibility of the survey. Moreover, the McCoys do not assert plain error and we see

nothing in the record concerning the survey evidence indicating the need to apply the

plain error doctrine.

       {¶10} Because Crabtree’s survey was admissible, the trial court properly relied

on it to determine the McCoys owned the 50 acres by virtue of their deed. Therefore, we

overrule the first assignment of error.

                    B. The Barkers’ Amended Claim for Adverse Possession
Pike App. No. 14CA849                                                                 6


       {¶11} The McCoys argue that the trial court erred in allowing the Barkers to

amend their complaint to conform to the evidence to assert an alternative claim of

ownership of the disputed 50 acres by adverse possession. And they assert that the

trial court erred in finding that the Barkers owned the 50 acre tract by adverse

possession. However, we do not address these two assignments of error because they

are moot by virtue of our affirmance of the judgment declaring Barkers to hold title by

virtue of their deed. See App.R. 12(A)(1)(c). We overrule McCoys’ second and third

assignments of error.

                        C. Damages Against Robert McCoy Individually

       {¶12} In their fourth assignment of error, the McCoys argue that the trial court

erred in awarding damages against Robert McCoy in his individual capacity for the harm

the Barkers suffered as a result of the cutting and removal of trees from their property.

They argue that Robert McCoy did not personally cut the trees and, although he

received the proceeds from the sale of the trees, it was in his capacity as Dale McCoy’s

guardian. As a result, they argue that the manifest weight of the evidence does not

support the trial court’s determination that Robert McCoy is individually liable to the

Barkers for damages associated with the wrongful tree cutting operations.

       {¶13} According to the record the parties submitted their evidence concerning

the tree removal claim and damages by filing deposition transcripts, exhibits, and briefs

with the court. After reviewing the parties’ submissions the trial court issued a decision

finding all of the defendants liable to the Barkers on their timber theft claim and awarded

the Barkers compensatory damages in the amount of $23,077.00, punitive damages
Pike App. No. 14CA849                                                                7


pursuant to R.C. 2315.21 in the amount of $11,542.00, and attorney fees in the sum of

$32,831.25, for a total of $67,450.25.

       {¶14} The Barkers alleged that both Dale and Robert McCoy, individually,

claimed an adverse interest in real property owned by the Barkers and that both Dale

and Robert employed two other defendants, Clontz and Montgomery, to wrongfully

cross over upon their lands and to cut timber on the Barkers’ land. The Barkers alleged

that all of the defendants personally engaged in the reckless cutting of trees.

       {¶15} Robert testified that he was personally out on the 50 acres in 2001 when

the timber was cut and that, although he did not personally cut the trees, he was

present to assist with the accounting, “I was just out there counting the trees that come

out and the loads.” He counted approximately ten loads of lumber, with about 20 trees

per load. Proceeds from the sale of the trees were placed into an account and Robert

used the funds to finance the lawsuit, which included Robert’s individual defense and

counterclaim. Robert further testified that he and his son, Robbie McCoy, acted

together to hire co-defendant Chris Clontz to come and cut the trees on the disputed

property. Robert testified several times as being personally involved in the timber cutting

operations, although he was not the person who physically cut the trees. For example,

Robert admits talking to Barker while cutting timber, “The first time I talked to him was

when he came out there when we were cutting. . . . And he started harassing my timber

cutters.” In response to questions concerning the lack of peripheral tree damage in the

area of the tree cutting on the disputed property, Robert affirmed that there was not

much damage and testified to his personal role in the tree cutting, “Because when we
Pike App. No. 14CA849                                                                     8


cut, we try not to damage other trees. We select cut, we don’t clear cut. And we try our

best to have our timber cutters not to damage the surrounding land or trees.”

       {¶16} A person is liable to another for trespass if he intentionally enters the land

in the possession of the other or causes a thing or a third person to do so. Francis v.

Wilson, 4th Dist. Washington App. No. 97CA40, 1999WL33507 (Jan. 25, 1999). Thus,

Robert McCoy does not have to personally enter the land to be liable in trespass. “One

who aids, assists, or advises a trespasser is equally liable with the person actually

making the unprivileged entry upon another’s land.” Id. at *3. In Francis v. Wilson,

Wilson made a similar argument, claiming that he should not be held personally liable

for the tree removal damages to the appellees’ property because the gravel mining that

occurred after the trees were removed was performed by his company, M & J Sand and

Gravel Inc., not him in his individual capacity. We rejected his argument and found that

the record was replete with testimony that he was involved in the operations that

resulted in the trespass onto the plaintiff’s property. In his testimony Wilson did not

differentiate between activities he personally engaged in and those in which his

corporation engaged. And he testified that he personally hired the timber company to

cut down trees on the plaintiff’s property so that gravel mining operation could ensue.

We found that there was plenty of evidence on which the trial court could have based its

conclusion that Gale Wilson was individually liable.

       {¶17} Likewise, here Robert McCoy testified that he was intentionally on the

Barker land, directing the timber cutting operations and counting the trees and loads. He

and his son personally hired Clontz to perform the tree cutting. Robert McCoy benefited

from the proceeds by using a portion to fund his personal legal defense and
Pike App. No. 14CA849                                                                9


counterclaim. Based on our review of the evidence, we find substantial competent,

credible evidence to support the trial court’s finding that Robert McCoy is individually

liable for the damages suffered by the Barkers. We overrule the McCoys’ fourth

assignment of error.

                                      D. Punitive Damages

       {¶18} The McCoys argue that the trial court erred in awarding punitive damages

because the Barkers failed to present competent, credible evidence that the defendants

acted with actual malice.

       {¶19} The trial court awarded punitive damages under R.C. 2315.21, finding that

the defendants’ actions constituted “fraud, malice or insult and especially malice and/or

insult.” In determining the amount of punitive damages, the court held, “The plaintiffs in

this case seek a punitive award of three times the value of the trees inappropriately

taken. This court finds that amount to be excessive. But, the court does find a punitive

award equaling the value of the trees taken at $11,542.00 to be appropriate based on

the record and it is SO ORDERED.”

       {¶20} Interestingly, the Barkers’ complaint sought the award of treble damages

under R.C. 901.51, which provides that whoever “recklessly” cuts down or destroys

trees on the land of another is liable in treble damages.

       “Reckless,” for purposes of this statute, carries the same meaning as provided in
       R.C. 2901.22(C). Wooten v. Knisely (1997), 79 Ohio St.3d 282, 290, 680 N.E.2d
       1245. Thus, “[a] person acts recklessly when, with heedless indifference to the
       consequences, he perversely disregards a known risk that his conduct is likely to
       cause a certain result or is likely to be of a certain nature. A person is reckless
       with respect to circumstances when, with heedless indifference to the
       consequences, he perversely disregards a known risk that such circumstances
       are likely to exist.” R.C. 2901.22(C).
Pike App. No. 14CA849                                                                  10

Spurlock v. Douglas, 4th Dist. Lawrence App. No. 02CA19, 2003-Ohio-570, ¶ 14. Treble

damages under R.C. 901.51 are distinct from punitive damages. Tinney v. Tite, 6th Dist.

Huron No. H–11–006, 2012–Ohio–2347, at ¶ 19. A trial court's determination of

“recklessness” and its decision to award treble damages pursuant to that statute is

reviewed under the general some competent credible evidence “manifest weight of the

evidence” standard of review Spurlock, at ¶ 17, i.e. the burden of proof is by a

preponderance of the evidence.

      {¶21} In order to recover “punitive” damages under R.C. 2315.21, as opposed to

“treble” damages under R.C. 901.51, a plaintiff must prove that the acts or omissions of

the tortfeasor demonstrate malice, fraud, oppression, or insult. R.C. 2315.21(B); Athens

Cty. Regional Planning Comm. v. Simms, 4th Dist. Athens App. No. 05CA15, 2006-

Ohio-2342, ¶ 28. The burden of proof necessary to recover punitive damages is clear

and convincing evidence. R.C. 2315.21(C)(3); Id. In State v. Schiebel, 55 Ohio St.3d 71,

74, 564 N.E.2d 54 (1990) the Supreme Court of Ohio noted:

               The standard of “clear and convincing evidence” is defined as “that
      measure or degree of proof which is more than a mere ‘preponderance of the
      evidence’, but not to the extent of such certainty as is required ‘beyond a
      reasonable doubt’ in criminal cases, and which will produce in the mind of the
      trier of facts a firm belief or conviction as to the facts sought to be established.”

                                            ***

              Where the proof required must be clear and convincing, a reviewing court
      will examine the record to determine whether the trier of facts had sufficient
      evidence before it to satisfy the requisite degree of proof. (Citations omitted.)


Punitive damages do not have to be specially pleaded or claimed as long as there are

sufficient facts alleged in the complaint from which the essential element of malice may

be inferred. Id. at ¶ 30; Lashua v. Lakeside Title & Escrow Agency, 5th Dist. Stark App.
Pike App. No. 14CA849                                                                      11


No. 2004CA237, 2005-Ohio-1728; Civ.R. 15(B); Civ.R. 54(C). Actual malice is “that

state of mind under which a person’s conduct is characterized by hatred, ill will or a

spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons

that has a great probability of causing substantial harm.” Id at ¶ 29 quoting Preston v.

Murty, 32 Ohio St.3d 334, 512 N.E.2d 1172 (1987). Thus, for purposes of determining

treble damages under R.C. 901.51, recklessness is characterized as a “heedless

indifference”, while for purposes of determining punitive damages under R.C. 2315.21,

malice is characterized as a “conscious disregard.


       {¶22} When the Barkers submitted their damages exhibits to the court at trial,

they requested “punitive” damages for theft and intentional trespass in at least three

times the theft of the trees, but did not specifically refer to either R.C. 901.51 or R.C.

2315.21 in their request. In subsequent briefing to the court, the McCoys objected to the

Barkers’ request for punitive or treble damages under R.C. 2315.21, arguing that there

was no evidence of fraud, malice or insult. The Barkers responded and characterized

the damages as “treble” and argued that the court had the ability to “grant treble

damages as it relates to the loss of the trees” and that “evidence as to the value of the

trees was submitted by the Plaintiffs which amount should be tripled by law.”

       {¶23} The Barkers refer to treble damages and punitive damages interchangably

through the course of the litigation. Their complaint contains facts sufficient to infer

malice. In paragraph 5, the Barkers alleged that they advised the defendants that they

were in fact cutting timber on Barker property, but the defendants continued to

recklessly cut down and destroy trees. In paragraph 6, they allege that the defendants

ignored what the Barkers told them and continued to wrongfully sell the timber. Thus,
Pike App. No. 14CA849                                                                   12


the complaint contains sufficient allegations that the defendants’ behavior could be

inferred to constitute conscious disregard for Barkers’ property rights. Additionally, when

the Barkers submitted their request for damages, they specifically requested an award

of punitive damages.

       {¶24} Moreover, the McCoys do not object to the award of punitive damages on

the grounds that they were not properly pleaded or claimed, but on the grounds that the

award was against the manifest weight of the evidence. In response to the McCoys’

argument, the Barkers argue there was sufficient evidence in the deposition testimony

of Robert McCoy for the court to conclude that punitive damages were appropriate.

       {¶25} Robert McCoy testified that, prior to the commencement of the Barker

lawsuit, his brother Dale had hired attorney William Wray Bevens to help the McCoys

establish the boundary lines of their property. Bevens agreed with Crabtree’s survey

concerning the relative location of the McCoys’ and Barkers’ property boundaries.

Robert McCoy testified that Bevens’ agreement with Crabtree’s survey, “was one of the

reasons I pulled him off of this case.” After learning that Dale’s attorney had agreed

with Crabtree’s boundary lines and had suggested they resolve any dispute through the

court, Robert McCoy testified that he contracted with Clontz to cut timber on the

disputed property. He personally walked out onto the property to show Clontz where to

cut, insisting that “the disputed area wasn’t disputed. It’s our land.” McCoy also testified

that he would have disregarded the trial court’s injunction:

       Q. How long did the cutting proceed?

       A. Until these guys got an injunction. If I would have been cutting it, I’d still been
       cutting it because it’s our property.

       Q. You would have ignored the court order?
Pike App. No. 14CA849                                                                 13


       A. Yes, because it is nobody else’s property.

       {¶26} However, McCoy conceded that the tree cutter he hired did comply with

the court order and stopped cutting. There was also evidence in the record that Robert

McCoy confronted the Barkers while McCoy was carrying a gun and told the Barkers

not to use the access road. And that he confronted the Barkers’ surveyor and told him

to leave the disputed property. Crabtree testified that he was run off the property

“violently so.”

       {¶27} After the trial court issued a judgment in favor of the Barkers on their claim

to quite title, Robert McCoy installed a locked gate to prevent the Barkers from

accessing the property, continuing to insist that he owned it:

       Q. Have you erected a gate and put a fence up with a lock on it?

       A. Yes, I did.

       Q. When did you do that?

       *                *          *

       A. We had a cable up first, and they kept driving around the cable. So then I
       erected the gate. We did that when the problems all started.

       Q. What problems?

       A. The problems with the encroachment by the Barkers.

       Q. You realize that there is a Court Order on ordering that that property is their
       property; do you know that?

       A. I could care less about your Court Order, okay.

       Q. So you are not going to take that gate down - -

       A. No, sir.

       Q. - - unless the Court specifically orders you to do so?
Pike App. No. 14CA849                                                                14


       A. If the Court does, he had better have a good reason for doing it. That’s my
       property.

       *             *             *

       Q. If he tells you to take the gate down, you will do so?

       A. No. Why do you want the gate taken down?

       Q. It is our [Barkers’] property. We need access.

       A. No. No.

       {¶28} Because Robert McCoy would not remove the gate, the Barkers filed a

motion for contempt. After the contempt hearing, the court issued an order that

reflected an agreement the parties had reached concerning the gate and fence and

ordered both parties access to the road and a key to the gate. The court reserved a

determination as to the assessment of any costs against the parties until the final verdict

on damages.

       {¶29} The evidence in the record establishes that the McCoys were aware that

an attorney they had hired believed the disputed property belonged to the Barkers, but

they decided to cut timber in the disputed area without seeking a boundary

determination through the court. Even after a preliminary injunction was issued, Robert

McCoy testified that if he were physically cutting the timber, he would have continued to

remove trees and ignored the court order. And, after the property dispute was resolved

in Barkers’ favor, but before the damages portion of the claim was heard, McCoy

installed a fence and locked gate to prevent the Barkers from accessing their property.

We find that these factors establish competent, credible evidence of the McCoys’ ill will

towards the Barkers. Therefore, we find that the trial court’s judgment regarding punitive

damages is supported by the manifest weight of the evidence.
Pike App. No. 14CA849                                                                 15


       {¶30} We overrule the McCoys fifth assignment of error.

                                        E. Attorney Fees

       {¶31} Finally, the McCoys contend that the trial court erred in awarding attorney

fees because the Barkers did not present any evidence of their reasonableness. The

Barkers respond that they presented testimony as to the amount of the attorney fees

billed and produced the bills as an exhibit. The record contains no evidence of any

testimony by an attorney concerning the reasonableness of the fees, nor did the

Barkers produce affidavit testimony from their attorney or an independent attorney in the

community concerning the reasonableness of the fees.

       {¶32} We review the trial court’s award of attorney fees under an abuse of

discretion standard. Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 146, 569

N.E.2d 464 (1991). An abuse of discretion suggests the trial court’s decision is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 464 (1991). An attorney seeking to prove the reasonableness of

attorney fees carries the burden of proof. Merely submitting a copy of billing records will

not suffice. Whitaker v. Kear, 123 Ohio App.3d 413, 424, 704 N.E.2d 317 (4th Dist.

1997); Tipton v. Directory Concepts, Inc., 5th Dist. Richland App. No. 13CA61, 2014-

Ohio-1215, ¶ 18 (attorneys can either offer their own testimony as to the

reasonableness of their fees or present testimony from a disinterested attorney); Grove

v. Gamma Center, 3rd Dist. Marion App. No. 9-12-41, 2013-Ohio-1734, ¶ 31 (“merely

submitting an attorney’s itemized bill is insufficient to establish the reasonableness of

the amount of work billed.”)“[T]he court should consider evidence such as the time and

labor necessary for the service requested, the customary fees in the locality for similar
Pike App. No. 14CA849                                                                 16


services, the results obtained, and the experience, reputation and ability of the

attorney.” Whitaker at 424.

       {¶33} The trial court’s order states that the necessity and reasonableness of the

attorney fees was shown through “the extensive record of the case” and that the

conditions set forth in Brookover v. Flexmag Indus. Inc., infra, have been met. Yet in

Brookover, the trial court held a hearing on the reasonableness of the attorney fees and

heard testimony from at least one of the attorneys handling the case and two other

independent attorneys who served as expert witnesses before awarding attorney fees.

Brookover v. Flexmag Indus. Inc., 4th Dist. Washington App. No. 00CA49, 2002-Ohio-

2404, ¶¶ 216-220.

       {¶34} Here, the Barkers presented no testimony, either through a deposition or

affidavit, to establish the reasonableness of the attorney fees requested. As a result,

even though the trial court’s familiarity with the extensive record would have given it an

understanding of some of the factors that are included in calculating attorney fees, such

as the complexity of the case, the number of witnesses, and the length of the trial, the

trial court had no evidence upon which to determine the reasonableness of the rates

charged. Any award of attorney fees under the circumstances was arbitrary and is

therefore an abuse of discretion.

       {¶35} We affirm the McCoys’ sixth assignment of error and reverse the trial

court’s award of attorney fees.

                                    IV. CONCLUSION

       {¶36} The trial court properly entered judgment for the Barkers on their claim to

quiet title. The trial court’s judgment on Barkers’ alternative legal theory of ownership
Pike App. No. 14CA849                                                             17


through adverse possession, is thereby rendered moot. The trial court properly awarded

damages against Robert McCoy, individually, and properly assessed punitive damages.

However, because there was no evidence offered concerning the reasonableness of the

attorney fees, we reverse the trial court’s award of them in the amount of $32,831.25

and remand with instructions to enter a new judgment denying that award.


                                                          JUDGMENT AFFIRMED, IN
                                                     PART AND REVERSED, IN PART,
                                                                 AND REMANDED.
Pike App. No. 14CA849                                                                  18


                                   JUDGMENT ENTRY


     It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART, AND REMANDED. Appellants and Appellees shall split the costs.
       The Court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this Court directing the Pike
County Court of Common Pleas to carry this judgment into execution.
       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
Abele, J. & *Klatt, J.: Concur in Judgment and Opinion.



                                    For the Court




                                    BY: ________________________________
                                        William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.


* William A. Klatt, J. of the Tenth Appellate District, sitting by assignment in the Fourth
Appellate District.
