[Cite as Hardin v. Naughton, 2013-Ohio-2913.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 99182



                                 KATHIE M. HARDIN
                                                      PLAINTIFF-APPELLEE

                                                vs.


                       MICHAEL NAUGHTON, ET AL.

                                                      DEFENDANTS-APPELLANTS




                                          JUDGMENT:
                                           AFFIRMED


                                    Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-735851

        BEFORE:          Boyle, P.J., Celebrezze, J., and Jones, J.

        RELEASED AND JOURNALIZED:                     July 3, 2013
ATTORNEYS FOR APPELLANTS

Patrick F. Roche
Davis & Young
1200 Fifth Third Center
600 Superior Avenue, E.
Cleveland, Ohio 44114

Sean P. Allan
Allan & Gallagher, L.L.P.
1300 Rockefeller Building
614 West Superior Avenue
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Robert P. Ducatman
Sheryl H. Love
Jones Day
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
MARY J. BOYLE, P.J.:

           {¶1} Defendant-appellants, Michael and Rusty Naughton (“the Naughtons”)

appeal the trial court’s decision denying their motion for attorney fees, raising the

following assignment of error:

           The trial court improperly denied defendants-appellants’ motion for award
           of reasonable attorney fees and expenses.

           {¶2} Finding no merit to the appeal, we affirm.

                                   Procedural History and Facts

           {¶3} The underlying case involves a contentious battle between next-door

neighbors with lakefront property. Following the Naughtons’ installation of playground

equipment, planting of maple trees and side yard vegetation, plaintiff-appellee, Kathie

Hardin — their next-door neighbor –– filed the underlying action against them.1 In her

complaint, she asserted three counts and alleged the following: (1) that the Naughtons’

swing set was a nuisance; (2) that the swing set and vegetation in the Naughtons’ yard

violated Bay Village’s ordinances; and (3) that the Naughtons committed conversion by

cutting down Hardin’s trees.          There is no dispute that the Naughtons’ playground

partially blocks the Hardins’ lateral view of the Cleveland city skyline.            The Naughtons

filed a counterclaim, alleging that Hardin, through her authorized agent (a landscaper)


          Kathie Hardin is the titled owner of the lakefront property at issue; however, she resides in
       1


the home with her husband, Charles Hardin.
 trespassed on the Naughton property and unlawfully removed the Naughtons’ arborvitaes.

            {¶4} The parties proceeded with discovery and sought to resolve their claims

 through settlement. Following an unsuccessful settlement attempt, the Naughtons filed a

 motion for summary judgment on March 13, 2012. On May 7, 2012, the trial court

 granted the Naughtons’ motion for summary judgment, in part. The trial court found

 that Count 1 for private nuisance and Count 3 for conversion fail as a matter of law as

 well as a portion of Count 2 dealing with the playground equipment. The court found,

 however, that part of Count 2 survived, concluding that there were genuine issues of

 material fact as to whether the arborvitae is in compliance with the city’s zoning

 ordinance with respect to its height.         The trial court therefore denied the Naughtons’

 motion for summary judgment regarding the planting of the arborvitae.

            {¶5} One week later, the Naughtons voluntarily dismissed their counterclaim.

 Subsequently, Hardin dismissed her remaining claim and then appealed the trial court’s

 judgment granting summary judgment.2

            {¶6} On July 13, 2013, the Naughtons filed a motion for reasonable attorney fees

 and expenses under Civ.R. 11 and R.C. 2323.51.                   In their motion, the Naughtons

 emphasized that Hardin, along with her husband, Charles Hardin, who is a partner with

 the Jones Day law firm — the same law firm that represents his wife in the underlying



          In that appeal, this court affirmed the trial court’s decision granting judgment in favor of the
        2


Naughtons. See Hardin v. Naughton, 8th Dist. No. 98645, 2013-Ohio-1549.
litigation — made good on one promise: “this is going to be the most expensive swing set

in history.”3 According to the Naughtons, Hardin prosecuted frivolous claims for the

sole purpose of harassing and punishing the Naughtons, forcing them to incur substantial

legal fees, while Hardin reaped the benefit of not having to pay attorney fees.

           {¶7} Hardin opposed the motion, arguing that (1) despite relying on Civ.R. 11,

the Naughtons failed to make any showing that her counsel acted with subjective bad

faith with respect to signing any document, and (2) her claims were not frivolous.

Although she was not successful on her claims, Hardin contended that at the very least

her claims were supported by a good faith argument for an extension, modification, or

reversal of existing law.        With respect to her nuisance claim, Hardin argued that,

although the trial court concluded that she did not have a legal interest in her view across

the Naughtons’ property, no single case has expressly so held.                          As to the

zoning-ordinance claim, Hardin pointed out that part of her claim survived summary

judgment. As for the claim relating to the playground equipment, she argued that no

published case exists construing the Bay Village lakefront yard ordinance, or even any

record from the Bay Village Building Department where the ordinance has been

considered in a case similar to the instant one.       Hardin further argued that her claim was

consistent with a 2003 memorandum from the building director to the board of zoning


           Although Charles Hardin was not a named plaintiff in the action or counsel of record, he
       3


took a very active role in the litigation (attended every pretrial and hearing) and was treated as “in
privity” with his wife by his wife’s own attorney.
appeals, recognizing that the lakefront yard ordinance was intended to protect views.

Finally, Hardin acknowledged that her “conversion” claim was mischaracterized but that

the facts underlying the claim would have stated a valid claim under R.C. 901.51, and that

her failure to timely move to amend her complaint to restate her claim did not amount to

frivolous conduct.

      {¶8} Hardin further disputed the Naughtons’ claim of her bad motive in pursuing

the action.   According to Hardin, she brought the action to address the harm to her

property value as a result of the obstruction created by the Naughtons.       As for the

Naughtons’ claim that she improperly “aggressively” pursued the litigation with an

ulterior motive to increase the Naughtons’ legal costs, Hardin countered that the

Naughtons never sought any court intervention limiting discovery or any other matter.

Nor did they ever raise any claim of frivolous conduct prior to their obtaining summary

judgment. And according to Hardin, she and her husband have been the victims of the

Naughtons’ ongoing crusade to interfere with the enjoyment of their property, and that

even after the trial court’s decision on summary judgment, the Naughtons have resumed

their harassment and unneighborly behavior.

      {¶9} Following the trial court’s consideration of the briefs, exhibits attached

thereto, and authority cited therein, the trial court ultimately denied the Naughtons’

motion, noting the following:

              The court hereby finds that plaintiff prosecuted her claim based on a
       good faith argument for an extension, modification, or reversal of existing

       law and sufficiently supported her complaint with a good faith argument for

       the establishment of new law.       As such, the court further finds that

       plaintiff’s actions and conduct within the instant matter do not rise to

       “frivolous conduct” as defined in R.C. 2323.51.

       {¶10} It is from this decision that the Naughtons now appeal.

                                 Civ.R. 11 and R.C. 2323.51

       {¶11} In their sole assignment of error, the Naughtons argue that the trial court

improperly denied their motion for an award of reasonable attorney fees and expenses.

They argue that they are entitled to such an award under both Civ.R. 11 and R.C. 2323.51

due to Hardin’s frivolous conduct.

       {¶12} Ohio law provides two separate mechanisms for an aggrieved party to

recover attorney fees for frivolous conduct: R.C. 2323.51 and Civ.R. 11.   Bikkani v. Lee,

8th Dist. No. 89312, 2008-Ohio-3130, ¶ 18. Although both authorize the award of

attorney fees as a sanction for frivolous conduct, they have separate standards of proof

and differ in application. Id.

       {¶13} Civ.R. 11 governs the signing of pleadings, motions, and other documents

and provides in pertinent part that:

              The signature of an attorney or pro se party constitutes a certificate
       by the attorney or party that the attorney or party has read the document;
       that to the best of the attorney’s or party’s knowledge, information, and
       belief there is good ground to support it; and that it is not interposed for
      delay. If a document is not signed or is signed with intent to defeat the
      purpose of this rule, it may be stricken as sham and false and the action may
      proceed as though the document had not been served. For a willful
      violation of this rule, an attorney or pro se party, upon motion of a party or
      upon the court’s own motion, may be subjected to appropriate action,
      including an award to the opposing party of expenses and reasonable
      attorney fees incurred in bringing any motion under this rule. Similar
      action may be taken if scandalous or indecent matter is inserted.

      {¶14} R.C. 2323.51, conversely, applies an objective standard in determining

frivolous conduct, as opposed to a subjective one.    State Farm Ins. Co. v. Peda, 11th

Dist. No. 2004-L-082, 2005-Ohio-3405. The finding of frivolous conduct under R.C.

2323.51 is determined without reference to what the individual knew or believed. Ceol

v. Zion Indus., Inc., 81 Ohio App.3d 286, 289, 610 N.E.2d 1076 (9th Dist.1992).

      {¶15} Initially, we note that, aside from citing to Civ.R. 11, the Naughtons’

arguments both in the trial court and on appeal are limited to R.C. 2323.51. Indeed, the

Naughtons raised no argument in the trial court as to Hardin’s counsel acting with

subjective bad faith with respect to signing any document. We therefore find no error in

the trial court denying their motion insofar as it related to Civ.R. 11 and focus our

analysis on R.C. 2323.51.

      {¶16} “R.C. 2323.51 provides for an award of attorney fees to a party harmed by

‘frivolous conduct’ in a civil action.”        Moss v. Bush, 105 Ohio St.3d 458,

2005-Ohio-2419, 828 N.E.2d 994, fn. 3.        Under the statute, the General Assembly

expressly vests the decision to award sanctions, including an award of reasonable attorney

fees, in the court. State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-5350,
957 N.E.2d 19, ¶ 10, citing R.C. 2323.51(B)(1). As such, we will not reverse a lower

court’s decision on whether to award sanctions under R.C. 2323.51 absent an abuse of

discretion.   Id. at ¶ 11.   To prove an abuse of discretion, appellant must prove that the

trial court’s decision denying sanctions was unreasonable, arbitrary, or unconscionable.

Id.

       {¶17} “Frivolous conduct” is defined under R.C. 2323.51, in pertinent part, as

conduct that satisfies the following:

       (i) It obviously 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.

       (ii) It is not warranted under existing law, 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. * * *

R.C. 2323.51(A)(2)(a)(i) and (ii).      In determining whether the claim itself is frivolous,

the test is whether no reasonable lawyer would have brought the action in light of the

existing law. The James Lumber Co. v. Nottrodt, 8th Dist. No. 97288, 2012-Ohio-1746,

¶ 25, citing Orbit Elec., Inc. v. Helm Instrument Co., 167 Ohio App.3d 301,

2006-Ohio-2317, 855 N.E.2d 91 (8th Dist.).

       {¶18} Relying on the above two statutory definitions, the Naughtons claim that the

trial court should have granted their motion because Hardin engaged in frivolous conduct.
 We disagree.

       {¶19} The Naughtons first contend that the record overwhelmingly demonstrates

that Hardin’s conduct in this action served only to harass or maliciously injure them.

But the trial court considered and rejected this argument.    Notably, as acknowledged by

the parties, the trial judge was actively involved in this case, which included presiding

over four settlement conferences trying to facilitate a resolution to the claims.       Here,

there is no doubt that the trial judge was in the best position to appraise the conduct of the

parties, and we must, therefore, absent an abuse of discretion, defer to the trial court’s

ruling. Based on the record before us, we find no abuse of discretion.

       {¶20} Next, the Naughtons restate the same arguments raised in their motion for

reasonable attorney fees with respect to Hardin’s claims being unwarranted under existing

law and that she has made no good faith argument for an extension, modification, or

reversal for existing law. While it is true the bulk of Hardin’s claims did not withstand a

motion for summary judgment, the mere fact that she was not successful on her claims

does not warrant the award of sanctions.     See Miller v. Miller, 5th Dist. No. 11CA020,

2012-Ohio-2905, ¶ 18 (“R.C. 2323.51 does not purport to punish a party for raising an

unsuccessful claim”).    Here, we agree with the trial court that Hardin set forth a good

faith argument for an extension, modification, or reversal of existing law with respect to

her nuisance and zoning ordinances claims.        As for the conversion claim, the record

reveals that a proper claim exists based on the underlying facts alleged in that count;
Hardin, however, failed to timely request leave to amend her complaint to include such a

claim and improperly sought to assert the claim in her brief in opposition to the

Naughtons’ motion for summary judgment. Given that R.C. 2323.51 is not intended to

punish mere misjudgment or tactical error, we find that the trial court properly denied

sanctions for the pleading of this count. See Riston v. Butler, 149 Ohio App.3d 390,

2002-Ohio-2308, 777 N.E.2d 857 (1st Dist.).

       {¶21} Further, although the Naughtons obviously disagree with the trial court’s

decision on their motion for sanctions, they fail to demonstrate how the trial court abused

its discretion in denying their motion. Indeed, R.C. 2323.51 does not mandate the award

of sanctions if a trial court finds frivolous conduct as defined under the statute — instead,

the statute bestows the trial court with discretion to impose sanctions. ABN Amro Mtge.

Group, Inc. v. Evans, 8th Dist. No. 98777, 2013-Ohio-1557, ¶ 13. After a careful

review of the record, we simply cannot say that the trial court abused its discretion in

denying the Naughtons’ motion.

       {¶22} The sole assignment of error is overruled.

       {¶23} Judgment affirmed.

       It is ordered that appellee recover from appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR
